{ "id": 3191064, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY BRYSON, Defendant-Appellant", "name_abbreviation": "People v. Bryson", "decision_date": "1980-06-25", "docket_number": "No. 79-135", "first_page": "448", "last_page": "452", "citations": [ { "type": "official", "cite": "85 Ill. App. 3d 448" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "379 N.E.2d 1284", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 977", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5621094 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0977-01" ] }, { "cite": "56 Ill. 2d 560", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404489 ], "pin_cites": [ { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0560-01" ] }, { "cite": "310 N.E.2d 166", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "293 N.E.2d 349", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "9 Ill App. 3d 902", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2849959 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/0902-01" ] }, { "cite": "350 N.E.2d 170", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill. App. 3d 182", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5382518 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/39/0182-01" ] }, { "cite": "316 N.E.2d 269", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "21 Ill. App. 3d 762", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5378587 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/21/0762-01" ] }, { "cite": "278 N.E.2d 762", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "50 Ill. 2d 280", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2911014 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/50/0280-01" ] }, { "cite": "573 F.2d 1027", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 914013 ], "opinion_index": 0, "case_paths": [ "/f2d/573/1027-01" ] }, { "cite": "438 F. Supp. 455", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3960368 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/f-supp/438/0455-01" ] }, { "cite": "395 N.E.2d 1203", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "1207" } ], "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 352", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3291337 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "357" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0352-01" ] }, { "cite": "325 N.E.2d 644", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "648" } ], "opinion_index": 0 }, { "cite": "27 Ill. App. 3d 35", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2867631 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/27/0035-01" ] } ], "analysis": { "cardinality": 634, "char_count": 11508, "ocr_confidence": 0.884, "pagerank": { "raw": 1.0727188370058414e-07, "percentile": 0.5601461706840823 }, "sha256": "8a42667a3b919979ac0f37768d08f9f0a5977e012185078fdc16dc2b6b6244f0", "simhash": "1:b1ea78c0e6761dc9", "word_count": 1974 }, "last_updated": "2023-07-14T18:26:52.691366+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. LARRY BRYSON, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE NASH\ndelivered the opinion of the court:\nDefendant, Larry Bryson, was charged by information with attempt murder (Ill. Rev-. Stat. 1977, ch. 38, pars. 8 \u2014 4(a), 9 \u2014 1(a)(1)), aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12 \u2014 4(b)(1)), attempt armed robbery (Ill. Rev. Stat. 1977, ch. 38, pars. 8 \u2014 4(a), 18 \u2014 2(a)), and armed violence (Ill. Rev. Stat. 1977, ch. 38, par. 33A \u2014 2). After trial by jury, he was acquitted of attempt murder but convicted of the other offenses and thereafter was sentenced to 15 years\u2019 imprisonment for armed violence. Defendant brings this appeal contending the jury should have been instructed as to self-defense and that the trial court erred by informing the jury that transcripts of the testimony would not be available to them.\nThe charges grew out of a marijuana transaction where, when payment was requested from them, defendant and his friend Lester Spurille drew guns and fired three or four shots, one of which wounded the seller, Jeffrey Sorn. When called as a witness by the State, Som testified that on June 20,1978, he went to the Waukegan home of Michael Nelson where he met Nelson, four of Nelson\u2019s friends and two other men, one of whom was Lester Spurille. When Spurille asked Som to sell him some marijuana, Som produced it and those present smoked a marijuana cigarette, after which Som asked for payment. Spurille and his companion thereupon drew guns, and as Spurille reached for the bag of marijuana he fired his gun, the bullet hitting the bag and scattering its contents. Sorn testified that he turned to run from the room and was shot in the back by, he believed, Spurille\u2019s companion, who was the only armed person behind him, although Sorn did not see who fired that shot. Som did not identify defendant as Spurille\u2019s friend.\nNelson, also called by the State, essentially corroborated Som\u2019s testimony and made an in-court identification of defendant Bryson as Spurille\u2019s companion. Nelson testified that Spurille fired his gun first but only once, hitting the bag of marijuana; he testified three more shots were also fired at that time by someone else. When the shooting ended, Nelson threw the contents of his glass of beer in Spurille\u2019s face. He agreed with Sorn\u2019s testimony that the only persons armed with guns during the incident were Spurille and defendant Bryson.\nJames Thome, one of Nelson\u2019s friends, also identified defendant, and testified that defendant drew a gun a second or two after Spurille drew his gun and that he saw no other weapons in the room. Thome said he heard a shot and saw Nelson throw the beer in Spurille\u2019s face; Thome then hid behind a refrigerator and heard three more shots. Two other persons who had been present identified defendant as Spurille\u2019s companion and described hearing shots fired after they had fled the room as soon as the guns were drawn by defendant and Spurille.\nDefendant testified that Spurille gave him a revolver on their way to the Nelson house because Spurille was unfamiliar with the people with whom they would be doing business and did not know if they would \u201cget ripped off or not.\u201d He stated that after the marijuana cigarette had been smoked by the men he saw someone, perhaps Som, reaching toward Spurille and saw Nelson holding a glass toward Spurille. Defendant next heard a shot and reached for his revolver. He stated he fired once toward a storage room and fired again while stepping toward the back door of the house to leave. Although defendant acknowledged that one of the shots he fired could have hit someone, he denied that he intended to kill anyone or steal anything, stating:\n\u201cWell, when I shot my pistol, what went through my mind, I heard a shot, I seen out of the corner of my eye what looked like two people attacking my friend. I didn\u2019t know what neighborhood I was in, I didn\u2019t know what house, how many was in the house. I didn\u2019t know where the shot had come from. Hey, they could have been shooting at me. I don\u2019t know.\u201d\nDefendant first assigns error to the trial court\u2019s rejection of two self-defense instructions tendered by him drawn from Illinois Pattern Jury Instructions, Criminal, No. 24.06 (1968):\n\u201cA person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against the imminent use of unlawful force.\nHowever, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent great bodily harm to himself or another.\u201d (Defendant\u2019s tendered instruction No. 1.)\nDefendant\u2019s tendered instruction No. 2 was identical except that it added to the last line \u201cor the commission of a forcible felony.\u201d The trial court sustained the State\u2019s objections to the giving of either instruction on the grounds there was no evidence to support their use.\nDefendant had testified in trial that he fired his gun three times, aiming away from people, just to make noise so he could escape from the Nelson house. He said that after smoking the marijuana cigarette along with other persons present, \u201cenjoying the high,\u201d he heard a shot which he could only say came from somewhere within the house and then saw Nelson, and perhaps Sorn also, reaching toward Lester Spurille. Defendant then testified:\n\u201cI said what appeared to me that they was attacking him. It looked \u2014 well, Jeff Sorn was reaching over in his direction, and I see Mike Nelson, he got a glass in his hand, and it\u2019s anywhere from eight to ten inches from Lester\u2019s face.\u201d\nLater during defendant\u2019s testimony there was this exchange:\n\u201cQ. [Prosecutor]: * * * you saw two people were attacking your friend? Is that correct?\nA. [Defendant]: I did not say \u2018attacking.\u2019 I said what seemed to me one was reaching toward him, the other one had a glass a couple of inches from his face. It might have been they was getting into something. I don\u2019t know. It wasn\u2019t any argument or nothing, you know. It just happened.\u201d\nSorn, Nelson and Thome all testified to the beer-throwing incident and were in agreement that it did not occur until after Spurille had already drawn and fired his gun.\nDefendant\u2019s argument on this issue relies primarily on this court\u2019s opinions in People v. Boisvert (1975), 27 Ill. App. 3d 35, 325 N.E.2d 644, and People v. Woodward (1979), 77 Ill. App. 3d 352, 395 N.E.2d 1203, and also on Zemina v. Solem (D.S.D. 1977), 438 F. Supp. 455, affd per curiam (8th Cir. 1978), 573 F.2d 1027. As we noted in Boisvert, a defendant is entitled to an instruction on any defense shown by the entire evidence even if that evidence is conflicting and the defendant\u2019s testimony is impeached; and the trial court may not weigh the evidence in making its determination. (27 Ill. App. 3d 35, 41, 325 N.E.2d 644, 648.) Zemina v. Solem found a violation of the Sixth Amendment right to trial by jury where self-defense instructions which find support in the evidence are tendered and refused.\nIn People v. Woodward the defendant\u2019s conviction for voluntary manslaughter was reversed when the trial court refused to instruct the jury on the complete defense of self-defense. We recognized, however, that a self-defense instruction is proper only if there is \u201csome evidence\u201d of a reasonable belief on the part of defendant that the use of deadly force was necessary. (77 Ill. App. 3d 352, 357, 395 N.E.2d 1203, 1207; Ill. Rev. Stat. 1977, ch. 38, par. 3 \u2014 2(a).) In Woodward the jury was instructed as to murder, voluntary and involuntary manslaughter, but IPI Criminal No. 24.06 was also tendered and refused as in the present case. Defendant seeks to draw an analogy between the facts of this case and those of Woodward. We do not agree that the cases are analogous, however, as in Woodward there was evidence that defendant may have acted under a reasonable belief of necessity.\nHaving carefully considered the record, we find no error in the trial court\u2019s refusal of the tendered self-defense instructions as there is no evidence of a reasonable belief on the part of defendant that deadly force was necessary to protect his friend or himself from great bodily harm. (People v. Allen (1972), 50 Ill. 2d 280, 278 N.E.2d 762; People v. Miller (1974), 21 Ill. App. 3d 762, 316 N.E.2d 269.) He testified that no argument preceded the gunfire; that no one struck his friend Spurille, whom he knew had a gun; and that Nelson and his friends were unarmed. The beer was not even thrown at Spurille until after he had drawn and fired his gun. (See People v. Pitchford (1976), 39 Ill. App. 3d 182,350 N.E.2d 170.) We conclude the instructions were properly refused.\nDefendant also contends the trial court erred in stating during voir dire examination of the jurors that:\n\u201cAnother thing that you probably have seen on television,, but it doesn\u2019t happen here, is don\u2019t ask for a transcript of somebody\u2019s testimony because we don\u2019t have a transcript. We can\u2019t afford transcripts. We can, if you ask for them and give the reporter five or ten days to produce it, then you could have it. But you must depend on your collective memories * * *.\u201d\nDefendant suggests that the trial judge was either not aware of his discretionary power to have testimony reread to the jury, or was anticipatorily refusing to exercise that discretion. He argues the court\u2019s remarks had a chilling effect on the jury\u2019s right to request a review of testimony during deliberations and requires reversal and remandment for a new trial.\nWe note first that as no objection was made to these remarks at trial and the issue was not preserved in defendant\u2019s motion for a new trial this claim of error has been waived. People v. Virgin (1973), 9 Ill App. 3d 902, 293 N.E.2d 349.\nIn People v. Queen (1974), 56 111. 2d 560, 310 N.E.2d 166, the trial court refused a request by the jury during its deliberations for a review of the defendant\u2019s testimony, stating, \u201cI cannot have any testimony of any witnesses read to you * * *.\u201d Our supreme court found error \u201cwhen a trial court refuses to exercise discretion in the erroneous belief that it has no discretion as to the question presented.\u201d (56 Ill. 2d 560, 565, 310 N.E.2d 166, 169.) Contrary to defendant\u2019s suggestion, we see no parallel between Queen and the case at bar. Having a transcript of testimony made is not so readily accomplished as is having testimony read from a court reporter\u2019s notes. Furthermore, the remarks made in the present case do not suggest the trial judge was unaware of, or refusing to exercise, his discretionary power to have testimony read, but only that it was not feasible to have a transcript of testimony made. In the context of the present case we find no error in the trial judge\u2019s remarks; nor did the remarks have any apparent prejudicial effect on defendant. See People v. Hemphill (1978), 62 Ill. App. 3d 977, 379 N.E.2d 1284.\nThe judgment of the Circuit Court of Lake County is therefore affirmed.\nAffirmed.\nSEIDENFELD, P. J., and UNVERZAGT, J., concur.", "type": "majority", "author": "Mr. JUSTICE NASH" } ], "attorneys": [ "Mary Robinson, of State Appellate Defender\u2019s Office, of Elgin, and Ralph Ruebner and Michael Mulder, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Dennis P. Ryan, State\u2019s Attorney, of Waukegan (Phyllis J. Perko and William L. Browers, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY BRYSON, Defendant-Appellant.\nSecond District\nNo. 79-135\nOpinion filed June 25, 1980.\nMary Robinson, of State Appellate Defender\u2019s Office, of Elgin, and Ralph Ruebner and Michael Mulder, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nDennis P. Ryan, State\u2019s Attorney, of Waukegan (Phyllis J. Perko and William L. Browers, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0448-01", "first_page_order": 470, "last_page_order": 474 }