APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
533 N.E.2d 89, 178 Ill. App. 3d 292, 127 Ill. Dec. 471 1988.IL.1890
Appeal from the Circuit Court of Cook County; the Hon. Lawrence I. Genesen, Judge, presiding.
JUSTICE McNAMARA delivered the opinion of the court. WHITE, P.J., and FREEMAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA
On April 6, 1986, near midnight, 83-year-old Florence Fuller was murdered in her apartment. A neighbor, Michael Pierce, testified that the 46-year-old defendant, who helped take care of the victim, had been staying with the victim several times a week. On that night, Pierce heard an exchange of voices. The victim said, "What's the matter with you, man? You crazy? What's wrong with you, man?" There were several minutes of silence, and then a gunshot.
Pierce heard footsteps coming from the victim's apartment and saw defendant leave the building carrying a bag. Pierce, who did not have a telephone, followed defendant and then telephoned the police from a public telephone. He returned home. Several minutes later he entered the victim's apartment with the police. Inside the apartment they smelled gas and found one of the stove burners operating. The victim was lying on the couch. Blood ran down her neck from a gunshot wound behind her left ear.
Officer Nicholas DiMaggio and his partner observed that the victim was naked, covered partially by a blanket. He saw no marks on her hands. Her arms were across her chest. There was blood on the floor and a bag of change totaling $64.29.
Officer John Haugh and his partner obtained defendant's description and located him one hour later about three blocks from the murder scene. Haugh stopped defendant and his companion and asked defendant his name. Defendant replied, "I'm the man you're looking for." A search of defendant revealed the murder weapon and ammunition. He also had a bag with two red change purses containing jewelry, a key, buttons, a pen, a drapery hook, and $34.50. Defendant also carried unopened beer and whiskey. Haugh smelled alcohol on defendant, but did not believe defendant was intoxicated. Upon receiving his Miranda warnings, defendant stated, "Whatever she said I did, yes, I did. Whatever the old lady said I did."
Bernice Henry, the victim's 65-year-old sister, testified that she saw the victim at her home one week earlier. The victim had just been released from the hospital, where she was treated for malnutrition. She was not prone to falling down and was not senile.
Dr. Yuksel Konakci, a pathologist, conducted a post-mortem examination of the victim and concluded she died as the result of the gunshot wound. There was no evidence of close-range firing. The path of the bullet was almost parallel to the ground, traveling from the entrance wound behind the left ear to the opposite side of the head. The victim had external bruises and abrasions on the right side of her neck. Her neck was fractured in two places. The neck injuries were consistent with blunt trauma causing pressure on the neck and fracturing the bones. There were bruises and abrasions in the neck and upper chest area. The injuries were less than 24 hours old. The victim's two main arteries were 70% to 80% blocked, and she suffered from marked emphysema and hyperemia. The toxicologist's report indicated her blood-alcohol level was negative.
Richard Chenow, a firearms technician for the police, examined the murder weapon and found it could fire when 5 to 10 pounds of pressure were put on the trigger. The hammer block was in poor mechanical condition but was functional and safe. The technician opined that the gun would not accidentally fire as a result of a blow to the hammer or of being dropped, if it were not cocked. If the gun were cocked, it would not fire when someone grabbed it, unless the person holding the gun had his finger on the trigger and pulled it. Thus, the gun would fire only if a person held the gun in an uncocked position with his finger on the trigger and a second person pushed the hammer back to the cocked position and pulled on the gun so as to cause the pressure on the trigger to reach five pounds. The person who grabbed the gun would then have a dark residue and possibly a burn on her hand.
Following his arrest, defendant made a statement. Defendant said he took the victim's gun, her money and her jewelry, and some ammunition. As he was leaving, the victim asked where he was going with her money. As he began to explain, the victim grabbed the gun, which he held in his right hand, and the gun went off accidentally. Defendant visited a friend, and they went to buy alcohol and change defendant's coins into currency. As they walked back, the police stopped them.
Defendant testified at trial that he had been taking care of the victim for five months. He drove her to the store and to the bank, and cooked and cleaned for her. On the day of the shooting, he drank alcohol intermittently throughout the day. Later, he saw the victim sleeping on the couch. He took a bag of change to buy more liquor and placed it on the table next to the couch. He then took the gun and bullets for his personal safety because it was after midnight. As he was reaching for the bag of change, he heard the victim mumble something. His right hand held the gun, with his index finger on the trigger. As he turned, the victim grabbed the gun and it fired. The gun was not cocked. Defendant shook the victim and asked if she was all right. She did not respond. Defendant panicked and left the house. He went to a friend's house and said he wanted to return to check on the victim's condition. First, however, he asked the friend to smoke some ...