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People v. Andersch

OPINION FILED JUNE 11, 1982.

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

v.

KURT J. ANDERSCH, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROMIE J. PALMER, Judge, presiding.

JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 6, 1982.

Defendant Kurt Andersch was charged by information with the murders of Richard Hollis and James Kiley. Following a jury trial he was found guilty of two counts of involuntary manslaughter and was sentenced to two concurrent two-year terms in the Illinois Department of Corrections.

Defendant appeals, contending that: (1) the prosecution made prejudicial comments during closing arguments; (2) the State failed to prove him guilty of involuntary manslaughter beyond a reasonable doubt; and (3) the trial court erred in refusing to permit defendant to introduce his statement to police in its entirety during redirect examination.

Richard Hollis and James Kiley were fatally shot at the La Grange Y.M.C.A. in the early morning of October 16, 1979. Erbie Scott testified that on October 15, 1979, he resided on the fifth floor of the Y.M.C.A. At 6:30 p.m. he was in the company of victim Hollis, Vito Mason, "Little Ed," Ronald Tripamer and Ronald, Jr. at a restaurant. This group sat at the bar drinking beer, watching television and talking until midnight. After a brief snack at a carry-out restaurant, he and Hollis purchased two six-packs of beer at a tavern where they met a stranger, who turned out to be Kiley. At 2 a.m. Kiley offered Hollis and Scott a ride to the Y.M.C.A. Scott and Hollis then invited Kiley, who had a 1/2 pint of whiskey, to join them at the Y.M.C.A.

The three men went to the fourth floor of the Y.M.C.A. Scott and Hollis knocked on the door of Vito Mason's room. Mason did not answer even after Scott continued to knock and call his name "louder and louder." Ronald Tripamer, Ronald, Jr., and Sam appeared on the scene. The then assembled group began to drink and laugh while Kiley passed around his 1/2 pint bottle. Suddenly Andersch came into the hallway with a rifle in his hands and said, "If you fellows don't be quiet, I am going to shoot." Scott then replied, "You son-of-a-bitch, if you are going to shoot, go ahead and start shooting." Scott casually approached Andersch who, when at a range of 15 feet, withdrew, backing toward his room, which was located in a dead-end hallway. Scott continued toward Andersch's room where Andersch stood at the doorway with a weapon at his hip, pointed straight ahead. Scott apologized to Andersch for waking him and offered him a beer. Andersch used the rifle barrel to poke Scott in the stomach. As Scott stepped aside, Sam approached and asked, "What's going on?" After someone said, "Put down the pump gun and have a beer," Andersch fired what sounded like two fast shots. As Scott froze against the wall, he heard someone say, "I'm hit."

Prior to the shooting Scott stood within "touching distance" of Andersch at the threshold of his room. When the shot was fired, Scott was standing face-to-face with Andersch. Six people were in the hallway prior to the shooting, but Scott had "no knowledge of who was where," including Hollis and Kiley, when the shot was fired. Scott testified that no one held a bottle at the time of the shooting, and that he didn't see any broken glass on the threshold of the apartment. Scott drank seven to nine bottles of beer and two "drinks" of whiskey that night, but stated that neither he, Hollis, nor Kiley were intoxicated.

Ronald Tripamer testified that on October 16, 1979, he was residing in room 405 at the Y.M.C.A. He and his son, Ronald, Jr., had joined Mason, Hollis and Scott at a restaurant lounge. After midnight Hollis and Scott went for more beer. Meanwhile he returned to the Y.M.C.A. along with Mason and his son, stopping along the way at a carry-out restaurant. He and his son returned to his room. Ninety minutes later Sam came to visit them, bringing four beers which he split with the witness. Another 90 minutes elapsed when he heard Scott yelling for Vito Mason and pounding on Mason's door. He, Ronald, Jr., and Sam walked to room 412, Mason's room, where they saw Scott, Hollis and a stranger who was introduced to them as James Kiley. Kiley had a bottle of "Seagram's 7" and passed it to everyone.

Tripamer stated that the group was talking and drinking when suddenly he heard someone yell, "Hey! Shut up down there." Tripamer and his son began walking back to his room while Hollis, Scott, Kiley and Sam walked towards the elevator. Then, he heard a loud blast and saw a big cloud of smoke from around the corner, whereupon he and his son ran to their room. He stated that he drank about six to eight beers on the evening of the incident.

Steven Sang, who resided in room 430 of the Y.M.C.A., testified that he was awake at 3:35 to 3:40 a.m. on October 16, 1979, when he heard loud, drunken-sounding voices emanating from a nearby elevator. Next, he heard a resident's door open and a "disturbed and upset" voice say, "Do you guys know what time it is?" A second voice responded angrily, saying in effect, "Do you want to say that to me up front?" Within a few seconds Sang heard a gunshot and an echo in reverberation of the noise in the hallway, followed by moans. Sang's door was not opened during the incident and he did not see the occurrence.

Lieutenant Jerome Tesmond, La Grange Police Department, testified that at 4:30 a.m. on October 16, 1979, he was called to investigate the shooting. He observed the bodies of Hollis and Kiley. Kiley's hand grasped a plastic whiskey bottle top. Nearby was a paper bag wrapped in a bluejean jacket containing two six-packs of beer. Tesmond observed fragments of a broken whiskey bottle in the hallway adjacent to Mr. Andersch's room. One small fragment of glass was found six inches inside the doorway. In Kiley's rear pocket Tesmond found a sheathed sporting knife.

Officer Tesmond recovered a 30-30 caliber Winchester lever-action rifle from Andersch's room, and two boxes of silver-tipped hunting ammunition, the type that expands, or mushrooms on impact. The desk drawer containing this ammunition was closed. Inside the rifle chamber Tesmond found one expended shell casing and two silver-tipped rounds in the loading tube. The rifle was designed with more than one safety mechanism. When the rifle is cocked, by hand-operating the lever, the breach block slides open, giving the user a full view of any ammunition present in the loading chamber and firing chamber. Tesmond demonstrated the operation of the weapon for the jury and testified that when a cartridge is in the rifle, it is more difficult to lever than when it is empty. He also stated that the rifle could not be fired by pulling the trigger alone, but that the lever strap must also be squeezed up against the pin.

The stipulated testimony of Dr. Yuksel Konakci, a forensic pathologist at the Cook County Medical Examiner's Office, was admitted into evidence. Dr. Konakci examined the bodies of Hollis and Kiley. The examination of Richard Hollis revealed an entrance wound at the left lateral aspect of the back. The examination of Kiley revealed three entrance wounds at the upper left chest. In Dr. Konakci's opinion both men died from bullet wounds to the chest.

Merrill Schepro, a resident and employee of the Y.M.C.A., testified that at 3 a.m., October 16, 1979, he was in his room, number 426, at the Y.M.C.A. listening to music over his headphones when he heard a commotion outside in the hallway. He opened his door and saw Scott and four other people standing in the hallway yelling. Then he saw Scott knock on the door of room 423. Andersch opened the door and asked Scott and the group if they knew what time it was, and told them he wanted to be left alone so he could sleep. Scott told Andersch that he would return and then the group left momentarily.

About five minutes later the group returned, this time with two other people. Schepro followed them to Andersch's door. Scott knocked on the door and Andersch opened the door and asked what they wanted. Scott replied, "We're back. Let's see you start something now." Then the group went into defendant's room "in a kind of wave," like "gatecrashers." Andersch picked up a rifle and used it to push Hollis, who was in front of the group, out of the room. Hollis said, "You better put that BB gun away, mister, or you're gonna [sic] get hurt." Hollis then grabbed the end of the barrel of the rifle with both hands and tried to jerk it away when the gun went off. The gun was pointed at Hollis when it fired. Schepro stated that both Hollis and Scott had entered ...


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