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People v. Gordon

OPINION FILED MARCH 27, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

WILLIE GORDON, A/K/A ROBERT POWELL, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE M. MAROVICH, Judge, presiding.

MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

Following a jury trial in the circuit court of Cook County, the defendant, Willie Gordon, otherwise called Robert Powell, was found guilty of attempt murder and aggravated battery. The trial court found that the aggravated battery merged into the attempt murder, entered judgment on the attempt murder, and sentenced the defendant to a term of six years. On appeal the defendant argues: (1) his conviction was improperly based upon an attempt felony murder theory which was not proved beyond a reasonable doubt; (2) he was denied a fair and impartial trial by the prosecutor's improper cross-examination; (3) the court erred in permitting the prosecutor to question him concerning his subsequent conviction; (4) he was denied a fair trial in that his counsel agreed to waive the transcription of the voir dire proceedings; (5) the court erred in impanelling a juror who had been convicted of a felony; (6) the court erred in instructing the jury that the State is not required to prove motive; (7) the trial court committed error in connection with the issue of his flight after indictment; and (8) he was prejudiced by various comments made by the prosecutor during closing and rebuttal argument.

Three witnesses testified before the jury. The People called the complaining witness and a police officer. The defendant testified on his own behalf.

The complaining witness testified that at the time of incident he was a full-time student at the Illinois Institute of Technology and employed part time as a cab driver. On September 8, 1975, at 2 a.m. he was driving his cab at 77th and Halsted Streets. He picked up two black males, one of whom was the defendant. The victim was told to drive to 66th and Normal, where one of the men got out. He did not pay his fare, but said the defendant would do so. The defendant agreed and told the driver to go to 49th and Prairie. At 49th and Prairie there was a dark, bleak, desolate building. The driver told the defendant his fare. The defendant told the driver that the person he was meeting was not present and to drive to 47th Street and make a right turn.

The victim drove the cab to 47th and Prairie, a busy intersection. The defendant told the victim to park. As the victim was looking for a parking space, he was shot in the neck. He then turned around, saw a gun, and was shot in the nose. The victim stopped the cab and got out. There was a police car in front of him and another in back of him. The victim testified that he was not armed when he was shot by the defendant. Until this incident, the victim had never been robbed or threatened while working as a cab driver. None of his passengers had ever refused to pay a fare. The victim did not carry a tire iron, crowbar, knife, gun, or other weapon in the cab for protection.

On cross-examination the victim denied that the defendant had told him that he did not have enough money to pay the fare, or had asked to leave some of his belongings while he went inside for money. The victim also denied telling the defendant he was tired of being "stiffed" for fares and that he was going to make an example of the defendant. The victim denied that he had made a move with his right hand towards the floor of the car.

Although the victim had previously testified before the grand jury that the defendant had not asked for or demanded any money, he testified on cross-examination that he had indicated to the police that the defendant had attempted to rob him. The victim stated he assumed it was a robbery attempt because he had been shot. He denied having specifically told the police that the defendant had demanded any money.

The police officer testified that on September 8, 1975, between 2:30 and 2:45 a.m., he was driving in a marked police car in the vicinity of 47th and Prairie. He observed a cab eastbound on 47th Street driving in an erratic manner. The cab stopped at 410 E. 47th Street. The driver got out and said he had been shot. The driver was bleeding from his nose and neck. The defendant exited from the right rear door. The police officer patted the defendant down, found a revolver in his pocket and arrested him. The police officer testified that he searched the cab but did not find a gun, knife, bludgeon, tire iron, or anything "like a weapon." On cross-examination the police officer testified that the victim had difficulty speaking but that when asked if he had been robbed the victim nodded his head as if he had been.

The defendant testified that on September 8, 1975, he hailed a cab on 86th Street. The victim was driving. He told the driver to take him to 4950 Prairie. The driver then picked up a man on 80th and Halsted and dropped him off somewhere on Marquette. The man paid his portion of the fare. The defendant was driven to 4950 Prairie where he had lived for six months.

The defendant looked over at the meter and realized he did not have enough money to pay his fare. He told this to the driver and offered to leave his watch and his coat while he ran upstairs for money. The driver cursed him and said he ought to kill him to make an example of him. The driver then sped off in the cab with the defendant still in the back seat. The driver reached down and the defendant became frightened because on a previous occasion he had been shot and robbed. He saw the cab driver reach under the front seat and grab something. It looked like a pipe or a crowbar. The defendant shot the driver because he did not want the driver "to come up with anything" from under the seat. He was scared because it looked like he was going to be shot.

On cross-examination the defendant testified that the victim's hand was still under the seat when he shot him, that he did not see the victim bring anything up from under the seat, but that "you can see when somebody is grabbing something." The defendant testified he did not actually see a gun in the victim's hand but that he might have seen a gun in his mind. The defendant testified that in his mind he could see the victim pulling a trigger to kill him. The defendant subsequently testified that he did see "something" in the victim's hand and that it looked like a tire iron. The defendant could not remember if the previous incident in which he had been shot was in 1974 or 1975. Neither could he remember in what month he had been shot.

The police officer was called in rebuttal and testified that the defendant had told him he was living at 7248 South King Drive and did not mention the 4950 South Prairie address. The police officer testified that he searched through the defendant's pocket and although there were no weapon registration papers found, the defendant was not charged with unlawful use of a weapon.

• 1 The defendant's first argument on appeal is that his conviction was improperly based upon a theory of attempt felony murder and that this theory was not proved beyond a reasonable doubt. This contention is unsupported by the record. The State did not rely upon a theory of attempt felony murder. Rather, the State endeavored to prove, as is required by law, that the defendant shot the victim with the specific intent to kill. The undisputed evidence was that the defendant shot the victim in the neck and the nose with a .32-caliber revolver at extremely close range. Where, as in the instant case, there is no evidence of any intent other than to kill, the fact of such a shooting is in and of itself sufficient to establish beyond a reasonable doubt that the defendant shot the victim with the specific intent to kill. See People v. Bingham (1979), 75 Ill. App.3d 418, 394 N.E.2d 430; People v. Thorns (1978), 62 Ill. App.3d 1028, 379 N.E.2d 641.

The defendant next contends that he was denied a fair and impartial trial by the prosecutor's improper cross-examination. The assistant State's Attorney asked the defendant whether he gave a statement to the police which contradicted his earlier testimony at trial regarding his employment at the time of his arrest. Defense counsel objected on collateral impeachment and discovery grounds. During argument on these objections the assistant State's Attorney stated that a police report containing the impeaching statement had been disclosed pursuant to discovery. The trial court sustained the defendant's objection on the collateral impeachment ground and the question which would have laid the foundation for impeachment was withdrawn. The prosecutor did not produce any evidence that the defendant had given the police employment information which contradicted the defendant's testimony at trial. The defendant now claims his credibility was improperly impeached since the insinuation that the defendant lied about his employment was never supported by any evidence.

• 2 This argument is rejected. First, it was not raised in the defendant's motion for a new trial and is thus waived. (People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856; People v. Witherspoon (1975), 33 Ill. App.3d 12, 337 N.E.2d 454.) Second, the question asked was not so obviously incompetent as to give rise to the conclusion that it was posed in bad faith or to prejudice the defendant. Therefore, the trial court's sustaining of the objection and ...


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