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People v. Denby

OPINION FILED NOVEMBER 17, 1981.

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

v.

BILLY B. DENBY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Madison County; the Hon. JOHN W. DAY, Judge, presiding.

PRESIDING JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 21, 1981.

Defendant, Billy B. Denby, was charged by amended information with murder, armed violence, and involuntary manslaughter. All of the charges involved the death of Edward Pence, Jr. Following a jury trial in the circuit court of Madison County, defendant was convicted of armed violence, found not guilty of involuntary manslaughter, and a mistrial was declared as to the murder count due to the jury's inability to reach a verdict. Defendant was sentenced to a term of imprisonment of five years. The following issues are raised by defendant's appeal: (1) whether defendant has waived all issues by failing to file a written post-trial motion; (2) whether the armed violence statute is unconstitutionally vague; (3) whether the verdicts were consistent; (4) whether defendant's motion to suppress his statements was properly denied; (5) whether defendant was proved guilty beyond a reasonable doubt; (6) whether the trial court improperly restricted defense counsel's cross-examination of a State witness; and (7) whether the trial court erred in excluding certain statements made by the decedent. We affirm.

Prior to trial, defendant filed a motion to suppress certain statements made while in the custody of the Granite City police. After a hearing, wherein the trial court heard the testimony of Detectives David Ruebhausen and Jerry Wilson, the motion was denied.

At the trial, James Lloyd, the chief of police in Roxana, Illinois, testified that on October 3, 1979, at approximately 9 a.m., the defendant with whom he was socially acquainted, entered the police station and stated that he "had to kill a man last night" at his house in Granite City. Chief Lloyd drove defendant to the Granite City police but did not discuss the killing. However, at one point in the conversation, defendant asked Chief Lloyd if he had "ever been backed up against the wall" and suggested that was what happened regarding the killing.

Kenneth Brueggeman, the defendant's brother-in-law, stated that at about 8:30 a.m. on October 3, 1979, the defendant visited his house and informed him that he thought he had killed a man the night before and mentioned something about being attacked.

Donna Landcaster, a barmaid at Ken's Lounge in Granite City, testified that Mr. Pence had been at her place of employment between 5:30 and 6:30 p.m. on October 2, 1979. During this time she observed him have one drink and stated he did not appear intoxicated. She never heard Mr. Pence mention the defendant.

Claude L. Robertson, defendant's neighbor, stated that while returning from work at about midnight, he noticed a strange car parked near defendant's house. It was established through other testimony that this car belonged to Mr. Pence's daughter and that Mr. Pence drove it occasionally.

Lieutenant Gerald Pinkerton of the Granite City police testified that on October 3, 1979, he was dispatched to the defendant's house, where he observed the deceased's body lying on the kitchen floor. He said that there was a considerable amount of blood and that it was his opinion, based upon his experiences with head injuries, that the amount of blood he saw was not less than one would expect.

Detective Ruebhausen testified as follows. On October 3, 1979, he took defendant into custody, read him his Miranda rights, and participated in the investigation of the defendant's house. He observed a pool of blood about five to six inches in diameter under the deceased's head, a light splattering of blood on the floor and the wall, and shattered glass, apparently from a lamp, lying about and under the deceased's body. He saw an open bottle of whiskey and detected an odor of alcohol. He stated that a baseball bat spotted with blood was found in the bedroom. Detective Jerry Wilson corroborated some of the details of this testimony.

Dennis Aubuchon, a forensic serologist, testified that the blood on the baseball bat matched the decedent's blood type. On cross-examination he stated that no blood was found on the defendant's clothes.

Detective Jerry Wilson, recalled by the State, testified that at approximately 11 a.m. on October 3, 1979, he interviewed the defendant. Wilson stated that defendant gave him the following account of the events. He related that Mr. Pence arrived at defendant's house sometime after 6 p.m. the previous evening with a bottle of whiskey and that Mr. Pence asked defendant to play some cards but defendant declined. About 30 minutes after Mr. Pence's arrival, and for some reason which defendant could not remember, an argument occurred and Mr. Pence took a swing at the defendant. Later, Mr. Pence again tried to strike the defendant, who, at that point, went into the bedroom and got a baseball bat. Defendant told Officer Wilson he had been drinking that day and could remember nothing after that.

On October 4, 1979, while they were returning from the hospital where defendant's blood sample was taken pursuant to court order, Detective Wilson, after reminding defendant of his right to silence, asked the defendant what Mr. Pence did which caused defendant to react so violently. The defendant responded that Mr. Pence did nothing to provoke a violent reaction but that it was just something which had built up over time.

Dr. Steven Paul Nuernberger, a pathologist, testified that Mr. Pence's death was caused by a trauma to the head inflicted by a blunt instrument, possibly a baseball bat. He also was of the opinion that, based on his observation of the scene, the location where the body was found was not where the decedent was killed because the amount of blood present was inconsistent with decedent's head ...


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