*1 filеd, his ap timely motion vacate post-trial Plaintiff’s en than months after order was filed more five peal underlying did not toll the final motion vacate try pending order. subject issue of time in mind maxim Keeping to appeal. time Bus may (In Marriage matter be raised re jurisdiction any 108 Ill. sey aff’d 1229), it is clear that this does not have court Ac jurisdiction untimely the merits of plaintiff’s appeal. to consider on jurisdictional grounds defendant’s motion dismiss cordingly, granted.
Dismissed.
LORENZ, SULLIVAN, P.J., J., concur.
THE ILLINOIS, PEOPLE THE OF STATEOF Plaintiff-Appellee, v. GROSS, Defendant-Appellant.
HOWARD (1st Division) First District No. 85 - 2292 Opinion February filed 1988.
MANNING, J., dissenting. Pechter, Lawn, Ettinger appel- Oak Barry S. both of Michael D. lant. Gaull, (Sharon Assistant Daley, Attorney, Chicago M. State’s
Richard Special State’s Attor- Attorney, Sklarsky, State’s and Elizabeth Assistant ney, counsel), People. for the opinion
JUSTICE O’CONNOR delivered the the court: trial, a bench Gross Following Howard was convicted the murder of Horn and sentenced to 20 Gregory years the Illinois Department of appeal, Corrections. On raises the issues: following (1) whether, during pretrial on a motion hearing suppress, trial in allowing prosecution’s court erred to ex- cross-examination examination; ceed the scope (2) direct whether defendant was found of murder doubt; reasonable whether beyond (3) trial court in not allоwing erred to answer a re- question garding murder; specific commit (4) denying court erred in defendant’s motion to suppress recovered as a result warrantless search of defendant’s apart- ment. We affirm.
On July defendant was arrested murder of Horn. The Gregory evidence of the events until the time of up not in On dispute. evening of July Gregory Horn visiting with friends a rooftop patio located at 7405 W. 60th in Summit, Place door, Illinois. The next building at 7403 W. Place, 60th was owned by brother, Cletus Gross. Defend- *3 ant his and mother occupied the first floor of 7403 and the second floor was by girlfriend. rented Horn’s
At about 9 that evening, prior going Place, 7405 W. 60th Horn gone had into his girlfriend’s apartment to take a shower. Defendant testified he that heard Horn to the going up apartment and told him he belong that didn’t as there no one was home. Horn responded that he go would into the apartment he whenever wanted to. Defendant testified that he intended to the police, call before but he so, could do he his brother, Cletus, saw in the backyard. Cletus of- fered situation, to take care of the and about minutes later went over to 7403 60thW. Place to talk to Horn. Cletus testified that he and Horn had a conversation during which Cletus asked for Horn’s the keys to upstairs apartment. After Cletus told Horn hе “had no there,” business Horn began vulgar allegedly using then language and hit fists, Cletus twice with his once on the right forehead above the eye and once on his left ear.
The evidence as to what after occurred this varies. At point on hearing defendant’s motion to suppress certain evidence and state- ments, testified that on the of July 15, evening he heard a scuffle outside of his He first stated that he brother, Cletus, on side-
looked outside and saw his fall face down he did not see him fall. He testified actually walk but later stated that get he Cletus but could not over the fence between help that went to house. He that he then went property neighboring and stated “did not the number.” police, get into his house call back police, to call the he unsuccessfully trying picked up After conditioner, the air and went back into the gun, lying was that he to the fence and looked into the He stated went over yard. with a lock” someone who tried grabbed by He then was “choke alley. He he to hit the man over him over the fence. stated that tried pull ground, fell to the he went into the his shoulder. After the person might thought house to call the He stated he Cletus paramedics. the other He wrong” person. dead and he “knew what with was and paramеdics problem phone reach due to a with was unable finally not know whether Cletus or someone else called police. to a call that responded Officer John Gieseler testified that 7403 to 7405 60th Place Summit. He saw took him to the area of Fred in the and was told Patrick that lying gangway the victim gangway. into first east of the Officers gone building had offender then into the Gieseler, Hyde building. They Stancato walked and and advised Mr. apartment knocked on closed door defendant's if had come anyone and asked Gross that to the kitchen and walked over way in. Mr. Gross out stepped down, leaving open. sat dоor table and was door apartment Michael Stancato testified Officer The defendant had a conversation with defendant. open gun told the officer where had shot the stated .victim gun top then from located. Officer Stancato recovered was the air conditioner. made gun statements suppress
Defendant’s motion the en- the trial court’s based re- and that the was consensual into defendant’s house try of its location. informed the officers after defendant trieved incident, interviewed Gross was after the Cletus Several hours repre- an attorney in the Attorney presence State’s аn assistant interview, that Horn Cletus stated During senting defendant. fall He told the that he did not down. on the forehead but him struck *4 hit, he heard shot. He looked he was after Attorney State’s saw his brother. He falling and then turned and saw Horn around and ***” *** brother’s big [my] “a long thing that he saw also said the statement. complete did from the substantially at varied gave Cletus trial trial, he night
statement made the incident. At Cletus testified him, air, that after Horn hit flew through he four five feet landed an face down on concrete and lost consciousness for inde- time. he period terminate He sound had heard as an described rather than “explosion” a shot and testifiеd that he know what the sound was. He also testified that at time no between when he and Horn had their conversation until after the police arrived did he see apartment. defendant outside of defendant’s
Cletus testified that went to a hospital emergency room the incident day after but he was told that there damage was no and that he no Stancato, needed treatment. Officer who arrived first at arrival, the scene and talked to Cletus his upon testified that he had observed no apparent than injuries Cletus other slight redness his around ear.
At trial defendant testified that he heard a commotion outside and whеn he went outside saw Cletus come out from between “flying the two houses” and land face down on the sidewalk. Before went Cletus, over to he went back into his house to get gun, his which he kept on the air conditioner. Defendant denied that he went back to call the police after first observing his brother on the ground. gun,
Carrying defendant walked over to where his brother was lying. He testified that when he turned look street, toward the grabbed someone him from He behind. stated that he hit person holding gun in his right hand with his finger trigger swinging over his left person shoulder. The who was holding him tried to take the gun away jerking it out of his During hand. struggle, the fired gun once. After fired, hold on him was released and defendant walked back into Defend- ant stated that knew ground. were two “bodies” lying
Officer Stancato testified that when he arrived at the scene he Cletus, talked to was standing who at the curb. He asked Cletus what had happened but Cletus said he did not know. According to Officer Stancato, the defendant first told the police that he did not know who shot the victim and did not know the gun where was. When asked a time, second defendant admitted the victim and the offi- told cers where the gun was located.
Medical evidence was by way offered stipulation and revealed that the victim a 22-year-old male whо weighed pounds was 5 feet inches tall. The pathologist who performed autopsy on the victim concluded that gunshot victim died from single wound to the neck which perforated the trachea and esophagus lacerated the cord. The spinal back, bullet coursed from front
418 left, right slightly downward. The defendant testified
slightly old, weighed 64 was about 5 feet 5 inches tall and years that he was pounds. 275 murder, of the trial court noted that guilty defendant finding manslaugh- to a finding no that would rise give
there was court ter, The trial any justification nor was there many and based on inconsis- weighed credibility, defendant’s evi- testimony, coupled physical in with the and medical tencies was not accidental. Defendant dence, determined that now appeals. the trial improperly first contention is that court
Defendant’s exceed the scope allowed cross-examination of hearing the motion to Defend suppress. direct examination at on he this cross-examination be prejudiced ant maintains that was cross- during court considered the statements he made cause the trial The State maintains that in him of murder. examination developed it circum proper because the cross-examination apartment at the officers’ regarding appearance stances his home it was for them enter why permissible and explained a without warrant. is limited matters general rule is that cross-examination Ill. DuLong (1965), 2d (People examination
covered direct however, the to the extent 513); rule modified 210 N.E.2d all circumstances within may develop that cross-examination discredit or explain, qualify, destroy of the witness “which knowledge v. Perez 3d testimony.” (People his direct Ill. 2d A defendant 964, 423 N.E.2d legitimate per himself to subjects on his own behalf who testifies cross-examination, rests within the sound scope tinent (1985), 130 Ill. People court. v. Torres the trial discretion 775, 781, 474 1305. supprеss in evi support testifies of motion to
When a defendant him at against be admitted dence, testimony may subsequently for impeach the State be used guilt may trial on the issue but trial. testify if the defendant chooses to ment purposes Sim citing 67 Ill. Smith 377, 19 L. Ed. 2d 88 S. U.S. States mons v. United Sturgis (1974), 967; People Ct. is for the court to deter cross-examination proper constitutes
What
is a clear
disturbed unless there
mine,
decision will
and its
in manifest
to the defend
prejudice
results
of discretion which
abuse
98, 104,
Although the to questions put him on cross-examination focused on events occurring prior to the events testified to direct examina- tion, the all questions were directed or explaining, qualifying toward discrediting his statements on direct examination. That there had a man killed outside of an his house in incident in which he was involved would explain why police sought to question defendant provide would police probable with both exigent cause and circumstances to enter defendant’s apartment. Under these circum- stances, we find that the cross-examination оf defendant not im- use proper and impeachment not purposes did constitute an abuse of discretion.
We also find no merit in defendant’s contention that the compara tive of pages number that the imper indicated cross-examination was missibly broad. It does follow that pages because there were five examination, direct the prosecutor should be limited to a certain pages number of of cross-examination. At issue is whether the solely content of the cross-examination was proper. cases cited question defendant address the of whether the trial court improрerly limited cross-examination and thus do not support argument here. See v. People Kilgore Ill. (1976), 1000, 810, 39 3d 350 N.E.2d appeal 63 (1976), Ill. 2d denied 560.
Defendant contends that he was not found be a yond reasonable doubt of prove murder because State failed to that he acted with the mental when he requisite Gregory state killed Horn. He asserts that since the State’s case was entirely circumstan tial innocence, and since he a presented hypothesis reasonable must hypothesis accepted be to 4 pursuant People (1972), v. Calhoun 683, 690-91, Ill. 281 App. 3d N.E.2d 363.
The State’s case included evidence that before the shoot- shortly 420 brother, Cletus, keys had asked Horn to return
ing, defendant’s shot, a girlfriend’s that witnesses heard that defendant apartment, he shot Horn and that was recovered stated from It was the defendant undisputed Horn, and the resolved is whether only shot and killed issue sup- with the mental state to requisite State established that did so for murder. a conviction port an commits when
A who kills individual murder person individual, when he intends to do he intends to kill another but also harm, strong that his create bodily or when knows acts great harm, or attempting or when he is great bodily of death or probability 16, Ill. 2d committing a forcible Harris 72 felony. (People murder, it is 23-24, 28.) In order the crime prove to kill or specific had a show that necessary achieve harm or that knew that his acts would great bodily do those v. Bartall (People results. is 59.) voluntarily All that need be proved
N.E.2d act, the natural which was willfully tendency committed great another’s life or inflict harm. destroy bodily Intent Ill. Szerletich act, including from character of the implied can be or inferred weapon. (See People used Koshiol deadly fact that defendant 578, 446, N.E.2d cert. of intent question 28 L. Ed. 2d 91 S. Ct. U.S. finding will not the trier of fact and that question be resolved inherently impossible unless be reversed (1979), 70 unreasonable. v. Johnson 225. *7 murder, the trial court notеd the of finding In defendant of no threat of self had no merit as there was that claim defense any that there no evidence harm. The court also found that was imminent justifica- manslaughter any of nor was finding would warrant the considered tion for the court also whether medical evi- accidental, on the have been and determined based could the incident would testimony in the that dence and the inconsistencies it had. not in the defendant claimed way have occurred him to an gun took a loaded with The defendant testified that he the finger occurred. With argument just had area where fired, he en- being instantly of capable was trigger, gun so that to be- The court was bound struggle in a with the victim. gaged or that struggle gun that there was story lieve defendant’s willfully and voluntarily fired The defendant gun accidentally. was act, committed an the natural was to an- tendency destroy harm, other’s great requisite life inflict to bodily commit murder can be inferred from this act. to
Although prove innocence, defendant was under no duty having explain chosen death the victim that had of, “it knowledge upon was incumbent him to tell a reasonable story or to judged by improbabilities.” (See People its v. Neal Ill. App. Unlike the in People defendant Calhoun 4 Ill. App. 3d the defendant here has offered no hypothesis reasonable of innocence would create a reasonable guilt. Calhoun, doubt as to his evi physical dence strongly supported defendant’s contention that the shooting was accidental.
In the case, instant the contrary, the evidence does not physical support defendant’s contention Horn killing Gregory was accidental. Defendant claimed Horn although was five inches taller defendant, than defendant had a gun held over his left shoulder that fired into Horn’s neck the bullet took a downward course and traveled left slightly right to as it through traveled Horn’s nеck. on the defendant, Based relative heights Horn and it would have been virtually impossible for bullet to have traveled down- ward through victim’s neck at that angle.
Defendant’s contention that the victim pulling gun down- they ward as struggled over the gun supported by physical If evidence. Horn had holding from neck be- hind defendant’s back and the fired into him as defendant held it over his left shoulder while Horn pulling downward, the wound would most probably have been in the victim’s chest rather than in the middle of his neck. coupled defendant with the medical testimony not, view,
does in our support defendant’s contention that the shoot ing was an accident. clаim His stand or fall on weight of his own credibility testimony. (People Neal 454, 459, 240 here, On the record we the trial believe court was warranted in a rea present sonable or credible defense and that presented by State was sufficient to him doubt. prove guilty beyond reasonable
Defendant also contends that was denied a fair trial . be cause the trial patience during court lost him with cross-examination. cross-examination, During attempted assistant State’s Attorney impeach pretrial hearing with Defendant re testimony. peatedly refused he had respond questions regard *8 explained certain the fact that the trial court despite made statements to the questions him several times that should be answered either “no,” “I had “yes,” or don’t remember.” After the trial court admon- for the third time and the still refused to defendant ished stated, “I give trial court respond, up.” 4 Ill. The defendant cites Johnson to his contention that reversal is warranted support failed to hear the evidence with an judge open where has case, to guilt prior In the trial made a judge mind. reversed, court appellate of all of the evidence. The find presentation impartial a fair trial. That ing that defendant had been denied here, where thе trial court heard all of evi situation reading rendering Upon a decision. dence evaluated before hearing evi judge “give up” record it is clear that the did not the witness give up admonishing dence with an mind but did open questions. to the manner of proper answering as alleges further that the trial court as improperly Defendant during questioned sumed the role of trial when advocate disagree. the facts of the We After regarding interrupted numerous times because defendant’s responsive failed to be repeatedly questions, defendant had testimony. A trial court attempted clarify trial court right clarify in order to truth question has the witnesses elicit in a fair and long seem obscure as as does so material issues which (1953), 414 Ill. v. Marino impartial (People manner. record, the trial 534.) reviewing After we conclude that
N.E.2d role merely take on the impermissibly prosecutor court did not (Cf. People the evidence. sought clarify Cofield here, circumstances we 1048, 1050-51, 293 N.E.2d Under the 692.) find no abuse of discretion. permitting that the trial court erred
Defendant also claims Horn, ques kill as the specific regarding him to testify This issue crucial element of the murder. charge tion of intent is a for a trial and therefore in the written motion new was raised 102 Ill. 2d (Sеe People waived. Caballero issue considered event, In we that defendant’s any believe where prejudicial of evidence is not rejection has no merit. The claim stage admitted in another substantially the same evidence is 424, 429, trial. v. Wallace case, the defendant In this Greg he intended to shoot asked defense counsel defendant did testify, objection Horn. State’s sustained. however, struggle, during that the off accidentally went part. a lack intent on his such indicates testimony necessarily substan- light permitted testify the fact defendant was evidence, find there was no error. same we tially *9 offi entry pоlice Defendant’s final contention the it was consen cers into his home was because neither unreasonable sual nor therefore the trial upon exigent based circumstances and court erred in motion to the evidence. The State denying suppress his maintains that the it was based on entry reasonable because probable cause, defendant to the and it was entry consented based upon exigent record, circumstances. After the we believe reviewing not the defendant consented to but that it was based entry, exigent circumstances. seized,
In motion
suppress evidence
the dеfendant
unlawfully
has the burden of
proving
the search and seizure were unlawful.
v.
(People
8,
577,
McNair
3d
(1983),
16, 446 N.E.2d
App.
cert.
860,
denied
464 U.S.
(1983),
164,
78 L.
2d
104 S.
A
185.)
Ed.
Ct.
war
rantless entry is unlawful unless there exist
cause and either
probable
exigent circumstances or consensual
v.
entry. (People Calhoun (1984),
727,
Ill. App.
735,
126
467
3d
N.E.2d 1037.) Probable cause is a rea
belief that a
evidence,
sonable
search of a particular place will disclose
crime,
the fruits of the
or is
necessary
the
the
protection
police
officer.
v.
People
Hering (1975),
926, 941-42,
27 Ill. App. 3d
327
479,
Where the prosecution seeks to rely upon consent to justify search, lawfulness of a prove the State must aby preponderance of the evidence that the given. consent was v. voluntarily Smith 124 Ill. 1206.) may consent in the form words, be gesture, (United or conduct. States Griffin Cir. (7th 1976), 530 F.2d Whether consent to enter was voluntarily given rather than the result of coercion or duress ais question for trier of fact and we will not ruling set aside a trial court clearly unless erroneous. People McNair 16-17, Ill. 3d at cert. denied U.S. 78 L. Ed. 2d 164, 104 S. Ct. 185.
At the suppression hearing, the defendant direct testified on ex- amination that he did give officers police permission enter cross-examination, On apartment. opened testified that he door officеrs and then went inside sat down at kitchen table. The then into police followed him He testified apartment. that “he going wasn’t to stand in the out.” doorway keep them
According to own testimony, call the attempted and knocked on police paramedics. police When the arrived him if door, asked opened anyone door. officers inside. to the but stated respond question run Defendant open home He left the door there no one upstairs. down, to a kitchen table at which time the police walked over and sat him into middle of a followed As were in the con- apartment. they apartment leaving versation when defendant walked into his the door open, it was for the officers to believe that defendant con- reasonable Moreover, to their the officers did entering sented into rely gain on coercion or duress to defendant’s home. We entry court’s conduct mani- concur with consent to enter his apartment. fested case, exigent cir present
In the we believe were (See officers’ justified entry. cumstances warrantless Thompson (1981), L. Ed. 102 S. Ct. cert. denied 458 U.S. exist, the whether circumstances exigent order determine factors must considered: following offense with which
“(1) or violent nature gravity ‘is charged; reason suspect (2) suspect is to be *10 armed’; showing probable ‘a clear of (3) believed to be ably *** crime’; the (4) committed suspect cause to believe the premises the is in the be ‘strong suspect reason to believe that if not entered’; escape will ing ‘a likelihood that (5) suspect and circumstances of swiftly apprehended’; (6) peaceful 59, Ill. (1980), App. 85 3d (People v. Sakalas entry.” [Citations.] 65-66, 1121, 81 Ill. 2d (1980), 405 appeal N.E.2d issue These factors need not all be determinative present; v. People reasonable under circumstances. entry 1278. 132 Ill. 3d 476 N.E.2d (1985), Rimmer case, at 7403-05 60th In the when the officers arrived present from head. Place, bleeding a in gangway saw they body lying had been shot standing body near the stated that victim People of gang- a into the east person building immediately who gone the suspect strong thus had a reason believe way. police and violent. The that he was armed was in defendant’s and apartment a after at the scene of homicide upon arriving acted immediately There was cause. establishing probable received information having warrant, It is a under the circumstances. time to obtain sufficient apartment entered defendant’s also uncontested that the оfficers were exigent circumstances Based on our peacefully. here, that the was reasonable. present entry we conclude above, the cir we affirm the of judgment For the reasons stated Nicholls People court v. County. Additionally, pursuant cuit of Cook 166, 194, (1985), v. People Agnew 71 Ill. 2d and 275, in costs for 1319, 473 N.E.2d we assess $75 it as hereby the State’s defense of instant incorporate of part judgment. this
Judgment affirmed.
CAMPBELL, P.J., concurs. MANNING,
JUSTICE dissenting: I respectfully my dissent. It is that the came no- opinion State where close to its meeting burden the defendant of proving murder beyond reasonable doubt.
The elements of murder are the knowing, intentional and unlawful
oр
taking
1983,
38,
(Ill.
9—1(a);
another’s life.
Stat.
ch.
par.
Rev.
Pe
Clemens
3d
292 N.E.2d
While
le
not necessary
to show that the
deliberately
accused
formed the
to kill to
justify
for murder
Davis
conviction
61,
468;
Ill.
v. Walden
Ill. App.
232),
the least that must
proved
act,
is that the defendant
committed
voluntarily
wilfully
natural
result which
would be the death
another.
People Cal
houn
The evidence presented the defendant was his sworn testimony Greg grabbed off, Horn him fighting from behind and in him gun discharged. In my opinion, the State has not presented any com- petent evidence to contradict the defendant’s version the incident. There are no occurrence witnesses othеr than the who saw State did present forensic any es- tablish either the distance between the victim and at the weapon time shooting or show that the shooting could not have oc- Rather, curred as the defendant had testified. the State to es- sought tablish its case on speculation conjecture. vague It relies on *11 statement made by the defendant’s and the fact brother that vic- tim was inches five taller than the defend- establish the ant’s intent to commit murder. brother, Cletus,
The statement attributed to the defendant’s in shot, a dazed he while state heard a looked and saw the fall- victim ing, turned “big long thing,” around and saw a was intrоduced only impeachment as of testimony at trial. Let us examine what im- he actually occurred. testified at trial that after
peachment Cletus hit, semi-conscious”; he he previously was “semi-unconscious and stated he had in a At trial testified that he heard daze. he explosion; described the noise to the assistant State’s allegedly Attorney gunshot. on the date of the as a to this Up point, is not oral state- testimony necessarily prior inconsistent with ment. The at trial possible inconsistency testimony sole between he looked the oral statement up nobody when allegedly gave Attorney indicating which thе assistant State’s he saw at trial he did not up, though his brother when looked even remember such a statement. making prior
While there is no raised in this use of appeal regarding issue statements, the evi- analysis inconsistent I consider it in only my evi- determining dence if there is purpose competent herein rea- in this beyond dence this record sufficient sustain conviction sonable doubt.
Prior may inconsistent statements be admissible as substantive at trial testimony inconsistent (1) evidence if: statements are with cross-examination; the statements are (2) (3) the witness is subject witness; (4) the statements knowledge within the personal recorded. are under oath or have been acknowledged electronically 260; Hastings (1987), statement, how 10.1.) Ill. Rev. par. Stat. ch. Cletus’ 115 — ever, making meet He not recall requirements. does not these alleged recording did not introduce a of the statement and State Thus, it in while the writing. statement into evidence at trial nor was credi the witness’ impeach statement have been used may properly The trial court it as evidence. bility, was admissible substantive light nothing more than correctly impeachment. admitted that, however, it is the dearth of sufficient evidence judgment that my is in this to sustain a criminal conviction reasonable doubt beyond apparent. case readily majori-
I court’s conclusion and disagree further with height and the the bullet upon trajectory view that based ty’s the defendant’s parties, support of the evidence does physical no Again, there is opinion version otherwise, could be record, or this conclusion expert upon It conjecture. It on speculation based inferred. is based solely of a during potentially the course unreasonable to believe 275- decedent and struggle 210-pound life-and-death between neck discharged into victim’s defendant, may the have pound by the fact, presented his chest. In the medical evidence rather than *12 neck, State that there on the victim’s stippling establishes close to wound and is range gunshot is indicative intermediate Knowledge consistent with the defendant’s of the distance be- story. the victim and the at the time of have dis- weapon firing may tween claim; proved however, defendant’s the State failed to introduce any such evidence. majority holds that the conviction because the proper defendant, eyewitness, Although was found to be incredible.
the trier of
obliged
fact is not
accept
testimony
as
true,
it
disregard
should not
reject
testimony by
which is not
in
parts
сontradicted
its material
unless it is so unreason
able as to be judged improbable.
(People Harling
653;
N.E.2d
v. Walden
App. 3d
Even were the
of fact to re
trier
ject the defendant’s
testimony,
rejection does not have the effect
supplying proof
the defendant’s
guilt
reasonable doubt
beyond
sufficient to sustain a
conviction.
Jordan
155, 163,
Based the foregoing, I would reverse the defendant’s convic- tion.