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People v. Mays





APPEAL from the Circuit Court of Cook County; the Hon. EDWARD C. HOFERT, Judge, presiding.


At the conclusion of a bench trial before the circuit court of Cook County, defendant, Elwood Mays, was convicted of three counts of aggravated battery. (Ill. Rev. Stat. 1975, ch. 38, pars. 12-4(a), 12-4(a), 12-4(b)(1).) Defendant was sentenced to a prison term of one to three years on each count, the sentences to run concurrently.

On appeal, defendant contends: (1) he was denied a fair trial as a consequence of the State's improper closing argument; (2) the State failed to prove him guilty beyond a reasonable doubt; and (3) it was improper to impose multiple convictions and sentences upon him.

We affirm defendant's convictions for aggravated battery causing great bodily harm (Ill. Rev. Stat. 1975, ch. 38, par. 12-4(a)), for aggravated battery causing permanent disability (Ill. Rev. Stat. 1975, ch. 38, par. 12-4(a)); and for aggravated battery with a deadly weapon (Ill. Rev. Stat. 1975, ch. 38, par. 12-4(b)(1)).

Willie Tipps, the complainant and the State's chief witness, testified that in September 1975, defendant borrowed a tape recorder from him. Tipps knew defendant approximately two years on a casual basis. Tipps and defendant made arrangements for the return of the tape recorder the next day, however, defendant failed to return the tape recorder. The following month, Tipps met defendant in the Cabrini Green neighborhood and defendant told Tipps the tape recorder was lost. Defendant said he would give Tipps money for its replacement. Defendant then agreed to pay Tipps $20 which was the value Tipps placed on the tape recorder. No specific arrangements to pay the money were made at that time.

In early November 1975 Tipps again encountered defendant in the Cabrini Green neighborhood. They arranged to meet at defendant's house on Friday, November 14, so that defendant first could obtain his final paycheck for work done in a summer youth employment program. Tipps had also participated in the summer program.

On November 14, 1975, at 2:30 p.m., Tipps met defendant at defendant's home. Defendant told Tipps he did not have the paycheck but he could obtain the check from his partner, Rodney Banks, at the Subway Cleaners located on Oak Street, where defendant worked. Tipps and defendant then went to the Subway Cleaners.

After waiting sometime at the Subway Cleaners for Rodney Banks to arrive, defendant went inside the store and made several phone calls. Defendant returned and informed Tipps that he had to leave in order to run an errand for his grandmother. They then arranged to meet a bit later that day at the Subway Cleaners. They separated between 3:15 p.m. and 3:30 p.m. Tipps returned to the Subway Cleaners at approximately 3:45 p.m. where he met defendant. A few minutes later, Rodney Banks entered the store and said they would have to pick up defendant's check at the building of defendant's supervisor, located at 923 N. Sedgwick Avenue in the Cabrini Green housing project.

Tipps testified further that he and Banks accompanied defendant to the building in the Cabrini Green project. They arrived there at approximately 4 p.m. They took an elevator to a floor above the fifth floor; Tipps could not remember the exact floor number. Once outside the elevator, Banks and defendant walked down the hall, ahead of Tipps. Defendant could not remember which apartment belonged to his supervisor so he knocked on several doors, but no one answered. Without speaking, defendant then walked towards Tipps and, from a distance of 12 to 15 feet, shot at Tipps several times. Tipps was grazed just under the neck by three bullets which defendant shot at him. Tipps then fell to the floor. Thereupon, defendant facing Tipps and looking directly down at him, shot Tipps two more times. The last shot hit the bridge of Tipps' nose. Tipps further testified he could not recall whether defendant was firing the gun for 30 or 60 seconds.

Banks and defendant then ran down the stairs, and after several minutes, Tipps also left the building and walked to the nearby police station. Tipps informed the police that defendant shot him; he did not name Banks as an assailant. The police transported defendant to Henrotin Hospital for medical care.

The stipulated testimony of the examining doctor at Henrotin Hospital, Dr. Charles Givens, disclosed that Tipps sustained two wounds in the left submandibular region, which were reflective of one injury. The left side of his neck was grazed and the bridge of his nose was injured. Both wounds were reflective of two separate injuries. From these injuries, a foreign metallic body was lodged under Tipps' right eye and for medical reasons was not removed.

On cross-examination, Tipps acknowledged that a month after the incident, he spoke with Investigator Charles Rhodes. He denied telling Rhodes that he loaned defendant money and not a tape recorder. Tipps also told Investigator Rhodes that he had known defendant five years, although on direct examination he had testified that he had known defendant for two years. Tipps revealed that at the preliminary hearing, he had testified that he and defendant remained at the Subway Cleaners the first time for an hour and a half. Tipps acknowledged that on direct examination, he estimated they remained at the Subway Cleaners for about 25 minutes.

Sergeant Urdll Holmes, a police officer assigned to the Cabrini Green area, was called as a witness by the State. Holmes testified that at 4:05 p.m. on November 14, 1975, he received a call that shots had been fired at 923 North Sedgwick. Pursuing the investigation, Holmes interviewed Tipps at the hospital. Tipps told Holmes that defendant had shot him. Tipps described defendant's physical appearance. Cross-examination of Holmes revealed that Tipps informed the police that the incident took place on the ninth floor of the building and involved only one offender. The State then rested its case in chief.

Lawrence Haynes, owner of the Subway Cleaners, was called as a defense witness. Haynes testified that his store was not located on Oak Street, as Tipps testified, but on Orleans Street. On cross-examination, Haynes admitted that his store and another dry cleaning store were located approximately seven doors from Oak Street.

Defendant's grandmother, Dorothy Jefferson, also was called as a defense witness. She testified that she was a supervisor for the Mayor's Summer Youth Employment program and that the program ended during the last week in August. She further testified that the final paychecks were distributed 10 days later to the supervisors of the employees. On cross-examination, she admitted that she was not with her grandson when he picked up his check, although she asserted that she knew he obtained the check 10 days after Labor Day.

The defense next called Saundra Mays, defendant's girlfriend, to testify as an alibi witness. She stated that on November 14, 1975, defendant arrived alone at her south side home between 3:30 p.m. and 3:45 p.m. At 4 p.m., she and defendant left her home to go shopping. They returned to her home between 9:15 p.m. and 9:20 p.m., after eating dinner in a restaurant.

On cross-examination, Ms. Mays stated that she clearly remembered the time defendant arrived at her house because she had looked at a clock. She could not recall a conversation with a state's attorney investigator in September 1976. She did not remember telling the investigator that between 4 p.m. and 5 p.m. both defendant and Rodney Banks arrived at her home.

Defendant testified in his own behalf. He denied that he had ever borrowed a tape recorder from Tipps. In support of his alibi defense, defendant asserted that he worked at the Subway Cleaners from 11 a.m. to 2 p.m. on the day of the incident. He then proceeded to the Chicago Housing Authority Outpost office to obtain his grandmother's check for her and cash it. After picking up the check, he left the office, bought some chicken and at 2:25 p.m., he returned to the Subway Cleaners. Rodney Banks met him at the Subway Cleaners, and at 3 p.m. they left together to cash defendant's grandmother's check. They then took public transportation to the south side and went to ...

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