APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
Defendants Jerry F. Dillon and Robert James were indicted with Louella Kentris and Daniel Williams for the murder of Vernon Davis. (Ill. Rev. Stat. 1971, ch. 38, par. 9-1.) After Kentris and Williams were granted severances, Dillon and James, in a bench trial, were found guilty of the lesser included offense of voluntary manslaughter and each was sentenced to the penitentiary for a term of 1 to 20 years. Ill. Rev. Stat. 1971, ch. 38, par. 9-2.
Defendants present the following issues for review: (1) whether there was any causal connection between their acts and Davis' death; (2) whether they were proven guilty beyond a reasonable doubt; and (3) whether the evidence presented allowed a finding of the lesser included offense of voluntary manslaughter.
Owing to the conflicting and confusing testimony presented at trial, it is difficult to determine exactly what happened in this incident. However, some facts are not in dispute. It appears a party was in progress on 2 May 1970 in the second floor apartment of Louella Kentris. Among those she was entertaining were the decedent (Vernon Davis), defendants, and Daniel Williams. It is evident that there was heavy drinking engaged in by all and that the party continued all day, that night, and into the next day. At some time between 11 P.M. and midnight on 2 May 1970, an altercation occurred between defendants and the deceased. As a result of the altercation, Davis received severe blows to the head, was rendered unconscious, and was then placed on a couch. At some time after 2 A.M. on 3 May 1970, Davis either left the apartment by himself, or his unconscious body was removed by Dillon and Kentris. At 4:20 P.M. on 4 May 1970, the dead body of Vernon Davis was discovered in a ground floor hallway below the apartment of Louella Kentris. According to the coroner, Davis could have been dead anywhere from 12 to 24 hours. Aside from those meager facts, the testimony adduced at trial was confused and inconsistent.
James Ashmon, a witness for the State, testified that when he arrived at Louella Kentris' apartment at approximately 9 P.M. on 2 May 1970, everyone present was drinking. Around 11 P.M. while he was in the washroom, he heard strange noises coming from the living room. When he came out, he observed Dillon and James standing over Davis and hitting him with their fists. He saw Dillon and James strike Davis three or four times before he interceded to stop the fight and then helped place Davis on a couch. He testified that, although blood was coming from Davis' mouth, and although he looked "pretty bad," he did not look as bad as he did when he was found almost 2 days later. Ashmon also testified that on the day following the altercation, he met James who stated: "I think we killed him."
On cross-examination, Ashmon admitted that Williams was also standing over Davis when Ashmon came out of the washroom, but he testified that he did not see Williams strike Davis. He had been a friend of Williams for 10 years. However, upon further questioning, Ashmon admitted that on three prior occasions he had stated that Williams did strike Davis that evening: in a statement which Ashmon had given to the police, in testifying before the grand jury, and in recounting a confrontation between Williams and himself on the day following the incident. Although he admitted making all three statements, he claimed he had been mistaken at the time he made them. The witness also testified that earlier on the day of May 2, he observed Williams threaten Davis with a knife. However, Ashmon could offer no explanation for that incident other than that Williams becomes "mean" when drinking.
Daniel Williams, a severed co-indictee, testified for the State. He arrived at Louella Kentris' apartment at 8:40 P.M. on May 2, 1970, and saw Ashmon arrive around 10:30 P.M. At approximately 11 P.M. an argument erupted between Davis and James. James struck Davis with his fists on the right temple approximately four or five times. At this point, Dillon also joined in the attack on Davis hitting Davis with his fists. As Dillon continued to strike Davis on his face with his fists for 2 or 3 minutes, James struck Davis on the head with a metal stove pipe approximately 3 to 4 inches in diameter. During the fight, Davis never struck anyone with his fists nor did he draw a knife. Dillon and James then moved Davis, bleeding from the head, mouth and eyes, to the couch. At this point, Davis was breathing very heavily and making rasping sounds. At sometime between 11:20 and 11:30 P.M., two Chicago police officers arrived to investigate a disturbance. During the minute or two that the officers were in the apartment, they walked over to Davis, still on the couch, shined a flashlight on his face, and inquired as to his condition. They were told it was caused by a fight and too much to drink. The officers suggested that Davis be taken to the hospital and left. Thereafter, Dillon warned all those present not to get upset or say anything about what had happened. Sometime after the police left but before midnight, Dillon and Louella Kentris dragged Davis' still-living body from the apartment and placed it downstairs. *fn1 Later, at approximately 11:50 P.M., Dillon, James, Kentris, and Williams left to purchase some liquor. Although he did not actually see Davis' body when he left for the liquor store, Williams stated that it was still there in the hallway. *fn2 Finally, Williams testified that Davis was in the same condition when he was taken from the apartment as he was when his dead body was discovered almost 2 days later.
On cross-examination, Williams stated that he never struck Davis, and that he had not threatened Davis with a knife earlier on May 2, 1970. However, Williams admitted that after the fight, Ashmon was spreading the rumor that he had killed Davis and that these accusations resulted in a fight between Williams and Ashmon in which Ashmon broke Williams' jaw. Williams also stated that, when Davis' body was taken from the apartment, Davis had on his pants and shirt. The witness also stated that, although Davis did have a knife on him that night, he never used it during the fight. Finally, Williams admitted that the State had agreed to drop all charges against him in exchange for his testimony against Dillon and James.
Leo Kerkstra, a Chicago police officer, testified for the State. At 4:20 P.M. on May 4, 1970, he was directed to the ground floor hallway of Louella Kentris' apartment where he found Vernon Davis' body. Davis' trousers were down close to his ankles and the top clothing was pulled upwards. Although the hallway was poorly lit, there was sufficient light to see what he was doing. Other than on the deceased, there was no blood in the hallway.
Dr. Jerry Kearns, a pathologist for Cook County, also testified for the State. He testified that the deceased suffered extensive brain lacerations which were caused by external violence applied to the head, lower lip, forehead, and brain. The cause of death was violence to the head, traumatic cerebral lacerations. In his opinion, this condition was brought about by blows with fists since his examination revealed no abrasive marks commonly left by clubs or knives and specifically no marks indicative of a blow with a metal pipe. Dr. Kearns testified that, although the injuries were fatal, they would not cause instant death. Although the deceased could have lingered for 24 to 36 hours before death, the doctor doubted that he would have been able to regain consciousness. Finally, he testified that the deceased had been dead for anywhere from 12 to 24 hours.
On cross-examination, the doctor stated that there was a swelling under the back of the deceased's hands and that this type of trauma usually results from a blow with a clinched fist. This swelling was found under both the deceased's hands.
Viola Rizer, mother of Louella Kentris, testified for the defense. She arrived at her daughter's apartment at approximately 1:30 A.M. on May 3, 1970. While there, she saw Vernon Davis lying on the couch. Although she did not notice it at first, a small amount of blood was "trickling" from Davis' mouth. He was breathing loudly but not unusually. When Mrs. Rizer left the apartment at 1:55 A.M., Davis was still alive. On the way out, she noticed four or five strange men standing at the gate at the rear of the building.
On cross-examination, Mrs. Rizer testified that she observed Dillon pick Davis off the couch and place him on the floor. At that time, Dillon stated that he was going to put Davis in the alley where he belonged because, if it had not been for him, the police would not have been there.
Thomas Ferry, a Chicago police officer, testified for the defense. He was assigned to investigate the death of Vernon Davis. He found no money, identification, or knife on the deceased. Daniel Williams gave an oral statement to him in which Williams stated that he helped carry the body of Davis down to where it was found.
Defendant James testified on his own behalf. He arrived at Louella Kentris' apartment about 8:30 A.M. on May 2, 1970. At approximately 9:30 A.M. Vernon Davis arrived; at 11:00 A.M., Dillon arrived; and at 1:00 P.M., Daniel Williams arrived. The witness did not recall ever seeing James Ashmon in the apartment on May 2, 1970. The drinking started at approximately 10 A.M. and continued into the next day. Trips were made to the store to purchase additional liquor seven or eight times that day. Although Vernon Davis contributed to these purchases, he never saw Davis with a wallet. At approximately 11 P.M., he was in the bedroom when he heard Dillon yell: "He has a knife." He walked into the living room and observed Vernon Davis threatening Dillon with a knife. Although Dillon's hand was cut, the witness observed Dillon hit Davis once, staggering him, but not sending him to the floor. At this point, Davis, with the knife, turned on the witness. The witness struck Davis and grabbed his arm, causing Davis to fall to the floor and drop the knife. A fist fight then ensued, James striking Davis three times, possibly in the mouth, and Davis striking James twice. After approximately three minutes, Louella Kentris interceded to stop the fight. Three or four minutes later, Williams jumped on Davis, pushing him to the couch and beating him for three or four minutes, striking him three or four times in the face. Although Davis attempted to defend himself and struck back with his fists, Williams had to be pulled off Davis by those present. They then placed Davis on the couch. Between midnight and 1 A.M. two policemen came to the apartment to investigate a disturbance. Dillon had then gone to the store and Davis was "asleep" on the couch. The policemen did not examine Davis but merely walked over to the couch and looked down at him. The witness testified that Davis was not bleeding. After a few minutes the police left. Five minutes after the police departed, Mrs. Rizer, Louella Kentris' mother, arrived at the apartment. During the few minutes that she remained in the apartment, Dillon did not come back from the store. When James escorted Mrs. Rizer to a cab stand, he saw four or five ...