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People v. Burns

OPINION FILED JUNE 16, 1986.

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

v.

ODELL L. BURNS, JR., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Sangamon County; the Hon. Raymond L. Terrell, Judge, presiding.

JUSTICE MORTHLAND DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant was convicted of murder in violation of section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9-1). He was sentenced to a 24-year term of imprisonment.

Defendant appeals, alleging four separate errors as grounds for reversal. However, three of these four points were not raised below by the defendant. Normally, a failure by a defendant to raise an issue before the trial court or in a written motion for a new trial constitutes waiver of that issue; the matter cannot be urged as grounds for reversal on review, even if it involves a constitutional right. (People v. Friesland (1985), 109 Ill.2d 369, 374, 488 N.E.2d 261, 262; People v. Pickett (1973), 54 Ill.2d 280, 282, 296 N.E.2d 856, 858; People v. Black (1972), 52 Ill.2d 544, 288 N.E.2d 376, cert. denied (1973), 411 U.S. 967, 36 L.Ed.2d 689, 93 S.Ct. 2155.) However, the general rule of waiver is not absolute. Supreme Court Rule 615(a) (87 Ill.2d R. 615(a)) embodies a limited exception to ameliorate the harshness of a strict application of the waiver rule. (People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856.) Rule 615(a) states:

"Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." 87 Ill.2d R. 615(a).

• 1 Accordingly, a reviewing court may elect to take notice of plain errors affecting substantial rights. (People v. Friesland (1985), 109 Ill.2d 369, 375, 488 N.E.2d 261, 263.) Still, the plain-error doctrine under Rule 615(a) does not operate in the nature of a general savings clause, preserving for review all errors affecting substantial rights whether or not they were brought to the attention of the trial court. (People v. Precup (1978), 73 Ill.2d 7, 16, 382 N.E.2d 227.) A significant purpose of the plain-error exception is to correct any injustices done the defendant. (People v. Carlson (1980), 79 Ill.2d 564, 576, 404 N.E.2d 233, 238.) It therefore becomes relevant to examine the strength or weakness of the evidence against the defendant; if the evidence is close, there is a possibility that an innocent person may have been convicted due to some error which is obvious from the record though not properly preserved for appeal. 79 Ill.2d 564, 404 N.E.2d 233.

Thus, where the evidence is closely balanced, a court of appeal may still consider errors not properly preserved for review. (People v. Howell (1975), 60 Ill.2d 117, 121, 324 N.E.2d 403.) In such cases, courts of review will grant relief if the trial error is so prejudicial that real justice has been denied or the jury verdict may have resulted from such error. (People v. Wright (1974), 56 Ill.2d 523, 533-34, 309 N.E.2d 537; People v. Manzella (1973), 56 Ill.2d 187, 200, 306 N.E.2d 16, cert. denied (1974), 417 U.S. 933, 41 L.Ed.2d 236, 94 S.Ct. 2644.) In all instances, though, the evidence must be close factually for Rule 615(a) to be called into play.

Under the plain-error doctrine, we must consider the strength of the evidence presented at trial along with the substantial legal issues raised. Accordingly, we shall set forth the testimony in some detail.

By information, defendant was charged with four counts of murder arising out of the August 4, 1984, shooting death of Charles Medley. On March 25, 1985, the defendant went to trial on those charges.

The State first called Angela Marie White, the nine-year-old daughter of the victim. She testified that she formerly lived with her late father, her mother (Brenda White) and her three younger sisters in certain public housing projects in Springfield. The layout of their apartment residence consisted of a living room and kitchen downstairs, two bedrooms and a bathroom upstairs, and stairs near the front door leading to the second floor. The front and rear entrances were located on the first floor or ground level of the unit.

On the night of the shooting, Angela testified she was at home with her sisters and her father. Charles Medley was upstairs in the bathroom when there was a knock at the front door; Angela was also upstairs at the time. Medley went downstairs to answer the door, and Angela went from her room down the stairs about two or three steps. From there she could see the back of her father. He was not carrying anything, and was wearing only a pair of shorts. He opened the screen door about an inch to an inch and one-half. Angela testified she saw the defendant and another man in the doorway. She stated she had no trouble seeing because the living room and hallway lights near the stairs were turned on. The other man was about one inch taller than the defendant. She recalled that the defendant was wearing a black jacket and possibly blue jeans.

Angela observed the defendant with a gun and a piece of green cloth or towelling in his hands. She then saw the defendant shoot her father in the neck. The defendant was standing outside when he fired the shot; her father was standing inside, and he fell down on his back after the shot. Angela then went upstairs into her room. She heard a second shot and called the police. After that, she got into bed and pulled the covers over her head because she was scared.

On cross-examination, Angela related that the defendant had been at her home earlier that evening talking to her father and another man. She further testified that she may have seen her father get up and fall again inside the residence after the first shot.

Next, Lavanon "Barry" Young testified that at about 11 p.m. on August 4, 1984, he was sitting in his parked car at 13th and Mason streets in Springfield. He saw the defendant, whom he knew, "walking fast" from the back of a building on 13th Place. The defendant came around the car and got in on the passenger's side. Defendant had a gun in his hands, and was wearing a black leather vest. Young testified that the defendant told him to "pull off." As they drove away, defendant stated to him: "That nigger, Charles Medley, tripped and I wonder if I killed him." Young recalled that the defendant was scared, and he was wiping blood from his leg.

At the direction of the defendant, Young eventually stopped the car near a wooded area at the corner of 19th and Lawrence streets. While Young remained in the car, the defendant got out and walked up the hill. When the defendant returned a few minutes later, Young noticed he no longer possessed either the gun or the jacket. The defendant then directed Young to drop him off at the corner of 11th and South Grand. As they were driving, Young testified the defendant stated to him: "Don't trip and don't tell anyone, you know, what happened." Young stated that after he dropped the defendant off, he went to the police station and gave a written statement.

On cross-examination, Young stated the defendant's clothes were "stressed" when he got into the car, as though the defendant had been in a fight. There was also some discrepancy as to the content of statements Young purportedly made to the defendant's attorney during an earlier interview. Counsel related the following statement he attributed to Young during that interview: "That nigger, Charles. I spent $200 with that man today and I'm $5 short and he wants to treat me like a punk. The man tried to put me out of his crib (house). [Expletive] that nigger." However, Young did not recall making that statement, nor did he recall the defendant saying that. Young reiterated that the defendant told him in the car that Charles Medley "tripped" and the defendant wondered if he had killed him. Young also remembered the defendant saying: "that nigger, Charles Medley, upped a gun on me; that nigger tripped." However, Young testified the defendant made this statement at some later time and not on the night of the killing.

Officer John Meyer of the Springfield police department testified that, upon responding to a call of a shooting on August 4, 1984, he found the victim lying on his back facing the front door at the base of the stairs near the entrance to the apartment. He noted one set of bloody footprints leading from the front door to the rear door. He did not recall that any furniture was moved around in the apartment, although he related a coffee table was kicked out the way by paramedics when they arrived. The victim was dragged into the living room so that paramedics could administer emergency medical care in the larger area there.

Officer John Bolinger testified he accompanied Barry Young that evening to the wooded area at 19th and Lawrence, where he located a black leather-type jacket under some bushes. He proceeded to poke the jacket with a flashlight, and noted a hard object about the size of a handgun inside.

Detective Tom Todd testified that he went to 19th and Lawrence and collected the black vest and a .38-caliber steel revolver. The revolver contained two spent and three live rounds. Black electrical tape was wrapped around the grip.

Detective Todd also examined the victim's apartment. He located a bullet hole in the screen door, with the wires around the hole pointing toward the apartment. A white powdery substance was discovered in the apartment that evening, as was a green leafy substance. He also located black human hair of unknown origin under a radiator in the kitchen. He admitted that the hair could have been forcibly removed. Todd noted that several items such as matches, crayons, and ticket stubs were on the floor, and the curtain behind the television was torn. Todd testified no fingerprints of comparison value were found anywhere in the apartment. There was blood on the floor at the entrance of the apartment and along the floor where the defendant was dragged into the living room. He noticed no other blood in the apartment except for the bloody footsteps heading out the back.

Dr. Victor Lary, a pathologist, stated that one bullet was recovered from the neck of the victim, and another bullet was recovered from the right groin area. He testified that Charles Medley died as a result of extensive blood loss and consequent shock from two gunshot wounds which severed large arteries in his neck and right thigh. Dr. Lary noted no other evidence of bruises or physical trauma. He further reported the wounds were not "contact wounds" which result where a gun is fired when pressed against the skin. Dr. Lary could not speculate as to whether the victim had been in a fight.

Krail Lattig, a forensic scientist with the Illinois Bureau of Scientific Services, tested the gun found in the field. He noted that the frame of the pistol was bent, which would tend to cause it to misfire.

Lattig further testified that the bullets removed from the body of the victim had been fired from the gun he tested. The bullet taken from the victim's neck area had ridge-like markings on the nose and gouges on the side running the length of the bullet. He stated this scoring and marking was not caused by the gun, but was consistent with what would be found on a bullet passing through a screen such as the one on the door of the victim's apartment. He fired bullets through that screen during his testing of the weapon, and the marks on the test bullets matched those found on the bullet recovered from the victim's neck. Finally, based upon his visual inspection and chemical testing of the garment the victim was wearing, it was Lattig's opinion that the gun was fired from a distance of 3 to 5 feet. However, he did not discount the possibility that it could have been fired from as close as 2 feet away.

J. Karsten Ryling, a drug and forensic chemist for the Illinois Department of Law Enforcement, Bureau of Scientific Services, testified that he examined four grams of white powder recovered from the victim's apartment. The white powder tested out as sodium bicarbonate, often used as a dilutant in cutting cocaine. Other substances found that evening were determined to be cannabis and cocaine.

It was stipulated by the parties that if Edward German were called to testify as a witness, he would state that he is a forensic scientist employed by the Illinois Department of Law Enforcement. He would further testify that he examined the gun, but could not locate any identifiable fingerprints on the revolver, tape, grip, or cartridges.

Detective Thomas Murphy of the Springfield police department was called by the defendant. He testified that he spoke with Brenda White, the victim's girlfriend and mother of Angela White, a few hours after the shooting. Brenda White indicated to him that her daughter Angela had information regarding the shooting; specifically, Angela had heard her father arguing downstairs with two men, and the incident may have turned into a fight.

Detective Murphy testified he personally interviewed Angela for the first time two weeks later. Angela told him she thought she heard a gun mentioned during that argument. However, on cross-examination, Murphy said Angela indicated the argument between her father and others occurred during a separate incident. Detective Murphy then continued to testify on cross-examination by summarizing his interview with Angela. His testimony recalling the interview substantially paralleled Angela's own testimony earlier in the trial. Murphy also stated that while investigating the scene of the shooting, he noticed that the drape in the apartment was torn, and the furniture was displaced when the paramedics came in.

Brenda White admitted during her testimony that Charles Medley might have sold drugs for a living, but denied that he owned a gun. She did recall that her brother had stolen a pistol from Charles Medley two years previously, but that was the last time Charles ever possessed a gun. White further related that Angela told her the night of the shooting that she had heard "loud talking," but that it occurred earlier in the evening, and not at the time of the shooting.

The defendant testified on his own behalf that he was friends with Charles Medley, had known him the majority of his life, and had never previously fought with him. Defendant did state that Charles Medley was a drug dealer, and he admitted buying drugs from Medley on a daily basis. Earlier in the evening of August 4, 1984, the defendant stated he had gone to Medley's apartment with another man named Jimmy Floyd. Defendant bought two $25 bags of cocaine for $40 from someone whom defendant described as a "doorman" for Medley. Defendant stated he did not see Charles Medley there at that time.

Defendant testified he left the apartment and "did the cocaine" with others. Defendant later saw "Barry" Young in his car and asked him for a ride to Medley's house so he could purchase more cocaine. Young dropped him off near Medley's apartment; defendant went to the apartment and knocked on the door. Medley answered, and he went inside. No one else was there.

Defendant testified that he and Medley went into the living room, where he told Medley he wanted to purchase more cocaine. Defendant paid for the cocaine and injected it there. However, he told Medley that this cocaine was not any good, and that the stuff he bought earlier was of much higher quality. An argument between the two ensued; Medley told the defendant to leave, but the defendant demanded either his money back or more cocaine. According to he defendant, Medley then went to a closet, pulled out a gun, and pointed it in his face. Defendant stated he grabbed the pistol, and the two began to wrestle in the living room area. Defendant stated that as they were fighting "the pistol just went off." The gun fell to the floor, but they continued to fight. The defendant then testified:

"[F]inally I got away from him, and on my way out the door, I grabbed the pistol * * * and I opened the door, and by the time I opened the door, and I was leaving, Charles pushed me out the door, and I fell over a barbecue grill and right then [the pistol went off]. I can't say if I pulled the trigger or if the trigger went off. All I know that man was in the door and the pistol went ...


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