{ "id": 3562211, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MALCOLM TURNER, Defendant-Appellant", "name_abbreviation": "People v. Turner", "decision_date": "1984-09-21", "docket_number": "No. 83\u20141977", "first_page": "784", "last_page": "793", "citations": [ { "type": "official", "cite": "127 Ill. App. 3d 784" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "214 N.E.2d 330", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. App. 2d 452", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5291806 ], "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/66/0452-01" ] }, { "cite": "261 N.E.2d 469", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "126 Ill. 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Ed. 2d", "opinion_index": 0 }, { "cite": "459 U.S. 1214", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6550690, 6550499, 6550660, 6550566, 6550728, 6550538, 6551020, 6550893, 6550766, 6550458, 6550619, 6550589, 6550846 ], "opinion_index": 0, "case_paths": [ "/us/459/1214-08", "/us/459/1214-02", "/us/459/1214-07", "/us/459/1214-04", "/us/459/1214-09", "/us/459/1214-03", "/us/459/1214-13", "/us/459/1214-12", "/us/459/1214-10", "/us/459/1214-01", "/us/459/1214-06", "/us/459/1214-05", "/us/459/1214-11" ] }, { "cite": "432 N.E.2d 1316", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "104 Ill. App. 3d 618", "category": "reporters:state", "reporter": "Ill. 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App. 2d", "case_ids": [ 2897767 ], "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/90/0231-01" ] }, { "cite": "459 N.E.2d 958", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. 2d 389", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3164374 ], "pin_cites": [ { "page": "391-92" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0389-01" ] } ], "analysis": { "cardinality": 772, "char_count": 17272, "ocr_confidence": 0.75, "pagerank": { "raw": 3.319371799861005e-07, "percentile": 0.8729109303283705 }, "sha256": "e241266789646a723f6808ec397e3dbff4ddf025a71491d8a6aa73f9039048ff", "simhash": "1:ba7a39787a401fd1", "word_count": 2831 }, "last_updated": "2023-07-14T19:14:53.477818+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. MALCOLM TURNER, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE MEJDA\ndelivered the opinion of the court:\nDefendant, Malcolm Turner, was charged with attempted robbery (Ill. Rev. Stat. 1981, ch. 38, par. 8\u20144(a)), robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18\u20141), and felony murder (Ill. Rev. Stat. 1981, ch. 38, par. 9\u20141(a)(3)). The jury found him guilty of all three charges. The court held that the charges merged and imposed a sentence of 22 years for murder. Defendant appeals.\nThe following issues are presented: (1) whether the trial court erred in denying the defendant\u2019s pretrial motion to dismiss the indictment; (2) whether the trial court erred in denying defendant\u2019s motion for a directed verdict at the close of the State\u2019s case; (3) whether the evidence failed to establish the cause of death beyond a reasonable doubt; (4) whether the introduction of testimony of an assistant State\u2019s Attorney recommending that charges be brought against the defendant was error; and (5) whether statements made by the prosecutor during closing argument were prejudicially improper. We reverse and remand.\nAt the trial, eyewitnesses Rose Casares and John Haepp testified that on April 17, 1981, at about 1:30 p.m., they were traveling in their van near 47th and Halsted streets. They observed defendant and another man, Michael Avery, on the sidewalk at that location holding an older man, George Deberaux, between them, beating him about the face and chest. Upon seeing this, they stopped their van and Haepp immediately jumped out with Casares following close behind. Haepp began yelling at the two men to leave Deberaux alone. By this time, Deberaux had either jumped or been pushed to the street level, which was 5V2 to 6 feet below the sidewalk. Soon after, the two men fled the scene. Neither Casares nor Haepp saw the two men take anything from the older man. Although he chased the two men as they fled, Haepp was unable to catch them. Haepp and Casares testified that after either being pushed or having jumped to the street level, Deberaux took a few steps and then fell. Officer Castenada, the first police officer on the scene, stated that Deberaux was bruised, bleeding, and unconscious. Deberaux died later that day.\nJust prior to this incident, defendant and Avery stopped along 47th Street near Halsted to talk with William Rake, an acquaintance of the defendant\u2019s. Rake testified that Avery said, \u201cI know that old man over there has money.\u201d Defendant replied, \u201cMike, you are going to get a nigger put in jail.\u201d After they crossed the street and approached Deberaux, Rake saw both men pushing and punching him.\nLater that same afternoon, police questioned the defendant about the incident. Officer Anderson testified that the defendant told him that he robbed Deberaux but did not beat him. At trial defendant denied that he told the officer that he robbed Deberaux. He instead testified that he told Detective Bedran that he had followed Avery with the intention of stopping him from robbing Deberaux. Defendant testified that Avery asked Deberaux for a quarter, which was given to him. When Avery asked for a quarter for the defendant, defendant stated that he did not want any money. At this point, Avery began pushing and shoving Deberaux. Defendant maintained that he stepped in between the two to break them apart. During the scuffle, defendant stated that Avery took some bills from Deberaux\u2019 pocket. After Deberaux fell to the street level below, defendant stated that he ran after Avery to persuade him to return to the scene and give the money back.\nAn assistant State\u2019s Attorney, Michael Ditore, was called as a witness by the State. He testified that in April of 1981 he was assigned to the felony review unit. Detective Bedran telephoned Ditore on the day in question concerning the Deberaux incident. Ditore testified that he had conversations with the police, \"witnesses, and the defendant that day. Defendant related the facts of the incident to Ditore, including his explanation that he accompanied Avery in an attempt to prevent him from robbing Deberaux. Ditore testified that he did not recommend that charges be brought that day, but when the results of an autopsy performed on Deberaux were released the following day, he then recommended placing charges.\nDr. Robert Stein, chief medical examiner of Cook County, testified that his external examination of the victim\u2019s body revealed abrasions and contusions in the left eye area. Abrasions and contusions were also found around the right forearm. These injuries, Dr. Stein indicated, could have been caused by a blunt object. During the internal examination he also discovered that Deberaux suffered from heart disease. Dr. Stein stated that in his opinion the victim died as a result of blunt trauma in association with arteriosclerotic heart disease. If the victim had not received this type of trauma, he would have lived.\nThe jury found defendant guilty on charges of attempted robbery, robbery, and felony murder. The court imposed a sentence of 22 years\u2019 imprisonment. Defendant appeals.\nOpinion\nThe first issue raised is whether the trial court erred in denying the defendant\u2019s pretrial motion to dismiss the indictment. Defendant maintains that the indictment was based partly on the perjured testimony of Officer Bedran that defendant had admitted his participation in the crimes charged. The appellant has the burden of presenting a sufficiently complete record of the earlier proceedings to support a claim of error, and any doubts occasioned by the incompleteness of the record are resolved against the appellant. (Foutch v. O\u2019Bryant (1984), 99 Ill. 2d 389, 391-92, 459 N.E.2d 958.) Because the record contains no transcript of the proceedings involved, we cannot say the trial court erred in denying the motion.\nWe next consider the second issue defendant raises regarding whether the trial court erred in denying his motion for a directed verdict at the close of the State\u2019s case. The State urges that the defendant waived any error in the trial court\u2019s ruling by presenting evidence after the motion was overruled. An election by the defendant to present evidence after a motion for directed verdict has been overruled waives any error in the trial court\u2019s ruling on the motion (People v. Curtis (1967), 90 Ill. App. 2d 231, 232, 232 N.E.2d 457), except when the defendant renews the motion at the close of all the evidence. (LeMay v. Jenkins (1955), 6 Ill. App. 2d 57, 59, 126 N.E.2d 524.) Here, the defendant moved for a directed verdict at the close of all the evidence properly preserving this issue for review.\nThe defendant argues that the motion should have been granted because the State\u2019s evidence, except for the oral admissions of the defendant, failed to establish that a robbery occurred. Without these oral statements, the defendant contends there was insufficient evidence to establish the corpus delicti that a robbery had occurred. We find defendant\u2019s argument unpersuasive. A conviction based on a confession will be upheld if independent evidence (1) shows that a crime did occur, although the evidence need not establish that fact beyond a reasonable doubt, and (2) corroborates or bolsters the circumstances of the confession. (People v. Willingham (1982), 89 Ill. 2d 352, 360-61, 432 N.E.2d 861.) If this test is satisfied, both the independent evidence and the confession may be considered in determining whether the corpus delicti is sufficiently proved. (89 Ill. 2d 352, 360, 432 N.E.2d 861.) In the instant case there was independent evidence that before Deberaux died defendant was beating him about the face after Avery had asked him for money. This evidence tends to prove that a crime occurred and was consistent with defendant\u2019s statement that he had robbed Deberaux, although it did not by itself establish the corpus delicti. (See also People v. Barkenlau (1982), 105 Ill. App. 3d 785, 434 N.E.2d 856.) We find that the corpus delicti was established. Thus, defendant\u2019s argument provides no basis for granting a directed verdict.\nWhen a motion for a directed verdict is made at the close of all the evidence, the proper standard on review is whether a verdict of not guilty should be granted where all the evidence, viewed in a light most favorable to the State, fails to establish defendant\u2019s guilt beyond a reasonable doubt. (People v. Easter (1981), 102 Ill. App. 3d 974, 981, 430 N.E.2d 612.) Our review of the evidence presented on each charge reveals that, construing the evidence most favorably to the State, the State established defendant\u2019s guilt beyond a reasonable doubt.\nA person commits an attempted robbery when, with intent to commit the specific offense of robbery, he does any act which constitutes a substantial step toward the commission of that offense. (Ill. Rev. Stat. 1981, ch. 38, par. 8\u20144(a).) Intent may be inferred from the acts of the accused and the surrounding circumstances. (People v. Cheatem (1976), 35 Ill. App. 3d 414, 416, 342 N.E.2d 410.) Construing the evidence most strongly in favor of the State shows that William Rake spoke with the defendant and Avery immediately preceding this incident. Avery saw the victim and stated that he knew the older man had money. Moments later defendant and Avery crossed the street and approached the victim. In addition to Rake, eyewitnesses Casares and Haepp indicated that they saw defendant and Avery beating the victim. After this beating, the victim was either pushed or jumped to the street level below, where he fell to the pavement unconscious after taking a few steps. Defendant and Avery then fled from the scene. When Officer Anderson went to defendant\u2019s home after the incident, defendant admitted that he had robbed the victim, but did not beat him. We find these facts sufficient to infer the necessary intent. Defendant\u2019s participation in the physical abuse of the victim constituted a substantial step toward the commission of a robbery.\nA robbery occurs when a person takes property from the person or presence of another by the use of force or by threatening the imminent use of force. (Ill. Rev. Stat. 1981, ch. 38, par. 18\u20141.) Defendant admitted that he robbed the victim shortly after the incident. Although defendant\u2019s testimony conflicted with his initial confession to the robbery, eyewitnesses observed him and Avery on either side of Deberaux beating him. Based on these eyewitness accounts, the element of the use of force was established.\nA person who kills another individual without lawful justification commits murder if the conduct which causes the death of the individual occurs during an attempt to commit or the commission of a forcible felony other than voluntary manslaughter. (Ill. Rev. Stat. 1983, ch. 38, par. 9\u20141(a)(3).) When the defendant is charged with murder, the State must prove both the fact of death and the criminal agency causing death. (People v. Martin (1983), 112 Ill. App. 3d 486, 499, 445 N.E.2d 795.) Eyewitness accounts attributed the beating of the victim to the defendant and Avery. Dr. Stein testified that Deberaux died as a result of blunt trauma in association with arteriosclerotic heart disease. He further stated that the victim\u2019s death could not have been caused by either condition alone. We conclude that all of the evidence viewed most favorably to the State establishes defendant\u2019s guilt beyond a reasonable doubt. Thus, the trial court did not err in denying defendant\u2019s motion for a directed verdict.\nThe third issue defendant raises is whether the evidence failed to establish the cause of death beyond a reasonable doubt. The State shoulders the burden of proving all the material and essential facts constituting the crime. (People v. Weinstein (1966), 35 Ill. 2d 467, 470, 220 N.E.2d 432.) When the defendant is charged with murder, the State must prove both the fact of death and the criminal agency causing death. (People v. Martin (1983), 112 Ill. App. 3d 486, 499, 445 N.E.2d 795.) The State is not required to prove that defendant\u2019s acts constituted the sole and immediate cause of death. (112 Ill. App. 3d 486, 499, 445 N.E.2d 795.) If the State establishes that those acts were a contributory cause and the death did not result from a source independent of those acts, that is sufficient. People v. Schreiber (1982), 104 Ill. App. 3d 618, 625, 432 N.E.2d 1316, cert, denied (1983), 459 U.S. 1214, 75 L. Ed. 2d 452, 103 S. Ct. 1214.\nIn this case, the State met its burden. Dr. Stein, the medical examiner, testified that Deberaux died as a result of blunt trauma, that is, injury produced by a blunt object rather than a sharp one, in association with arteriosclerotic heart disease. He also stated that either the heart disease or the blunt trauma alone could not have caused the death. We think this evidence is sufficient to establish criminal agency. The jury implicitly found that the beating caused Deberaux\u2019 death, and we cannot say this finding was unsupported by the evidence. Thus, the State proved beyond a reasonable doubt that the victim\u2019s death was the result of defendant\u2019s criminal acts.\nDefendant cites People v. Benson (1960), 19 Ill. 2d 50, 166 N.E.2d 80, in support of his argument that the evidence is insufficient to establish criminal responsibility for the victim\u2019s death. Benson is distinguishable from the instant case, because in Benson there was no evidence explaining how the defendant\u2019s acts could have caused the victim\u2019s physical conditions. Nor was there evidence that any of these conditions resulted from trauma. In this case, there was evidence presented on both of these points.\nThe fourth issue raised is whether the introduction of the testimony of an assistant State\u2019s Attorney recommending that charges be brought against the defendant was error. The State argues that Michael Ditore\u2019s testimony simply outlined the steps taken leading to the recommendation of charges. We find no merit in this contention. A prosecutor\u2019s testimony that he recommended that charges be placed against a defendant after discussing the facts of the case with the police was held prejudicial error requiring a new trial in People v. Blissit (1973), 12 Ill. App. 3d 551, 299 N.E.2d 562. The prejudicial impact of Ditore\u2019s testimony is greater in the instant case because he testified not only that he spoke with police prior to recommending charges but also with several witnesses and the defendant. Over defendant\u2019s objection, Ditore stated that he waited to recommend charges until the medical examiner released the results of an autopsy performed on the victim. The prejudicial effect of this testimony requires that the case be remanded for a new trial.\nDefendant\u2019s fifth and last contention is that statements made by the prosecutor during closing argument were prejudicially improper. Closing arguments which reflect unfavorably on the accused are not improper if based upon competent evidence. (People v. Gillarm (1976), 41 Ill. App. 3d 174, 176-77, 353 N.E.2d 280.) If improper, a prosecutor\u2019s remarks are not reversible error unless they result in substantial prejudice to the defendant. (People v. De Savieu (1973), 11 Ill. App. 3d 529, 535, 297 N.E.2d 336; People v. Phillips (1970), 126 Ill. App. 2d 179, 184, 261 N.E.2d 469.) While we do not condone ill-advised closing arguments, we find only one of the objected-to remarks sufficiently prejudicial to have denied the defendant a fair trial. During closing argument, the prosecutor stated, \u201cThe fact Mr. Ditore told you that Malcolm Turner was [not] charged with the murder or anything until April 18th I think has significance. * * * I think it showed we don\u2019t just charge people lightly with crimes. We have to get in the case of a homicide a cause of death from the medical examiner\u2019s office. And we are not going to charge people with crimes, like the crime of murder, until we have that evidence. *** I submit to you, ladies and gentlemen, that had the results of the autopsy or post-mortem examination was [sic] different we wouldn\u2019t be here today.\u201d\nA prosecutor\u2019s statements implying that charges would not have been placed against the defendant unless the prosecutor thought he was guilty are improper and prejudicial error. (People v. Fuerback (1966), 66 Ill. App. 2d 452, 456, 214 N.E.2d 330.) In light of the fact that it was highly prejudicial for Ditore to testify regarding the placing of charges against the defendant after discussing the case with police, witnesses, the defendant, and the medical examiner, the prejudice to the defendant was further compounded by the prosecutor\u2019s reference to this testimony in closing argument. We are of the opinion that the outcome may have been otherwise had the State omitted these remarks and their inclusion constituted reversible error.\nFor the foregoing reasons the judgment of conviction is reversed, and the cause is remanded for a new trial.\nReversed and remanded.\nLORENZ and SULLIVAN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE MEJDA" } ], "attorneys": [ "Jerome Rotenberg, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and John C. Legutki, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MALCOLM TURNER, Defendant-Appellant.\nFirst District (5th Division)\nNo. 83\u20141977\nOpinion filed September 21, 1984.\nJerome Rotenberg, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and John C. Legutki, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0784-01", "first_page_order": 806, "last_page_order": 815 }