Before trial commenced the following day, Judge Arnold advised counsel and the defendant that due to an unexpected illness, presiding Judge Hutchinson would be unable to continue. Both defense counsel and the prosecution consented to the substitution of Judge Arnold, who had presided over Wills' first trial. Judge Arnold admonished Wills concerning the substitution. Wills assured the court that he had no objection to proceeding.
APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
505 N.E.2d 754, 153 Ill. App. 3d 328, 106 Ill. Dec. 207 1987.IL.305
Appeal from the Circuit Court of McHenry County; the Hon. Susan Fayette Hutchinson, Judge, presiding.
Justice Dunn delivered the opinion of the court. Hopf and Nash, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN
Defendant, Wilfred Lee Wills, was convicted of aggravated assault following a jury trial in McHenry County. On appeal, defendant contends that his right to a speedy trial was denied, he was denied a fair trial on account of the individual or cumulative effect of several errors occurring during trial, and he was not proved guilty beyond a reasonable doubt. We affirm.
On March 16, 1984, Wilfred Wills was charged with committing aggravated assault and possessing a firearm without a firearm owner's identification card. The charges stemmed from an incident occurring on January 9, 1984, in which Wills allegedly threatened Sgt. James Connelly by pointing a revolver at him.
On December 19, 1984, Wills, who was free on bond, filed a demand for speedy trial. (Ill. Rev. Stat. 1983, ch. 38, par. 103-5.) The cause proceeded to a jury trial 104 days later on April 2, 1985. At the close of the prosecution's case, Wills' motion for directed verdict on the firearm charge was granted. On April 4, 1985, a mistrial was declared on the aggravated-assault charge because of a hung jury.
On August 28, 1985, Wills sought dismissal of the aggravated-assault charge on speedy-trial grounds. This motion was denied, and the cause proceeded to retrial on September 3, 1985, 152 days after the mistrial declaration.
Prior to the retrial and pursuant to a motion in limine filed by Wills, the trial court entered a written order prohibiting, inter alia, the prosecution from probing into a separate criminal act by the defendant which allegedly occurred at his home approximately one-half hour before the incident with Sgt. Connelly. The specific incident precluded from the jury's consideration involved Wills' alleged pointing of a gun at his wife during a domestic dispute.
During its opening statement, the State informed the jury that defendant's wife and son would both testify that 15 minutes or so before the incident, they observed the gun and heard defendant say, "If I go, you are going with me." Based on this testimony, the prosecutor concluded that "it doesn't surprise any of us that he [Wills] pointed it at Sgt. Connelly." At trial, Mrs. Wills did not testify regarding this statement; the defendant's son did not testify at all.
Mrs. Wills did testify that she had had an argument with her husband and had seen a gun. Mrs. Wills stated that her husband said he would not go to jail; she did not recall any other statements. A couple of hours after the incident, Mrs. Wills stated that two or three detectives came to her home and showed her a gun which she identified as the gun her husband had when he left the home.
Sgt. James Connelly of the McHenry County sheriff's department testified that at approximately 12 p.m. on January 9, 1984, he received a radio dispatch concerning a domestic situation in Lake-in-the-Hills. Connelly responded to the call, and, as he approached the scene, he encountered Officer Eppley, who was in his patrol car searching for the suspect. Eppley advised Connelly that the suspect was carrying a weapon. Connelly joined the search and proceeded to a fenced area behind the Caputo Construction Company. When Connelly did not observe the suspect, he proceeded to the front of the building to rejoin Eppley. En route, a police dispatch advised that the suspect might be in the area of Caputo Construction. Connelly turned around and returned to the back area of Caputo Construction.
As Connelly pulled into the area, he observed Wills come out from behind a white truck and approach the front of the squad car, pulling a weapon out of a holster. Connelly slammed the vehicle into park and grabbed the radio. Wills continued to approach the police car at a fast walk, pointing the weapon. Connelly opened the car door and started to get out, at the same time removing his service revolver. As he was getting out Connelly said, "Police. Freeze. Police. Freeze. Drop the gun." By this time, Wills was 7 to 8 feet away from Connelly to the left portion of the car in a dark area outside the shine of the headlights. As Connelly said, "Drop the gun," Wills swung around and pointed his gun at Connelly and said, "F -- -you." Connelly, fearing he would be shot, fired two shots at Wills, striking him in the abdomen and the right arm. At the time he shot Wills, Connelly said he observed Wills' shoulder area and the weapon. After the shots were fired, Wills spun to the right and landed on his stomach.
Deputy sheriff John Eppley corroborated Connelly's testimony concerning their search for the suspect. Eppley added that he arrived on the scene right after Connelly fired the shots and observed Wills on the ground.
Detective Chris Pandre stated that he arrived on the scene sometime after the incident and obtained the weapon allegedly carried by Wills. Pandre took the gun to Wills' home and asked Mrs. Wills whether she could identify the weapon. According to Pandre, Mrs. Wills started to cry and said, "That's the gun. That's the one he pointed at me." Defense counsel moved for a mistrial, which was denied.
The defense case opened with testimony by Dr. Powers concerning his treatment of a bullet wound that entered the left upper quadrant of Wills' abdomen. Dr. Scafuri then testified that he treated a bullet wound to Wills' right forearm that entered the back side of the forearm and exited the front side of the forearm. The court permitted Wills to demonstrate the point of entry of his wounds by allowing him to place yellow stickers on his shirt over the entry points. The court precluded Wills from demonstrating the actual wounds to the jury.
William Feffer was then called by the defense to testify regarding a videotaped test firing of a weapon similar to the one used by Officer Connelly under allegedly similar conditions. The purpose of this evidence was to refute evidence presented during the prosecution's case in chief showing that the spent shell casings landed on the hood of Connelly's car. The trial court viewed the videotape and determined that it was not sufficiently accurate and its potential to mislead the jury outweighed its evidential value. The court prohibited the videotape from admission into evidence as well as any testimony concerning the test firing.
Wilfred Wills stated that he left his house around midnight on the night in question with a firearm to go to his car, which was in a parking lot two blocks away. While he was trying to locate the keys to the car, Wills observed police cars approaching. Wills decided to hide behind the building housing the Caputo Construction Company. While he was making his way to a hiding place, Wills slipped and fell on the snow. He stated he was lying face down when a car approached him. Wills looked up and observed light in his face. He then heard two shots fired. At that moment, his arms were extended and his knees were in a push-up position, his left side was exposed to the light. Defendant was precluded from physically demonstrating his position on the ground when he was shot. Wills denied that anyone warned him to freeze and drop the gun. He also denied that he pointed a gun at a police officer.
Judge Arnold instructed the jury. During deliberations the jury foreman sent out a note requesting "all police statements that were documented at trial." The court notified counsel of the note and after entertaining comments by each side, sent back his written response denying the jury's request. The record also indicates that the jury sent out a note requesting a large magnifying glass. There is nothing further in the record concerning this request.
The jury found Wills guilty of aggravated assault, and he was later placed on six months' probation, ordered to perform 100 hours' community service, and fined $100. Wills' sentence was stayed pending appeal. Defendant raises 11 issues on appeal.
Defendant first contends that the delay between mistrial and retrial violated his constitutional and statutory right to a speedy trial. The State responds that the defendant's statutory right to a speedy trial is not in issue, the delay was adequately explained, ...