{ "id": 8499128, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EMMITT MURRAY, Defendant-Appellant", "name_abbreviation": "People v. Murray", "decision_date": "1990-02-13", "docket_number": "No. 1\u201487\u20142082", "first_page": "653", "last_page": "660", "citations": [ { "type": "official", "cite": "194 Ill. App. 3d 653" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "123 U. Pa. L. Rev. 1031", "category": "journals:journal", "reporter": "U. Pa. L. Rev.", "year": 1975, "pin_cites": [ { "page": "1041-45" } ], "opinion_index": 0 }, { "cite": "293 N.E.2d 692", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "9 Ill. App. 3d 1048", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2851293 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/1048-01" ] }, { "cite": "180 N.E.2d 491", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "24 Ill. 2d 93", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2799906 ], "opinion_index": 0, "case_paths": [ "/ill-2d/24/0093-01" ] }, { "cite": "224 N.E.2d 660", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "80 Ill. App. 3d 229", "category": "reporters:state", "reporter": "Ill. App. 3d", "opinion_index": 0 }, { "cite": "413 N.E.2d 542", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "90 Ill. App. 3d 687", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3159847 ], "pin_cites": [ { "page": "688-89" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/90/0687-01" ] }, { "cite": "115 N.E. 130", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "276 Ill. 630", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4855687 ], "weight": 2, "pin_cites": [ { "page": "641" }, { "page": "641-42" } ], "opinion_index": 0, "case_paths": [ "/ill/276/0630-01" ] }, { "cite": "155 N.E. 310", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1917, "opinion_index": 0 }, { "cite": "324 Ill. 322", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2442430 ], "year": 1917, "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/ill/324/0322-01" ] }, { "cite": "169 N.E.2d 244", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1927, "opinion_index": 0 }, { "cite": "20 Ill. 2d 126", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2737298 ], "weight": 3, "year": 1927, "pin_cites": [ { "page": "132" }, { "page": "132" }, { "page": "131-32" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0126-01" ] }, { "cite": "111 N.E.2d 534", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "414 Ill. 445", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5314057 ], "pin_cites": [ { "page": "450" } ], "opinion_index": 0, "case_paths": [ "/ill/414/0445-01" ] }, { "cite": "136 N.E.2d 817", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "9 Ill. 2d 92", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5320071 ], "year": 1953, "pin_cites": [ { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/9/0092-01" ] }, { "cite": "147 N.E.2d 44", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "47" } ], "opinion_index": 0 }, { "cite": "12 Ill. 2d 410", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2779710 ], "pin_cites": [ { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/12/0410-01" ] }, { "cite": "163 N.E.2d 500", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill. 2d 138", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5329364 ], "opinion_index": 0, "case_paths": [ "/ill-2d/18/0138-01" ] }, { "cite": "189 N.E.2d 265", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1959, "pin_cites": [ { "page": "268" } ], "opinion_index": 0 }, { "cite": "27 Ill. 2d 311", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5361214 ], "weight": 2, "year": 1959, "pin_cites": [ { "page": "314" }, { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0311-01" ] }, { "cite": "502 N.E.2d 853", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "151 Ill. App. 3d 481", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3541355 ], "weight": 2, "pin_cites": [ { "page": "483" }, { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0481-01" ] }, { "cite": "381 N.E.2d 254", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "72 Ill. 2d 282", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5442815 ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0282-01" ] }, { "cite": "459 N.E.2d 1337", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "99 Ill. 2d 247", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1978, "opinion_index": 0 }, { "cite": "337 N.E.2d 290", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "32 Ill. App. 3d 948", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2791049 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/32/0948-01" ] }, { "cite": "347 N.E.2d 733", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "63 Ill. 2d 296", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5428466 ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0296-01" ] }, { "cite": "344 N.E.2d 620", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "36 Ill. App. 3d 845", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2630652 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/36/0845-01" ] }, { "cite": "478 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "478 N.E.2d 402", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "106 Ill. 2d 342", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138571 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/106/0342-01" ] }, { "cite": "538 N.E.2d 461", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "472-73" } ], "opinion_index": 0 }, { "cite": "128 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3228708 ], "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0001-01" ] } ], "analysis": { "cardinality": 802, "char_count": 14899, "ocr_confidence": 0.732, "pagerank": { "raw": 1.8657718224511902e-07, "percentile": 0.7254878566279347 }, "sha256": "ea14f024a8e3ef67e656cf7114bfe2328f83fedb21befc309dd29c1e4cb2e675", "simhash": "1:be3e3fac5e370ddf", "word_count": 2519 }, "last_updated": "2023-07-14T21:36:32.853539+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HARTMAN and SCARIANO, JJ., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EMMITT MURRAY, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE DiVITO\ndelivered the opinion of the court:\nFollowing a bench trial, defendant Emmitt Murray was convicted of aggravated battery and attempted armed robbery and sentenced to concurrent terms of four years\u2019 imprisonment for aggravated battery and 10 years\u2019 imprisonment for attempted armed robbery. Defendant appeals, raising as issues (1) whether he was proved guilty of aggravated battery beyond a reasonable doubt; (2) whether he was proved guilty of attempted armed robbery beyond a reasonable doubt; and (3) whether he was denied a fair trial on the ground that the trial court improperly assumed a prosecutorial role in questioning a witness at trial. We affirm.\nLen Zeimys, the victim in this case, testified that at 2 p.m. on June 6, 1986, he was driving with Greg Tweedy near 34th and Halsted Streets in Chicago. Zeimys was carrying $1,500 in cash which he intended to deposit in his bank account. He dropped Tweedy off at 34th and Halsted Streets and then remembered that he needed to buy a pair of shoes for his son in a nearby shoe store. He drove around the block and parked on 34th Street, about 50 feet east of Halsted. As he walked toward the shoe store, he removed the $1,500 from his pocket, put two $20 bills into his right pocket, and put the rest of the money into his left pocket. He then turned the corner onto Halsted and looked through the shoe store window.\nAt that point, defendant approached Zeimys from behind, grabbed him around the neck, and pushed him toward the street. Zeimys pulled defendant\u2019s arm away, spun around, and saw that defendant was carrying a knife. Zeimys tried to grab the knife and was cut on his hand and face. Defendant tried to run away, but Zeimys held him from behind in a bear hug and screamed for help. Defendant was then subdued by Zeimys, Tweedy, and a third person, and soon thereafter arrested by the police.\nDuring defense counsel\u2019s cross-examination of Zeimys, the trial court interjected in the following manner:\n\u201c[DEFENSE COUNSEL]: Okay, as you were turning around that\u2019s the point at which you felt pressure on your neck. Is that what you\u2019re saying?\nA. In the matter of a split. When I turned my head I seen something wasn\u2019t right. I grabbed his arm and I started pulling the person\u2019s arm and that\u2019s when I started feeling pressure on my neck just like \u2014 something like this.\n[DEFENSE COUNSEL]: Okay. And from there on the struggle that you described ensued. Is that right?\nA. It began then, yes.\nTHE COURT: Was anything said during that struggle?\nA. As I was being pushed toward the car, there was a car that came up and I felt like I was being pushed towards the car with this physical motion, okay and there was something said about money. He told me something. I couldn\u2019t \u2014 it was definitely money. What came before or after \u2014 I definitely heard money. Like I say, it was just that fast.\n[DEFENSE COUNSEL]: So the only word that you heard from the person\u2019s mouth was money. Is that right?\nA. There was some words said but money was definitely part of it.\u201d\nNo other questions were asked by the trial court regarding what defendant had said to Zeimys.\nGreg Tweedy testified that one or two minutes after Zeimys had dropped him off, he heard two people shouting, turned around, saw Zeimys and defendant fighting, and ran to help Zeimys. Tweedy did not know how the fight began.\nOfficer Mike Rogers testified that he arrived at the scene at 2:29 p.m. on June 6, 1986, responding to a call of a street fight, and saw defendant struggling with three white men. One of the white men wrested a pocket knife from defendant\u2019s hand and gave it to Rogers. Rogers then joined the struggle, handcuffed defendant, and placed defendant under arrest.\nThe State rested, and defendant then testified on his own behalf. He stated that on June 6, 1986, between 2 and 2:30 p.m., he was in the vicinity of 35th and Halsted Streets. He crossed the street and a man in a truck, whom the defendant identified as Zeimys, yelled: \u201cNigger get your ass out of the street.\u201d Defendant kept walking and heard footsteps when he reached the corner of 34th and Halsted Streets. He turned his head and saw Zeimys, who grabbed him around the neck and choked him. Defendant then pulled out a pocket knife, reached over his right shoulder with his right hand, and cut Zeimys twice. Tweedy then ran up, grabbed defendant\u2019s arm, and hit him in the face. Defendant yelled for help and was on the ground when the police arrived. He was treated later at St. Anthony\u2019s Hospital for multiple trauma to the abdomen, eyes, and head.\nI\nDefendant maintains first that he was not proved guilty of aggravated battery beyond a reasonable doubt. He argues that Zeimys\u2019 version of the events was so improbable that it was contrary to human experience and should not have been accepted by the trial court. We disagree.\nIn assessing the sufficiency of the evidence supporting a conviction, the reviewing court must decide whether, after examining the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes at issue beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472-73.) Reversal of a conviction is required only where the defendant can show that the evidence is so unsatisfactory or improbable as to create a reasonable doubt of defendant\u2019s guilt. (People v. Brisbon (1985), 106 Ill. 2d 342, 478 N.E.2d 402; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) A conviction may rest upon the testimony of a single witness, if positive and credible, even though his testimony is contradicted by the accused. (People v. Echoles (1976), 36 Ill. App. 3d 845, 344 N.E.2d 620.) The reviewing court will not second-guess the trier of fact\u2019s evaluation of the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.\nIn this case, sufficient evidence to sustain defendant\u2019s conviction for aggravated battery is present in Zeimys\u2019 testimony alone. The trial court plainly credited Zeimys\u2019 version of the events and rejected defendant\u2019s testimony. The trial court noted specifically that the stab wounds suffered by Zeimys were consistent only with Zeimys\u2019 description of each persons\u2019 position during the struggle. The trial court also did not believe defendant\u2019s testimony that he found the knife used in the attack shortly before the incident and was not familiar with using a knife.\nPeople v. Smiley (1975), 32 Ill. App. 3d 948, 337 N.E.2d 290, relied on by defendant, is inapposite. In that case, the complaining witness testified that he heard noises in back of his house, investigated, found the defendant looking through his garbage cans, asked the defendant what he was doing, and was then attacked by the defendant. The defendant testified that the complaining witness instigated the fight, but was nevertheless convicted of battery. The appellate court reversed on the ground that the complaining witness\u2019 testimony was contrary to human experience. Plainly, the appellate court found the evidence so improbable as to create a reasonable doubt as to the defendant\u2019s guilt. Here, however, we find Zeimys\u2019 version of the events entirely believable and consistent with human experience.\nII\nDefendant maintains next that he was not proved guilty of attempted armed robbery beyond a reasonable doubt. He argues that there was no evidence that he knew Zeimys was carrying a large sum of money and Zeimys\u2019 testimony that he heard him mention the word \u201cmoney\u201d during the struggle was not sufficient to establish the requisite intent. We disagree.\nThe intent to commit a crime can be inferred from the conduct of the accused and all the surrounding circumstances. (People v. Terrell (1984), 99 Ill. 2d 247, 459 N.E.2d 1337.) Where defendant is charged with attempted armed robbery, the prosecution can obtain a conviction despite the fact that no evidence of a specific demand for money is made, if surrounding circumstances are sufficient to establish the requisite intent. People v. Mulcahey (1978), 72 Ill. 2d 282, 381 N.E.2d 254.\nIn this case, the trial court reasonably inferred from the timing of the attack shortly after Zeimys had removed a roll of money from his pocket, and from defendant\u2019s apparent demand for money, that defendant intended to rob Zeimys. Accordingly, we conclude that sufficient evidence was adduced at trial to sustain defendant\u2019s conviction for attempted armed robbery.\nIll\nFinally, defendant maintains that he was denied a fair trial because the trial court improperly assumed the role of the prosecutor when it asked Zeimys whether anything was said during the struggle and improperly relied on Zeimys\u2019 response in finding sufficient proof of attempted armed robbery. Again, we disagree.\nIt is an abuse of discretion for the trial court to assume the role of an advocate. (People v. Galan (1986), 151 Ill. App. 3d 481, 483, 502 N.E.2d 853.) The trial court may nevertheless question a witness \u201cto elicit the truth or to bring enlightenment on material issues which seem obscure.\u201d (People v. Palmer (1963), 27 Ill. 2d 311, 314, 189 N.E.2d 265; People v. Wesley (1959), 18 Ill. 2d 138, 163 N.E.2d 500.) But the court must question the witness \u201cin a fair and impartial manner, without showing prejudice or bias against either party.\u201d (People v. Gilbert (1957), 12 Ill. 2d 410, 415, 147 N.E.2d 44, 47.) Whether the trial court\u2019s questioning is proper is determined by the circumstances of each case and rests largely in the discretion of the trial court. (People v. Trefonas (1956), 9 Ill. 2d 92, 100, 136 N.E.2d 817; People v. Marino (1953), 414 Ill. 445, 450, 111 N.E.2d 534.) This is especially true where the defendant is tried without a jury and the danger of prejudice to the defendant is lessened. People v. Palmer, 27 Ill. 2d at 315, 189 N.E.2d at 268.\nIn this case, defendant argues that the trial court improperly assumed the role of the prosecutor, not because the question put to the witness showed bias or prejudice, but because the question elicited a response that established a material element of the State\u2019s case, which the State otherwise failed to prove. We do not believe, however, that the trial court improperly assumes the role of the prosecutor merely because its unbiased and impartial questions elicit evidence material to the State\u2019s case. To the contrary, \u201c[i]t is the judge\u2019s duty to see that justice is done, and where justice is liable to fail because a certain fact has not been developed or a certain line of inquiry has not been pursued it is his duty to interpose and either by suggestions to counsel or an examination conducted by himself avoid the miscarriage of justice[.]\u201d (People v. Franeeschini (1960), 20 Ill. 2d 126, 132, 169 N.E.2d 244; People v. Bolton (1927), 324 Ill. 322, 329, 155 N.E. 310; People v. Lurie (1917), 276 Ill. 630, 641, 115 N.E. 130.) Thus, the trial judge \u201cmay act to ensure that evidence essential to the proper disposition of a case is not inadvertently omitted.\u201d (People v. Galan, 151 Ill. App. 3d at 483; People v. Walter (1980), 90 Ill. App. 3d 687, 688-89, 413 N.E.2d 542.) The only limitation to this rule is that the judge must not forget his function and \u201cassume that of the advocate.\u201d People v. Franceschini, 20 Ill. 2d at 132.\nIn Lurie, for example, the court reversed the defendant\u2019s conviction only because the judge \u201cframe[d] his questions as to intimate [an] opinion as to the credibility of [the] witnesses].\u201d (See People v. Lurie, 276 Ill. at 641-42.) In Franceschini, the trial court properly advised the State, at the close all the evidence, that proof of breaking and entering was lacking, and properly allowed a State\u2019s witness to then testify to that material element of the charged offense. (See People v. Franceschini, 20 Ill. 2d at 131-32.) Similarly, in Bolton, Galan, and Walter, the trial judges properly acted to ensure that evidence material to the prosecution was brought forth.\nIn this case, as in the cases cited above, we find no abuse of discretion in the single, completely neutral question asked of Zeimys, which neither reflected on Zeimys\u2019 credibility, nor exhibited any bias on the part of the trial court. The trial court here did not repeatedly interrogate or lead the witness as in Lurie, or elicit inadmissible hearsay evidence as in People v. McGrath (1967), 80 Ill. App. 3d 229, 224 N.E.2d 660, relied on by defendant. Without assuming the role of the prosecutor, the trial court here, as in Franceschini, Bolton, Galan, and Walter, merely assured that evidence essential to the proper disposition of this case was not omitted.\nThe cases relied on by defendant are all inapposite. People v. Santucci (1962), 24 Ill. 2d 93, 180 N.E.2d 491, involved interrogations reflecting on the credibility of witnesses before a jury. Here, by contrast, defendant was not only tried before the bench, but the single question put to Zeimys was entirely neutral and reflected no bias whatsoever on the part of the trial court. People v. Cofield (1973), 9 Ill. App. 3d 1048, 293 N.E.2d 692, involved a bench trial, but is distinguishable from the present case on the ground that the trial court there called and examined each of the State\u2019s witnesses, clearly assuming the role of the prosecutor. As noted above, McGrath is distinguishable on the ground that the interrogation there elicited inadmissible hearsay evidence upon which the trial court relied in finding the defendant guilty.\nWe do not intimate that the trial court should in any way take over management of material and sensitive components of a criminal trial. We note that one commentator, a trial judge himself, has suggested that judicial questioning is a relatively inefficient means of getting at the truth since the trial judge is far less familiar with the issues and the facts of a case than are the attorneys, and is thus as likely to impair the adversary process through his or her participation as to advance it. (Frankel, The Search for Truth: An Umpireal View, 123 U. Pa. L. Rev. 1031, 1041-45 (1975).) We simply conclude that the trial court in this case did not abuse its discretion by asking Zeimys whether anything was said during the struggle.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nHARTMAN and SCARIANO, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE DiVITO" } ], "attorneys": [ "Michael J. Pelletier and Roger L. Horwitz, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Cecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund, Paula Car-stensen, and Lori J. Williams, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EMMITT MURRAY, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201487\u20142082\nOpinion filed February 13, 1990.\nMichael J. Pelletier and Roger L. Horwitz, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund, Paula Car-stensen, and Lori J. Williams, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0653-01", "first_page_order": 675, "last_page_order": 682 }