People v. Schwab

502 N.E.2d 815, 151 Ill. App. 3d 424, 104 Ill. Dec. 318, 1986 Ill. App. LEXIS 3332
CourtAppellate Court of Illinois
DecidedDecember 31, 1986
Docket2-85-0136
StatusPublished
Cited by3 cases

This text of 502 N.E.2d 815 (People v. Schwab) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Schwab, 502 N.E.2d 815, 151 Ill. App. 3d 424, 104 Ill. Dec. 318, 1986 Ill. App. LEXIS 3332 (Ill. Ct. App. 1986).

Opinion

JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, James C. Schwab, was convicted in the circuit court of De Kalb County of murder (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1) at the conclusion of a bench trial. He was sentenced to a term of 22 years’ imprisonment.

On appeal, defendant raises two issues: (1) whether the trial court erred when it failed to raise sua sponte the issue of defendant’s fitness to stand trial in violation of section 104 — 11(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 104— 11(a)) thus depriving defendant of his sixth amendment right to counsel; and (2) whether the trial court erred in failing to order a competency examination before allowing defendant’s mother, the only occurrence witness beside the defendant, to testify where it was known that she had suffered three strokes between the time of the occurrence and the time of trial.

Defendant testified in detail about the day and evening of the shooting, May 25, 1984. He stated that he arose at 8:30 a.m. and prepared and administered his mother’s morning injection. He left the house at noon or 12:30 p.m. to go to the Scalawag Restaurant where he had three or four whiskey manhattans and lunch, returning home at 2:15 p.m. He took his mother shopping at the Eagle Food Store. He went to the Illinois Job Service to see about temporary employment, and he took a copy of his resume with him. He thereafter retrieved his mother at Eagle, but before doing so, he had his brakes checked at Midas Muffler. He then took his mother home.

When he arrived at home he met his sister, Georgianna Fredrick, also known as Jigger. He testified in detail about his conversation with Jigger. It related to the preparation of the family’s possessions for dispersal and the readying of the house for sale. Defendant lived with his mother, but his mother had decided to move to a nursing home, necessitating the breaking up of the family residence.

At about 5:15 p.m. defendant again left the house for the Coach Room Bar and had three or four whiskey manhattans. After IV2 to 2 hours, he drove to El Matador where he had perhaps four more manhattans and something to eat. It was the regular fish fry night. He had to order before they closed at 10 p.m. He then returned to his mother’s house.

He testified that he drove from El Matador to his mother’s house and parked the car in the garage. He testified that he traversed the driveway to the public sidewalk and then walked up to the private entrance, the front door. Upon entering, he saw his mother and Jigger. His mother was preparing vegetables. Jigger, he testified, was moving back and forth between the living room and the kitchen. He then described in detail the manner in which Jigger was cleaning the glass of an empty curio cabinet. He testified as to the placement of items of furniture in the house and where the principals were in relation to the furniture. His mother and Jigger appeared angry at him and irritated with him.

He recalled asking Jigger if he could help and she answered negatively. She sat cross-legged on the floor to polish the glass shelves. He asked where her son Blair was. She retorted “He’s my kid, you are an alcoholic, you cannot take care of your own kids.” His mother was also in the room.

He testified that he then walked over to Jigger to try to tease her; he nudged her buttocks with his toe. She did not respond. The record then discloses the following colloquy:

“Q. And what actually did she do?
A. She backhanded me. I was struck in the area of the upper thigh and groin. I retorted her [sic] by slapping her in the face.
Q. Were you injured by this?
A. No.
Q. After you had struck her, what did you do?
A. We — This happened so quickly, and those are my last recollections prior to — to the incident with the gun in which I shot her.
Q. Do you recall going up the stairs?
A. I do not.
Q. Do you recall getting a gun?
A. No.
Q. Then the next thing you recall, you say, is the actual shooting?
A. The actual shooting of her.
Q. Would you tell us what you recall about the shooting?
A. I remember I had the gun in my hand, and I pulled the trigger twice.
Q. Do you remember where she was?
A. She was at the front door at the time.
Q. Now, after you had pulled the trigger twice, what do you recall?
A. I recall that she fell very slowly in front of me and then fell to the side. But she then — Her body then rotated slightly. She fell on her back in the area between the arc of the open front door and the right end of the desk; that is the end of the desk that would point towards south.
Q. Now, where was your mother at this time?
A. She had been seated all this while in her chair, except at the time of the shooting in which she jumped up from her chair and approached us in, obviously and understandably, despair and crying out to stop, something to that effect.
Q. When Jigger then fell to the floor, then what happened?
A. I remember just in my own mind of the disbelief, the despair that I felt. And I looked at my mother, and I think I probably reached out and touched her. I am not sure about that, but then she had — It seems to me that she had turned around to go back to her chair. And the next thing I recall accurately is making a telephone from the upstairs.
Q. Now—
A. And I recall that because I had to look for the number for whom to call. As is the practice so frequently nowadays, people send out little things that you can stick on your telephone receiver, you know, for emergency numbers. I did look at that, although I don’t remember whether I called the police or the fire department.
Q. And what phone were you looking at and calling on?
A. This would be the pink cradle type telephone in the master bedroom which was then in those most [sic] following my father’s death occupied solely by my mother.”

Defendant argues that his defense was based upon establishing that the most serious crime of which he could be convicted was voluntary manslaughter. (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 2).

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Cite This Page — Counsel Stack

Bluebook (online)
502 N.E.2d 815, 151 Ill. App. 3d 424, 104 Ill. Dec. 318, 1986 Ill. App. LEXIS 3332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-schwab-illappct-1986.