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People v. Thompson

OPINION FILED FEBRUARY 6, 1981.

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

v.

HENRY J. THOMPSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. BRIAN B. DUFF, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

After a bench trial, defendant was convicted of two counts of aggravated battery and sentenced to a term of two to six years. The sole question presented on appeal is whether guilt was proved beyond a reasonable doubt.

William McHateer testified for the State that in response to a telephone request of defendant (his brother-in-law) he went to the latter's warehouse located at 3725 West Lawrence Avenue; that defendant, Brian Lamp (also a brother-in-law of defendant) and three or four other individuals were in the warehouse when he arrived; that later he also saw Ralph Dyson hiding behind a parked car in the warehouse; that when he asked Dyson why he was hiding, he (McHateer) was knocked down when hit by a pipe from behind, following which he saw defendant standing directly over him holding a 3-inch pipe; that defendant then drew a "two-shot chrome barrel pearl handle derringer" which he had seen in defendant's possession on other occasions; that defendant pointed the gun at him and told Lamp to crush his head with the pipe; that as he (McHateer) started to leave, defendant pointed the gun at him and pulled the trigger but it did not fire; that as he started to run away, defendant shot him in both legs; and that Dyson drove him to the hospital. McHateer admitted that at the preliminary hearing and before the grand jury he said the warehouse was located at 3737 West Lawrence.

A police officer testified that when he saw McHateer at the hospital on the day after the shooting, both of his legs were bandaged.

Brian Lamp testified as a defense witness that on the evening of the shooting he had a telephone conversation with McHateer, whom he had known for four years, during which McHateer agreed to meet defendant at the latter's warehouse; that when he arrived there, Lamp threatened to beat him up because of money Lamp claimed he owed and because Lamp said he was responsible for putting his (Lamp's) sister in a psychiatric ward; that McHateer pulled out a derringer and, during a struggle for its possession, Lamp heard a "pop"; that he took the gun away from McHateer and later observed him walking across the street without any visible sign of injury.

Defendant testified that he did not shoot McHateer and that he was playing cards with Raymond Anderson and William Booth from 3 p.m. on the day of the shooting until 7 a.m. the next morning (the shooting having occurred at about 11 p.m.). Anderson and Booth also testified to playing cards with defendant during those hours.

Defendant was found guilty of two counts of aggravated battery but not guilty of intimidation.

OPINION

• 1 Concerning defendant's contention that proof of his guilt was not established, we note that a reviewing court will not disturb a finding of guilt unless the evidence is so unreasonable, improbable, or unsatisfactory as to leave a reasonable doubt of guilt (People v. Curry (1973), 56 Ill.2d 162, 306 N.E.2d 292), and that the positive and credible testimony of a single witness is sufficient to support a conviction (People v. Williams (1975), 60 Ill.2d 1, 322 N.E.2d 819), notwithstanding contrary evidence by the accused (People v. Sullivan (1970), 46 Ill.2d 399, 263 N.E.2d 38) or from alibi witnesses (People v. Berland (1978), 74 Ill.2d 286, 385 N.E.2d 649, cert. denied (1979), 444 U.S. 833, 62 L.Ed.2d 42, 100 S.Ct. 64).

• 2 Defendant argues that inconsistencies and contradictions in the testimony of McHateer, the sole occurrence witness for the State, were such that the evidence should be considered so unsatisfactory as to leave a reasonable doubt of his guilt. He first refers to an inconsistency concerning the warehouse address. At trial, McHateer gave its correct address of 3725 West Lawrence, but he had testified before the grand jury and at the preliminary hearing that it was located at 3737 West Lawrence. Defendant maintains this is a material variance because Lamp said that the shooting took place in front of the paint shop which was located at 3737 West Lawrence. As stated in Sparling v. Peabody Coal Co. (1974), 59 Ill.2d 491, 498-99, 322 N.E.2d 5:

"The rule in this State and generally is that the contradictory testimony of a witness does not per se destroy the credibility of the witness or the probative value of his testimony, and it remains for the trier of fact to decide when, if at all, he testified truthfully."

Here, McHateer testified that he did not know the exact numeral address of the warehouse until "sometime after the shooting," and it appears his testimony otherwise is consistent to the extent that on each occasion he said the shooting took place at defendant's warehouse and he testified at trial to its correct address. In view thereof, we are of the belief that the address variance was at most only a slight discrepancy — having little effect on the witness' credibility.

Secondly, defendant contends there was a significant variance between McHateer's trial testimony that the shooting took place inside the warehouse and "his prior testimony that the incident happened in an alley." We disagree. The prior testimony defendant refers to is in the following colloquy during the cross-examination of McHateer:

"Q. Did any portion of this transaction of the early morning hours of April 20th and the late evening hours of ...


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