{ "id": 5214087, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY PARKER, Defendant-Appellant", "name_abbreviation": "People v. Parker", "decision_date": "1992-05-26", "docket_number": "No. 5\u201489\u20140370", "first_page": "844", "last_page": "857", "citations": [ { "type": "official", "cite": "229 Ill. App. 3d 844" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "493 N.E.2d 739", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "143 Ill. App. 3d 892", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5668241 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/143/0892-01" ] }, { "cite": "439 N.E.2d 984", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1972, "pin_cites": [ { "page": "994" }, { "page": "995" }, { "page": "995" } ], "opinion_index": 0 }, { "cite": "108 Ill. App. 3d 787", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3013555 ], "weight": 4, "year": 1972, "pin_cites": [ { "page": "802" }, { "page": "803" }, { "page": "803" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/108/0787-01" ] }, { "cite": "291 N.E.2d 54", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "56" } ], "opinion_index": 0 }, { "cite": "9 Ill. App. 3d 61", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2846506 ], "weight": 3, "pin_cites": [ { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/0061-01" ] }, { "cite": "383 N.E.2d 648", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 84", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3320296 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0084-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "1255" }, { "page": "1255" } ], "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "525" }, { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "230 N.E.2d 827", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "38 Ill. 2d 216", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2861378 ], "opinion_index": 0, "case_paths": [ "/ill-2d/38/0216-01" ] }, { "cite": "392 N.E.2d 6", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "76 Ill. 2d 365", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2983489 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-2d/76/0365-01" ] }, { "cite": "242 N.E.2d 208", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill. 2d 177", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853252 ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0177-01" ] }, { "cite": "486 N.E.2d 433", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "437" }, { "page": "437" } ], "opinion_index": 0 }, { "cite": "138 Ill. App. 3d 980", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499826 ], "weight": 3, "pin_cites": [ { "page": "985" }, { "page": "985" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/138/0980-01" ] }, { "cite": "498 N.E.2d 889", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "147 Ill. App. 3d 1039", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3603712 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/147/1039-01" ] }, { "cite": "290 N.E.2d 592", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "53 Ill. 2d 228", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2926044 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-2d/53/0228-01" ] }, { "cite": "442 N.E.2d 255", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "262" }, { "page": "262-63" } ], "opinion_index": 0 }, { "cite": "92 Ill. 2d 545", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3097208 ], "weight": 2, "pin_cites": [ { "page": "563" }, { "page": "563-64" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/92/0545-01" ] }, { "cite": "486 N.E.2d 433", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "437" } ], "opinion_index": 1 }, { "cite": "138 Ill. App. 3d 980", "category": "reporters:state", "reporter": "Ill. 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LARRY PARKER, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE GOLDENHERSH\ndelivered the opinion of the court:\nAfter a jury trial, defendant, Larry Parker, was found guilty of first-degree murder in violation of section 9 \u2014 1(a)(1) of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1987, ch. 38, par. 9 \u2014 1(a)(1)), two counts of aggravated battery in violation of section 12 \u2014 4(a) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 12 \u2014 4(a)), and unlawful use of weapons by a felon in violation of section 24 \u2014 1.1 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 24 \u2014 1.1).\nOn appeal defendant contends (1) he was denied a fair trial by the State\u2019s prejudicial use of inadmissible hearsay, (2) he was denied a fair trial by the State\u2019s introduction of a prejudicial autopsy photograph of the decedent, (3) he received ineffective assistance of counsel, and (4) one conviction for aggravated battery must be vacated because both convictions are based upon the same physical act. We affirm in part and vacate in part.\nDefendant was charged with three counts of first-degree murder for the death of his former girl friend, Estella Day, two counts of aggravated battery for shooting Leslie Mosley in the hip, and one count of unlawful use of weapons by a felon for knowingly and unlawfully possessing a .38 caliber handgun after having been convicted of a felony in the State of Illinois. A jury trial commenced February 14, 1989, at which time the following facts were adduced.\nIn the early morning hours of July 2, 1988, 28-year-old Estella Day traveled to Kousin\u2019s Riverside Klub (Kousin\u2019s), a Murphysboro tavern, with Donald Stewart. Upon their arrival, Day saw a friend, Catherine Martin, who came over and sat in Stewart\u2019s car with Day and Stewart for a brief period before going inside the bar. While Day, Stewart and Martin were conversing in Stewart\u2019s car, defendant came around the side of the building and Day called to him. Defendant testified that he and Day had been dating for approximately three years and were still involved in a relationship on July 2, 1988. Day\u2019s mother, Sharon Day, and Catherine Martin testified that defendant and Day broke up several months prior to that date.\nDefendant approached the car and Martin went inside Kousin\u2019s. Day introduced defendant to Stewart and then exited the car to speak with defendant for 10 to 15 minutes. Defendant testified that Day warned him to \u201cbe careful because Stewart was carrying a piece.\u201d There was no evidence presented as to why Stewart would want to harm defendant. After the conversation with Day, defendant went inside Kousin\u2019s. Day and Stewart entered the bar shortly thereafter, and Day and defendant were seen talking by the bar for several minutes before separating to talk to other patrons. Defendant testified that Day again warned him to be careful because Stewart was armed. At approximately 3:30 a.m., Stewart, Day and defendant met on the parking lot outside Kousin\u2019s. Evidence showed that Day was standing directly in front of defendant, at a distance of two to four feet from defendant, and Stewart was behind and slightly to the right of Day at a distance of approximately 7 to 10 feet from defendant. Defendant testified that Stewart was wearing a bulky jacket and he saw Stewart reach inside the jacket for what defendant believed to be a gun. There is no evidence that Stewart had a weapon of any kind. Defendant then pulled his own concealed .38 caliber revolver and fired two shots. The first shot struck Day in the head, entering just above and behind her left ear. The second shot hit another patron, Leslie Mosley, in the hip. Stewart testified that he did not possess a weapon on July 2, 1988, and no other witnesses saw him with a weapon at any time that morning. After shooting Day and Mosley, defendant left the parking lot and saw Mark Hunter stopped at an intersection. Defendant approached the car and asked Hunter to take him to his father\u2019s residence in Carbondale. Hunter assented and defendant entered the back seat. Another passenger, Carolyn Gaston, was in the front seat. Hunter testified that defendant said, \u201cI fucked up. I got to get over to Carbondale to my father\u2019s house.\u201d Gaston testified that although she had been drinking, she remembered defendant saying something like, \u201cI know they\u2019re going to be all over the place,\u201d but not knowing to whom defendant was referring. Hunter then drove defendant to Carbondale and dropped him off at his father\u2019s residence, a senior citizens apartment complex. Before exiting the car, defendant asked Hunter to take him to a friend\u2019s house instead, but Hunter refused. Defendant then went inside the building, put the gun which belonged to his father, Joe McCorkle, under a pillow, and left the building. He was picked up outside his father\u2019s residence by Carbondale police officer Harold Tucker and taken into custody. Defendant was subsequently charged and convicted of first-degree murder for the death of E stella Day, aggravated assault for the shooting of Leslie Mosley, and unlawful use of weapons by a felon.\nDefendant\u2019s first contention on appeal is that he was denied a fair trial by the State\u2019s prejudicial use of inadmissible hearsay evidence. Near the end of its case, the State called defendant\u2019s father, Joe Mc-Corkle, to testify. The State was aware of a conversation that took place between defendant and McCorkle on July 2, 1988, while defendant was in custody, during which defendant made a statement implying that the shooting of Day was intentional. McCorkle repeated defendant\u2019s statement to Detective Robert Burns later that same day. When the State called McCorkle to testify to what defendant had told him, however, McCorkle testified as follows:\n\u201cQ. Did your son, Larry Parker, telephone you on July 2, 1988?\nA. Call me? No. I ain\u2019t told nobody that. Larry didn\u2019t call me July 2. Like I say, he was there July 2. Why should he call me?\nQ. Did he call you in the afternoon of July 2?\nA. Later on, maybe, yes. Later on, but it was near dark then or dark. That was still July the second, though.\n* * *\nQ. What did your son tell you on the telephone when he spoke to you?\nA. Oh, I don\u2019t know. Ain\u2019t no need of \u2014 You trying to make me lie. ***\n* * *\nQ. During your conversation on July 3, 1988, did you tell Detective Burns what your son had told you?\n* * *\nA. No, I wouldn\u2019t tell him \u2014 I don\u2019t have to answer, do I?\u201d Thereafter, the State recalled Detective Burns as an impeachment witness. Burns testified as follows:\n\u201cQ. And in the afternoon hours of July 2, 1988, did you have a telephone conversation with Joe McCorkle?\nA. Yes, sir, I did.\nQ. What time of the day was that?\nA. It was 5:20 p.m.\nQ. And what was the purpose for calling Mr. McCorkle?\nA. To speak with him about information that we had received from him earlier.\nQ. During the conversation that you had with him in that phone call, did he indicate to you that he had an earlier phone conference with Larry Parker, his son?\nA. Yes, he did.\nQ. And what did he indicate to you was the nature of the earlier phone conference with his son, Larry Parker?\n* * *\nA. He indicated that when he spoke with Larry, he asked Larry what had made him do such a thing and Larry had made the remark that it was a long story, but that she had been messing him over for a long period of time, and that he had put a stop to it.\nQ. Was that phone conference that he referred to earlier that day on July 2, in the afternoon of July 2?\nA. Yes, sir.\u201d\nImmediately following Burns\u2019 testimony, the court instructed the jury that his testimony was to be considered only as impeachment of McCorkle\u2019s testimony and must not be considered as proving the truth of defendant\u2019s statement about which Burns testified. The jury was given a similar instruction at the end of trial.\nThe governing principle of law states: \u201cA *** witness *** cannot be impeached by [a] prior inconsistent statement^ ] unless his testimony has damaged, rather than failed to support the position of the impeaching party.\u201d (People v. Weaver (1982), 92 Ill. 2d 545, 563, 442 N.E.2d 255, 262.) Therefore, the first issue before us is whether McCorkle\u2019s testimony damaged the State\u2019s case or whether it failed to support the State\u2019s position. Defendant argues that McCorkle\u2019s testimony merely failed to add something desired by the State, and the State\u2019s case was not damaged. We disagree. The State\u2019s purpose in calling McCorkle as a witness was to elicit testimony tending to show that defendant intentionally killed Day, a key element in the State\u2019s case. The State correctly asserts that had McCorkle testified to the statement defendant made to him, the contents of defendant\u2019s statement would have been admissible as substantive evidence of an admission. (People v. Newbury (1972), 53 Ill. 2d 228, 290 N.E.2d 592; People v. Prante (1986), 147 Ill. App. 3d 1039, 498 N.E.2d 889.) However, McCorkle denied defendant made the admission, denied repeating defendant\u2019s statement to Detective Burns, and indicated that the State was fabricating the incident by accusing the State\u2019s Attorney of trying to make him lie.\nThe level of damage necessary to allow impeachment testimony was stated by the Weaver court: \u201cIt is only when the witness\u2019 testimony is more damaging than his complete failure to testify would have been that impeachment is useful.\u201d (92 Ill. 2d at 563-64, 442 N.E.2d at 262-63.) It is clear to this court that McCorkle\u2019s testimony was more damaging to the State than his complete failure to testify would have been. McCorkle failed to support a single element of the State\u2019s case, and he suggested improprieties by the State, that the State fabricated information and tried to recruit his participation in such fabrication. We find that McCorkle\u2019s testimony damaged the State\u2019s credibility, an essential element in any case. Therefore, the Weaver test has been met.\nDefendant argues that the case at bar is remarkably similar to People v. Johnson (1985), 138 Ill. App. 3d 980, 486 N.E.2d 433, in which this court held that impeachment of a prosecution witness was impermissible. In Johnson, the defendant allegedly confessed to a cellmate, Dewayne Davis, who repeated the defendant\u2019s statements to police investigator Edward Tolbert. When the State called Davis to testify, he denied ever having knowledge of the defendant\u2019s alleged confession. The State then called Investigator Tolbert to rebut Davis\u2019 testimony by eliciting testimony that Davis told him of a conversation with the defendant whereby the defendant made several admissions of guilt. This court, following Weaver, held that Davis\u2019 testimony did not damage or contradict the State\u2019s case. (138 Ill. App. 3d at 985, 486 N.E.2d at 437.) We perceived no possible purpose for impeaching Davis except to bring inadmissible hearsay to the jury\u2019s attention, and we concluded that Tolbert\u2019s testimony was impermissible. 138 Ill. App. 3d at 985, 486 N.E.2d at 437.\nAlthough factually similar, Johnson is distinguishable from the case before us. As we have already discussed, McCorkle\u2019s testimony damaged the State\u2019s credibility and position in the case at bar, whereas Davis\u2019 testimony merely failed to support the State\u2019s case in Johnson. Therefore, we affirm the trial court\u2019s decision to allow impeachment testimony by Officer Burns, a conclusion not inconsistent with our holding in Johnson.\nWe next address defendant\u2019s contention that the State\u2019s introduction of an autopsy photograph of the decedent inflamed and prejudiced the jury. The photograph defendant objects to depicts a portion of the decedent\u2019s head with the scalp peeled back, showing the location of the bullet lodged in decedent\u2019s skull. Defendant argues that the photograph was irrelevant to establish any material facts in the case because the following issues were not disputed: (1) cause of death; and (2) defendant fired the fatal shot. Defendant maintains that the final location of the bullet after it traveled through the decedent\u2019s head was not probative, so the only purpose served by the photograph was to inflame the jury against defendant.\nPhotographs of a murder victim are admissible into evidence regardless of their gruesome nature if they are relevant to establish any material fact in the case. (People v. Speck (1968), 41 Ill. 2d 177, 242 N.E.2d 208.) The general rule is that the decision to admit photographs into evidence lies in the sound discretion of the trial judge. (People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6; People v. Lefler (1967), 38 Ill. 2d 216, 230 N.E.2d 827.) We have reviewed the photograph and do not believe the trial court abused its discretion by permitting the jury to see it. The photograph corroborates testimony as to the cause of death and location of the wound; it helps negate defendant\u2019s defense that although he was standing two to four feet from the decedent, he accidentally shot her squarely in the head. We therefore affirm the trial court\u2019s decision to admit the autopsy photograph depicting the location of the bullet in the decedent\u2019s head.\nDefendant next contends that he received ineffective assistance of counsel in that trial counsel failed to request a transferred-intent instruction and an involuntary manslaughter instruction and failed to object to the State\u2019s closing arguments.\nIn People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, our supreme court adopted the principles concerning ineffective assistance of counsel as established by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. To establish ineffective assistance of counsel, a defendant must show that counsel\u2019s representation fell below an objective standard of reasonableness and that counsel\u2019s shortcomings were so serious as to deprive the defendant of a fair trial. (Albanese, 104 Ill. 2d at 525, 473 N.E.2d at 1255.) Defendant must also establish that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the results of the proceeding would have been different. 104 Ill. 2d at 525, 473 N.E.2d at 1255.\nDefendant first argues that his representation was incompetent because counsel failed to tender a jury instruction on the doctrine of transferred intent and failed to argue transferred intent during closing arguments. We have consistently held that where a person without legal justification or excuse shoots at one individual and inadvertently kills another, he is guilty of the same degree of unlawful homicide as if he had killed the object of his aim. (People v. Johnson (1978), 66 Ill. App. 3d 84, 383 N.E.2d 648; People v. Adams (1972), 9 Ill. App. 3d 61, 291 N.E.2d 54.) The State argues that the jury was, in fact, made aware of the doctrine of transferred intent with regard to the first-degree-murder offense when the court issued Illinois Pattern Jury Instruction, Criminal 2d, No. 7.01:\n\u201cA person commits the offense of murder when he kills an individual without lawful justification if, in performing the acts which cause the death,\n(1) he intends to kill or do great bodily harm to that individual or another,\nor\n(2) he knows that such acts will cause death to that individual or another,\nor\n(3) he knows that such acts create a strong probability of death or great bodily harm to that individual or another ***.\u201d (Emphasis added.) Illinois Pattern Jury Instructions, Criminal, No. 7.01 (2d ed. 1981).\nContrary to defendant\u2019s argument, defense counsel did refer to the doctrine of transferred intent to exonerate defendant during closing argument:\n\u201cIf I can make an analogy here, if this were a police officer and he believed that this individual, Donald Stewart, was armed or he had been told by a couple people that \u2018this man is armed and dangerous and you better watch out\u2019 and the police officer saw Donald Stewart coming around the parking lot, reach for his waistband and saw what he thought may have been a gun and the police officer pulled his weapon and fired and, in the process, caught Estella Day, we wouldn\u2019t be here. The law is the same.\u201d\nThe doctrine of transferred intent was not completely ignored by defense counsel or the court. Although defense counsel failed to request a specific instruction on the transferred-intent doctrine, defendant cites no authority, and we find none, indicating that such an omission constitutes ineffective assistance of counsel. Additionally, this court finds that such an omission does not fall below the objective standard of Reasonableness mandated by People v. Albanese.\nDefendant next argues that he received incompetent representation because counsel failed to tender an involuntary manslaughter instruction. Defendant asserts that he was entitled to such an instruction because the jury could have concluded that defendant unintentionally killed Day but that his acts displayed a reckless and unjustified disregard for Day\u2019s life. Involuntary manslaughter is defined as follows:\n\u201cA person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly ***.\u201d (Ill. Rev. Stat. 1987, ch. 38, par. 9 \u2014 3(a).)\nIn support of his argument, defendant cites two cases, People v. Santiago (1982), 108 Ill. App. 3d 787, 439 N.E.2d 984, and People v. Adams (1972), 9 Ill. App. 3d 61, 291 N.E.2d 54. The Santiago court held that if there is some evidence in the record which would reduce the crime to involuntary manslaughter, defendant is entitled to an instruction defining the lesser offense. (Santiago, 108 Ill. App. 3d at 802, 439 N.E.2d at 994.) The defendant in Santiago fired a gun in the general direction of a parked car. One of the bullets struck David Pifer, who later died from his injuries. The defendant was convicted of voluntary manslaughter. The court held that under the facts of that case defendant was entitled to an involuntary manslaughter instruction. (108 Ill. App. 3d at 803, 439 N.E.2d at 995.) In reaching this conclusion, the court noted there was no evidence that anyone was standing near the car when the defendant opened fire. (108 Ill. App. 3d at 803, 439 N.E.2d at 995.) The case before us is distinguishable from Santiago in that defendant in the present case admitted that when he fired the gun, he intended to shoot Donald Stewart. That admitted intent is absent, from Santiago, making it factually inapposite to the case at bar.\nPeople v. Adams is also factually distinct. The defendant in Adams was fired upon by an assailant sitting in a car. In self-defense, defendant returned the assailant\u2019s fire with several bullets from his own gun, striking the assailant. At least one of the defendant\u2019s bullets traveled through the assailant and struck a woman sitting next to him. The woman subsequently died of her injuries, and the defendant was convicted of involuntary manslaughter for the woman\u2019s death. The issue on appeal was whether a defendant can be found guilty of involuntary manslaughter of a third person unintentionally killed by him while defending himself against an unlawful attack by another. The narrow holding reached by the Adams court was that the defendant committed no crime:\n\u201cHe had to act immediately to protect himself from a man who had been drinking all day and who was not just threatening him but was shooting at him. Even under such circumstances defendant did not shoot wildly or carelessly. From the record it can be inferred that he hit his assailant with every shot and that the innocent victim was killed only as a result of a bullet passing through the body of the assailant.\u201d (Adams, 9 Ill. App. 3d at 64, 291 N.E.2d at 56.)\nClearly, the circumstances in Adams under which the defendant fired his weapon are completely different than the circumstances under which defendant in the present case fired his weapon. The fact-specific holding in Adams has no application here.\nLooking beyond the case law defendant provides, we do not find any authority to support defendant\u2019s contention. Upon defense counsel\u2019s request, the court issued a voluntary manslaughter instruction to the jury, in addition to the first- and second-degree-murder instructions. The jury returned a verdict that defendant was guilty of first-degree murder, a conviction far removed from involuntary manslaughter or even voluntary manslaughter. Assuming, arguendo, that defense counsel\u2019s failure to tender an involuntary manslaughter instruction was an error, it does not rise to the level of incompetence required for a judgment of ineffective assistance of counsel. As stated earlier, under Albanese, defendant must establish a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. We find no such probability exists here, and defense counsel\u2019s failure to tender an involuntary manslaughter instruction does not constitute ineffective assistance of counsel.\nDefendant\u2019s next complaint regarding his representation lies with defense counsel\u2019s failure to object to comments made by the State during closing argument. Defendant cites several instances where defense counsel should have objected during the State\u2019s closing argument, contending that counsel\u2019s failure to do so amounts to ineffective assistance of counsel. Upon review of the record, we find no such error.\nThe final issue on appeal is whether one of defendant\u2019s convictions for aggravated battery must be vacated. According to People v. Ellis (1986), 143 Ill. App. 3d 892, 493 N.E.2d 739, multiple convictions for aggravated battery cannot stand when a single physical act is the basis for both offenses. Defendant was convicted of two counts of aggravated battery for the shooting of Leslie Mosley, a single physical act, so this court will vacate one of the aggravated battery convictions.\nFor the foregoing reasons, the judgment of the circuit court of Jackson County finding defendant guilty of first-degree murder, aggravated battery and unlawful use of weapons by a felon is affirmed, and the second conviction of aggravated battery is vacated.\nAffirmed in part, vacated in part.", "type": "majority", "author": "PRESIDING JUSTICE GOLDENHERSH" }, { "text": "JUSTICE CHAPMAN,\nspecially concurring:\nWhile I agree with Justice Harrison\u2019s dissenting opinion that under People v. Weaver (1982), 92 Ill. 2d 545, 442 N.E.2d 255, and People v. Johnson (1985), 138 Ill. App. 3d 980, 486 N.E.2d 433, the impeachment of McCorkle was improper, I do not agree that the error mandates reversal in this case.\nMr. McCorkle was in his eighties and almost blind. As the court indicated:\n\u201cNow, Mr. McCorkle says he does not remember. The man is\n81 years old, Mr. Wepsiec.\n* * *\n*** You are asking him compound questions. You are not being specific in your questions. You are asking him open-ended questions. And I think it\u2019s very unfair. I think it\u2019s extremely unfair.\u201d\nAnd later:\n\u201cI don\u2019t think he is a hostile witness. I think the man doesn\u2019t remember, Mr. Grace, legitimately doesn\u2019t remember ***.\u201d\nIn contrast to the possible confusion involved in McCorkle\u2019s testimony, there was specific, albeit controverted, testimony from 24-year-old Catherine Martin that a week or two before the killing the defendant had sort of wrestled with and slapped the victim in the face while trying to wake her up. When the victim argued with him, he had picked up a gun, pointed it at her, and said, \u201cI will kill you.\u201d In view of Catherine Martin\u2019s testimony I conclude that the trial court\u2019s action with respect to the impeachment of McCorkle does not warrant reversal, and I, therefore, concur with the result reached by Justice Goldenhersh.\nJUSTICE HARRISON,\ndissenting:\nI decline to join in Judge Goldenhersh\u2019s opinion because I do not agree that Mr. McCorkle\u2019s testimony damaged the State\u2019s case so as to make impeachment permissible. The following are further excerpts from Mr. McCorkle\u2019s testimony at trial:\n\u201cQ. What did your son tell you on the telephone when he spoke to you?\nA. Oh, I don\u2019t know. Ain\u2019t no need of \u2014 You trying to make me lie. I don\u2019t know what Larry said, not that long ago. In\nfact, I don\u2019t know. I think he said he was in jail. I don\u2019t know.\n* * *\nQ. Sir, did your son, in the course of his telephone conversation with you, tell you that it was a long story, but that she had been messing\u2014\nMR. \"VAN DERHOFF: Your Honor, I am going to object. The witness has already testified he didn\u2019t recall what was said in the conversation.\nTHE COURT: Sustained.\n* * *\nQ. Isn\u2019t it a fact, Mr. McCorkle, that on July 2, 1988, at approximately 5:20 p.m., you were contacted by Officer Robert Burns of the Jackson County Sheriff\u2019s Department by telephone?\nA. By telephone? I don\u2019t remember whether that\u2019s right or not.\nMR. WEPSIEC: Your Honor-\nA. He might have called me, yes, but like I say, I don\u2019t remember him calling me.\nMR. WEPSIEC: Your Honor, pursuant to S[upreme] Court Rule 238, I would ask that Mr. McCorkle be labeled a hostile witness.\nTHE COURT: Denied.\nMR. WEPSIEC: I would ask-\nTHE COURT: It\u2019s obvious, Mr. Wepsiec, that the gentleman cannot remember what was said to him, if his son called him on July 2 or 3.\nQ. Mr. McCorkle, do you remember speaking with Detective Burns on July 2, 1988, on the telephone?\nA. What did you say?\n* * *\nTHE COURT: He wants to know, Mr. McCorkle if you talked with Detective Bums on the telephone, not in person, but on the telephone on July 2, 1988?\nA. Well, I don\u2019t recall talking to him on no telephone, no.\u201d When considered in its entirety, the testimony of Mr. McCorkle does not, as Judge Goldenhersh suggests, damage the State\u2019s credibility by implying that the State was attempting to fabricate evidence. Rather, the testimony simply shows that Mr. McCorkle could not remember the conversations about which the State was questioning him and did not want to be pressured into saying he recalled something when he clearly did not. Indeed, the trial court, in proceedings held outside the jury\u2019s presence, stated its belief that Mr. McCorkle was not attempting to impair the State\u2019s case:\n\u201cTHE COURT: Now, Mr. McCorkle says he does not remember. The man is 81 years old, Mr. Wepsiec.\nMR. WEPSIEC: I realize that, your Honor.\nTHE COURT: You are asking him compound questions. You are not being specific in your questions. You are asking him open-ended questions. And I think it\u2019s very unfair. I think it\u2019s extremely unfair.\nMR. WEPSIEC: I can ask him leading questions, if the Court would permit me, your Honor.\nTHE COURT: I will ask you \u2014 I will allow you to ask the man leading questions, but you have asked him all these questions. You obviously have him confused, and he\u2019s told you he did not talk with his son on the phone, or, at least, he did not remember talking to him.\n* * *\nMR. GRACE: And, Your Honor, at this point in time, I believe we have established sufficient indication at this point of a hostile witness under [Rule] 238.\nTHE COURT: I don\u2019t think he is a hostile witness. I think the man doesn\u2019t remember, Mr. Grace, legitimately doesn\u2019t remember, but I will allow you to ask him leading questions.\u201d\nTherefore, because I believe that, as in People v. Johnson (1985), 138 Ill. App. 3d 980, 486 N.E.2d 433, there was no possible purpose for impeaching the witness except to bring inadmissible hearsay to the jury\u2019s attention, the impeachment testimony of Detective Burns was impermissible. Since admissions are almost always potent evidence of guilt, I find that the error was not harmless. Accordingly, I would reverse and remand for a new trial. See Johnson, 138 Ill. App. 3d at 986, 486 N.E.2d at 437.", "type": "concurrence", "author": "JUSTICE CHAPMAN, JUSTICE HARRISON," } ], "attorneys": [ "Daniel M. Kirwan and John T. Hildebrand, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Charles Grace, State\u2019s Attorney, of Murphysboro (Kenneth R. Boyle, Stephen E. Norris, and Kendra S. Mitchell, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY PARKER, Defendant-Appellant.\nFifth District\nNo. 5\u201489\u20140370\nOpinion filed May 26, 1992.\nRehearing denied July 8, 1992.\nCHAPMAN, J., specially concurring.\nHARRISON, J., dissenting.\nDaniel M. Kirwan and John T. Hildebrand, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nCharles Grace, State\u2019s Attorney, of Murphysboro (Kenneth R. Boyle, Stephen E. Norris, and Kendra S. Mitchell, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0844-01", "first_page_order": 866, "last_page_order": 879 }