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People v. Mcelroy





APPEAL from the Circuit Court of Cook County; the Hon. HOWARD M. MILLER, Judge, presiding.


Defendant, Adolphus McElroy, was charged by indictment with aggravated battery. (Ill. Rev. Stat. 1973, ch. 38, par. 12-4.) Following a jury trial, defendant was found guilty and sentenced to three to nine years' imprisonment. Defendant appeals his conviction and sentence, contending (1) that he was not proved guilty beyond a reasonable doubt; (2) that he was not allowed to confront and cross-examine the victim concerning his alleged bias toward defendant; (3) that the State's closing argument deprived him of a fair trial; and (4) that he is entitled to a new sentencing hearing because the trial court erroneously believed a prior misdemeanor conviction was a felony conviction.

We affirm.

Frank Allen, the victim, testified for the State. On August 2, 1975, at about 10 p.m., he was standing on the porch of a Chicago Housing Authority (CHA) building watching a dice game. Allen saw defendant standing next to a hallway door about 10 or 15 feet away. Defendant pointed a gun toward Allen and shot him in the right shoulder. Allen charged defendant and began a scuffle, causing defendant to drop the gun. When defendant regained possession of the gun, Allen fled around the corner of the building. In the midst of his flight, Allen stumbled over a small boy. While Allen paused to pick up the child, he was shot by defendant again. The second shot grazed Allen's back. He got up and ran again, this time to 35th Street and Cottage Grove Avenue, where he flagged down a patrol car. The police transported Allen to Michael Reese Hospital, where he received treatment.

Allen had known defendant for 10 to 15 years, but could identify him only as "Dolphus."

On cross-examination, Allen testified that he had previously lived about one block from the scene of the shooting. While living in that neighborhood, he had attended Doolittle Grammar School. Allen had three brothers. Allen further testified that on June 12, 1972, one of his brothers was murdered. Luella Harris was charged with the murder. Allen did not know what relationship "Lou" Harris had with defendant and had never seen them in each other's company. Allen knew another member of the Harris family nicknamed "Shine" but no longer associated with that family.

Allen explained that although he knew defendant from the neighborhood and Doolittle School, they did not associate with each other and were not friends. Allen further testified that after his brother was shot by Lou Harris, he had no particular feelings toward defendant. Allen stated that he never saw defendant in the company of Lou or Myron Harris. However, upon further questioning, Allen amended his answer stating that defendant, "Shine" and Myron Harris were "associates" and together on many occasions.

On further cross-examination, Allen related his whereabouts and activities on the day of the incident. Among his activities that day, Allen visited a friend named Glen. At Glen's home Allen drank rum with about five other people. Immediately prior to the incident, Allen visited Janet Coleman, his girlfriend, and played with his daughter. He then returned downstairs where he witnessed the dice game, was confronted by defendant and a companion called "Erdie." According to Allen, defendant said "I got you, fool nigger" and fired a gun.

Allen denied ever fighting with defendant between the time his brother was shot and he was shot.

On redirect examination, Allen testified that he told the officers he flagged down that Adolphus shot him. He also stated that while he was outside of Glen's home he had a fight with Adolphus. The fight lasted a few minutes and was broken up by a third person.

On re-cross-examination, Allen explained that he had testified that he never had an altercation with defendant because he thought defense counsel's question pertained to the time before his brother was killed.

Earl Townsend testified for the State that on August 2, 1975, he was present with about 15 other people at a dice game in front of a CHA building. Townsend heard a shot and saw Allen and defendant scuffling in the doorway. Allen knocked the gun to the ground and ran when defendant picked it up. Townsend saw Allen stumble over a small child and pick the child up. At this point, there was another shot. Defendant was holding the weapon.

On cross-examination, Townsend described his relationship with Allen as friendly. Townsend testified that he never told any police officer or law enforcement official about the shooting. Townsend had not seen defendant since the shooting, but had seen Allen almost every day. Townsend did not discuss the shooting with Allen, other than to refuse Allen's request that he be a witness.

The parties subsequently stipulated that Townsend testified pursuant to subpoena.

Officer Alan Davis of the Chicago police department testified that on December 19, 1976, he was on duty with his partner in the vicinity of Mr. Ricky's nightclub. Davis observed Allen, the defendant and a security guard engaged in a minor disturbance. Davis noticed that Allen and defendant were "getting loud" and investigated. According to Davis, Allen waved the officers over to the scene. Officer Davis apprehended defendant as he was walking away and subsequently placed him under arrest.

Officer Donald Watkins of the Chicago police department testified that on August 2, 1975, Allen ran up to his squad car "hollering and screaming and full of blood." Allen told the officer he had been shot. During transportation to the hospital, Allen told Watkins that "Dawfus" had shot him. Allen did not know Dawfus' last name or where he lived.

The defense rested without presenting any evidence. The defendant was found guilty of aggravated battery and appeals.

Defendant contends that he was not proved guilty beyond a reasonable doubt. Specifically, he asserts that the testimony of the State's witnesses was unconvincing, contrary to human experience and unworthy of belief. We disagree.

Allen was shot on August 2, 1975, and on December 19, 1976, about 16 months later, defendant was arrested. During this 16-month period, no complaint or arrest warrant was lodged against defendant. Defendant asserts that Allen's failure to direct the police to defendant, whom he had known for years, casts considerable doubt on his testimony.

However, Allen stated that he did not know defendant's last name. Allen could identify defendant only as "Dolphus" and did not know where he lived. Officer Watkins corroborated this testimony.

Furthermore, Allen and Townsend were both eyewitnesses whose testimony about the incident was consistent. Both identified defendant as the shooter. The credible identification testimony of one witness is sufficient to support a finding of guilt. People v. Jones (1975), 60 Ill.2d 300, 325 N.E.2d 601.

• 1 Finally, defendant points out some inconsistencies in the State's case. In our view, these inconsistencies are minor in nature. Minor discrepancies affect the weight of the evidence, but do not affect the verdict. (See People v. Sanders (1976), 38 Ill. App.3d 473, 348 N.E.2d 229.) A court of review will not substitute its judgment for that of the trier of fact on questions of witness credibility. (People v. Manion (1977), 67 Ill.2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L.Ed.2d 533, 98 S.Ct. 513.) Since there is evidence which, if believed, overwhelmingly supports a finding of guilt, we will not substitute our judgment for that of the jury.

Defendant's second contention is that he was denied his constitutional right to confront and cross-examine Allen, because he was prevented from asking questions as to his bias or prejudice toward defendant.

Allen, the victim, testified on cross-examination that in 1972 one of his brothers was murdered and an individual named Lou (Luella) Harris was charged with that crime. Allen didn't know what, if any, relationship defendant had with Lou Harris. He had never seen defendant in the company of Lou Harris. However, Allen testified that prior to his brother's death he had seen "Shine" and Myron Harris in defendant's company many times. Allen further testified that after his brother's death he had no feelings toward defendant. The State's objection to further questioning on the subject of Lou Harris' prosecution was sustained by the trial court. The court stated that since there had been no evidence adduced to connect the defendant in any way with the murder of Frank Allen's brother or with the alleged murderer, the asserted bias was too remote.

In an offer of proof, defense counsel stated that Allen would testify that Lou Harris was acquitted. The defense hoped to show that Allen vowed revenge because his brother's murder was not vindicated in court. Even though he did not know what Allen would say, defense counsel maintained that defendant had a right to examine the witness for any bias he might have in order to verify defendant's claim that ...

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