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04/13/94 PEOPLE STATE ILLINOIS v. EARLY LEE SMITH

April 13, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
EARLY LEE SMITH, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Macon County. No. 92CF207. Honorable John L. Davis, Judge Presiding.

Honorable Carl A. Lund, J., Honorable Robert W. Cook, J., Honorable Frederick S. Green, J.

The opinion of the court was delivered by: Lund

JUSTICE LUND delivered the opinion of the court:

Following a jury trial in the circuit court of Macon County, defendant was found guilty of aggravated battery with a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 12-4.2) and obstruction of Justice (Ill. Rev. Stat. 1991, ch. 38, par. 31-4(a)) and sentenced to consecutive terms of 12 and 2 years' imprisonment, respectively. Defendant appeals the conviction for aggravated battery with a firearm, claiming the trial court erred in (1) refusing to instruct the jury on a charge of reckless conduct; and (2) admitting evidence regarding blood-spatter analysis where the witness was not qualified as an expert in the field. We reverse and remand.

On March 5, 1992, defendant was in a car with two friends, Mario Manns and the victim, Ed Vorties. Vorties was driving, Manns was in the backseat, and defendant sat in the passenger seat. After a short argument, Vorties agreed to let defendant drive the car. He got out of the car, walked around it, and stood by the open passenger-side door. According to Manns, defendant emerged from the car holding a handgun and pointing it at Vorties, apparently in a playful manner. Manns described the events as follows:

"Early had the gun and Edward Vorties was--he was pointing the gun at Edward Vorties and Ed was like 'Quit playing.' It looked like it was going to start raining and he was still playing with the gun. Early Smith was still playing with the gun. And Edward Vorties was getting into the car and[,] while he was sitting down[,] Early Smith was still playing with the gun and all of a sudden the gun went off and he fell inside of the car."

Defendant then drove the car to the home of Darnell Winfrey. On the way, defendant allegedly stated words to the effect that Vorties was his best friend and that shooting him had been an accident. Manns told him they should drive to a hospital, but defendant refused because he had warrants out for his arrest. Defendant instructed Manns to tell anyone who asked that it was an accident. He later instructed Manns to say Vorties had shot himself.

At Winfrey's house, defendant wiped off the handgun and gave it to someone standing by the car. Manns stayed at the house while defendant and Winfrey drove to the hospital. When police interviewed Manns, he gave them a number of different false accounts of the incident. Later he explained this, saying he was nervous and scared at the time. In one of these accounts, he claimed to have been asleep in the backseat of the car at the time of the shooting. In another account, he told police that Vorties had shot himself. Defendant also gave a number of conflicting accounts when interviewed by police. In each account, however, he stated that Vorties shot himself. Defendant did not testify at trial, but his counsel maintained in closing arguments that Vorties had shot himself.

At the jury instruction conference, defense counsel argued that Mann's testimony provided sufficient evidence for a rational jury to find defendant guilty of reckless conduct (Ill. Rev. Stat. 1991, ch. 38, par. 12-5), a Class A misdemeanor. The trial court disagreed, finding there may be evidence of recklessness prior to the act of shooting, when defendant was waving the gun around. However, in the shooting itself, there was no evidence that could support the instruction.

The offense of reckless conduct is defined as follows:

"A person who causes bodily harm to or endangers the bodily safety of an individual by any means, commits reckless conduct if he performs recklessly the acts which cause the harm or endanger safety, whether they otherwise are lawful or unlawful." Ill. Rev. Stat. 1991, ch. 38, par. 12-5(a).

The mental state of recklessness is defined as a person who:

"Consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." Ill. Rev. Stat. 1991, ch. 38, par. 4-6.

Our court has held that the offense of reckless conduct may be an included offense of aggravated battery, the only difference being the degree of culpability. (People v. Thomas (1971), 1 Ill. App. 3d 139, 143, 275 N.E.2d 253, 255.) Where there is evidence in the record which, if believed by the jury, would reduce the crime to an included offense, an instruction defining the lesser offense should be given. This rule applies, even where the theory of defense at trial is inconsistent with the ...


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