People v. Walker

628 N.E.2d 1111, 257 Ill. App. 3d 332, 195 Ill. Dec. 647
Appellate Court of Illinois·Decided December 30, 1993·No. 1-92-1470·Published·Cited by 1 cases

Opinion

628 N.E.2d 1111 (1993)
257 Ill. App.3d 332
195 Ill.Dec. 647

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Charles WALKER, Defendant-Appellant.

No. 1-92-1470.

Appellate Court of Illinois, First District, Fourth Division.

December 30, 1993.
Rehearing Denied January 25, 1994.

*1112 Office of the State Appellate Defender, Chicago (Maria A. Harrigan, Asst. Appellate Defender, of counsel), for defendant-appellant.

Jack O'Malley, State's Atty., Chicago (Renee Goldfarb, Annette Collins, & Bette Plass, of counsel), for plaintiff-appellee.

Justice HOFFMAN delivered the opinion of the court:

A jury convicted defendant, Charles Walker, of attempted first-degree murder and the trial court sentenced him to eighteen years' imprisonment. He now appeals from his conviction and sentence, contending (1) the trial court deprived him of a fair trial by refusing to tender a jury instruction for the lesser-included offense of aggravated assault; (2) prosecutorial remarks during closing argument amounted to reversible error; and (3) his sentence was an abuse of discretion. We affirm.

Defendant was charged by indictment with aggravated battery and attempted murder resulting from his act of firing a loaded revolver at Officer Lloyd Gray. At trial, Jacques Lumpkins testified that at approximately 7:30 p.m. on October 15, 1990, he was in the living room of his second-floor apartment near 61st and Hermitage Streets when he heard a disturbance across the street. *1113 When he looked out of his window, he saw defendant and another man on the street engaged in an argument. Defendant told the other man "I thought I told you not to come in my neighborhood no more * * * I told you the next time you come over here I was going to pop it." Defendant then retrieved a pistol from his pocket and began shooting the other man. Lumpkins indicated that shortly after the first shot was fired, a car arrived on the scene and a man from the passenger's side stepped out and yelled "hold it." Lumpkins heard several more shots and then saw defendant shoot at a man whom Lumpkins identified as Officer Lloyd Gray. Lumpkins testified that when defendant shot at Gray, defendant was standing up and his gun was pointed at the area of Gray's head and chest.

Gray testified that on the night of the occurrence he and his partner, Bernard Triche, were on patrol when they heard gunfire ahead of them. Gray stated that they proceeded in the direction of the shooting and subsequently came upon defendant, who had his back to their car and was firing a gun. Gray exited the passenger's side of the police car, drew his gun and walked towards defendant. Defendant fired four shots and then turned around towards Gray and ran past him. Gray announced his office and ordered defendant to drop his weapon, but defendant continued running with the gun in his hand. Gray testified that he began chasing defendant, repeating his order to stop. He was able to catch up to defendant and trip him while running along side of him. Defendant fell forward to the ground still holding his gun, while Gray again ordered him to drop it; then in one motion, defendant rolled onto his back, pointed his revolver in the vicinity of Gray's head and chest, and fired at him from a distance of about five feet. Gray stated that he backed away from defendant towards the street and returned one shot, and defendant then stood up and fired a second shot at Gray. Gray then entered a car which had driven up along side of him while Triche returned fire at defendant. Defendant grabbed his face and yelled that he was hit, but was subsequently able to escape, and Gray and Triche went after him.

Bernard Triche's testimony corroborated Gray's as to events surrounding defendant's attempt to shoot Gray. Triche stated that when defendant shot at Gray while on the ground, Gray was hovering over defendant at a distance of about five feet. Defendant's gun was pointed at Gray's chest. When defendant fired the second shot, he was standing about ten feet from Gray because Gray had taken several steps backward.

After defendant fled, Triche sent communications over his police radio describing defendant and the occurrence in detail. Officer Carl Riggenbach testified that he and his partner received these communications and drove to the vicinity where defendant had reportedly fled. Riggenbach eventually apprehended defendant when he stepped out in front of their car. Riggenbach stated that when Gray and Triche subsequently arrived on the scene, Gray identified defendant as the man who had shot at him.

Riggenbach testified that he removed gloves from defendant's hands and submitted them to the crime laboratory. Robert Berk, a criminalist who examined the gloves, testified that in his opinion, the gloves had been in the presence of gunshot residue. The testimony of Riggenbach, investigating officer Joseph Bell, and evidence technician James Shader established that a .357 revolver was recovered in a location where defendant was known to have fled during his attempt to escape Gray and Triche. The weapon contained six rounds of ammunition, all of which had been recently fired.

Defendant testified that at the time of the occurrence he was at the intersection of 60th and Hermitage Streets walking home from a friend's house. He walked past a group of boys who exchanged words and then began shooting at one another. Defendant became caught in the cross fire and was shot in the face when he tried to escape. He fell to the ground and was then shot in the ankle. Defendant stated that he then began running, but saw no police until he "fell onto" the hood of a police car. The officers got out of the car and asked defendant what had happened and then called an ambulance. Defendant testified that while he was awaiting the ambulance, an officer came "out of nowhere" *1114 and accused defendant of shooting at him. Defendant was later taken to the hospital. On cross-examination, defendant denied having a gun that evening. Although defendant admitted he was wearing gloves and that those gloves were later taken by police, he claimed he did not know how they became covered with gun residue. Defendant denied telling police at the hospital that he was an "enforcer" for a local street gang; however, this was contradicted by a State rebuttal witness, officer Jerome Rusnak, who testified that defendant had informed him that he was such an enforcer, and that an enforcer provided security and protection.

At the close of the evidence, the State declared nolle prosequi as to the aggravated assault charge and proceeded on the charge of attempted murder. Defendant's request that the jury be instructed on aggravated assault was declined by the trial court. Following arguments, the jury found defendant guilty of the attempted murder of Gray. The instant appeal followed.

Defendant's first contention is that he was deprived of a fair trial by the court's refusal to tender the instruction for aggravated assault, which he maintains is a lesser-included offense of attempted murder.

Under certain circumstances, a defendant is entitled to have the jury instructed on an offense which is a lesser-included offense of that with which he is charged. (People v. Bryant (1986), 113 Ill.2d 497, 502, 101 Ill.Dec. 825, 499 N.E.2d 413.) This is true even where the defense's theory at trial is inconsistent with the possibility that he is guilty of the lesser offense. (People v. Bembroy (1972), 4 Ill.App.3d 522, 525, 281 N.E.2d 389

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People v. Walker, 628 N.E.2d 1111, 257 Ill. App. 3d 332, 195 Ill. Dec. 647 (Ill. Ct. App. 1993).

628 N.E.2d 1111 (People v. Walker) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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