# People v. Gross > Appellate Court of Illinois · February 8, 1988 · 166 Ill. App. 3d 413 URL: https://www.frixlaw.com/law-library/cases/9860400 ## Case - **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HOWARD GROSS, Defendant-Appellant - **Court:** Appellate Court of Illinois - **Decided:** February 8, 1988 - **Citations:** 166 Ill. App. 3d 413; 116 Ill. Dec. 828; 519 N.E.2d 1043; 1988 Ill. App. LEXIS 135 - **Precedential status:** Published - **Opinion:** Dissent by Manning - **Judges:** O'Connor, Manning - **Cited by:** 27 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9860400 ## How later opinions describe it (automated extraction) - holding that entry was consensual where defendant opened his apartment door for officers then sat down at his kitchen table and officers followed him into apartment ## Opinion text JUSTICE MANNING, dissenting: I respectfully dissent. It is my opinion that the State came nowhere close to meeting its burden in proving the defendant guilty of murder beyond a reasonable doubt. The elements of murder are the knowing, intentional and unlawful taking of another’s life. (Ill. Rev. Stat. 1983, ch. 38, par. 9—1(a); People v. Clemens (1972), 9 Ill. App. 3d 312, 317 , 292 N.E.2d 232 .) While it is not necessary to show that the accused deliberately formed the intent to kill to justify a conviction for murder (People v. Davis (1966), 35 Ill. 2d 55, 61 , 219 N.E.2d 468 ; People v. Walden (1976), 43 Ill. App. 3d 744, 752 , 357 N.E.2d 232 ), the least that must be proved is that the defendant voluntarily and wilfully committed an act, the natural result of which would be the death of another. People v. Calhoun (1972), 4 Ill. App. 3d 683, 689 , 281 N.E.2d 451 . The evidence presented by the defendant was his sworn testimony that Greg Horn grabbed him from behind and in fighting him off, the gun discharged. In my opinion, the State has not presented any competent evidence to contradict the defendant’s version of the incident. There are no occurrence witnesses other than the defendant who saw the shooting. The State did not present any forensic evidence to establish either the distance between the victim and the weapon at the time of the shooting or to show that the shooting could not have occurred as the defendant had testified. Rather, the State sought to establish its case on speculation and conjecture. It relies on a vague statement made by the defendant’s brother and the fact that the victim was five inches taller than the defendant to establish the defendant’s intent to commit murder. The statement attributed to the defendant’s brother, Cletus, that while in a dazed state he heard a shot, looked and saw the victim falling, turned around and saw a “big long thing,” was introduced only as impeachment of his testimony at trial. Let us examine what impeachment actually occurred. Cletus testified at trial that after he was hit, he was “semi-unconscious and semi-conscious”; previously he had stated that he had been in a daze. At trial he testified that he heard an explosion; he allegedly described the noise to the assistant State’s Attorney on the date of the shooting as a gunshot. Up to this point, the testimony is not necessarily inconsistent with his prior oral statement. The sole possible inconsistency is between his testimony at trial that when he looked up nobody was there and the oral statement which he allegedly gave the assistant State’s Attorney indicating that he saw his brother when he looked up, even though at trial he did not remember making such a statement. While there is no issue raised in this appeal regarding use of prior inconsistent statements, I consider it only in my analysis of the evidence herein for the purpose of determining if there is competent evidence in this record sufficient to sustain this conviction beyond a reasonable doubt. Prior inconsistent statements may be admissible as substantive evidence if: (1) the statements are inconsistent with testimony at trial (2) the witness is subject to cross-examination; (3) the statements are within the personal knowledge of the witness; and (4) the statements are acknowledged under oath or have been electronically recorded. (People v. Hastings (1987), 161 Ill. App. 3d 714, 719 , 515 N.E.2d 260 ; Ill. Rev. Stat. 1985, ch. 38, par. 115—10.1.) Cletus’ statement, however, does not meet these requirements. He did not recall making the statement and the State did not introduce a recording of the alleged statement into evidence at trial nor was it in writing. Thus, while the statement may have been properly used to impeach the witness’ credibility, it was not admissible as substantive evidence. The trial court correctly admitted it for nothing more than impeachment. In light of that, however, it is my judgment that the dearth of sufficient evidence to sustain a criminal conviction beyond a reasonable doubt is in this case readily apparent. I further disagree with the trial court’s conclusion and the majority’s view that based upon the trajectory of the bullet and the height of the parties, the physical evidence does not support the defendant’s version of the shooting. Again, there is no opinion testimony in the record, expert or otherwise, upon which this conclusion could be based or inferred. It is based solely on speculation and conjecture. It is not unreasonable to believe that during the course of a potentially life-and-death struggle between the 210-pound decedent and the 275-pound defendant, the gun may have discharged into the victim’s neck rather than his chest. In fact, the medical evidence presented by the State establishes that there was stippling on the victim’s neck, which is indicative of a close to intermediate range gunshot wound and is consistent with the defendant’s story. Knowledge of the distance between the victim and the weapon at the time of firing may have disproved the defendant’s claim; however, the State failed to introduce any such evidence. The majority also holds that the conviction is proper because the only eyewitness, the defendant, was found to be incredible. Although the trier of fact is not obliged to accept the defendant’s testimony as true, it should not disregard or reject testimony by the defendant which is not contradicted in its material parts unless it is so unreasonable as to be judged improbable. (People v. Harling (1975), 29 Ill. App. 3d 1053, 1059 , 331 N.E.2d 653 ; People v. Walden (1976), 43 Ill. App. 3d 744, 749 , 357 N.E.2d 232 .) Even were the trier of fact to reject the defendant’s testimony, the rejection does not have the effect of supplying proof of the defendant’s guilt beyond a reasonable doubt sufficient to sustain a conviction. (People v. Jordan (1954), 4 Ill. 2d 155, 163 , 122 N.E.2d 209 .) The trial court’s rejection of the defendant’s testimony that the shooting was an accident does not constitute evidence for the State that the defendant knowingly and intentionally shot the decedent. The State must prove the defendant’s intent, and in my opinion, it has not done so. The evidence presented by the State merely established that the defendant shot Greg Horn, not that the defendant killed him with the requisite mental state. The weakness of the defense does not relieve the State of its burden of proving its case beyond a reasonable doubt. I believe the evidence presented by the defendant has neither been contradicted in its material parts by competent evidence on the part of the State, nor is it so implausible that it should be completely disregarded by the trier of fact. The State has the burden of proof and it has failed to sustain it. In my view, the evidence in its totality is insufficient to establish the defendant’s guilt beyond a reasonable doubt. Based upon the foregoing, I would reverse the defendant’s conviction. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9860400. Public record. Not legal advice.