{
  "id": 2469377,
  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Robert Scott, Defendant-Appellant",
  "name_abbreviation": "People v. Scott",
  "decision_date": "1972-06-13",
  "docket_number": "No. 55885",
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  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee, v. Robert Scott, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE BURKE\ndelivered the opinion of the court:\nAn indictment charged Robert Scott with two counts of aggravated battery and one count of attempt murder. After a bench trial he was found guilty as charged and sentenced to not less than five nor more than ten years in the penitentiary.\nIn prosecuting this appeal, defendant contends that the trial judge failed to apply the rule of law which authorizes the use of arms for the purpose of self-defense, that he was not proved guilty beyond a reasonable doubt, that the trial judge did not adequately advise him of his right to a trial by jury and that the sentence is excessive. The following pertinent facts appear Rom the record.\nAt about 9:00 P.M. on August 22, 1969, Louis Garcia was selling ice cream from a truck in the 1600 block of West Superior Street, Chicago. While Garcia was serving a number of children, the defendant instructed Garcia to give the waiting children anything they wanted, stating that he would pay. After complying with the defendant\u2019s request, Garcia told the defendant that the bill amounted to $6.25. The defendant refused to pay and walked away from the truck. Garcia ran after the defendant and asked him to return, offering to refigure the bill. The defendant refused.\nSix occurrence witnesses testified at the trial. According to Garcia, as he and the defendant were standing in front of a gangway the defendant mumbled something and started shooting. Garcia testified that he was shot four or five times including one shot in his back. This witness stated that prior to being shot, he did not strike or otherwise touch the defendant.\nWesley Suski testified that he observed the shooting and that he did not see Garcia strike or otherwise touch the defendant. According to this witness, Garcia did not enter the gangway with the defendant. Prior to the night of the occurrence, Suski had not been acquainted with either Garcia or the defendant.\nWhen called to testify on his own behalf defendant admitted shooting Garcia. Defendant testified that he requested Garcia to serve the children but that he refused to pay the bill when told that it amounted to approximately $12.00. The defendant further testified that he walked away from the ice cream truck and Garcia followed into a passageway between two buildings. There, according to the defendant, Garcia attacked him by pounding his head against the brick wall (approximately six to eight times), hitting him in the chest (allegedly dislocating two ribs) and kicking him in the stomach (allegedly causing hernia). The defendant stated that he kept his gun in his pocket until struck numerous times and then, while in a dazed condition, he started shooting.\nThe next three occurrence witnesses were: Ruth Warren, the defendants housekeeper, John W. Trent and Myrtle Dodd. These witnesses testified that they observed Garcia and the defendant engage in an altercation in a passageway. They stated that they observed Garcia hitting and kicking the defendant and pounding his head against a brick wall. They further testified that after being struck several times defendant removed a gun from his pocket and started shooting.\nOfficer Robert A. Lebak of the Chicago Police Department testified that about twenty minutes after the shooting he arrested the defendant in his apartment. According to this officer, defendant, at the time of his arrest, was wearing a clean white shirt. This witness further stated that there were no apparent wounds, bruises or other marks on defendant\u2019s body, and that at the time of his arrest, defendant did not complain of any injuries.\nIn support of Iris first contention, the defendant has drawn our attention to the following statement made by the trial judge after the State\u2019s rebuttal argument and prior to announcing his judgment: Reading this statement in the context of the testimony ehcited from all the witnesses, we do not agree that the trial judge found that Garcia \u201cdid commit an assault and battery upon Scott.\u201d The court was asked to determine whether defendant was justified in the use of his pistol. This is dependent upon whether he reasonably feared for his life, or great bodily harm to his person. Ill. Rev. Stat. 1969, ch. 38, sec. 7 \u2014 1.\n\u201cI would venture to say to Mr. Garcia that if the Defendant had not used a gun, perhaps, you, as the Complaining Witness, would now be on trial for battery of some sort. I don\u2019t care what the battery may be, but insofar as I\u2019m concerned, nothing justifies the use of a force of arms.\u201d\nThe witnesses testifying on behalf of the defense stated that they observed Garcia strike the defendant\u2019s head several times against a brick waH. They further stated that they observed him hitting and kicking the defendant in the chest and stomach. The defendant testified that as a result of the altercation, he suffered two dislocated ribs and a hernia. If Garcia battered the defendant in the manner described, we would have little difficulty in finding his use of arms justified. We cannot, however, disregard the uncontroverted testimony of Officer Lebak. According to this witness the defendant, at the time of his arrest displayed no visible bruises and his white shirt was clean, revealing no blood stains. Suski, a disinterested witness, corroborated the People\u2019s contention. Furthermore, the fact that the defendant did not complain of any injuries at the time of his arrest is highly inconsistent with an assertion of having suffered two dislocated ribs, a hernia and having had his head battered six to eight times against a brick wall. In view of the foregoing, we conclude that the statement of the trial judge relating to the unjustified use of arms constituted his speculation on the situation which might have been presented, \u201cif the defendant had not used a gun.\u201d\nThe defendant has urged that he was not proved guilty beyond a reasonable doubt. We do not agree.\nIt is not questioned that the defendant shot Garcia. The issue therefore is whether the defendant was justified in his use of the gun. The resolution of this issue is dependent upon the credibility of the witnesses. Defendant and those called on his behalf testified to facts showing a justified use of arms for the purpose of self-defense. The witnesses called on behalf of the People testified to facts which support the conclusion that the defendant was not justified in using the gun. An important function of a trial judge is to determine the credibility of the witnesses and the weight to be accorded their testimony. These findings will not be disturbed unless they are so improbable or unsatisfactory as to leave a reasonable doubt as to the defendant\u2019s guilt. (People v. Catlett, 48 Ill.2d 56, 268 N.E.2d 378.) A careful consideration of the record convinces us that the findings of the trial judge on the issue of self-defense should not be disturbed.\nThe defendant next urges that his jury waiver was not knowingly and understandingly made. This does not appear to be the case. Prior to trial the following colloquy transpired between the trial judge, the defendant and his attorney:\n\u201cMr. Berkos: (The defendant\u2019s attorney) Defense is ready to proceed at this time.\nThe Court: You waive the jury?\nMr. Berkos: Yes, your Honor.\nThe Court: He understands the consequences of waiving a jury? Mr. Berkos: Yes.\nThe Court: Mr. Scott, is it your desire to try this case before me without a jury?\nMr. Scott: (the defendant) Yes, sir, on my attorney\u2019s advice. I agree with him.\nThe Court: All right, fine.\u201d\nThe decision of our Supreme Court in People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 397, disposes of his contention. There, in the defendant\u2019s presence her attorney waived the right to be tried before a jury. In finding the defendant to have acquiesced in her attorney\u2019s action, the Court in People v. Sailor adopting the language of People v. Melero, 99 Ill.App.2d 208, 211-212, 240 N.E.2d 756 at 758, said:\n\u201c* * * the trial comt was entitled to rely on tire professional responsibility of defendant\u2019s attorney that when he informed the court that his client waived a jury, it was knowingly and understandingly consented to by his client. Defendant is not permitted to complain of an alleged error which was invited by his behavior and that of his attorney.\u201d\nWe conclude that in the instant case, defendant was adequately advised of his right to trial by jury and that his waiver of this right was knowing and understanding. See People v. Suriwka, 2 Ill.App.3d 384, 276 N.E.2d 490.\nFinally, defendant maintains that the sentence of five to ten years in the penitentiary is excessive and should be reduced. We agree. Defendant was 65 years of age at the time of his trial and had not been previously convicted of a crime. We are of the opinion that the ends of justice will be better served by reducing the sentence. The judgment is modified to a sentence of not less than three nor more than ten years in the penitentiary and is affirmed as modified.\nJudgment affirmed as modified.\n(GOLDBERG, P. J., and LYONS, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE BURKE"
      }
    ],
    "attorneys": [
      "Gerald W. Getty, Public Defender, of Chicago, (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.",
      "Edward V. Hanrahan, State\u2019s Attorney, of Chicago, (Robert A. Novelle and Albert H. Rosendahl, Assistant State\u2019s Attorney, of counsel,) for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Robert Scott, Defendant-Appellant.\n(No. 55885;\nFirst District\nJune 13, 1972.\nGerald W. Getty, Public Defender, of Chicago, (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.\nEdward V. Hanrahan, State\u2019s Attorney, of Chicago, (Robert A. Novelle and Albert H. Rosendahl, Assistant State\u2019s Attorney, of counsel,) for the People."
  },
  "file_name": "0281-01",
  "first_page_order": 303,
  "last_page_order": 307
}