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People v. Feierabend

OPINION FILED JULY 21, 1981.

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

v.

THOMAS FEIERABEND, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES M. SCHREIER, Judge, presiding.

MR. PRESIDING JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

Defendant, a member of the "Gaylords" street gang (hereinafter Gaylords), admittedly shot and killed the victim, James Hoffman, while the latter was engaged in a fight with several other Gaylords inside a pizza parlor in Chicago. Defendant was charged by information with murder and armed violence, convicted of both in a jury trial, and sentenced to 22 years in the penitentiary. On appeal, defendant identifies reversible error in that: based upon his justification defense, he was not proven guilty of murder beyond a reasonable doubt; the trial court gave the jury an accountability instruction; the trial court refused to give a provocation instruction; the trial court advised the jury of the non-capital nature of the case; and defendant was improperly convicted of both murder and armed violence. For the following reasons, we affirm.

Brian Dolan testified for the State that on July 23, 1978, he was working at a pizza parlor located on North Rockwell Avenue in Chicago. At 2:20 a.m., while four customers, identified as the victim, Milorid Denic, "So-so" Munoz, and Michael Lewandowski, were playing pinball machines, six men in their early twenties entered, two of whom were carrying baseball bats. They asked if any customers were members of a local street gang called the "Popes" (hereinafter Popes). Dolan was busy behind the counter when a brawl suddenly erupted. As Dolan exited a rear door of the building to summon the owner, he heard a gunshot. He continued to the owner's house, told him of the occurrences, returned to the parlor and found the victim lying on the floor. When the fight began, a pizza roller was behind the counter, lying on top of the dough rolling machine and a police photograph, taken immediately after the shooting, depicted the roller still there. On cross-examination, Dolan testified that defendant was not among the six persons he saw walk into the restaurant. He did not remember where the roller was located in the restaurant when he returned after the shooting. On redirect, he testified that the photographs previously identified accurately portrayed the condition of the store when he returned.

Chicago Police Officer Michael Wick testified that on July 23, 1980, he and his partner were on duty in an unmarked car when he saw defendant, whom he identified in court, walk down the 3300 block of North Kenneth Avenue carrying a package. After defendant looked in the officers' direction, he disappeared from view for one second, and then returned shortly afterwards without the package. Officer Wick and his partner searched the area thereafter and found the package which contained a pistol and 18 bullets. They arrested defendant in nearby Kilbourn Park, advised him of his Miranda rights and, upon searching him, found an expended shell casing in his pocket. Wick identified the pistol, bullets and casing in court.

Raymond Cisco, an attorney now in private practice, testified that he had been an assistant state's attorney in 1978, assigned to the Felony Review Unit. He interviewed defendant on the afternoon of July 24, 1978, and identified the transcript of that interview which was received in evidence as a State's exhibit without objection. Defendant's statement was read into the record and his version of the occurrence was that on the morning of July 23, 1978, defendant was with several friends who he identified by their nicknames as "Chief," "Mouse" and "Little Satan." Defendant drove those three from Kilbourn Park to the vicinity of Wilson and Rockwell Streets. Other friends, all members of the Gaylords, identified as "Doc" Reamer, "Wolfman," and "Eddie," drove to this intersection in another car, to "spray paint" and "party." Several members got out of the cars and sat on the porch of a nearby house. When two teenage males came walking down the street, Reamer punched one of them in the face and a fight ensued. Defendant was not involved. After the fight, defendant got out of his car, and all the Gaylords except defendant and Mouse ran towards the pizza parlor at the corner of Lawrence and Rockwell. Some of them were saying that they were "going in there for Popes." Mouse drove defendant's car toward the parlor and double parked it about 100 feet away. Defendant walked behind the group of Gaylords heading towards the parlor. When he arrived, he saw "a big fight starting up inside." The Gaylords "threw" baseball bats and Reamer was fighting with the victim "one on one." The victim had a pizza roller in one hand. He was trying to rip Reamer's sweater off. Defendant then shot the victim. The victim "hit Doc [Reamer] and I shot him." No one had menaced or hit defendant and he was not fighting with anyone. Everyone then ran out of the pizza parlor to their cars and drove back to Kilbourn Park.

Charles McFadden testified that he and a friend, Andy Gebabi, were on their way home from the pizza parlor involved at about 2 a.m. on July 23 when 10 or 15 teenagers accosted them at the corner of Lawrence and Rockwell. Several of them grabbed and beat him and Andy, and took Andy's gold chain. Someone said, "We are the Gaylords, don't forget it." He and Andy escaped, ran to his sister's house, and were then taken to a hospital. On cross-examination, he testified that defendant was not with this group.

Police Sergeant Donald Smith, a ballistics expert, testified that in his opinion the bullet found in the victim's body was fired from the gun recovered by Officer Wick. The hollow point bullets recovered were excessive pressure cartridges so designed that when the bullet hits the target, a "mushroom" effect occurs whereby the bullet actually expands upon contact.

Milorid Denic testified that at 2 a.m. on July 23, 1978, he was playing the pinball machines at the pizza parlor with Michael Lewandowski, So-so Munoz, and the victim. None carried weapons. Four persons walked in, two of whom were carrying baseball bats. They asked if Denic or his friends were members of the Popes, to which they responded in the negative. Reamer then grabbed the victim's arm, pulled him away from the pinball machine, and took a pack of cigarettes out of his pocket. The victim told Reamer that if he wanted a cigarette, he should have just asked for one, then took the cigarettes out of Reamer's hand. Reamer smiled, called the victim "nothing but a fucken pussy," and then punched him in the face. The victim threw Reamer against the wall. Two of Reamer's companions held bats poised at the heads of Denic, Munoz, and Lewandowski. The victim turned away from Reamer, and Reamer jumped on his back and pulled him to the ground. Reamer's companions began beating the victim with the bats. The victim was on the floor attempting to stand up. Denic ran behind the counter to call the police. So-so picked up a pizza tray and tried to knock a bat out of one of the assailant's hands. Denic heard a shot. The victim at that time "was just trying to get up. Just got up and turned around." He had nothing in his hands. The assailants then ran out the door. He went to the victim who was lying on the floor and shortly thereafter the police arrived. On cross-examination, he said that neither he, the victim, nor any one else ever wielded a pizza roller — only So-so had picked up a pizza pan in an unsuccessful attempt to knock a bat out of one of the assailant's hands. Defendant had not walked in with the group when it first entered the pizza parlor.

The defense presented the following case. Mark Hohmar testified that he was present at the fight involving McFadden and Gebabi at Rockwell and Lawrence. Neither he nor defendant were involved in that fight. Thereafter, he walked into the pizza parlor with several others. Reamer walked up to a young man inside and started fighting. Defendant was not yet there at this point. A couple of people were involved in this fight and one of them had a pizza roller in his hand but he didn't see who. Defendant walked in after the fight was already in progress. On cross-examination, he testified that defendant, Reamer and several other friends had previously been at Kilbourn Park and had driven to the vicinity of Rockwell and Lawrence in search of the Popes. After they parked the car, they were walking towards the pizza parlor when they saw two young men. Reamer asked if they were Popes, then began punching them. Defendant had not yet arrived there in his car.

Officer Joseph Lubomski testified that at about 2:20 a.m. on July 23, 1978, he and his partner responded to a call concerning a shooting at the pizza parlor. He identified several photographs taken after he arrived, including certain of defendant's exhibits, which showed a broom lying on the floor; a wooden handle from a rolling pin; this same broom and roller handle from a different angle; and a second roller handle on the counter.

The jury verdict and sentence imposed thereafter followed, as first above noted, from which this appeal ensues.

I

• 1-3 Defendant argues first that the evidence failed to prove him guilty of murder beyond a reasonable doubt because the evidence demonstrated that he reasonably used force in the defense of another; and, alternatively, that he was only guilty of voluntary manslaughter because the evidence showed an actual, albeit unreasonable, belief that the force was justified. The issue of self-defense or defense of another is a question of fact for the jury under proper instructions. (People v. Jordan (1960), 18 Ill.2d 489, 492, 165 N.E.2d 296; People v. Johnson (1969), 112 Ill. App.2d 148, 152, 251 N.E.2d 393.) A conviction will not be reversed unless the evidence presented is so improbable or so palpably contrary to the verdict as to raise a reasonable doubt of guilt. (People v. McClain (1951), 410 Ill. 280, 285, 102 N.E.2d 134; People v. Lewis (1979), 75 Ill. App.3d 259, 281, 393 N.E.2d 1098; People v. Polk (1979), 70 Ill. App.3d 903, 388 N.E.2d 864.) A defendant is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony. Ill. Rev. Stat. 1979, ch. 38, par. 7-1; People v. Akins (1976), 39 Ill. App.3d 908, 912, 351 N.E.2d 366.

• 4 The evidence in the instant case supports the jury's rejection of defendant's self-defense or defense of another theories and its finding defendant guilty of murder and armed violence. The State's evidence revealed that defendant walked into the pizza parlor while several of his fellow gang members were striking the victim, some of them using baseball bats, and that defendant shot the unarmed victim while he was down on the floor or trying to stand up. Defendant's principal support of his defense of another theory is his statement to Cisco, that when he shot the victim, the latter was holding a pizza roller in his hand and defendant was justified in believing that the victim was administering a potentially lethal beating to Reamer. We note first, however, that defendant's statement did not claim he actually saw the victim strike or attempt to strike Reamer with the pin, even assuming he had been holding one. Furthermore, Denic testified to the contrary, that the victim ...


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