People v. Henderson , 39 Ill. App. 3d 502 ( 1976 )

Mr. JUSTICE STENGEL

delivered the opinion of the court:

Defendant was convicted of aggravated battery and attempt murder following a jury trial in the Circuit Court of Will County. He was sentenced to a term of imprisonment for not less than 15 years nor more than 30 years for the attempt murder conviction with no sentence being imposed for aggravated battery. The following issues are presented for review: (1) whether the evidence is sufficient to prove defendant’s guilt beyond a reasonable doubt, (2) whether news coverage during the course of the trial deprived defendant of a fair trial, (3) whether the giving of a flight instruction was prejudicial error, and (4) whether aggravated battery was a separate offense.

William Boatwright, one of three occurrence witnesses for the State, testified that on the evening of May 11,1973, he was watching television at a friend’s apartment in Joliet. Between 8:30 and 9 p.m. he heard gunshots and looked out the window, but he did not see anything unusual. Approximately 20 minutes later he heard “three or four” shots. Looking out the window, he saw a man standing beside a gray car with a black top and holding what appeared to be a handgun. The man got into the car and drove off, and Boatwright then noticed a woman lying on the sidewalk. Boatwright ran downstairs, and when he looked out at the street he saw the same car parked nearby. The man whom Boatwright had seen minutes before was approaching the woman lying on the sidewalk and was carrying what appeared to be a rifle. As the woman attempted to sit up, the man shot her from a distance of one or two feet with a shotgun. The man got back into the car and drove off. Boatwright stated that he would be unable to identify the assailant.

The testimony of Joe Williams was introduced through an evidence deposition, since a severe illness prevented Williams from appearing in court. Williams stated that he had known both defendant and the victim, Marthaniel Griffin, for a long time. Williams had been working at the Elk’s Club during the evening of May 11,1973 and saw Miss Griffin in the club drinking,' but did not have time to talk with her. He and Miss Griffin left the club at approximately 9 p.m. Outside, they stood on the sidewalk and discussed going to a nearby party and began crossing the street. As they got to the center line, a car containing three people, which Williams described as a light car with a dark top, pulled up behind him and stopped. Miss Griffin walked over to the car while Williams crossed the street and waited for her. Williams heard two shots, and saw Miss Griffin run and fall on the sidewalk near where he was standing. As Williams tried to help her up, he felt something behind him and backed away. He then saw defendant, who was standing over Miss Griffin, shoot her with a sawed-off shotgun. Williams stated that there was a nearby street light and that he had a good opportunity to view defendant. On cross-examination, Williams admitted that he had not given this account to the police, even though the police had questioned him about the shooting.

Marthaniel Griffin testified that she had lived with defendant for 15 months, until defendant terminated the relationship in March of 1973. On May 11, 1973, she went to the Elk’s Club in the afternoon and consumed several drinks. After leaving to visit a friend she had a chance meeting with defendant and told him that she had no time for him. She eventually returned to the Elk’s Club and remained until 9 p.m. Upon leaving the Elk’s Club she met Joe Williams, and they decided to go to a party. A white car with a black top, which was like a car often used by defendant drove down the street and almost hit Williams and Miss Griffin as they were crossing the street. The car came back and parked, and defendant got out from the back seat, saying, “Marty, you don’t make no -out of me.” He then fired two shots from a handgun. Miss Griffin fell on the sidewalk and was attempting to get up with Williams’ assistance when Williams let go of her, and she fell back onto the sidewalk. She then saw defendant pick up her purse and stand over her with a sáwed-off shotgun. Some days later while in the hospital recovering from gunshot wounds, Miss Griffin identified defendant as her assailant from several pictures.

Other evidence by the State showed that a shooting had occurred a few blocks away approximately one-half hour before Miss Griffin was shot, which explained why Boatwright heard gunfire at two different times. The officer investigating the Griffin shooting testified that he found a large amount of blood and a wig belonging to Miss Griffin at the scene, but no purse. Medical testimony established that Miss Griffin suffered wounds from shotgun pellets and a .32 bullet. An FBI agent testified that he arrested defendant in Chicago on August 1, 1973.

The defense presented the testimony of a Joliet police officer who interviewed Joe Williams four months before the trial. In this interview Williams had stated that on the evening of the shooting a car drove by, Williams pushed Miss Griffin down, and shots were fired at Miss Griffin from the car. Williams named defendant as the person firing the shots.

Defendant testified that on the afternoon of May 11, 1973, he was involved in an argument with Miss Griffin. Following this he obtained a ride to Chicago and remained there looking for employment until he was arrested. He admitted that he knew the police were looking for him at least two weeks before his arrest. Five witnesses testified to seeing defendant at a party, in Chicago at various times from late afternoon of May 11 to the following morning.

Defendant first contends that the evidence is insufficient to support his conviction, citing various discrepancies in the testimony of the State’s witnesses, an alleged bias in Miss Griffin due to her past relationship with defendant, and defendant’s corroborated alibi. We disagree.

A reviewing court will not set aside the jury’s verdict unless the evidence is so palpably contrary to the verdict or so unsatisfactory as to cause a reasonable doubt of defendant’s guilt. (People v. Peto (1967), 38 Ill. 2d 45, 230 N.E.2d 236; People v. Thomas (1st Dist. 1970), 130 Ill. App. 2d 1107, 266 N.E.2d 721.) Inconsistencies or discrepancies in the testimony of witnesses, as well as any possible bias or interest, affect the credibility of witnesses and the weight to be given their testimony, which are matters peculiarly within the province of the jury. People v. O’Connell (1st Dist. 1967), 84 Ill. App. 2d 184, 228 N.E.2d 154, cert. denied (1968), 391 U.S. 969, 20 L. Ed. 2d 883, 88 S. Ct. 2042.

In the instant case there were some inconsistencies in the testimony of the three occurrence witnesses. Boatwright did not identify Williams as a party at the scene of the shooting, and there were discrepancies in the testimony of Williams and Miss Griffin regarding the sequence of events prior to the shooting. In contrast to this, however, all three witnesses testified that the assailant emerged from a similarly described car and testified to a chain of events whereby Miss Griffin was shot first with a handgun and then with a shotgun. There was clear and unequivocal identification of- defendant as the assailant by Miss Griffin and Williams, both having ample opportunity to observe defendant. The jury could properly consider each witness’s ability to remember and opportunity to observe and could weigh any discrepancies in light of all the evidence before it.

We are not persuaded otherwise by the fact that defendant presented an alibi which was corroborated by several witnesses. The credibility of these witnesses was also an issue for the jury’s determination. A jury is not required to believe an alibi, even where that alibi is corroborated, if identification of the defendant as the perpetrator of the offense is positive. (People v. Catlett (1971), 48 Ill. 2d 56, 268 N.E.2d 378; People v. Hodges (3d Dist. 1974), 20 Ill. App. 3d 1016, 314 N.E.2d 8.) Upon review of the record, we believe that the evidence is sufficient to establish defendant’s guilt beyond a reasonable doubt. See People v. Murray (1st Dist. 1975), 34 Ill. App. 3d 521, 340 N.E.2d 186; People v. Dillon (1st Dist. 1975), 28 Ill. App. 3d 11, 327 N.E.2d 225.

Defendant next contends that a mistrial should have been granted due to prejudicial news reports.

On the fourth day of trial, defendant moved for a mistrial based on a radio broadcast and newspaper article which reported that the police were interviewing a State witness who had been threatened and that the trial judge had ordered increased security due to the threats. The next day a voir dire of the jurors was conducted, during which each juror was examined outside the presence of the other jurors. After each examination the juror was not permitted to mingle with unexamined jurors and was admonished not to discuss the examination with other jurors.

The examination revealed that eight jurors and one alternate had read or heard something about the trial. Of these, six jurors and the alternate had read or heard news reports which had generally reported on the progress of the trial and named witnesses who had testified. The seventh juror stated that he had picked up a newspaper at home and noticed an article headline which had to do with security at this trial. He stated that he did not read the article and that this incident would not affect his deliberations. The last juror stated that he had read the article concerned with the threats and increased security. He stated that this would not affect his deliberations because he did not put much credence in the article. In the juror’s opinion, the threat could have been a prank, or it could have been perpetrated by someone wishing to influence the jury to defendant’s detriment as easily as by someone attempting to influence that witness’s testimony. After hearing arguments by counsel, the trial court denied defendant’s motion for a mistrial.

The granting of a mistrial due to prejudicial publicity is a matter within the sound discretion of the trial court, but an abuse of that discretion will result in reversal. (People v. Hryciuk (1954), 5 Ill. 2d 176, 125 N.E.2d 61.) A juror’s statement that a news report will not influence his decision is not conclusive, and the trial court should consider the nature and contents of the news report, whether any jurors have been exposed to the news report and whether, under the facts and circumstances, exposure to the news report would or could affect the jury’s deliberations. (People v. Gambino (1957), 12 Ill. 2d 29; 145 N.E.2d 42, cert. denied (1958), 356 U.S. 904, 2 L. Ed. 2d 582, 78 S. Ct. 566; People v. Cox (4th Dist. 1966), 74 Ill. App. 2d 342, 220 N.E.2d 7. However a mistrial is not warranted in every situation where the jury has been exposed to potentially prejudicial news coverage. In People v. Lampson (3d Dist. 1972), 6 Ill. App. 3d 1099, 1104, 286 N.E.2d 358, 363, this court stated:

“Unquestionably an accused is entitled to a fair trial and his rights must be zealously guarded by court and counsel, but a reversal is not indicated merely because the newspaper prints some statements derogatory to a defendant during the course of a trial and this is true even if the jurors have knowledge of such information. To warrant a reversal it must reasonably appear that the jury or at least some of them have been influenced or prejudiced to the extent that they cannot be fair and impartial.”

In the instant case, six of the jurors remembered reading or hearing news reports which discussed the general progress of the trial. These news reports which contained no prejudicial material and merely reported on proceedings which had already been held in open court before the jury, did not interfere with defendant’s right to a fair trial. People v. Hurley (4th Dist. 1973), 10 Ill. App. 3d 74, 293 N.E.2d 341.

2 The two remaining jurors had read or seen an article which discussed threats directed to a State witness and increased security, with one juror seeing the article headline only and the other juror reading the contents of the article. An article of this nature is potentially prejudicial to defendant because of the possibility that a person reading the article will conclude that defendant must be responsible for the threats and would not make the threats unless defendant were guilty of the crime for which he is being tried. However, the contents of the article here were not as inflammatory or conclusively prejudicial as in People v. Keegan (1971), 52 Ill. 2d 147, 286 N.E.2d 345, appeal dismissed and cert. denied (1972), 406 U.S. 964, 32 L. Ed. 2d 663, 92 S. Ct. 2408. (People v. Hryciuk.) Both jurors stated that the article would not influence their decision, with the juror who had actually read the article expressing suspicion and disbelief as to the veracity and significance of the article. After considering the nature of the article and the voir dire of the jury, we do not believe that there was any prejudice to defendant, nor do we believe that defendant’s right to a fair and impartial trial has been interfered with. Accordingly, we hold that the trial court did not err by denying defendant’s motion for a mistrial. People v. Lampson.

Defendant next complains of the following instruction, given over his objection:

“If you believe from the evidence, beyond a reasonable doubt that a crime was committed, and if you also believe beyond a reasonable doubt that the defendant, immediately after the commission of the crime with which he stands charged fled and remained away until taken into custody, such flight is a proper circumstance to be considered in determining the guilt or innocence of the defendant.”

Defendant contends that there was no evidence to show flight on his part.

The concept of flight embodies more than simply leaving the scene of the crime. The accused must be attempting to avoid arrest or detection, actions which imply a consciousness of guilt. (People v. Griffin (3d Dist. 1974), 23 Ill. App. 3d 461, 318 N.E.2d 671.) However, flight is not a material element of proof, since it is at most an incriminating circumstance, and therefore it need not be proved beyond a reasonable doubt. People v. Hurley (2d Dist. 1968), 100 Ill. App. 2d 167, 241 N.E.2d 318.

The' State’s evidence showed that defendant fled the scene of the shooting and was arrested in Chicago some three months later. By defendant’s own testimony, he was in Joliet the day of the shooting, and he knew the police were looking for him at least two weeks before his arrest. There was thus some evidence of flight which the jury could properly consider. (See People v. Craven (1973), 54 Ill. 2d 419, 299 N.E.2d 1.) When all of these facts are considered many Illinois cases have held that in some instances the flight instruction is harmless error because it is unnecessary proof. In People v. Agnello, 22 Ill. 2d 352, 176 N.E.2d 778 (1961), cert. denied, 368 U.S. 957, 7 L. Ed. 2d 389, 82 S. Ct. 400, the court held that proof of defendant’s guilt was clear and in such a case, the jury would hardly need the circumstance of flight to be convinced of his guilt. In People v. Haygood, 60 Ill. App. 2d 70, 208 N.E.2d 373, the proposition was again recognized that even where the flight instruction should not have been given, where there is overwhelming evidence of the defendant’s guilt, the instruction is not reversible error.

In the instant case when all the testimony, including two unimpeached eyewitnesses, is viewed in a realistic manner the proof was clear cut and beyond question. Accordingly, we find no reversible error in the giving of this instruction.

Defendant’s final contention is that the conviction for aggravated battery should be vacated because it arose out of the same conduct as the attempted murder. The State contends that the separate acts of shooting Miss Griffin first with a handgun and then with a shotgun gave rise to two distinct offenses.

The test of multiple offense sentencing is generally stated as whether defendant’s conduct is separable or whether each offense is independently motivated. (People v. Vaini (3d Dist. 1975), 33 Ill. App. 3d 246, 337 N.E.2d 234; People v. Bell (3d Dist. 1975), 30 Ill. App. 3d 449, 332 N.E.2d 619.) If a series of separate, closely related acts give rise to distinct offenses requiring different elements of proof, multiple convictions are proper. (People v. Moore (1972), 51 Ill. 2d 79, 281 N.E.2d 294, cert. denied (1972), 409 U.S. 979, 34 L. Ed. 2d 242, 93 S. Ct. 331.) To say that this concept has been uniformly and easily applied in Illinois would be a gross misstatement.

We do not believe that the offenses in this instance were independently motivated or sufficiently distinct to allow both convictions to stand. Each act was in furtherance of defendant’s attempt to kill Miss Griffin, and both offenses arose from the same conduct. The State’s position is belied by the fact that the language of the indictment charging defendant with attempt murder states that defendant “shot Marthaniel Griffin multiple times with a shotgun and a handgun ” * °,” whereas the indictment charging defendant with aggravated battery stated that defendant committed the offense by “shooting Marthaniel Griffin with a shotgun # (See People v. Griffin (1st Dist. 1973), 12 Ill. App. 3d 193, 297 N.E.2d 770.) Accordingly, the conviction for aggravated battery must be vacated, as it is the lesser of the two offenses. People v. Guppy (3d Dist. 1975), 30 Ill. App. 489, 333 N.E.2d 576.

The judgment of conviction of the Circuit Court of Wül County is affirmed in part, and vacated in part.

ALLOY, J., concurs.