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02/08/88 the People of the State of v. Howard Gross

February 8, 1988





519 N.E.2d 1043, 166 Ill. App. 3d 413, 116 Ill. Dec. 828 1988.IL.150

Appeal from the Circuit Court of Cook County; the Hon. George M. Marovich, Judge, presiding.


JUSTICE O'CONNOR delivered the opinion of the court. CAMPBELL, P.J., concurs. JUSTICE MANNING, Dissenting.


Following a bench trial, defendant Howard Gross was convicted of the murder of Gregory Horn and sentenced to 20 years in the Illinois Department of Corrections. On appeal, he raises the following issues: (1) whether, during the pretrial hearing on a motion to suppress, the trial court erred in allowing the prosecution's cross-examination to exceed the scope of the direct examination; (2) whether defendant was found guilty of murder beyond a reasonable doubt; (3) whether the trial court erred in not allowing defendant to answer a question regarding his specific intent to commit murder; and (4) whether the trial court erred in denying defendant's motion to suppress evidence recovered as a result of the warrantless search of defendant's apartment. We affirm.

On July 15, 1983, defendant was arrested for the murder of Gregory Horn. The evidence of the events up until the time of the shooting is not in dispute. On the evening of July 15, 1983, Gregory Horn was visiting with friends on a rooftop patio located at 7405 W. 60th Place in Summit, Illinois. The building next door, at 7403 W. 60th Place, was owned by defendant's brother, Cletus Gross. Defendant and his mother occupied the first floor of 7403 and the second floor was rented by Horn's girlfriend.

At about 9 that evening, prior to going to 7405 W. 60th Place, Horn had gone into his girlfriend's apartment to take a shower. Defendant testified that he heard Horn going up to the apartment and told him that he didn't belong there as no one was at home. Horn responded that he would go into the apartment whenever he wanted to. Defendant testified that he intended to call the police, but before he could do so, he saw his brother, Cletus, in the backyard. Cletus offered to take care of the situation, and about 30 minutes later went over to 7403 W. 60th Place to talk to Horn. Cletus testified that he and Horn had a conversation during which Cletus asked for Horn's keys to the upstairs apartment. After Cletus told Horn he "had no business there," Horn allegedly began using vulgar language and then hit Cletus twice with his fists, once on the forehead above the right eye and once on his left ear.

The evidence as to what occurred after this point varies. At the hearing on defendant's motion to suppress certain evidence and statements, defendant testified that on the evening of July 15, 1983, he heard a scuffle outside of his apartment. He first stated that he looked outside and saw his brother, Cletus, fall face down on the sidewalk but later stated that he did not actually see him fall. He testified that he went to help Cletus but could not get over the fence between his property and a neighboring house. He stated that he then went back into his house to call the police, but "did not get the number."

After unsuccessfully trying to call the police, he picked up his gun, which was lying on the air conditioner, and went back into the yard. He stated that he went over to the fence and looked into the alley. He then was grabbed with a "choke lock" by someone who tried to pull him over the fence. He stated that he tried to hit the man over his shoulder. After the person fell to the ground, he went into the house to call the paramedics. He stated that he thought Cletus might be dead and he "knew what was wrong" with the other person. He was unable to reach paramedics due to a problem with his phone and did not know whether Cletus or someone else finally called the police.

Officer John Gieseler testified that he responded to a call that took him to the area of 7403 to 7405 60th Place in Summit. He saw the victim lying in the gangway and was told by Fred Patrick that the offender had gone into the first building east of the gangway. Officers Gieseler, Stancato and Hyde then walked into the building. They knocked on the closed door of defendant's apartment and advised Mr. Gross that there had been a shooting and asked if anyone had come in. Mr. Gross stepped out of the way and walked over to the kitchen table and sat down, leaving the door open.

Officer Michael Stancato testified that the apartment door was open and that he had a conversation with defendant. The defendant stated that he had shot the victim and told the officer where the gun was located. Officer Stancato then recovered the gun from the top of the air conditioner.

Defendant's motion to suppress the gun and the statements made to the police was denied based on the trial court's finding that the entry into defendant's house was consensual and that the gun was retrieved only after defendant informed the officers of its location.

Several hours after the incident, Cletus Gross was interviewed by an assistant State's Attorney in the presence of an attorney representing defendant. During the interview, Cletus stated that Horn struck him on the forehead but that he did not fall down. He told the State's Attorney that after he was hit, he heard a shot. He looked around and saw Horn falling and then turned and saw his brother. He also said that he saw "a big long thing . . . in [my] brother's . . ." but did not complete the statement.

The testimony Cletus gave at trial varied substantially from the statement he made the night of the incident. At trial, Cletus testified that after Horn hit him, he flew four or five feet through the air, landed face down on the concrete and lost consciousness for an indeterminate period of time. He described the sound he had heard as an "explosion" rather than a shot and testified that he did not know what the sound was. He also testified that at no time between when he and Horn had their conversation until after the police arrived did he see defendant outside of defendant's apartment.

Cletus also testified that he went to a hospital emergency room the day after the incident but he was told that there was no damage and that he needed no treatment. Officer Stancato, who arrived first at the scene and talked to Cletus upon his arrival, testified at trial that he had observed no apparent injuries to Cletus other than a slight redness around his ear.

At trial defendant testified that he heard a commotion outside and when he went outside saw Cletus come "flying out from between the two houses" and land face down on the sidewalk. Before he went over to Cletus, he went back into his house to get his gun, which he kept on the air conditioner. Defendant denied that he went back to call the police after first observing his brother on the ground.

Carrying his gun, defendant walked over to where his brother was lying. He testified that when he turned to look toward the street, someone grabbed him from behind. He stated that he hit the person by holding his gun in his right hand with his finger on the trigger and swinging it over his left shoulder. The person who was holding him tried to take the gun away by jerking it out of his hand. During the struggle, the gun fired once. After the gun was fired, the hold on him was released and defendant walked back into his apartment. Defendant stated that he knew there were two "bodies" lying on the ground.

Officer Stancato testified that when he arrived at the scene he talked to Cletus, who was standing at the curb. He asked Cletus what had happened but Cletus said he did not know. According to Officer Stancato, the defendant first told the police that he did not know who shot the victim and did not know where the gun was. When asked a second ...

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