APPEAL from the Circuit Court of Tazewell County; the Hon.
IVAN L. YONTZ, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
The defendant appeals from convictions for three counts of murder and one count of aggravated battery. He was sentenced to 30 years' imprisonment for each of the three counts of murder and to 5 years' imprisonment for aggravated battery, the sentences to run concurrently. It is undisputed that all of these convictions arose from the same act. People v. King (1977), 66 Ill.2d 551, 363 N.E.2d 838.
On August 12, 1979, at about 1:30 a.m., 26-year-old Blair Parnham went through a floor-to-ceiling plate glass window at the Nashville North Tavern in East Peoria. A triangular piece of glass, several inches in length, penetrated his left neck-shoulder region from above, severing his carotid artery, bronchus, pulmonary artery, and aorta, and penetrating his lung and heart, causing him to bleed to death. An examining physician for the coroner's office testified that death probably occurred within 10 seconds of the injury.
The defendant, 34-year-old Joseph Crossno, Jr., was charged with throwing Parnham into a window with sufficient force to break the glass and propel Parnham partially through the window, thereby causing a piece of glass to penetrate his body and cause his death. The indictment charged in count I that Crossno committed this act with intent to do great bodily harm to Blair Parnham. (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1).) Count II charged that defendant committed the same act knowing such act created a strong probability of death or great bodily harm. (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(2).) Count III charged the defendant with felony murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(3)), the felony being aggravated battery. Count IV charged the defendant with aggravated battery, in that in committing the same act, he knowingly caused great bodily harm to Blair Parnham. Ill. Rev. Stat. 1979, ch. 38, par. 12-4(a).
The prosecution, in its case in chief, presented three occurrence witnesses. Ann Lowery was the only State's witness claiming to have seen the defendant approach Blair Parnham just prior to the latter's death. The defendant was employed as a bouncer at the Nashville North. Mrs. Lowery testified that she observed Blair Parnham leaning against a rail in front of the third window from the door of the tavern. A police technician testified that this rail ran parallel to the plate glass windows. It was 2 feet 10 inches high, three or four inches wide, and was located 10 or 11 inches from the windows. Mrs. Lowery testified that she then saw Blair Parnham leave a bottle of beer on the ledge of the rail and walk toward the bathroom. He soon returned, walking rather fast. She did not notice him limp. She testified that the defendant followed Parnham to the windows. Her testimony is unclear as to when the defendant approached Parnham. She testified that Parnham had returned to the window and was leaning against the rail with his head down as if he were asleep. He held a beer bottle in his left hand. She stated that the defendant arrived at this location about a minute later. At another point in her testimony, she indicated that the defendant followed Parnham across the room. She testified that the defendant pushed Parnham backward. She did not know if Parnham's head struck the window, but she saw a sheer curtain on the inside of the window move. She testified that the defendant pushed Parnham again, and that this time the window broke. Glass showered down and struck Parnham. Parnham began bleeding, with blood spurting from his neck "like a garden hose". She stated that the defendant had hold of Parnham's lapels and pulled him forward out of the window. Mrs. Lowery testified that defendant then shook Parnham in a back and forth motion toward the window.
Mrs. Lowery then testified that the defendant threw Parnham to the ground. She testified both that Parnham dropped straight down and that Parnham landed in front of the second window from the door (the window east of the broken one). She also testified that the defendant then "acted like he was going to try to hit [Parnham] or kick him." Defense counsel failed to object to this conclusory statement. The witness stated no observations or other facts as a foundation for this conclusion. Mrs. Lowery testified that Parnham then wound up in front of the easternmost window, the one closest to the door. She does not know if he was dragged, if he crawled, or if he staggered to this location. She testified that, at this point, John Hauck, the manager, and Dave Shoulders, the assistant manager of Nashville North, had to "physically pull [the defendant] off" of Parnham. She stated that this was because the defendant still had a hold on Parnham, but later acknowledged that she did not actually see the defendant continue to hold Parnham, but only saw the defendant leaning over Parnham.
On redirect examination, the prosecutor asked Mrs. Lowery if, when she saw the defendant throw Blair Parnham to the floor, the defendant appeared angry. No objection was made to this question, and the witness answered, "Yes, he was very angry." No foundation in observation was laid for this conclusion, and no objection was made. On re-cross-examination, Mrs. Lowery again stated that the defendant was angry. She could not hear what he was saying because loud music was playing at the time. She saw that his face was red. The defendant's back was to her, but she testified that she could see his face at an angle. She testified that the defendant pointed his finger near Parnham's face prior to pushing him. Mrs. Lowery testified that she had consumed no alcohol that evening. She testified that she did not know Blair Parnham and only knew the defendant as "Joe the bouncer." She testified that she focused her full attention on the incident because she knew Joe Crossno was the bouncer and "I figured there was trouble because Joe came around."
The State's second occurrence witness was Paul King, a former Illinois State trooper. He was seated at the bar of the Nashville North with his back to the windows. Upon hearing glass falling from the broken window, he turned around and saw the defendant and Blair Parnham "involved in an altercation." He stated "Joe had Parnham by the front of the shirt and he was, looked, it appeared to be shoving him back and forth and the glass was falling all the time." Parnham then "wound up lying on the floor." "And he got up and walked over to where I was sitting. And he fell on the floor right by me. And he laid there." From this time forward, the prosecutor, in questioning the witness, referred to the incident as "the Defendant shoving Blair Parnham back and forth through the window." The witness did not hear the defendant and Parnham exchange words. At the time of the incident, the defendant's back was toward Mr. King. The defendant's right shoulder and Blair Parnham's left shoulder were turned toward the glass. Paul King could not see the defendant's right hand, but saw the defendant's left hand clutching Blair Parnham's lapel. On cross-examination, the witness stated that the defendant "shoved [Parnham] into the glass, I don't know, two or three times, I don't know exactly how many times * * *." Mr. King did not know if Parnham fell to the floor or was shoved down by the defendant. He testified that there were a lot of people standing around Blair Parnham when he fell again near the door. He also acknowledged that his view of the area of the broken window was blocked just after the glass started falling because people started running to that part of the room. He did not see anyone pull the defendant from Parnham, nor did he see the defendant walk away without being pulled off.
The State's third and final occurrence witness was Kathy Osborne, a waitress at Nashville North. At the time of the incident, she was standing at the waitress station, some 23 feet from the windows. Two rows of the horseshoe-shaped bar and a work area, containing shelves of liquor bottles and bar equipment, stood between her and the south windows. She testified that she was waiting for the bartender to fill her drink order when her attention was directed toward the south windows by the sound of breaking glass. She looked up and saw "Joe Crossno shoving the guy into the window * * *." The prosecutor, from this moment, in questioning this witness, consistently characterized the actions of defendant as "pushing [Parnham] back and forth into the window". The leading nature of this questioning was never objected to by defense counsel. In response to the question, "About how many times did you see Joe push this man back and forth into the window?" Mrs. Osborne answered, "I'm not sure, but it was a few." She testified that after the pushing, she saw the defendant pull Parnham back through the window. She testified that when she saw the incident, she remarked to another waitress, "Why doesn't he quit putting him, you know, pushing him into it?" Mrs. Osborne testified that she had not seen Blair Parnham causing any trouble in the tavern that evening. On cross-examination, it was brought out that the barroom was dimly lit and that the witness observed the incident while looking past shelves and work surfaces covered with liquor bottles, a cash register, popcorn machines and other barroom equipment. She testified, however, that although some liquor bottles were in her way, they did not obstruct her view of the incident. She testified that she and Joe Crossno "have had some differences" but that "we had it all straightened out a long time ago."
A motion for directed verdict of acquittal at the close of the State's case was denied.
The defense presented nine occurrence witnesses. James Henzler was seated on the side of the bar opposite from the windows, near the waitress station at the time of the incident. He testified that when he stood, he could see over the liquor bottles in the center of the horseshoe-shaped bar, and could observe people's heads in the area near the window. He is six feet tall. He did not see the incident, but when he heard the glass break, he walked around the corner of the bar and saw Parnham walking and bleeding. He testified that he and Dave Shoulders made Parnham lie down and attempted to administer first aid. His wife, Delores, was standing next to her husband when the glass broke. She testified that she could not see the window area because people were standing between the other side of the bar and the windows. She was standing closer to the waitress station than was her husband.
Gregg Ozment testified that he was sitting on the side of the bar closest to the windows and saw the incident over his shoulder. He testified that Parnham had bumped him near the restroom and that he, Ozment, had elbowed and threatened Parnham as a result. He later saw Parnham return to the window area. Parnham then approached the bar, ordered another drink, and returned to the window with a beer bottle. Ozment did not notice Parnham limp. He then saw the defendant approach Parnham and engage him in conversation. He could not hear what was said. Parnham moved his arms about and the witness speculated that Parnham was asking to be left alone because he had not done anything. The defendant moved his elbows in imitation of the way Parnham had been bumping people. Parnham made a sudden, jerking move and Crossno shoved him backward toward the window. The defendant had one hand on Parnham's shirt and another against a post, presumably the post between two of the window plates. The witness could not tell whether the defendant first grabbed Parnham's shirt and then shoved him, or first shoved him and then grabbed his shirt. He speculated that the defendant was trying to pull Parnham back into the room after Parnham had gone through the window. He testified that he saw the fatal piece of glass fall from the upper corner of the window. He testified that Parnham had gone into the window only one time.
Charles Burton testified that he stood at the end of the horseshoe, between the two sides of the bar. He observed Blair Parnham swing his arms as he walked and bump into people at the tavern. He did not observe him limp. He saw Parnham bump into the door girl and heard Billy Ray Dickerson complain to the defendant, "Someone's going to have to do something about him; he's running into a lot of people." The defendant was filling the ice cooler at the time. Parnham had already reached the windows when the defendant followed him. The next thing the witness noticed was the sound of breaking glass. He looked up and saw the defendant say, "You're going to have to leave." Bill Dickerson then said, "No, he's hurt too bad, he can't leave." Parnham took 10 steps and collapsed. Mr. Burton's wife, Tina, also testified that she heard glass break and saw the defendant pull Parnham from the window. She testified that the defendant was her husband's and her friend, but that they only saw the defendant at the tavern. Mr. Burton testified that the defendant had once bought a used car from Burton and Billy Dickerson. They are car salesmen at the same establishment.
Billy Ray Dickerson next testified. He has also been employed as a bouncer. He testified that Blair Parnham had walked repeatedly around the barroom, deliberately bumping into people. He testified that a bouncer, when confronted with such a situation, should get the person to leave before he precipitates a fight. At the time of the incident, Mr. Dickerson was standing at the curve of the bar, near the front door. He heard the glass break and saw the defendant pull Parnham from the window. Mr. Dickerson's testimony as to his own statements and that of the defendant correspond to the testimony of Mr. Burton. Dickerson also testified that Parnham did not fall near the window, but staggered to the door and then fell. He testified that immediately after the breaking of the glass, the two managers, John Hauk and Dave Shoulders, told the defendant to go to the office and the defendant did so. Dickerson thought that, after the glass broke, the defendant was in a state of shock. Dickerson's ...