## Illinois Official Reports

Appellate Court

People v. Slack , 2014 IL App (5th) 120216

Appellate Court Caption THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appe llee, v. RAY TERRANCE SLACK, Defendant-Appellant.

District & No. Fifth District

Docket No. 5-12-0216

Filed May 20, 2014

Held

( Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of

the reader. ) Defendant’s convictions for first-degree murder and armed robbery were upheld over his contentions that he was denied a fair trial by certain evidentiary rulings and that the trial cour t erred in refusing to give an instruction on the lesser-included offense of theft, since the trial court did not err in refusing to admit the te stimony of defendant’s sister in support of his claim that he acted in sel f-defense on the basis of remoteness and uncertainty, the trial court did not abuse its discretion in admitting allegedly “gruesome” and “n eedlessly prejudicial” autopsy photographs, and an instructio n on theft would have been inappropriate in view of the evidence tha t defendant took the victim’s money after the use of force.

Decision Under

Review Appeal from the Circuit Court of Madison County, No . 11-CF-541; the Hon. Ann Callis, Judge, presiding.

Judgment Affirmed.- 2 -

Counsel on
Appeal Michael J. Pelletier, Alan D. Goldberg, and Peter S gro, all of State Appellate Defender’s Office, of Chicago, for appell ant.

Thomas D. Gibbons, State’s Attorney, of Edwardsvill e (Patrick Delfino, Stephen E. Norris, and Whitney E. Atkins, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel ), for the People.

Panel JUSTICE GOLDENHERSH delivered the judgment of the c ourt, with opinion. Justices Spomer and Cates concurred in the judgment and opinion.

OPINION

¶ 1 After a jury trial in the circuit court of Madison County, defendant, Ray Terrance Slack,

was convicted of first-degree murder (720 ILCS 5/9- 1(a)(2) (West 2010)) and armed robbery (720 ILCS 5/18-2(a)(1) (West 2010)). He was sentenc ed to consecutive terms of 40 years in the Department of Corrections on the murder convict ion and 7 years on the armed robbery conviction. The two issues raised by defendant on d irect appeal are: (1) whether defendant received a fair trial and (2) whether the trial cou rt erred in refusing to instruct the jury on the

lesser-included offense of theft. We affirm.

¶ 2 FACTS
¶ 3 Defendant was charged by indictment with first-deg ree murder and armed robbery of the

victim, Bob Garrett. The victim was 77 years old, 5 feet 7 inches tall, and weighed between 140 and 150 pounds. Garrett was wearing a catheter when he was killed and had physical ailments, including coronary artery disease and emp hysema.
¶ 4 The victim’s neighbor, Mark Cope, testified that h e lives on Carl Street in Alton. It is a

dead-end street, and the only other residents of th e street were Cope’s father and the victim. Around midnight on March 16, 2011, Cope was on his porch smoking when he saw a pickup truck with its lights and engine off parked on the street. There was a man in the driver’s seat and a man outside the truck who appeared nervous. C ope shined a flashlight on the man outside the truck, which made the man even more ner vous. The truck lights came on, and the truck started to back up. Cope dialed 911. Cope the n went to the victim’s home and knocked on the door, but got no response. Cope contacted the p olice again and asked them to check on the

victim’s welfare.
¶ 5 Officers Espinoza and McCray of the Alton police d epartment responded to the victim’s

house, where they found the victim lying dead in th e backyard with a wallet next to him. There were no weapons near the body. The officers could n ot gain entry to the house due to a large- 3 -

amount of debris blocking both the front and back d oors. The officers noticed that the glass on

the back door was broken.
¶ 6 Detective Metzler processed the scene. He did not find a gun or any weapons in the

victim’s house. The victim possessed a firearm owne r’s identification card, but it expired on March 1, 2001. Metzler obtained a blood standard ca rd from the victim and a birdbath, which he sent to the crime lab for analysis.
¶ 7 Lieutenant Simmons of the Alton police department testified he responded to a call of a

suspicious vehicle on Carl Street and Yeakel Avenue around 1 a.m. on the date in question. Simmons stopped a pickup truck that was traveling a t a high rate of speed. Herbert Slack was the driver. The passenger was defendant, who identi fied himself as Ray M. Slack. Simmons let

the men leave after he determined neither of them h ad any outstanding warrants. However, Simmons was then informed by his dispatcher that Ra y T. Slack had an outstanding warrant. Simmons looked at a photograph of Ray T. Slack and determined that the passenger was in fact Ray T. Slack, not Ray M. Slack. Simmons stopped the truck again and took defendant into custody. Defendant smelled of alcohol and never men tioned he had been part of a fight or a physical confrontation.
¶ 8 Lieutenant Golike testified he was assigned to inv estigate the victim’s death. He learned

from other officers that the coat defendant was wea ring when he was arrested appeared to have blood on it. Golike waited until approximately 7:15 a.m. to interview defendant because he

knew defendant was intoxicated when he was arrested at 1:10 a.m. In addition to Golike, Detective Gary Cranmer took part in the initial int errogation of defendant.
¶ 9 People’s Exhibit 13 is a videotape of the interrog ation, which lasted approximately 68

minutes. Defendant admitted he consumed a lot of al cohol the previous evening and said he could not remember much. He denied any type of conf rontation with a white male, denied knowing the victim, and said he had never been to C arl Street. Cranmer told defendant that he appeared to have blood on his hand and showed him t he jacket and the shoes he was wearing when he was brought into the station, both of which had blood on them. Defendant denied any knowledge of how the blood might have gotten on him or his attire. Defendant allowed Metzler to take a swab from his right hand and buccal swabs . It was later determined from DNA profiles that the blood recovered from defendant’s jacket and hands matched the victim’s DNA profile.
¶ 10 Over halfway through the interview, defendant admi tted he knew the victim, but did not

remember going to his house the previous evening. D efendant said he had previously taken prostitutes to the victim at the victim’s request. At 8:22 a.m. defendant said he did not feel like speaking anymore, and the interview was terminated.
¶ 11 Detective Cooley testified that later that day he received from a jailer a message that

defendant wanted to speak with him. Cooley met defe ndant in the interview room at 6:50 p.m., and a second interview was videotaped. Defendant ad mitted he was drinking with his cousin Herb and that they smoked some crack. After they ra n out of alcohol, defendant went to the victim’s house to borrow some money. He admitted th at his sister previously dated the victim and that the victim was “like family.” Defendant kn ocked on the victim’s door. The victim came out, but refused defendant’s request to borrow money. Defendant got mad and threw- 4 -

something and broke the victim’s window. According to defendant, the victim ran down the stairs and defendant thought he had something and w as going to hit him, so he punched the victim in the face. When the victim got up, defenda nt hit him again and then used a bricklike object, which he later described as part of a birdb ath. The victim was still conscious, so defendant picked up a piece of string that he found nearby and choked the victim.
¶ 12 Defendant said he was extremely drunk, was not thi nking straight, and would not have

gotten into the fight if he had been sober. Defenda nt got scared after he realized the victim was not moving, but he noticed the victim’s wallet lyin g on the ground and removed the cash from the wallet. Defendant denied going to the victim’s house with the intent to steal from the victim and said he only took the money after he noticed th e wallet on the ground. Defendant said he knew the victim owned a pistol and believed that th e victim might have had it when he charged

at him after defendant broke the window. Defendant claimed the victim shot at him on a previous occasion. Defendant said he choked the vic tim to “calm his ass down” because he did not want to hit him anymore with the birdbath.
¶ 13 Defendant threw the birdbath pedestal over the fen ce, and the police later recovered it. A

photograph was introduced into evidence and shows b lood on the large concrete pedestal. The DNA profile of the blood recovered from the birdbat h matched the victim’s.
¶ 14 Defendant then walked and met up with Herb, his co usin. He continued to drink and went

with Herb to get more crack. Later in the evening, defendant told Herb he hit an old white man in the head with a brick. Defendant wanted to go ba ck to the house to check on the victim, while Herb wanted to go steal something from the vi ctim’s residence. When they went back to the victim’s house, a neighbor shined a light on th e truck, and they got scared and left. This second interview lasted approximately 45 minutes.
¶ 15 Cooley testified that he received another message that defendant wanted to speak to him

again, so Cooley conducted a third interview with d efendant on March 17, 2011. This interview was also videotaped and shown to the jury . Defendant said he went to borrow five dollars from the victim. He said he borrowed money from the victim at least 60 times and the victim would give him money 7 out of 10 times that he asked. On the night in question, the victim refused to give defendant money, so defendan t threw a beer he was carrying at a

window in the back of victim’s home and broke it. D efendant said the victim then ran down the steps and reached behind his back. Defendant though t the victim might have a pistol or a knife. Defendant hit the victim and a fight ensued. While they were fighting the victim asked, “Why you doing this Ray?” Defendant told the victim he t hought the victim was going to shoot him, and the victim did not deny having a gun, but kept reaching behind his back. However, defendant admitted that once he got the victim on t he ground, he knew the victim did not have

a gun. ¶ 16 The victim started yelling for help and defendant wanted to stop him from reporting the

incident. Defendant said the victim was strong for his age and recounted an incident in which the victim got in a fight with defendant’s cousin. Defendant said he never intended to rob or kill the victim. He thought the victim was just out cold. When he was driving around with Herb later that evening, he told Herb he knew where they could get some money. He said there were- 5 -

at least two hours between the time he was at the v ictim’s house alone and the time he went

back with Herb.
¶ 17 Dr. Raj Nanduri performed an autopsy on the victim and testified the victim died as the result of strangulation and blunt-force trauma. Sev eral autopsy photographs were introduced into evidence. Defense counsel objected to People’s Exhibit 42, an internal photograph of the victim’s ribs after his chest plate was removed, an d People’s Exhibit 57, a photograph of the victim’s head after the scalp was peeled back to sh ow the injuries beneath his scalp. Both objections were overruled. Nanduri testified that t he victim’s injuries included tears to the side of his head, a broken nose, a broken orbital bone, a broken cheek bone, and a massive hemorrhage under the scalp. The victim’s hyoid bone was broken, which occurs during strangulation.
¶ 18 Defendant did not testify. The defense attempted t o call defendant’s sisters, Natalie and

Jacqueline, to support defendant’s theory of self-d efense. The State filed a motion in limine to exclude their testimony, which the trial court gran ted. In an offer of proof, defense counsel stated that both sisters would testify that they kn ew the victim to carry a gun. Natalie, who dated the victim for 12 to 14 years, would testify that she saw the victim threaten defendant with a gun in 1996. Natalie also would testify that she saw the victim point a gun at her cousin

in an unrelated incident.
¶ 19 The jury was instructed on self-defense and second -degree murder based on an

unreasonable belief in self-defense. The trial cour t denied the defense’s proffered theft instruction. The jury found defendant guilty of fir st-degree murder and armed robbery. After a sentencing hearing, the trial court sentenced defen dant to consecutive terms of 40 years and 7 years. Defendant now appeals.

¶ 20 ANALYSIS
¶ 21 The first issue on appeal is whether defendant rec eived a fair trial. Defendant contends he

was denied a fair trial because the trial court bar red admission of evidence that would have supported his theory of self-defense and admitted g ruesome autopsy photographs that were needlessly prejudicial. We disagree.
¶ 22 Defendant asserts that the question of whether he was entitled to present the testimony of

his sister, Natalie Slack, to support his claim of self-defense is subject to de novo review. However, it is well settled that the admissibility of evidence lies within the sound discretion of the trial court, and its decision will not be overt urned on appeal absent an abuse of discretion. People v. Becker , 239 Ill. 2d 215, 234, 940 N.E.2d 1131, 1142 (2010 ); People v. Ward , 101 Ill. 2d 443, 455-56, 463 N.E.2d 696, 702 (1984). An abus e of discretion occurs only where the trial court’s decision is arbitrary, fanciful, or unreaso nable or where no reasonable person would take the view adopted by the trial court. Becker , 239 Ill. 2d at 234, 940 N.E.2d at 1142.
¶ 23 In the instant case, the trial court was confronte d with the proferred testimony of Natalie

Slack, who would have testified the victim carried a gun and that in 1996, she saw the victim point a pistol at defendant. As to the incident inv olving her cousin, no further time frame was given. A trial court may bar evidence on the ground s of relevancy if the evidence is remote,- 6 -

uncertain, or speculative. People v. Morgan , 197 Ill. 2d 404, 456, 758 N.E.2d 813, 843 (2001). We agree with the State that with one act occurring 15 years prior to the instant incident and the other act not even given a time frame, the trial co urt was within its discretion to refuse to admit Natalie Slack’s testimony on the basis of remotenes s and uncertainty. Finally, even assuming arguendo that the trial court erred in refusing to admit Na talie’s testimony, we find such error

harmless.
¶ 24 Error is deemed harmless where the evidence suppor ting a defendant’s conviction is so

overwhelming that the defendant would have been con victed even if the error was eliminated. People v. Jackson , 195 Ill. App. 3d 104, 114, 551 N.E.2d 1025, 1030 (1990). Here, even if Natalie Slack was allowed to testify, it would not have overcome the overwhelming evidence that defendant was the initial aggressor. Defendant admitted he started the confrontation when the victim refused to loan him money. Defendant bec ame angry and threw his beer can at the victim’s window, causing it to shatter. The victim, who was much older, smaller, and in worse health than defendant, then allegedly came toward d efendant. While defendant claimed the victim had a weapon behind his back, he also admitt ed during the third interview that once the victim was on the ground, he realized the victim wa s not armed. Nevertheless, defendant beat the victim senseless, using not only his hands but also a concrete birdbath and, ultimately, a piece of string or rope to strangle the victim. Acc ordingly, defendant’s own statements show that he was the initial aggressor.
¶ 25 An initial aggressor is not entitled to use deadly force in self-defense unless he or she

completely withdraws from the altercation so that t he victim’s actions constitute a separate aggression. People v. Armstrong , 273 Ill. App. 3d 531, 534, 653 N.E.2d 17, 18-19 ( 1995). Here, defendant failed to show that he withdrew fro m the altercation but rather admitted that he ultimately strangled the victim. Under these circum stances, we find the trial court did not commit reversible error in refusing to admit the te stimony of Natalie Slack.
¶ 26 Defendant next contends the trial court erred in a dmitting two autopsy photographs,

People’s Exhibit 42 and People’s Exhibit 57, becaus e the photos were “gruesome” and “needlessly prejudicial.” We disagree.
¶ 27 Whether a jury should be allowed to see photograph s of a decedent is a decision which lies

within the sound discretion of the trial court. People v. Heard , 187 Ill. 2d 36, 76-77, 718 N.E.2d 58, 80 (1999). Photographs of a decedent may be introduced if they are used to prove the nature and extent of the injuries, the manner a nd cause of death, or aid in the understanding of a pathologist. Heard , 187 Ill. 2d at 77, 718 N.E.2d at 81.
¶ 28 People’s Exhibit 42 is an internal photograph of t he victim’s ribs after his chest plate was

removed, and People’s Exhibit 57 is a photograph of the victim’s head after the scalp was peeled back. Both photographs were relevant to show the nature and extent of the victim’s injuries and the amount of force used by defendant in inflicting the injuries upon the victim. Moreover, both photographs helped in understanding the pathologist’s testimony. Dr. Nanduri specifically testified with regard to People’s Exhi bit 42:

“You can see there is a lot of black discoloration around the ribs. The black

discoloration is from the fractures of the ribs he had, and you have an internal control.- 7 - You can see these other areas there is no bleeding. So, that’s the way the normal should look whereas the bleeding part is the fracture.”
¶ 29 Dr. Nanduri then explained that the dark black par t in the photograph showed the victim

had three broken ribs.
¶ 30 With regard to People’s Exhibit 57, Dr. Nanduri ex plained that previous pictures showed

lacerations or tears on the outside of the victim’s head, but this photograph showed the injuries underneath the scalp, which she described as a “mas sive hemorrhage, crushing injury, blunt force trauma.” It showed “a lot of bleeding in the scalp.” Therefore, the photographs were relevant not only to show the amount of force used by defendant but also to assist the jury in understanding Dr. Nanduri’s testimony. Under these circumstances, we cannot say the trial court abused its discretion in admitting either Peo ple’s Exhibit 42 or 57.
¶ 31 The final issue raised in this appeal is whether t he trial court erred in refusing to instruct the

jury on the lesser-included offense of theft. Defen dant argues there was sufficient evidence presented to allow the jury to find defendant guilt y of theft and not guilty of armed robbery so

that a theft instruction was warranted.
¶ 32 A defendant is entitled to have the jury instructe d on a less serious offense which is

included in the charged offense if: (1) the chargin g instrument describes the lesser offense and (2) the evidence adduced at trial rationally suppor ts the conviction on the lesser-included

offense. People v. Ceja , 204 Ill. 2d 332, 359-60, 789 N.E.2d 1228, 1246-47 (2003). Because the decision to allow a jury instruction is within the province of the trial court, a reviewing court generally reviews the refusal of a proposed i nstruction for abuse of discretion. People v. Tijerina

, 381 Ill. App. 3d 1024, 1030, 886 N.E.2d 1090, 1097 (2008). However, where the question presented is whether the defendant met “th e evidentiary minimum” for a certain jury instruction, it is best categorized as a question o f law and reviewed de novo

. Tijerina , 381 Ill. App. 3d at 1030, 886 N.E.2d at 1097.
¶ 33 There is no dispute that theft from a person is a lesser-included offense of armed robbery.

Here, defendant insists the evidence was sufficient to warrant a theft instruction because his taking the money from the victim’s wallet was a “cr ime of opportunity” or an afterthought. However, under the evidence presented, a jury simpl y could not reasonably infer that defendant acted without the use of force, which is necessary for armed robbery. See 720 ILCS 5/18-2(a)(1) (West 2010). The evidence clearly show s that defendant took the victim’s money only after the use of force. Based upon the record before us, a jury instruction on the noncharged lesser-included offense of theft would h ave been inappropriate, and the trial court did not err in refusing to give a theft instruction

. ¶ 34 For the foregoing reasons, we affirm the judgment of the circuit court of Madison County.

¶ 35 Affirmed.