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People v. Owens

OPINION FILED JULY 14, 1983.

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

v.

DONALD G. OWENS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County; the Hon. Joseph McCarthy, Judge, presiding.

JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Defendant, Donald G. Owens, appeals from a judgment revoking his probation after a hearing in which the circuit court found defendant had violated its terms by committing attempted murder, aggravated battery and armed violence (Ill. Rev. Stat. 1981, ch. 38, pars. 8-4, 12-4, 33A-2). He contends: (1) the circuit court lacked jurisdiction to revoke probation based upon charges which were not filed until after his original term of probation had expired; (2) that he was denied due process by the untimely filing of supplemental petitions to revoke probation; (3) that the evidence was insufficient to establish the offenses upon which the revocation was based; and (4) that the trial court erroneously precluded defendant from testifying to his mental state at the time of the offenses.

Defendant pleaded guilty to burglary on September 28, 1979, and was sentenced to a term of 30 months' probation. On February 25, 1982, the State's Attorney filed a petition to revoke probation for defendant's failure to pay the fine and court costs upon which it was conditioned. Summons was issued that day and subsequently returned unserved. On March 18 the court caused a warrant for defendant's arrest to be issued and it was served upon him on March 29. Defendant's original 30-month term of probation would have expired March 28, 1982.

On April 6, the State's Attorney filed an amended petition to revoke probation which alleged that on March 18, 1982, defendant had committed the offenses of attempted murder, aggravated battery, armed violence, aggravated assault and unlawful use of weapons. A second amended petition was filed on April 21 which realleged the commission of the offenses on March 18 and, also, that defendant had failed to pay the fine and costs imposed when sentenced to probation.

Four witnesses, including defendant, testified at the revocation hearing to conflicting versions of altercations outside an Elgin tavern and at a service station on the early morning of March 18. Defendant and the two passengers in his car were involved in a series of sideswipes and collisions with a car driven by Donnie Fowler during which, defendant testified, he attempted to fire his revolver at the other car, but it misfired. The cars were driven from the area of the tavern and when defendant learned his had two flat tires he pulled into a gas station. Tyrone Hutton, a passenger in Fowler's vehicle, did not believe defendant had a real gun and wished to confront him; he and Fowler then drove to the service station and parked near defendant's car. Fowler testified that Hutton approached defendant who produced a gun and threatened to shoot if he came closer. When Hutton stepped towards defendant he pulled the trigger; the gun misfired and defendant pulled again and shot Hutton in the chest. Witnesses testified Hutton was not armed.

Other witnesses testified that Fowler and Hutton were accompanied by several other persons when they arrived at the gas station, some of whom attacked one of defendant's friends and three of whom chased defendant. Defendant testified he was hit in the stomach and chest and heard a threat he would be killed. Defendant also testified Hutton approached with a tire iron saying he was going to kill defendant and it was then that he fired the gun.

In direct examination, defendant was asked these questions by his counsel:

"[Defense counsel] Q. At the time you pulled the trigger, did you intend to kill anybody?

A. No, I did not.

Q. At the time you pulled the trigger, what, if anything, were you thinking? What was going through your mind?

Q. What was —

MR. SPENCE: Objection.

THE COURT: Sustained."

No evidence was presented at the hearing relating to the failure of defendant to pay the fine and costs. The trial court found defendant had committed attempted murder, aggravated battery and armed violence revoking his probation on those grounds. He was ...


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