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People v. Hart9/16/1980
t less evidence is needed to establish probable cause than that required for a conviction. People v. Ross (1978), 60 Ill. App.3d 857; People v. Hinton (1977), 45 Ill. App.3d 925.
• 5 The defendant next contends the right to confront and cross-examine his accusers was impermissibly curtailed when he was not allowed to use an FBI manual to attack the procedure used in collecting physical evidence, specifically, gunpowder residue from his hands. In primary support thereof, he cites Darling v. Charleston Community Memorial Hospital (1965), 33 Ill.2d 326, for the proposition that an expert witness may be cross-examined as to the views of recognized authorities which are expressed in treatises and professional periodicals. Darling is inapposite to the case at bar, however, since witness Kazakewich was not presented as an expert, but rather as an evidence technician, and he was not asked for an expert opinion on any matter in the case at bar. The FBI manual is neither a treatise nor a professional periodical. Further, the manual was undated and, as suggested by the comments in the record, probably outdated as well. The unreliability of the particular edition of the manual sought to be used by defense counsel was further demonstrated when defense counsel subsequently did not attempt to use the manual to impeach the expert witness who was presented by the State, Dr. Rudzitis, who was the developer of the neutron activation analysis testing system for the State of Illinois and the author of the gunshot residue testing portion of the FBI manual. Accordingly, we cannot conclude the defendant was in any way prejudiced by this limitation on cross-examination.
The defendant lastly contends the court erred in sentencing him to the maximum period for a Class A misdemeanor and that the sentence was excessive.
He contends that the trial court failed to consider probation as an appropriate penalty for his conduct and points out that section 5-6-1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-6-1) provides that except where specifically prohibited, a court shall impose probation or conditional discharge unless it is of the opinion that imprisonment is necessary to protect the public or that probation or conditional discharge would deprecate the seriousness of the offense and would be inconsistent with the ends of justice.
The record does show that the trial court did fairly consider probation as an alternative to the sentence imposed. The trial judge fully considered all factors relevant to the sentencing decision, including the presentence report. He gave consideration to the prior criminal record of the defendant which included imprisonment for the offense of assault with intent to kill and two fines for the driving offenses of reckless driving and driving while intoxicated. The trial judge noted the necessity to deter others from similar conduct in the future and the likelihood of great bodily harm to the victims of defendant's conduct in shooting into the house. The trial judge noted the mitigating factors, particularly the hardship to the defendant's family caused by lack of support during incarceration. Nonetheless, the trial judge sentenced the defendant to 364 days' imprisonment.
• 6, 7 This defendant has shown neither that the trial judge abused his discretion (People v. Perruquet (1977), 68 Ill.2d 149) nor that the sentence is erroneous. (People v. Choate (1979), 71 Ill. App.3d 267.) The record reveals no arbitrariness or caprice on the part of the judge and, in fact, all of the reasons the judge had for imposing the sentence may not have been stated on the record nor was there any requirement that he do that. It likewise
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