People v. Russell , 29 Ill. App. 3d 59 ( 1975 )

Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals his conviction of murder entered upon a jury’s verdict. A sentence of 14 to 30 years was imposed.

Upon appeal, defendant first asserts a denial of right to effective appellate review by reason of the fact that the tape recording of the closing arguments was lost and a transcription was not available to include in the report of proceedings for purposes of review.

In fact it is urged that the omission was not discovered until the record on appeal was filed some 15 months later, and that by such time the record could not be supplemented in the manner provided in Supreme Court Rule 323(c) and 323(d).

The record, however, includes the arguments made at the post-trial motions. The record discloses diligent advocacy both at trial and in lengthy post-trial argument. Examination of such discloses that not one word was directed by defense counsel to the issue of prejudicial argument. The issue asserted was not preserved in the record. See People v. Hanson, 53 Ill.2d 79, 289 N.E.2d 611, cert. denied, 411 U.S. 937, 36 L.Ed. 2d 398, 93 S.Ct. 1916.

It is argued that defendant was not proven guilty beyond a reasonable doubt. Defendant testified in his own behalf.

The defendant and the victim, Richardson, lived in the home of defendant’s father. The shooting occurred shortly after 6 P.M. on January 8,1972. The testimony shows that the victim and defendant left the home between 9 and 10 P.M. on January 7, and with others went from place to place during the night and arrived at the trailer home of one Monical at about 10 A.M. on January 8. In addition to Monical, others present included Matthew Maggio and Willie Russell (no relation). All remained at this place throughout the day, drinking and talking until sometime before 6 o’clock when defendant was driven to his home by Willie Russell. The stated purpose was to inquire concerning the condition of defendant’s father. Upon defendant’s return to the trailer, defendant and the victim went into a small bedroom and immediately six shots were fired in rapid succession. The victim was then observed lying on the floor with his head near the door. Defendant and one witness stated that they saw the revolver lying near the right hand of Richardson.

Defendant’s version of the events is that upon his return he entered the trailer, placed his coat in the bedroom, mixed a drink for himself, asked the victim to speak with him in the bedroom, that defendant put his drink down and entered the room to find the victim facing him with the weapon. Defendant stated that he grabbed for the gun and it was fired as they struggled. He had little recollection of how he grabbed the gun or how the struggle progressed. From such version defendant argues that having removed his coat, defendant could not have had the gun concealed in Iris tight-fitting shirt and trousers and that no witness saw defendant carrying a gun. The version requires the assumption that the victim had been carrying the gun throughout the night before and during the day and left it in his coat in the bedroom.

The only witness testifying to the point contradicts defendant. Willie Russell was sitting in the kitchen at the time of defendant’s return. He testified that defendant returned, walked to the door at the first bedroom, leaned against the wall and said something to the victim which caused the latter to curse. Russell states that defendant was then wearing a three-quarters’ length coat as he stood in the hall and spoke to the victim. The weapon had a 2-inch barrel. It is readily, if not customarily, thrust under the belt. The jury might properly consider that the argument that defendant’s coat had no pockets was of little weight. No witness testified to corroborate defendant’s statement that he had removed his coat prior to going into the bedroom.

Defendant’s version of the shooting is necessarily weighed in the context of clearly stated physical facts. The uniform testimony is that the shots were heard in rapid, immediate succession. The evidence, including that of the defendant, is that the victim was right-handed. Tests by ballistic experts demonstrated that the trigger pull required to fire the gun in double action was 9 to 13 pounds.

Two bullets entered the body under the right armpit, slightly forward of the medical median line between anterior and posterior. One of such bullets lodged in the spine, one travelled through the heart and lungs to exit on the left side in a downward course, and a third bullet through the victim’s right shoulder to emerge through the back. The pathologist testified to the shock and the paralysis that would be caused at least temporarily from each bullet. He testified that while he could not say that it was impossible, he could not see how the victim could hold the gun in a position to produce the several wounds at the points of entry into his own body.

Defendant testified that as he went into the bedroom, the victim was facing north, allegedly pointing the revolver toward the defendant. The testimony and the photographs admitted into evidence, however, show bullet holes in the southwest comer of the ceiling.

The jury could also consider that while the gun belonged to the defendant and was kept in his room, defendant admitted that following the shooting he concealed the weapon under a pillow in another bedroom and initially denied ownership to the police. He explained that he had not obtained a registration of the weapon.

Tests and measurements of nitrate residue upon the respective hands of the victim and the defendant show a heavier concentration of nitrate in the right hand of the victim than on either hand of defendant. Some nitrate residue was found on each hand of the defendant. Such testimony is to be considered in the light of the evidence that nitrate residue is stable as to a deceased person, but is eroded or worn away by washing the hands, putting the hands in the pockets or rubbing them together. As to the defendant, at least 4 hours intervened between the shooting and the application of the swabs by which the residue was measured. During such time defendant admittedly concealed the gun under the bed clothes in the trailer, as well as time spent waiting at the county jail. Again, such evidence is equally consistent with the victim’s grappling for the gun.

It is contended that the victim had access to the gun in defendant’s home and was said to enjoy playing with it. We are asked to conclude that he could have been carrying it in his pocket during the period of more than 20 hours. Defendant argues that he did not have an opportunity to obtain the weapon as he did not go upstairs to his room when he stopped at his home to see his father. Scrutiny of the evidence by the jury would disclose factors affecting the credibility of such testimony. When Russell drove defendant to the home, the latter entered by the front door and spent some time talking to his father in the front room. The stairs to defendant’s room were at the rear of the hall. The record indicates that defendant left by the rear door of the house to return to the friend’s vehicle which was parked in front.

It was argued at the trial and is argued here that the shooting followed a homosexual quarrel. The record, at best, shows a bare suggestion of such relationship and we read defendant’s answer to the question as a form of denial. The witnesses, other than defendant, testified to “arguments” and “bickering” between the two during the day, but none were able to state a real impression as to the content.

It is contended that the evidence in this case brings it within the rule of those cases where “evidence is entirely circumstantial it must be inconsistent with every reasonable hypothesis of innocence.” To support such argument defendant cites People v. Johnson, 317 Ill. 430, 148 N.E. 255; People v. Lefler, 38 Ill.2d 216, 230 N.E.2d 827, and People v. Ibom, 25 Ill.2d 585, 185 N.E.2d 690, and quotes language which is said to support the position. In neither Johnson nor Lefler was the court considering evidence, but rather the language was used with reference to instructions. In Ibom, such quoted language was stated in dealing with the conflicting and inconsistent testimony of the witnesses for the prosecution.

This is not a case of circumstantial evidence in the sense that defendant’s connection with the event is established by circumstantial evidence. It is not denied that defendant was present at the shooting, owned the weapon and was the only person in the immediate vicinity of the victim. The issue is the credibility of the defendant in the light of the evidence of physical facts and the evidence contradicting his testimony. In People v. Benedik, 56 Il.2d 306, 307 N.E.2d 382, there was no prosecution evidence placing defendant at the scene of the killing. Defendant, however, testified to certain circumstances including a claim of self-defense. He contended that such testimony given by him supported a reasonable hypothesis of innocence and that he was not proven guilty beyond a reasonable doubt because the prosecution’s evidence did not exclude every other reasonable hypothesis. The court said:

“The circumstantial evidence against the defendant was substantial. If the jury disbelieved his testimony, as they were entitled to do, they could reasonably have reached the conclusion that the physical evidence, the nature of the wounds on Kresmery’s body, the defendant’s attempt to hide the bodies and destroy other evidence, Iris flight and his apparent motive established his guilt beyond a reasonable doubt. It is not necessary that the jury disregard the inferences which naturally flow from this evidence, nor is the trier of fact required to search out a series of potential explanations compatible with innocence, and elevate them to the status of a reasonable doubt’.” 56 Ifl.2d 306, 309.

The evidence was sufficient to establish proof of guilt beyond a reasonable doubt and the judgment of conviction is affirmed.

Affirmed.

SIMKINS, P. J., concurs.