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People v. Ross

OPINION FILED OCTOBER 20, 1981.

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

v.

JIMMY ROSS, JR., DEFENDANT-APPELLANT.



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

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Jimmy Ross, Jr., was charged by information with attempt (murder) and aggravated battery. A jury found him guilty of aggravated battery and he was sentenced to serve 2 years in the Illinois Department of Corrections. Ross appeals, asserting: (1) he was denied a fair trial by the admission of improper rebuttal testimony; (2) he was denied a fair trial by the trial court's failure to answer certain questions of law tendered by the jury; and (3) it was not proved beyond a reasonable doubt that he was not justified in his use of force.

On June 15, 1977, Bobby Lee Wilson accused defendant's father and defendant, who wasn't present, of stealing the wheel covers from Wilson's car. An argument and fight ensued and defendant's father sustained a broken jaw. Defendant's father testified that during the argument Wilson threatened to "get" defendant for taking the wheel covers from the car.

On the evening of June 19, 1977, defendant helped his sister bring clothing to a laundromat. Fearing that Wilson was hunting for him, defendant went to a friend's home to get a sawed-off shotgun for protection. Defendant put the weapon in the laundry bag and then proceeded to walk west on Fifth Street towards the laundromat. The testimony is conflicting as to what happened next. Defendant's testimony, which was substantially corroborated by other witnesses, was that Wilson and another man began running towards defendant from across Fifth Street and Wilson fired two shots at defendant with a silver .38-caliber revolver. Defendant then pulled the shotgun from the laundry bag and shot Wilson in the back of his shoulder just as Wilson turned away. Defendant testified Wilson was approximately 40 feet away when defendant shot him. Defendant then broke the front window of Wilson's car with the butt of the shotgun.

Wilson's testimony, which also was corroborated by other witnesses, was that Wilson and a friend exited a tavern on Fifth Street and noticed defendant holding a bag between his legs. After walking about half a block, Wilson heard footsteps behind him and a voice ordering him to put his hands up. Wilson, who testified he was unarmed, turned and saw defendant holding a sawed-off shotgun. When defendant took his eyes off Wilson, the latter attempted to flee. He was only 10 to 15 feet from defendant when he heard the shotgun discharge and felt pellets hit him in the right shoulder. Wilson continued to run down Fifth Street until he fell between two parked cars.

In rebuttal the State called Fred Henderson to refute defendant's contention that he acted in self-defense after Wilson had fired at him. Defense counsel objected, arguing that Henderson's testimony should have been included in the State's case-in-chief. The trial court admitted Henderson's testimony for the limited purpose of rebutting defendant's claim of multiple shots.

During its deliberations, the jury sent three inquiries to the trial judge. The first two asked:

(1) "Is it possible for a man to be guilty of battery, if the assault is done in self-defense? What is the difference between the two?"

(2) "If battery means that he knowingly and intentionally caused bodily harm, can a person do this while he still reasonably believes that such conduct is necessary to defend himself? That is self-defense."

A conference was held regarding these inquiries. The trial judge responded to the jury that he believed the written instructions given to the jury adequately answered the questions. The jury continued deliberating and sent a third inquiry to the judge, asking:

"Can anyone possibly back out of the signed papers before the deliberations are over?"

Before the judge responded to this inquiry, the jury announced they had reached a verdict. The jury found defendant guilty of aggravated battery causing great bodily harm, guilty of aggravated battery while using a deadly weapon, and not guilty of attempt (murder). After denying defendant's motion for a new trial, the court sentenced defendant to serve 2 years in the Illinois Department of Corrections.

Defendant's first contention on appeal is that he was denied a fair trial when the trial court admitted the testimony of Fred Henderson in the State's rebuttal case. During the State's case in chief, four witnesses testified that they heard only one shot. Defendant later called four witnesses who testified they heard multiple shots. Over defense counsel's objection, the trial court then permitted Henderson's rebuttal testimony for the limited purpose of rebutting defendant's claim of multiple gunshots. Defense counsel declined the opportunity for surrebuttal. Defendant asserts that Henderson's testimony was repetitious and cumulative of the evidence presented during the State's case in chief and was therefore improper rebuttal.

• 1 Trial courts> may admit the State's rebuttal evidence when it tends to explain, repel, contradict or disprove defendant's evidence. (People v. Waller (1977), 67 Ill.2d 381, 387, 367 N.E.2d 1283.) Although testimony which would be proper in the State's case in chief should not be reserved for rebuttal, these matters rest largely within the discretion of the trial court. (People v. Lion (1957), 10 Ill.2d 208, 217, 139 N.E.2d 757.) That the testimony could have been used in the State's case-in-chief does not in itself render it improper for rebuttal. (People v. Carbona (1975), 27 Ill. App.3d 988, 1005, 327 N.E.2d 546, cert. denied (1976), 424 U.S. 914, 47 L.Ed.2d 319, 96 S.Ct. 1114.) A decision by the trial court permitting rebuttal ...


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