{ "id": 2847097, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Omer Preston Brown, Defendant-Appellant", "name_abbreviation": "People v. Brown", "decision_date": "1973-02-13", "docket_number": "No. 71-17", "first_page": "730", "last_page": "737", "citations": [ { "type": "official", "cite": "9 Ill. App. 3d 730" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "44 Ill.2d 321", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2891786 ], "pin_cites": [ { "page": "325-326" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/44/0321-01" ] }, { "cite": "3 Ill.App.3d 216", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2841027 ], "pin_cites": [ { "page": "224-225" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0216-01" ] }, { "cite": "273 N.E.2d 162", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "165" } ], "opinion_index": 0 }, { "cite": "133 Ill.App.2d 348", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2471086 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/133/0348-01" ] }, { "cite": "74 Ill.App.2d 450", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2579991 ], "pin_cites": [ { "page": "453-454" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/74/0450-01" ] }, { "cite": "103 Ill.App.2d 377", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1599828 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/103/0377-01" ] }, { "cite": "26 Ill.2d 210", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5357530 ], "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/26/0210-01" ] }, { "cite": "96 Ill.App.2d 86", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2536929 ], "pin_cites": [ { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/96/0086-01" ] }, { "cite": "195 Ill. 550", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5586063 ], "pin_cites": [ { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/ill/195/0550-01" ] }, { "cite": "80 Ill.App.2d 44", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2561354, 2563212 ], "pin_cites": [ { "page": "48-49" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/80/0044-02", "/ill-app-2d/80/0044-01" ] }, { "cite": "392 Ill. 355", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2515798 ], "weight": 2, "pin_cites": [ { "page": "359" }, { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/ill/392/0355-01" ] }, { "cite": "38 Ill.2d 13", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2861989 ], "pin_cites": [ { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/38/0013-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "pin_cites": [ { "page": "22, 24" } ], "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] } ], "analysis": { "cardinality": 755, "char_count": 14840, "ocr_confidence": 0.758, "pagerank": { "raw": 2.670694920456509e-07, "percentile": 0.8257711163855499 }, "sha256": "8fa45efac52f7381aa31887769e41b1afab0640e3713d0aad442ad7667f5810f", "simhash": "1:20033ce9fd819445", "word_count": 2530 }, "last_updated": "2023-07-14T15:41:33.026395+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. Omer Preston Brown, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE ABRAHAMSON\ndelivered the opinion of the court:\nFollowing a jury trial defendant was found not guilty of murder, but guilty of involuntary manslaughter, of Edgar Beach and was sentenced to a term of three to ten years in the penitentiary. He appeals charging (1) failure of his appointed counsel to move to suppress evidence amounted to incompetence of counsel, which deprived him of a fair trial, (2) defendant\u2019s guilt of involuntary manslaughter was not established beyond a reasonable doubt, and (3) the court erred in the giving of, and failure to give, certain instructions to the jury.\nThe principal witness for the State, William Hart, testified that after leaving work about 6 P.M. on March 20, 1970 he, the defendant, and Beach stopped at a liquor store and bought three bottles of wine, some cigarettes, and a pint of whiskey and drove to the residence where Beach and defendant lived. They sat down in the kitchen, smoked, talked, listened to the radio, and each drank a bottle of wine; the defendant and Beach also drank the pint of whiskey; they also had some bacon to eat. About 8:40 P.M. Hart and the defendant drove to a tavern, bought three more bottles of wine and returned to the house. About 9:30 P.M. a fight started between defendant and Beach. Defendant punched Beach twice and Beach fell to the floor, pulling defendant down with him. After struggling defendant got up and while Beach was holding onto his legs, defendant kicked Beach eight or ten times in the head and face and then pulled Beach up from the floor. The argument continued and the defendant told Beach to get out and pushed him out the back door. The defendant and Hart continued drinking, eating and talking. Then the defendant became angry and said, \u201cHe ain\u2019t had enough,\u201d went to the bedroom, came out with a hammer, and went out the front door. About four minutes later the defendant returned and went to the bedroom. Hart saw nothing in his hand. Defendant then came out of the bedroom and sat down at the table. They had more drinks in the next 15 or 20 minutes. Hart then left the house about 9:30 and proceeded to look outside for Beach. He found him lying at the side of the house, knelt down and shook him, and asked Beach to come with him. He couldn\u2019t feel any \u201cbad wounds on him but he had a little blood\u201d. He held Beach\u2019s wrist but felt no pulse. Hart then drove to Lenny\u2019s Tavern arriving there about 10:30 and told Lenny \u201cI think Omer [defendant] wiped Ed [Beach] out with a hammer.\u201d Lenny agreed to call the police and told Hart to wait.\nThe police picked up Hart about 11 P.M. and then drove to defendant\u2019s house where the police officer who testified observed the body of Beach. He forced the front door open and arrested the defendant advising him of his rights. The police inspected the house and yard and found the hammer head about seven feet from Beach\u2019s body, but did not then find the hammer handle. The hammer head was rusted and no blood was found thereon. Another police officer testified that on March 21 he made a search of defendant\u2019s home and there found the hammer handle sticking out of a boot. It was stipulated that while the hammer head and handle had similar general physical characteristics, the hammer handle could have once been inserted in the hammer head. It was also stipulated that type A human blood was found on defendant\u2019s shoes and on the bedroom floor of his home. Beach\u2019s blood was type A.\n. Dr. Kenneth M. Truemner, a pathologist, testified as to the cause of death of the victim Beach; He performed an autopsy and found indications of recent trauma on the face and head, several bright red contusions on the cheeks and lips, and the soft tissues of the nose; there was swelling of the lips and their surface showed numerous bursting-type lacerations; decedent\u2019s nose had been broken. The injuries were all in the area of the head and face. Internal examinations disclosed an increase in the blood and other fluids in the lungs, and the blood did not clot properly. In his opinion Beach\u2019s death occurred from the interaction of three causes: (1) the rather severe beating about the head and face, (2) the extremely high alcohol level of .374 grams (400 grams can be associated with death from alcoholic intoxication), and (3) asphyxiation indicated by the fact that the blood did not coagulate. He testified that the beating about the head and face were a contributing cause of the death mechanism and were consistent with a blow by the sole or other part of a shoe. There were no solid clots blocking the nasal passages and the mud in the nose did not block air passage.\nDefendant testified he bought a pint of whiskey and cigarettes at the liquor store before going to his house with Beach and Hart. After finishing the bottle of whiskey he went to his bedroom and laid down. Beach and Hart were arguing, and at one point they knocked everything off the kitchen table. When this happened defendant hit Beach with the back of his hand causing Beach\u2019s nose to bleed. Defendant denied striking him again or pushing him out the door or going out the door with a hammer. He also denied going with Hart to a tavern for more wine. He testified that because of the arguing he went across the street to his mother\u2019s home and stayed for about 15 minutes. On his way back he saw \u201ca black car sitting out there * * * the man got off the porch \u2022 * * got in the car and pulled away.\u201d\nDefendant\u2019s mother testified that the defendant came about 10 P.M., stayed about 20 minutes, and that as defendant was crossing the street she observed a stranger get in a car and drive away. Defendant\u2019s brother testified that he called at defendant\u2019s house about 9 or 10 P.M. on March 20, that Hart let him in, and that when Hart and Beach were arguing, defendant told them to shut up or go fight outside and finally \u201csmacked\u201d Beach across the nose causing bleeding.\nDefendant contends that his counsel should have moved to suppress certain evidence, i.e., the hammer handle which was discovered in defendant\u2019s house by the police on the day following his arrest, and that his counsel\u2019s failure to do so amounted to incompetence depriving him of a- fair trial. It is of course possible that his counsel\u2019s failure to move to suppress that evidence was due to defendant\u2019s having consented to the search of his house on the day following his arrest. We do not know. However, the record shows that the defendant testified that he signed a \u201cdozen\u201d documents after his arrest. One of these could have been a consent to the search.\nExamination of the entire record here discloses that defendant was effectively represented by his counsel throughout the trial. The quality of his representation may be reflected by the fact that defendant was acquitted of murder and convicted of involuntary manslaughter.\nEven if the hammer handle should have been suppressed, the jury had properly before it the hammer head which was found a few feet from Beach\u2019s body. If it were error to receive the hammer handle in evidence, it was harmless error beyond a reasonable doubt. (Chapman v. California, 386 U.S. 18, 22, 24; People v. Smith, 38 Ill.2d 13, 15.) The jury had substantial overwhelming evidence to support its verdict without the hammer handle.\nDefendant\u2019s contention that his guilt of involuntary manslaughter was not proved beyond a reasonable doubt rests on testimony of the pathologist on the cause of death. However, the pathologist\u2019s testimony which was uncontradicted was, in substance, that Beach\u2019s death was caused by the severe beating he received from the defendant in combination with the other factors, i.e., high alcohol level and asphyxiation. In People v. Meyers, 392 Ill. 355, 359, the court said:\n\u201cThe law is that when the State has shown the existence, through the act of the accused, of a sufficient cause of death, the death is presumed to have resulted from such act, unless it appears death was caused by a supervening act disconnected from any act of the defendant.\u201d\nUnless there is an independent intervening act between defendant\u2019s unlawful act and death, to which death may be attributed, the defendant\u2019s unlawful act is the cause of death. In People v. Paulson, 80 Ill.App.2d 44, 48-49, the court said:\n\u201cA supervening act will not relieve an accused from responsibility for the death of another unless that act was disconnected from the act of the accused. * * * The chain of events ultimately causing the death of Lee Jones was set in motion by the act of the defendant and therefore the resulting infection was not disconnected from defendant\u2019s act.\u201d\nIn the instant case the victim Beach would not have died but for the beating he received.\nCunningham v. People, 195 Ill. 550, 573, cited by the defendant, states the following rule:\n\u201cIf the injuries which caused the death of Hartman proceeded from the fall upon the pavement, and his inability to stand erect arose wholly from one or more of his many physical infirmities or afflictions or from intoxication, and such inability to maintain an upright position was not contributed to * * * by the blow, his death should be attributed to natural causes.\u201d (Emphasis supplied. )\nIn the instant case the pathologist testified that death was due to the interaction of the beating with the other factors.\nDefendant complains that the trial court erred in giving People\u2019s Instruction No. 10A which reads:\n\u201cIn order for you to find the acts of the defendant caused the death of Edgar Henry Beach, it is not necessary that you find the acts of the defendant were the sole and immediate cause of death.\u201d\nAt the conference on instructions the only statement directed thereto by defendant\u2019s counsel was, \u201cI am going to object to it for the record, your Honor.\u201d He voiced no specific objections to the instruction. In People v. Price, 96 Ill.App.2d 86, 95, the court in referring to Supreme Court Rule 451 (Ill. Rev. Stat. 1969, ch. 110A, par. 451) said:\n\u201cThis rule does not remove the necessity for making specific objections to instructions in the conference on instructions in the trial court. Rather it places squarely upon the shoulders of the defendant who seeks to avoid a waiver in the reviewing court the obligation to establish (a) that the defects in the instruction are substantial and (b) that its giving resulted in denying to defendant justice and a fair trial.\u201d\nIn our opinion defendant has not met that burden. The instruction was obviously designed to inform the jury that they were required to consider and determine whether the death of Beach ensued because of the acts of the defendant, and that it was not necessary that his acts were the sole and immediate cause thereof. The instruction was proper. See People v. Meyers, supra, at 359; People v. Reader, 26 Ill.2d 210, 213.\nFinally, defendant contends that in failing to include in the instructions the definition of \u201crecklessness\u201d the trial court committed reversible error, inasmuch as recklessness is an element of the offense of involuntary manslaughter. (Ill. Rev. Stat. 1969, ch. 38, sec. 9 \u2014 3(a).) On the offense of involuntary manslaughter the jury was instructed as follows:\n\u201cPEOPLE\u2019S INSTRUCTION NO. 9. A person commits the crime of involuntary manslaughter who causes the death of another by acts which are performed recklessly and are likely to cause death or great bodily harm to another.\nPEOPLE\u2019S INSTRUCTION NO. 10. To sustain the charge of involuntary manslaughter, the State must prove the following propositions:\nThat the defendant performed the acts which caused the death of Edgar Henry Beach; and\nThat the defendant performed those acts recklessly;\nThat those acts were likely to cause death or great bodily harm.\nIf you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.\nIf, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.\u201d\nNeither the defense nor the State tendered any instruction regarding \u201crecklessness\u201d. The Committee Comments following LP.L-Criminal Nos. 7.07 and 7.08, which were the basis for People\u2019s Instructions 9 and 10, state that they are to be followed by the legal definition of \u201crecklessness\u201d in LP.I.-Criminal No. 5.01. While defendant\u2019s failure to tender an instruction may have instituted a waiver, we will nevertheless consider this contention.\nIn People v. Bolden, 103 Ill.App.2d 377, cited by defendant, the court reversed because the instruction neither mentioned nor defined the term \u201crecklessness\u201d. In the instant case the instructions included the term although they do not define it. People v. Davis, 74 Ill.App.2d 450, 453-454, cited by defendant, has been limited by the later case of People v. Parks, 133 Ill.App.2d 348, 273 N.E.2d 162, 165, which holds that instructions must be taken as a whole and failure to give full and complete instructions will not be the basis for reversal if the evidence of defendant\u2019s guHt is so clear that the jury could not possibly have found him not guHty. While the trial court did not define \u201crecklessness\u201d, its failure did not work a substantial prejudice to the defendant. In People v. Maldonado, 3 Ill.App.3d 216, 224-225, the court said:\n\u201cIt is also argued that the jury was insufficiently instructed on the offense charged since the trial court faffed to instruct the jury as to the meaning of the term reckless\u2019 on its own initiative. The Criminal Code defines the term in generalities to the end that the definition may be appfied to an infinite variety of acts. While it would seem desirable to instruct the jury in the language of the Code wherever possible, we are convinced that the failure of the court to do so in the instant case did not work a substantial prejudice upon the defendant. # # * Thus the fact that the jury was not instructed as to the statutory definition of the term did not constitute reversible error * *\nWhile it would have been preferable for the trial court to instruct the jury on the definition of \u201crecklessness\u201d, even though no such instruction was tendered, we find that after reviewing the record before us the evidence presented was such that no error was occasioned by the failure of the court to give such instruction. (See People v. Gersbacher, 44 Ill.2d 321, 325-326.) We therefore affirm the judgment of the trial court.\nJudgment affirmed.\nGUILD, P. J., and T. MORAN, J., concur.", "type": "majority", "author": "Mr. JUSTICE ABRAHAMSON" } ], "attorneys": [ "Ralph Ruebner, of Defender Project, of Elgin, for appellant.", "Philip G. Reinhard, State\u2019s Attorney, of Rockford, (James W. Jerz, of counsel,) for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Omer Preston Brown, Defendant-Appellant.\n(No. 71-17;\nSecond District\nFebruary 13, 1973.\nRalph Ruebner, of Defender Project, of Elgin, for appellant.\nPhilip G. Reinhard, State\u2019s Attorney, of Rockford, (James W. Jerz, of counsel,) for the People." }, "file_name": "0730-01", "first_page_order": 752, "last_page_order": 759 }