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People v. Kirwan

OPINION FILED MAY 13, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

EDWARD M. KIRWAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Peoria County; the Hon. CALVIN R. STONE, Judge, presiding.

MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

The defendant, Edward Kirwan, was indicted by the grand jury of Peoria County for the offense of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(2)). Following a jury trial in the circuit court of Peoria County, Kirwan was convicted, and sentenced to the Department of Corrections for a term of (25) years. He now appeals from the judgment entered on the jury verdict, raising three issues for our consideration: First, was the evidence presented at trial sufficient to prove him guilty of murder beyond a reasonable doubt; second, did reversible error occur when one of the jurors revealed to the court the fact he overheard his wife discussing Kirwan's trial with some acquaintances; and finally, did the trial court err in refusing to permit defense counsel to cross-examine the State's principal witness with regard to the latter's prior acts of perjury.

The record reveals that sometime during the morning hours of February 8, 1979, Richard Monckton was shot three times and killed in his Peoria home by a murderer wielding a .380 automatic pistol. The only occurrence witness was Brad Abraham, who testified on behalf of the State and identified Monckton's murderer as Edward Kirwan, the defendant. Abraham's testimony was substantially as follows.

About 5 p.m. on February 7, 1979, Abraham was at Kirwan's Peoria home. Shortly thereafter, they were joined by Dennis Ruprecht and Tim Dougherty. The four remained at Kirwan's house for about 2-3 hours, drinking beer and hard liquor. While at Kirwan's, Abraham saw two handguns, a revolver and an automatic.

Subsequently, the four left Kirwan's house and went to Two Brothers' Bar, a Peoria tavern. They remained at Two Brothers' until 12 midnight, drinking pitchers of beer. Abraham testified that while at Two Brothers', the defendant had the automatic tucked into his belt and was wearing the revolver in a holster at his hip.

After Two Brothers' Bar closed, the four decided to continue their drinking at Weedy's Tavern, also located in Peoria. They stayed at Weedy's until approximately 3:30 a.m. At this time the defendant, Abraham, Ruprecht, and a woman they had met at Weedy's, Linda Silva, left to go to Richard Monckton's home. Dougherty did not go with them.

The drinking continued at Monckton's house. Abraham testified that at this time "Richard was talking bad about Ed's wife." Specifically "Dick was saying Ed's wife isn't good enough for Ed." Then Monckton and the defendant began to wrestle. The wrestling lasted about five minutes, after which time the argument between Monckton and Kirwan subsided, but not the drinking. Abraham testified that during the wrestling Kirwan was wearing a hunting knife on his belt and subsequently told Abraham that "I should have slit his [Monckton's] throat." Abraham further testified that Kirwan was still wearing the revolver in a holster at his hip. Ruprecht, however, was then in the possession of the automatic. Abraham further testfied that Monckton brought out his shotgun, discussed its use with the defendant, and threw it off to his right without pointing it at the defendant.

Sometime following the wrestling, Linda Silva, Ruprecht, and Monckton passed out in the living room. Silva and Ruprecht were sleeping on one of the two living room couches. Monckton was sleeping on a recliner. Abraham and the defendant left for more beer and returned a short time later. By now it was daylight.

Abraham testified that after he and the defendant returned with more beer, they sat in Monckton's living room. Abraham sat alone on the other couch facing Monckton, and Kirwan sat on a chair to Abraham's right. Suddenly Kirwan stood, stated "I'm going to blow this fucker away," and shot Monckton three times. After the shooting, Kirwan said "Nobody talks bad about my wife." Monckton died as a result of the shooting. The ammunition used in the murder was identified as ammunition for a .380 automatic. However, the .380 automatic Abraham stated he had seen in Kirwan's possession earlier that evening was never recovered.

Ruprecht was awakened by the shooting. The defendant said "Let's go," and he left with Ruprecht and Abraham in Ruprecht's vehicle. According to Abraham, while in the car Kirwan said, "I love you guys. I know you guys aint' going to rat on me." In response, Ruprecht stated, "I'm not going to rat on you." Ruprecht then dropped Kirwan off at the latter's house, and drove Abraham home. Monckton's body was subsequently discovered by Linda Silva, who apparently slept through the entire incident.

Abraham underwent strenuous cross-examination at Kirwan's trial. Defense counsel elicited from Abraham the fact that he was involved in a motorcycle accident in 1971 or 1972 that resulted in brain damage and loss of sight in his left eye. Abraham underwent brain surgery at St. Francis Hospital in Peoria, and he admitted that he becomes spacy on occasion. He also admitted heavy alcohol and some drug use. In the course of his recuperation at St. Francis Hospital in Peoria, he said he experienced two seizures and a temperature of 107° . To control the seizures he had been taking dilantin. However, at trial he insisted during cross-examination that dilantin had been prescribed for his pneumonia.

Defense counsel further examined in some detail Abraham's ability to recollect the events which transpired on February 7-8, 1979. Abraham drank a considerable amount of beer before arriving at Monckton's house the early morning hours of February 8, and admitted that while at Monckton's he drank three tequila sunrises, part or all of eight beers, and a shot of brandy. In response to defense counsel's query as to whether or not he was drunk at Monckton's, Abraham replied, "Well, I wasn't — I was feeling it but I wasn't falling over drunk." He further admitted he did not actually see the gun when the defendant shot Monckton, but he thought Kirwan shot Monckton three times in the chest. In actuality, although Monckot was shot three times, only one bullet struck him in the chest. The remaining two bullets hit Monckton in the back and behind his right ear. Finally, defense counsel obtained from Abraham an admission that he was testifying in exchange for a grant of immunity from prosecution for perjury.

• 1, 2 The first issue raised by the defendant on appeal concerns the credibility of Abraham, the only State's witness to positively identify Kirwan as Monckton's killer. The defendant contends that in light of Abraham's incredible, impeached, and contradictory testimony, which he describes as "contrary to human belief and experience," the record fails to support the jury verdict of guilty. The law in this area is well-settled:

"Unless the evidence is so palpably contrary to the verdict or so unsatisfactory as to raise a reasonable doubt of a defendant's guilt, a reviewing court will not set aside a jury's verdict, for any inconsistencies or discrepancies in the testimony of the witnesses, any possible bias or interest affecting the credibility of the witnesses, and the weight to be attributed to the testimony of the witnesses are matters peculiarly within the province of the jury. This is so because the jury is in a better position to assess each witness' ability to remember and opportunity to observe, weighing any discrepancy in light of ...


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