*1 The Illinois, the State of v. Calvin Plaintiff-Appellee,
McKinnie, Defendant-Appellant. 72-194;
(No.
Second DistrictApril concurring. MORAN, specially J., P.
T. Wilson, Defender, Assistant Ruebner, of Elgin Deputy (Richard Ralph Defender, of for counsel), appellant. Appellate Reinhard, State’s Attorney, Rockfоrd (James G. W. Philip Jerz Morris, of Model District State’s Office, both of coun- Attorneys Edward the People. sel), the court: delivered the opinion RECHENMACHER JUSTICE
The and sentenced manslaughter defendant was convicted of voluntary 20 years. to a of not less than 8 nor more than term penitentiary From this conviction and sentence he on several grounds, appeals we will consider separately. defendant first ground
The his conviction on the challenges *2 move, defense counsel or was in that he to to incompetent prior failed trial, at the for the a certain suppression of statement which the defen- dant made to the and which his police the State used later to impair credibility.
The circumstances rise to this contention are as follows: The giving defendant was wounded in an incident in which other was person the killed. He was taken to the hospital the incident immediately after treatment of his and wound such treatment the doctor ad- during ministered Demerol, narcotic, 75 milligrams of milligrams and Phemergen, a tranquilizer. The doctor testified were administered they killer; as a further, simply pain that the effect of last drugs might these as as 3 long to hours and might have the effect it would not (although necessarily do so) making the or less an patient sleepy alert. Within hour оr after two being treated at the the defendant taken hospital was to the where, station police after the Miranda proper warnings, he gave a statement in to the writing effect that he did not shoot the deceased and, fact, in did not a gun have that all. night at The next noon day about to (according the police the defendant testimony) stated he to wanted clear some up points connection with statement his of the night before. At that time defendant made and signed second statement (again after being indeed, warned as to his in which had, he stated he rights) deceased, shot the but that he had so done in self-defense. trial, At the the defendant the stand in took his own behalf and after his testimony State introduced the two inconsistent statements for the purpose the defendant’s impeaching testimony.
The defendant now contends his should have moved to attorney sup- press first statement as been having made under the influence of and that his drugs' failure to do sо to as amounted such incompetency to have deprived of proper representation, thus re- justifying versal of his conviction and trial. new
On we note that point just prior court, to trial defendant told the of his and presence аttorney the State’s Attorney, he had given both statements and freely and after voluntarily being advised of his rights. Also implicit defendant’s contention that his trial counsel was in not incompetent moving the first suppress statement is the assump- that, made, tion if timely the motion to suppress would have been From a review of the granted. record we are of that the the opinion statement was subject being as an or suppressed involuntary coerced statement. confession,
A statement use, whatever intended is not auto matically subject on the sole suppression ground that a has drug been administered to the defendant In order making statement. for the confession to be as suppressed being appear must involuntary by the evidenсe the defendant’s “will was overborne”. Reck v. Pate 367 U.S. 6 L.Ed.2d S.Ct. On the of testimony doctor, basis of the administering record, of the medical testimony available from there is no certainly that the administered to the showing drugs defendant so affected his mentаl as to make his processes first statement to the involuntary. police Also, based on the of the testimony defendant, the two officers who took statements, doctor, and the the record reflects that the defendant was in a normal mаnner reacting responding just and at he made first statement. Inasmuch as the objected time statement after defendant was advised of given rights Miranda, his under was in no shown to be way involuntary, statement was used properly later impeach testimоny. above, of the view trial counsel’s incompetency *3 we not further, not well taken and will pursue except note fair- (in ness to defense that the in counsel) judge at the summing up end of said, tried, case the trial “This was well in very opinion, my by both sides оf the case.” brief, the second main of his the point
For defendant contends that acted in defendant self-defense he was “because not properly proved voluntary manslaughter of a reasonable guilty beyond doubt.” Whether aсted in self-defense or not the defendant is a matter for the jury. 912, 915, v. Smith 7 Ill.App.3d the court People (1972), said: Johnson, 150, in v. People 10, “The court 108 Ill.App.2d 247 N.E.2d at 156 said: page function to
‘It is not our substitute our judgment for that of a killing since whether justified the was under the jury law of of fact when, is a for the self-defense and jury [citations] it is the conflicting, as here evidence function of the trier of the conflict and determine the fact credibility resolve witnesses. [Citation.]”’ the defendant had in find acted did not self-defense but found jury
The him as voluntary manslaughter charged in the indictment. guilty in record verdict, evidence support substantial There there- with defendant’s claim this in fore, regard. We find the agree we do
1015 a reasonable beyond to find sufficient guilty evidence was dоubt. in allowing court is that the trial erred next contention
The defendant’s
which fired
shots
as to the caliber of the gun
non-expert testimony
of this
we do not
Under the facts
case
heard
witnesses.
testifying
to be admitted. The sev
feel
erred in
allowing
testimоny
the court
his contention are
the defendant
support
ap
eral cases
cited
492,
N.E.
them,
v. Berkman
307
139
posite.
People
(1923),
Ill.
Two
690,
91,
78,
339 Ill.
were early
and
v. Fiorita
170 N.E.
People
(1930),
felt a
foundation had not been
ballistics cases
court
prоper
where
82,
opinion.
laid
v. Parr
expert’s
Ill.App.2d
for the
133
(1971),
712,
an
its
272
was
automobile case and was decided on
own
N.E.2d
no
us.
facts. It has
on
case before
particular
bearing
determination of whether
testify
The
a witness is
as an ex
qualifiеd
the discretion of the trial
pert
judge. People
lies
v. Speck (1968),
within
177,
208;
242
v.
Phillips
41 Ill.2d
N.E.2d
Shell Oil Co.
Ill.App.
N.E,2d 771;
Hagerman
3d
Stores,
v. National Food
Inc. (1972),
No were asked of these hypothetical questions witnesses. Berg was an asked whether he had as to opinion whether shots he heard were did, from a he weapon, .38-caliber replied because pistol .22-caliber had a sound similar to a real cap pistol, light “a short sound”, different, and that a .38-caliber sounded and the sound of all *4 five shots he were similar to cap a pistol. heard Housewart was asked were, if the shots he heard in his opinion, from a .22-caliber weapon to, asked, upon being objected your sir, ‘In opinion, were that heard of a you shots small caliber or large caliber?”, to which “small caliber”. replied, view the practical experience of these witnesses, two does it 1016 to have been an appear abuse of the court’s to havе discretion
allowed the answers to the questions indicated. The of both experience men was considerably above that of field of average person firearms and the opinions given in indicated response questions seem tо be well within their related competence experi- based on their We, therefore, ences. cannot in this agree with the defendant’s contention regard.
A further is point made to the list of by regard defendant with witnesses, names, State, 67 cоntaining furnished him is contended was “cumbersome and There is no doubt meaningless”. failure to (People provide names and addresses of State’s witnesses v. Glover 78, 49 (1971), Ill.2d 273 N.E.2d or the omission of 367) number of witnesses not listed at v. Ill. (People (1965), Barfield 54, App.2d 213 N.E.2d 24) grounds are for reversal but we have witnesses, found case where the any listing of all the State’s potential even called, though were not all they was held to be for reversal. ground The cases cited defendant do the de hold, not so but only indicate fendant has a right be informed of the names and addresses of State’s witnesses and that it testify is error to allow witnesses to “surprise” whose names had been withheld State cannot by the to trial. We accept defendant’s list argument because the of witnesses con tained 67 names that this is tantamount to not all. furnishing list at
Finally, his sentence contends excessive that he was sentenced to not than less nor years more than 20 years penitentiary. Under the Unified Stat., Code of (Ill. Corrections Rev. сh. sec. Supp., 1005—8—1) since the maximum term for volun tary is 20 manslaughter and the years minimum should not be more than maximum, one-third of the he contends the sentence should be 1 to 3 years. The defendant misreading misconstruing the statute. does It not provide that the maximum shall not be more than three times the minimum, but that the shall minimum not exceed one-third of maxi mum. Since the case had not been adjudicated finally as of January 1973, the minimum sentence should be set at 6 v. 8 months. years Harvey 585; People v. Chupich 53 Ill.2d (1973), 572; 53 Ill.2d (1973), People v. Smith Ill.App.3d above,
For the reasons given the conviction is affirmed, the sentence vacated, the cause remanded for sentencing pursuant to the pro- visions of the Unified Code of Corrections. affirmed, vacated,
Judgment sentence cause remanded.
GUILD, concurs. J., *5 concurring: MORAN, specially T.
Mr. PRESIDING JUSTICE issue, I do first on the court’s determination I concur in the While that conclusion. supporting the rationale agree with place took colloquy this to jury, statements to opening prior Just of counsel, in the presence court, defendant and between аssistant attorney: state’s also I have Honor, Your Schirger
“Mr. counsel]: [defendant’s confessions of two production in this case for the filed a motion and oral statements. the police McKinnie, gave you statements which
Mr. not forced were you as a act on voluntary part; were given your statements, were you? or these compelled give No, Mr. McKinnie: I wasn’t. state- these giving And advised Schirger: you
Mr. were to an attorney? ments your rights McKinnie: Yes. Mr. to the police? these statements And Schirger: you gave
Mr. Yes, I did. Mr. McKinnie: As act on your part?
Mr. Schirger: voluntary Yes, I did. Mr. McKinnie: hearing no motion made I there has been
The Court: note it then I take these statements. held on the suppressing not done so? the reason have why you Honor. I have determined That’s Schirger: right, your statements because the confessions and oral- to suppress frivolous, ready those circumstances I am and under would to trial.” proceed issue. sufficient to dispose of this narrative was
The substance that even if trial counsel in effect states This court’s further rationale admis- to their objected had had moved statements suppress or. based, not upon This conclusion sion, naught. have been for it would from but none), from motion to suppress evidence adduced (there side, one the State. The voluntariness some evidence at produced rationale, Thus, extending not then in issue. of the statements was court, from an determining a trial acting capacity court the issue when voluntary were record that statements inadequate in not mov- incompetent us is trial counsel was before whether properly This, establishes bad in my opinion, the statements. ing suppress precedent.