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01/21/87 the People of the State of v. Otis Cloyd

January 21, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

OTIS CLOYD, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

504 N.E.2d 126, 152 Ill. App. 3d 50, 105 Ill. Dec. 257 1987.IL.39

Appeal from the Circuit Court of Cook County; the Hon. John N. Hourihane, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. RIZZI and WHITE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Defendant Otis Cloyd was charged with intimidation, aggravated kidnaping, and two counts of attempted murder. A jury found him guilty of attempted murder, but not guilty of intimidation and aggravated kidnaping. The trial court granted defendant's motion in arrest of judgment as to one of the attempted-murder counts, and sentenced defendant to a term of 10 years. On appeal, defendant contends that the instruction given to the jury on the requisite intent for attempted murder was erroneous; that he received ineffective assistance of counsel; and that he was denied a fair trial when the State introduced evidence of another charge pending against him.

Jeanneta Lucas, who was the victim and defendant's ex-girlfriend, testified that she and defendant had known each other for several years. She ended the relationship in November 1983. Neither she nor defendant were heavy drinkers, but at one time defendant used cocaine heavily. On December 4, 1983, defendant broke into her apartment and twice set it on fire. Lucas filed charges as a result of those incidents, and she was the complainant in an aggravated-arson case which was pending against defendant. Lucas stated that she did not see defendant start the fire, but defendant had telephoned her, admitted that he set the fire, and threatened to burn her up. A police officer listened to that conversation. Lucas moved to a different apartment.

On March 5, 1984, when Lucas returned home from work between 5:30 and 6 p.m., defendant was standing at the front doorway of her apartment building. Lucas had seen defendant standing outside her doorway on other occasions, but had never spoken to him. Lucas refused defendant's order to open the door. Defendant drew a gun, but Lucas again refused to open the door. Lucas had never known defendant to carry a gun. Defendant, who was holding onto Lucas' coat, pointed the gun at her stomach. Lucas knocked defendant's hand aside at the moment he fired the gun. The bullet missed Lucas and went into the doorway. They began to struggle, and defendant stated that he was going to kill Lucas and then himself. He began dragging Lucas to an alley east of her doorway. As defendant pulled Lucas into the alley, he placed the gun up to her head and fired again as she continued struggling. Defendant held the gun at her head and fired it a third time, but she knocked his arm aside again. Lucas heard someone call, "Stop, police." Defendant then shot at Lucas a fourth time. She was within arm's reach of defendant, and he was pushing her. Defendant turned and, while crouched in the alley, fired three shots at a police officer, and began to run. Lucas later saw some damage to her doorway and noted that the window was cracked. A police technician testified that there was some damage to the door and glass but no bullet was recovered from the doorway.

Curtis Boyd testified for the State that on March 5, 1984, he was walking down the street when he observed a man who had a woman pinned against the doorway. The man first had the gun behind his back and then put it to the woman's head. Boyd heard the gun fire and ran to a store to call the police.

Officer James Jones of the Chicago police department testified that on March 5, 1984, he and his partner, Ronald Davis, were in plain clothes and were parked in an unmarked car. As Jones left the car to enter a store, he heard a gunshot. He saw defendant and Lucas struggling in a doorway. Defendant had a gun pointed to Lucas' head. Defendant pulled Lucas towards the alley, with the gun a few inches from her head. As Lucas fought to get away, Jones saw defendant shoot the gun a second time. Jones ran towards the pair, identified himself as a police officer and ordered defendant to let Lucas go. Defendant turned at the entrance to the alley, pushed Lucas, and fired at her twice more. Lucas broke loose and defendant ran down the alley. Defendant turned and fired two shots at Jones, who was 20 feet away. Jones jumped back out of the alley and fired three shots at defendant. Officer Davis also approached defendant, and defendant fired at Davis. As defendant ran out of sight, the officers continued pursuit in a police car. Jones testified that defendant was not swaying and that his hand and arm were steady when he fired the gun. Defendant ran at full stride and turned corners well. He stumbled once, but immediately arose and continued running. Officer Davis corroborated Jones' testimony.

Office Theodore Southerland, a uniformed police officer, testified that he received a radio assist call for shots fired. When he saw defendant running in the alley, Southerland drew his gun. He faced defendant at a distance of 2 feet, and ordered defendant to stop and drop his gun. Defendant obeyed. Defendant did not stumble, stagger, fall, or vomit. Southerland did not smell alcohol on defendant's breath.

Officer Joseph Danzl interviewed defendant at the hospital where he was taken. Defendant stated his name, address, age and date of birth clearly and without hesitation. Although Danzl could smell alcohol, he believed that defendant was only slightly intoxicated because defendant had no problem answering questions. Defendant refused to answer any further questions.

Defendant testified that he had lived with Lucas from 1979 until September 1982, when he was evicted. Both were heavy drug users. Defendant moved back in with Lucas a few months later, and lived with her on and off for another year. He then moved because he had no income and Lucas was seeing another man. They continued to date until December 1983, when defendant stopped seeing Lucas. Defendant did not remember threatening Lucas in December 1983.

On March 5, 1984, defendant went to court in the morning and did not have a gun with him at the time. That afternoon, he drank a half pint of rum and a half pint of vodka. He also injected a gram of cocaine, which gave him only a five-minute high. Later that day, when defendant prepared to go to the barber shop, he released the safety on his gun and took the gun with him. On his way to the barber shop, defendant saw Lucas. Defendant knew her telephone number, but did not know that she lived in the area. Defendant walked up to Lucas and said he wanted to talk. When Lucas ...


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