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05/18/88 the People of the State of v. Garnell Generally

May 18, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GARNELL GENERALLY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

525 N.E.2d 106, 170 Ill. App. 3d 668, 121 Ill. Dec. 300 1988.IL.767

Appeal from the Circuit Court of Madison County; the Hon. P. J. O'Neill, Judge, presiding.

APPELLATE Judges:

JUSTICE KARNS delivered the opinion of the court. WELCH and LEWIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS

Defendant, Garnell Generally, was convicted by a jury of murder and robbery and sentenced by the circuit court of Madison County to natural life on the murder conviction and seven years on the robbery, to be served concurrently. Defendant appeals his convictions and sentence. We affirm.

On August 17, 1985, defendant, Almondo "Monte" McGowan (defendant's cousin), Joseph Ewing and Marsha Smith (one of defendant's girlfriends) were riding around in defendant's car, drinking beer and smoking marijuana. Defendant decided he wanted to rob someone, so they drove to Rock Springs Park in Alton, Illinois, in defendant's car. At the park, they stopped next to a car occupied by the victim, Harold Wayne Staton. Defendant and McGowan got out of defendant's car, approached the victim and began talking with him. They then got in the victim's car, defendant in the front seat on the passenger side and McGowan in the back. Defendant instructed the victim to start his car and told Ewing to follow in defendant's car. As they were leaving the park, defendant started threatening the victim. Defendant looked in the glove compartment and asked the victim if he had any money. The victim denied having any, but defendant found $3 and a checkbook. McGowan testified he did not know what happened to the $3 after that. Defendant then ordered the victim to change places with him or he would beat him up. Ewing saw defendant strike the victim, get out of the car and reenter on the driver's side. Defendant began driving the victim's car so fast that Ewing was having trouble following. Defendant eventually stopped to allow Ewing and McGowan to switch positions. Defendant continued to drive fast after the switch but stayed on a road toward his house. Defendant finally stopped the car and ordered the victim to get out. Defendant then instructed the victim to get on one knee in front of his own car. At this point, defendant, Ewing and McGowan began beating the victim. Once the victim was "down" and begging for mercy, Ewing and McGowan returned to defendant's car and got in the backseat. Defendant, however, ordered the victim to lie in a ditch next to the road and proceeded to remove a jack from the trunk of his car. He went back to the victim and hit him two or three times with the jack. Defendant returned to his car, put the jack in the backseat and drove off, announcing the victim was dead. Defendant dropped the jack into a trash dumpster and drove the others home.

The victim was found the next day by passing motorists. An autopsy revealed that the victim's death was caused by multiple blows to the head of sufficient strength to shatter the human skull. Markings and lacerations on the victim's body and head were consistent with having been inflicted by a car jack. Tests performed on bloodstains found on the clothing defendant allegedly wore on the day of the crime eliminated defendant as the source of the stains but indicated that they could have come from the victim.

The jury found defendant guilty of murder and robbery. Because the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, the trial court sentenced defendant to natural life plus seven years for the robbery conviction, to be served concurrently. Defendant appeals, raising seven issues for review.

Defendant first argues he was not proved guilty of robbery beyond a reasonable doubt because no evidence was presented that he took money from the presence of the victim by use of force. We disagree. The offense of robbery is complete when force or the threat of force causes a victim to part with the possession of property against his will. (E.g., People v. Gaines (1981), 88 Ill. 2d 342, 367, 430 N.E.2d 1046, 1058-59, cert. denied (1982), 456 U.S. 1001, 73 L. Ed. 2d 1295, 102 S. Ct. 2285; People v. Robinson (1981), 92 Ill. App. 3d 397, 398, 416 N.E.2d 65, 66.) The requirement that the taking must be by use of, or threats of, force is satisfied if the fear of the victim was "of such nature as in reason and common experience . . . likely to induce a person to part with his property for the sake of his person." (People v. Hollingsworth (1983), 120 Ill. App. 3d 177, 178-79, 457 N.E.2d 1062, 1064; People v. Whitley (1974), 18 Ill. App. 3d 995, 999, 311 N.E.2d 282, 286. See also People v. Hale (1980), 80 Ill. App. 3d 63, 65, 399 N.E.2d 343, 345.) Whether or not such force or threats of force were used to deprive the victim of his property is an issue of fact for the jury to decide, a decision which we will not disturb unless the evidence is so improbable or unsatisfactory as to leave a reasonable doubt of guilt. (People v. Valentino (1985), 131 Ill. App. 3d 257, 262, 475 N.E.2d 627, 632.) Such is not the case in this instance.

According to the testimony of McGowan and Ewing, defendant decided he needed money and wanted to rob someone before entering the park and approaching the victim. Once in the victim's car and after ordering him to leave the park, defendant asked if he had any money and began rummaging through the glove compartment. Defendant found $3. McGowan testified he did not see defendant take the money, but obviously that is what he did. Surely defendant did not leave the money there when his purpose for approaching the victim in the first place was to rob him. No money was found in the victim's car the following day when police searched it. Such evidence, albeit circumstantial, clearly supports the jury's verdict. See Whitley, 18 Ill. App. 3d at 999, 311 N.E.2d at 285. Cf. People v. Taylor (1984), 101 Ill. 2d 508, 514-15, 463 N.E.2d 705, 709, cert. denied (1984), 469 U.S. 866, 83 L. Ed. 2d 140, 105 S. Ct. 209 (insufficient proof victim had personal property in possession immediately before incident).

Ewing and McGowan's testimony also demonstrates the taking was accomplished by force or by the threat of imminent use of force. Once in the car, defendant began threatening the victim. The fact the victim did everything defendant told him to do compels the Conclusion that the victim was in fear of defendant and that the free exercise of his will had been suspended. (See Whitley, 18 Ill. App. 3d at 999, 311 N.E.2d at 286.) McGowan testified defendant searched the glove compartment immediately prior to ordering the victim to let him drive. Ewing testified he saw defendant strike the victim prior to defendant's changing positions in the car with the victim. The jury reasonably could have inferred that defendant struck the victim while looking for or taking the victim's money. Moreover, defendant quite clearly employed force in killing the victim to effectuate his escape. The offense of robbery still may be committed even though the initial taking is accomplished without force if the departure is accomplished by use of force. (See People v. Ditto (1981), 98 Ill. App. 3d 36, 38, 424 N.E.2d 3, 5.) Based on the record before us, defendant was proved guilty of robbery beyond a reasonable doubt.

Defendant argues, however, his conviction is based solely on the testimony of unreliable witnesses, in other words, his accomplices, who necessarily had feelings of malice toward him or hopes of leniency from the State should their testimony be viewed favorably. Suffice it to say it is for the trier of fact to determine witnesses' credibility and the weight to be given their testimony. (E.g., People v. Collins (1985), 106 Ill. 2d 237, 261-62, 478 N.E.2d 267, 276-77, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267; People v. Kubat (1983), 94 Ill. 2d 437, 467-68, 447 N.E.2d 247, 260, cert. denied (1983), 464 U.S. 865, 78 L. Ed. 2d 174, 104 S. Ct. 199; People v. West (1977), 54 Ill. App. 3d 903, 906, 370 N.E.2d 265, 268.) The jury was fully cognizant of infirmities and inconsistencies in the accomplices' testimony and was aware of possible biases when making a determination of defendant's guilt. Moreover, the accomplices' testimony was not completely uncorroborated. (See West, 54 Ill. App. 3d at 906-08, 370 N.E.2d at 268-69. Cf. People v. Newell (1984), 103 Ill. 2d 465, 471, 469 N.E.2d 1375, 1378.) We see no reason to overturn the jury's verdict.

Defendant next contends the trial court erred in admitting into evidence the results of serological electrophoresis blood tests taken on stains found on the clothing he allegedly wore on the day of the crime. Defendant argues such tests are unreliable and have not won general scientific acceptance. Defendant, however, failed to challenge at trial the reliability of electrophoresis testing and, therefore, has waived any error in the admission of the test results. (See People v. Redman (1985), 135 Ill. App. 3d 534, 538-39, 481 N.E.2d 1272, 1275-76; People v. Alzoubi (1985), 133 Ill. App. 3d 806, 810, 479 N.E.2d 1208, 1210.) More importantly, the forensic scientist who performed the tests discovered that the victim had type A blood and the defendant had type O blood. The bloodstain found on defendant's clothing contained type A blood, thereby excluding defendant as its contributor and including the victim as a possible source. Because the scientific reliability of the ABO system has already been accepted by our courts (see People v. Gillespie (1974), 24 Ill. App. 3d 567, 573, 321 N.E.2d 398, 402), any error in the admission of the electrophoresis test results was harmless. We also note that a challenge to the reliability of such testing goes to the weight of the evidence, not to its admissibility. (See People v. Phillips (1987), 159 ...


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