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06/30/89 the People of the State of v. Eammy Smith

June 30, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

EAMMY SMITH, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION

542 N.E.2d 112, 186 Ill. App. 3d 89, 134 Ill. Dec. 112 1989.IL.1049

Appeal from the Circuit Court of Cook County; the Hon. William Cousins, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. EGAN, P.J., and LaPORTA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

After a jury trial, defendant Eammy Smith, a minor, was found guilty of involuntary manslaughter and sentenced to probation until she reached the age of 21. Defendant appeals, contending that she was not proved guilty beyond a reasonable doubt; that improper comments were made during closing argument; and that the sentence imposed was improper.

On November 8, 1986, at 8:30 a.m., John Gaines was shot in the head by defendant in the apartment they shared along with their nine-month-old baby. After several days in a deep coma, decedent died. Mary Gaines, decedent's mother, testified for the State that on November 8 at 8 a.m. she spoke to her son on the telephone and he agreed to bring her some bacon. Forty-five minutes later, defendant telephoned Gaines, screaming that "they" had shot decedent. Gaines went to the apartment and found defendant "wild and hysterical."

Officer Linda Drozdek testified that when she arrived at the scene of the shooting, defendant was screaming, crying and hysterical. Defendant said she did not know the man who shot decedent and had never seen him before. Defendant gave a detailed description of the assailant. After shooting decedent, the assailant fled through the back door of the apartment. Drozdek sent the description over the police radio.

Drozdek observed decedent lying unconscious in a small foyer with a gunshot wound in the head. A bullet was lodged in the archway connecting the vestibule area with the living room. A gun was lying on the floor in front of the back door. The outer door and burglar gates were open.

Mitra Kalelkar, a forensic pathologist, testified that she performed an autopsy on decedent. The head showed a trajectory wound from front to back, with a slight angle upward.

Officer William O'Connor, an evidence technician, testified that he recovered a bullet from the wall in the apartment and the gun from the kitchen floor. The gun contained a discharged cartridge which was two cylinders down from the right of the hammer.

Officer Richard Fournier, a firearms examiner for the police department, testified that in order for a discharged cartridge casing to be in the second position to the right of the hammer, the trigger would have to be pulled twice. Such a cylinder could also be manually rotated. Fournier was unable to determine whether the recovered bullet came from the gun found in the kitchen.

Officer Krippel testified that at the scene he noticed a package of bacon on a table. He also saw the recovered gun, and in the second cylinder from the top, on the right-hand side of the gun looking down the sight, was an expended cartridge. On cross-examination Krippel testified that in his November 8 report, he said the expended cartridge was in the second chamber to the right. He testified that it was in the third chamber, but on redirect testified that looking down the sight of the gun, the expended cartridge was in the second chamber to the right of center.

At the hospital, Krippel attempted to interview defendant, but she was too emotional. She stated only that the offender was a male and that he fled after shooting decedent. Defendant agreed to accompany Krippel to the police station to attempt to identify the man. Defendant, accompanied by two of decedent's cousins, looked through photograph books and after a few minutes defendant picked out photographs of three men who looked like the assailant. At about 12:45 p.m., Krippel and Officer Bosco interviewed defendant for 25 minutes. Defendant provided the same description of the offender which she had given at the scene of the shooting. Defendant stated that she was in bed when she heard arguing and one gunshot. She ran into the foyer and ...


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