{ "id": 3075981, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRENCE McCARTHY, Defendant-Appellant", "name_abbreviation": "People v. McCarthy", "decision_date": "1981-12-08", "docket_number": "No. 80-900", "first_page": "519", "last_page": "524", "citations": [ { "type": "official", "cite": "102 Ill. App. 3d 519" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "420 N.E.2d 415", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "95 Ill. App. 3d 779", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3120609 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/95/0779-01" ] }, { "cite": "368 N.E.2d 1018", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "53 Ill. App. 3d 367", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3394246 ], "pin_cites": [ { "page": "372" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/53/0367-01" ] }, { "cite": "386 N.E.2d 323", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 402", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3310575 ], "year": 1977, "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0402-01" ] }, { "cite": "383 N.E.2d 1296", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 516", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3318674 ], "weight": 2, "pin_cites": [ { "page": "524" }, { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0516-01" ] } ], "analysis": { "cardinality": 614, "char_count": 12822, "ocr_confidence": 0.92, "pagerank": { "raw": 1.493508532542895e-07, "percentile": 0.6634718858126477 }, "sha256": "270e511d9da0838bee64a44dc18971f100e27789f6236672487703d15f6f6fee", "simhash": "1:ac41acbcd4f881d1", "word_count": 2186 }, "last_updated": "2023-07-14T17:07:42.734695+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRENCE McCARTHY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE DOWNING\ndelivered the opinion of the court:\nThis case arises out of the shooting of Dolores Custodio by Terrence McCarthy, defendant, an off-duty Chicago police officer. Defendant conceded that he shot Custodio, but claimed the shooting was in self-defense. Defendant was charged by information with attempted murder, three counts of aggravated battery, and four counts of armed violence. (Ill. Rev. Stat. 1979, ch. 38, pars. 8 \u2014 4,12\u20144, 33A \u2014 2.) After a bench trial, defendant was found guilty of one count of aggravated battery and sentenced to 30 months probation.\nDefendant claims that he was not proved guilty beyond a reasonable doubt. Because we feel the evidence did not prove defendant guilty beyond a reasonable doubt, we will not address various alleged trial errors raised by the defendant.\nDolores Custodio was smelt fishing in Lake Michigan at Montrose Harbor in the city of Chicago with seven other people. They left the harbor at 4:30 a.m. on April 29,1979, having arrived the previous evening. Some persons in the group drank beer while fishing. The party left the harbor in the car of Dennis Edman, Custodio\u2019s cousin. Dennis was driving, Elias (Junior) Acevedo was next to him, and Kenneth Edman and Keith Edman were also in the front seat. In the back seat, from the driver\u2019s side to the passenger side, were Caesar Ortega, Dolores Custodio, and David James. Lying across the back seat and protruding from the rear passenger window was a flagpole that the group had taken from Waveland golf course.\nThe Edman car was southbound on Western Avenue, near Belmont, when there was contact between the flagpole and a car driven by defendant. Custodio claimed that, upon contact, the flagpole hit her in the face, causing substantial bleeding. Dennis Edman testified that he caught defendant\u2019s car at the next stoplight, told him that defendant had hurt one of his passengers, that they were going to the hospital, and that he had defendant\u2019s license number (BUM 1).\nThe occupants of the Edman car related the rest of the incident in a similar manner. While driving on Western Avenue, defendant\u2019s car started bumping Edman\u2019s. At one point, David James threw a full beer can at defendant\u2019s car. A green car, apparently acting in concert with defendant\u2019s car, cut off the Edman car. The Edman car then went in reverse with defendant\u2019s car in pursuit. The cars stopped. Defendant got out of his car and came toward the Edman car with a gun in his hand. He started hitting the driver\u2019s window with the gun. Junior got out of the Edman car and ran to the nearby city of Chicago police station at Belmont and Western. Custodio told the defendant to leave them alone. Then defendant stepped back and shot her in the face. Defendant got into his car and drove away, while the Edman car remained parked. Most members of the Edman party stated that the police arrived within two to three minutes after the shot was fired; Custodio stated it was 15 minutes to a half hour.\nDefendant claimed that, after the contact with the flagpole, the Edman car bumped his car. A green car voluntarily entered the chase after the Edman car. When defendant approached the Edman car on foot, he rapped on the window with his badge, stated his office, and ordered the occupants out of the car. Dolores Custodio said, \u201cI\u2019m going to kill you, you pig.\u201d Defendant saw her pointing a gun at him, so he stepped back and fired one shot. The Edman car drove away, and defendant pursued it. He lost it, and attempted to. find it for a half hour. Defendant then went to the 23d District police station at Addison and Halsted, and first went to the men\u2019s room. There, he was confronted by the captain, who informed defendant he was being sought and to whom defendant turned in his gun. Defendant\u2019s story was substantially corroborated by Tomalina Dedina, who was also in his car.\nAn investigating police officer testified on behalf of defendant that the Edman car and the area involved were searched but no flagpole was discovered.\nA toy gun was found by the police in the glove compartment of the Edman car. Keith Edman, who was 12 years old, was playing with it throughout the evening, although Dolores Custodio denied any knowledge of its existence. Junior Acevedo told an investigating police officer that he thought the toy gun was on the floor of the auto during the incident, while Dennis James told the officer that he thought the gun was on the dashboard during the incident.\nJohn Truppa, an elderly resident of the Belmont and Western area, stated that he heard a shot one night in April or May of 1979. He looked out the window a few minutes later and didn\u2019t see any cars. Defense counsel attempted to establish the date by the fact that Truppa read about the incident in the newspaper the next day. The trial court sustained the State\u2019s objection to this testimony.\nThe trial court found defendant guilty of aggravated battery and not guilty of attempted murder and armed violence. Defendant was sentenced to 30 months\u2019 probation.\nI\nDefendant claims he was not proved guilty beyond a reasonable doubt. The trial produced two completely conflicting versions of the shooting of Dolores Custodio. The trial court believed the version of the occupants of the Edman car. In asking this court to reverse his conviction based on reasonable doubt, defendant is asking this court to review and evaluate the credibility of the witnesses. Defendant faces a strong presumption that the finding of the trier of fact with regard to the credibility of witnesses is correct.\nA reviewing court may only disturb the trial court\u2019s finding as to credibility when the evidence is so improbable or unsatisfactory as to raise a reasonable doubt of guilt. (See, e.g., People v. Gunderson (1978), 66 Ill. App. 3d 516, 524, 383 N.E.2d 1296.) Where the evidence is merely conflicting, the reviewing court will not substitute its judgment for that of the trier of fact. (People v. Gunderson (1978), 66 Ill. App. 3d 516, 524.) This rule is not inflexible. When the record does not support the factual determinations, a court of review must reverse. People v. Ivy (1979), 68 Ill. App. 3d 402, 406, 386 N.E.2d 323; People v. Seymour (1977), 53 Ill. App. 3d 367, 372, 368 N.E.2d 1018 (probation revocation).\nAll the occurrence witnesses for the State were passengers in the car with Dolores Custodio. With the exception of David James and Elias Acevedo, they were relatives of and lived in the same apartment building as Custodio. Further, James and Acevedo were, respectively, 15 and 17 years old at the time of the occurrence and friends of the Edman family. Most of the occurrence witnesses conceded that they had all talked about the case together, and they all came to court together every day during the trial. At the time of the trial, Dolores Custodio had pending against defendant a personal injury claim, and some of the witnesses had spoken with her attorney about the case. Finally, many of the witnesses significantly changed their testimony at trial from earlier versions. The combination of these factors requires this court to carefully scrutinize the evidence.\nDefendant claims that as he approached the car, Custodio verbally threatened him. He saw a gun and then fired at her. The occupants of the car deny the use of a gun by anyone in their car, yet a realistic-looking toy gun was found in their glove compartment. Everyone in the Edman car had a different story regarding the gun. Most conceded that the. gun belonged to 12-year-old Keith Edman, who had been playing with it at the lake. Dolores Custodio was the only one who denied any knowledge of the existence of the gun, although David James and Elias Acevedo testified that she was present while Keith was playing with the gun. David James initially told police that the gun was on the dashboard of the car during the drive, but disavowed this position at trial, claiming he did not see the gun in the car. Finally, Dennis and Keith Edman talked over their testimony before coming to court, and, as Dennis said, \u201cWe knew there might be an issue over the toy gun.\u201d\nUnder close scrutiny, the testimony of all the State\u2019s occurrence witnesses contains substantial discrepancies. Dolores Custodio, who had a personal injury claim pending against defendant, denied knowledge of the existence of the gun, even though it was displayed for some time in her presence. In her initial statement to the police on the evening of the incident, she did not mention anything about being hit in the face by the flagpole, the event which in her later story was the catalyst of the entire incident. Finally, in her earlier statement to the police, she told of obscenities being exchanged between the passengers of the two cars. At trial, she denied hearing any obscenities coming from her car.\nDennis Edman, the driver of the car and Custodio\u2019s cousin and neighbor, initially told police that defendant\u2019s gun discharged while defendant was banging on the window with it. At trial, he repudiated this version and told of defendant deliberately shooting into the car. In the interim, he had discussed the case with the other occupants of the car and Custodio\u2019s personal injury attorney. At the preliminary hearing, Dennis stated that he saw defendant reach out of his car and pull the flagpole. At trial, he denied seeing this. Also at the preliminary hearing, Edman testified that he shouted obscenities at defendant\u2019s car. At trial, he was not sure.\nDavid James, who was 15 years old at the time of the incident, initially told police that the gun was on the dashboard of the car during the ride. At trial, he testified that he did not see the gun in the car.\nKenneth Edman, Dennis Edman\u2019s son, who was 17 years old at the time of the incident, also initially told police that defendant\u2019s gun discharged when banged on the car window. Like his father, he changed his story at trial. He admitted that he discussed his planned testimony with his father, and that he read the transcript of his father\u2019s preliminary hearing testimony several days before trial. Further, he testified that his father, Dennis Edman, shouted obscenities at defendant\u2019s car prior to any contact between the cars.\nElias (Junior) Acevedo was 16 years old at the time of the incident. His testimony is riddled with inconsistencies. All the occupants of the car testified that Junior ran to the police station for help. All the testimony was that he left before the shot was fired, and Junior stated that he was at the police station when he heard the shot. Yet the \u201cflash message\u201d that went out over the police radio was \u201cwoman shot.\u201d Further, Junior and most of the witnesses testified that Junior took two minutes to get to the police station and back. Junior claimed that Custodio was already removed from the scene when he returned, but others testified that she was still there. Finally, Junior initially told the police that he was in the car when defendant started banging on the window. At trial, he and all the others stated that Junior left to go to the police station prior to defendant\u2019s arrival at the car.\nWe must conclude that the testimony of the occupants of the Edman car raises a reasonable doubt concerning the incident. There are too many instances of witnesses changing their stories, too many details that are inconsistent, and too many details that are exactly the same in the testimony of several witnesses. The testimony of the victim Custodio is too conflicting and too inconsistent to be believed. We find the evidence so unsatisfactory that it cannot satisfy the requirement that defendant\u2019s guilt be proved beyond a reasonable doubt.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is reversed.\nReversed.\nHARTMAN, P. J\u201e and STAMOS, J\u201e concur.\nAt oral argument before this court, defendant's lawyer suggested that the Edman car and group returned to the identical location by the time the police arrived. However, the record is not clear on this point.\nThe record is silent as to where, when, and how the police received information regarding this incident.\nIt is to be noted that defendant\u2019s brief in this court did not contain an appendix, a copy of the notice of appeal, or an index to the record on appeal. These omissions are in contravention of Supreme Court Rule 342. See People v. Mitchell (1981), 95 Ill. App. 3d 779, 792 n.4, 420 N.E.2d 415.", "type": "majority", "author": "JUSTICE DOWNING" } ], "attorneys": [ "Burke and Smith, Chartered, of Chicago (Raymond J. Smith, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Ruth Stern Geis, and James Klein, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRENCE McCARTHY, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 80-900\nOpinion filed December 8, 1981.\nBurke and Smith, Chartered, of Chicago (Raymond J. Smith, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Ruth Stern Geis, and James Klein, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0519-01", "first_page_order": 541, "last_page_order": 546 }