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People v. Ellis





APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY J. SCOTILLO, Judge, presiding.


Defendant, charged by information with murder and armed violence, was convicted of both offenses in a bench trial, but sentenced to 6 years in the penitentiary on the armed violence offense only. On appeal he claims denial of a fair trial because the State destroyed certain evidence which, according to defendant, would have been a key factor in his defense. For the reasons set forth below, we affirm.

At trial the State presented the following evidence. Billy Downer testified that on September 4, 1978, he, Irving Johnson (the victim), Mark Green and Tony Hill stole some merchandise from a department store and proceeded toward 4017 W. Monroe Street, Chicago, the home of David Shine. On their way, they met defendant, Larry Mason and a third man who followed them to Shine's house. Downer went to the basement with Shine and Green, and Johnson went upstairs with defendant and the other two men. Downer later walked upstairs and saw Johnson fighting with defendant and Mason, which lasted about 30 seconds. Downer saw no weapon during this fight. Johnson then ran away and defendant threw a stick at him and said "who was that, I'm going to kill him." A short time later, Downer and Johnson came to the front porch of 4017 W. Monroe. Johnson again left and returned about five minutes later. As he reached the curb, defendant ran toward him and said "I told you I was going to kill you." He then shot Johnson from three or four feet away. After the first shot, Johnson turned to leave but ran into a car. As he fell, defendant continued to fire the gun. Downer saw no weapon in Johnson's hand. Downer was 15 to 20 feet away from defendant and Johnson when he observed this shooting.

David Shine testified that after Downer, Green and Johnson came to his house with the stolen merchandise, defendant tried to take some clothes from Johnson and a fight ensued. He saw no weapon during the fight, and after Johnson ran off, defendant said "who was that, I'm going to kill him." Shine later heard the shooting, but did not see it. Sandra Shine saw defendant shoot Johnson as he was walking across the street towards her house. She saw no weapon in Johnson's hand. She initially denied knowledge of the shooting. She told two police officers the next day that Johnson did not have a knife at the time of the shooting. Sandra's younger sister thereafter pointed to a knife in the yard next door and the police took custody of it.

Debra Jones, who lived at 4017 W. Monroe and was sitting on the front porch, testified that Downer and Johnson were talking in front of the house; then Johnson left. Johnson returned 15 minutes later and as he was crossing the street toward them, defendant ran out, fired one shot and said "I told you I was going to kill you." Johnson fell onto a car. Defendant moved closer and fired four or five more shots. She saw no knife in Johnson's hand. Defendant ran, dropping the gun, which police later recovered. She went to Johnson after the shooting and saw no knife.

Officer Paul Whittenhall testified that while investigating the shooting, he recovered a .38 Colt special at 4019 W. Monroe, which he inventoried. He identified People's exhibit No. 2 as the inventory form he filled out concerning this gun. Prior to joining the police force, he had been employed as an armorer in the military, which entailed repairing small weapons. He had had experience with the type of weapon recovered and said that there was "no way whatsoever" that this type of weapon could be fired in an automatic fashion. Every time the gun is fired, the trigger would have to be pulled; if the trigger was held in a pulled position the gun would not continue to fire. There was no objection to this testimony. He then stated that the gun was destroyed by the police at Inland Steel on October 9, 1979, which was the first day of the trial. Whittenhall gave his testimony on October 11, 1979.

On cross-examination, Whittenhall testified that there was no court order commanding the gun's destruction. He did not test this gun and did not know if it had a "hair trigger." With a hair trigger, less pressure is required to pull the trigger in order to fire the gun. On redirect examination, he testified that when he arrived at the scene, members of the crowd directed him to the location of the gun. Whittenhall was never asked for, nor did he offer, an explanation for the gun's destruction.

Defendant's motion for a finding in his favor at the close of the State's case-in-chief was denied and defendant then presented the following evidence. Rosie Lee testified that on the night in question, defendant came to her home at 4013 W. Wilcox, Chicago. He had a cut across his forehead, and was bloodied. He washed the blood off his face and left about 10 minutes later. She did not notice the length of the cut, nor did she attempt to treat it. Carl Edward Lee testified that he was present when Johnson and defendant were fighting and saw Johnson cut defendant on the head with a knife. Defendant then fled. About 20 minutes later he saw defendant standing near Monroe and Pulaski. Johnson ran across the street toward defendant, near 4011 or 4015 W. Monroe. Johnson drew a knife when he was five or six feet away from defendant. Defendant had a gun in his hand and shot Johnson four or five times. Lee had been convicted for armed robbery and was on probation.

Police officer Thomas Bloomstrand contacted Sandra Shine on September 5, 1978, during his investigation of the case and testified, after refreshing his recollection from his report, that she told him that Johnson had a knife in his hand at the time of the shooting, contrary to her testimony during the State's case in chief. On cross-examination, he testified that Sandra Shine directed him to a knife, which had no handle, blood or red stain on it when he found it in a yard under some debris.

Defendant testified that 30 minutes before the shooting he and Johnson had an argument. Johnson stabbed him in the head. Shortly afterwards, he went to Rosie Lee's house, stayed there for 10 or 15 minutes, and went to the intersection of Monroe and Pulaski where three or four friends joined him. Johnson then came across the street toward him and defendant began to back up. After Johnson pulled out a knife, "some guy" passed defendant a pistol. "Then I just started firing. * * * I'd say I fired the gun at least about four times," when Johnson was about four or five feet away. He could not describe Johnson's knife in any particular and could not identify the exhibit retrieved by Officer Bloomstrand. Defendant then ran away and threw the gun into a gangway. After he was arrested, in a written, signed statement, he denied the shooting because he didn't want to go to jail. Defendant had never fired a gun before and had never been convicted of any crime.

On cross-examination, defendant again testified that he shot Johnson about four times. The state's attorney then asked the following questions and defendant responded with the following answers.

"Q. What were you thinking when you first shot the gun at him?

A. What was I thinking? * * * I wasn't thinking about nothing. I was just ...

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