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12/27/88 the People of the State of v. Are

December 27, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

VICTOR WARE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

536 N.E.2d 713, 180 Ill. App. 3d 921, 129 Ill. Dec. 663 1988.IL.1872

Appeal from the Circuit Court of Cook County; the Hon. Christy S. Berkos, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. CAMPBELL, P.J., and O'CONNOR, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

Victor Ware (defendant) was indicted for the offenses of attempted murder (Ill. Rev. Stat. 1983, ch. 38, pars. 8-4, 9-1) and aggravated battery (Ill. Rev. Stat. 1983, ch. 38, par. 12-4). Following a bench trial, defendant was convicted of attempted murder and sentenced to a 15-year prison term. Defendant appeals his conviction and sentence, contending that the trial court erred in excluding relevant testimony supporting his theory of self-defense, that defendant was not proven guilty of attempted murder beyond a reasonable doubt, and that the trial court abused its discretion in imposing a 15-year prison sentence. We affirm.

Prior to defendant's trial for his involvement in a shooting incident on January 12, 1984, in which Steven Perry sustained four bullet wounds and was subsequently hospitalized in "nonsalvageable condition," defense counsel agreed that Perry's deposition could be taken in lieu of bringing a jury to the hospital to hear his testimony. In a subsequent pretrial hearing, the trial court found "good cause" to admit the video-taped deposition at trial instead of a transcript of the deposition. In ruling on objections concerning Perry's deposition testimony, the court also deleted testimony relating to Perry's involvement with the Black Gangster Disciple gang over defense counsel's objection.

At trial, the State and defendant presented conflicting versions of the events surrounding the shooting incident. The State presented the following evidence. Perry testified that at approximately 7 p.m. on January 12, 1984, Edgar Lofton telephoned him and asked him to meet Lofton at Church's Chicken. While Perry awaited Lofton's arrival at Church's, defendant, who was married to Perry's sister Kim, approached and requested that Perry accompany him to meet some girls. Perry and defendant drove in defendant's car to defendant's apartment at 2222 South State Street in Chicago. Perry did not think it was unusual to "go chase women with his brother-in-law," as he described his relationship with defendant as "real close."

Upon their arrival at the apartment building, Perry followed defendant into his fourth-floor apartment. As Perry turned to lock the door, he heard defendant say, "Aha, I got you now." Defendant then shot Perry four or five times from a distance of 15 feet. Perry thereafter opened the door and ran down the stairs of the building, while defendant continued to fire shots at him and struck him several times. Perry finally collapsed into the doorway of an apartment on the first floor.

Perry further testified that his sister Kim, having previously been hospitalized for attempting suicide because defendant was always "jumping" on her, was living with Perry and their mother at the time of these events. These circumstances notwithstanding, Perry stated that he did not provoke defendant or have any personal problems with him, and that he knew of no reason why defendant would want to harm him. Perry also acknowledged a previous conviction for pickpocketing.

Chicago police officers Thomas Chuchman and Debra Brown testified that Perry told them at the scene that defendant shot him. Chuchman also testified that defendant telephoned his mother while Chuchman was at defendant's mother's house, and that when defendant later arrived there pursuant to Chuchman's request, his left forearm was wrapped up and he had bloodstains on his shirt. Chuchman then took defendant to Mercy Hospital, where the doctor told him that defendant's injury was a possible bullet wound.

Defendant refused to sign a statement prepared by Assistant State's Attorney Lori Levin after an interview Levin conducted of defendant at Mercy Hospital in the early morning hours of January 13, 1984. Nonetheless, Levin testified as to their conversation. Defendant told Levin that he met Perry at Church's at Perry's request to discuss his wife's moving out of the house. After he refused to give Perry Kim's clothes, Perry pulled out a gun and forced him to drive to defendant's apartment. Once at the apartment, Perry ran one way, they tussled, Perry ran the other way, and then defendant shot at him four times. Defendant never mentioned that Perry had a knife or that he saw any witnesses to the occurrence.

Edgar Lofton testified that he telephoned Perry at defendant's request and told Perry defendant would be at Church's. He admitted that his testimony differed from his earlier representation that he had never telephoned Perry, explaining that he changed his story after he was informed by police that they were contemplating charging him with conspiracy to commit murder.

Finally, witnesses from the Chicago police department who investigated the scene testified for the State. Officer Brown recovered live shell casings and two empty casings 25 feet from the first-floor apartment where Perry was lying and three cartridges on the stairwell between the middle and bottom stairs. The State and defendant stipulated that four live cartridges and six discharged cartridges were examined in the crime laboratory and that the discharged cartridges were fired from the same weapon. Detective Edward Schmidt discovered a trail of blood which led from the first-floor apartment up the stairwell to the fourth-floor ...


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