Appeal from the Circuit Court of Du Page County; the Hon. Carl
F.J. Henninger, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
Following a jury trial, the defendant, Michael Deacon, was convicted of the murder of George Christo, Jr. The defendant was subsequently sentenced to a 55-year term of imprisonment. He appeals, raising numerous contentions of error involving the pretrial, trial, and sentencing stages of the proceedings below.
The defendant was tried together with Leonard Stocki, who also was charged with Christo's murder. At the trial the State presented one occurrence witness, Lois Chernetzki, the girlfriend of the decedent. She had previously been convicted of delivery of a controlled substance, i.e., "speed," and delivery of cannabis.
Chernetzki testified that Christo's nickname was "Bear." She stated that at around 9:30 p.m. on June 11, 1982, she was with Bear and several other friends at Lujack's Pub. They were drinking and watching a boxing match on television. At about 11 p.m. they left and went to a tavern in Bloomingdale called the Bigger Jigger where they continued to drink. Chernetzki said that the Bigger Jigger was pretty crowded with both "regular people" and with "bikers" wearing the colors of the Hell's Henchmen motorcycle club. Colors are patches stating the club name and are generally worn on the back of a jacket.
Chernetzki, her friend Kathy Hadamik, and Bear decided to leave at about 1:15 a.m. They walked to the back of the bar, and Bear asked Chernetzki and Hadamik to wait there for him. He walked out the back door, and Chernetzki and Hadamik waited in the bar. After a few minutes they walked out the back door. Chernetzki testified that she saw Bear in the parking lot talking to Leonard Stocki, who was wearing the Henchmen colors. She went to her car, along with Hadamik, where they waited. After a few minutes, Chernetzki pulled her car up next to where Bear and Stocki were talking. Bear and Stocki then walked back into the tavern through the back door.
Chernetzki testified that she then drove her car forward about a car length so traffic could get by. After about 10 minutes she saw Bear in her rear-view mirror walking toward where her car had been parked. She honked her horn, and Bear turned around and began walking toward her car. Chernetzki testified that she then heard what sounded like a bottle breaking on the passenger side of her car, toward the rear. She then heard a thump near the front and saw Bear rolling off of the front of her car.
Chernetzki testified that she backed her car up about a car length and saw several individuals, including Stocki and J.J. McClellan, standing around and kicking Bear. Finally, McClellan said that Bear had had enough and told Chernetzki to get him out of the area. Chernetzki and Hadamik then helped Bear up by placing his arms around their shoulders. Stocki left at this point.
While Chernetzki and Hadamik were walking Bear to the car, Brad Olson exited the bar, kicked him out of their arms, and continued to kick him as he lay on the ground. According to Chernetzki, at that point the defendant came out of the bar and kicked Bear one time in the back of the head. By that point Bear was no longer trying to protect himself. The defendant was wearing Henchman colors and black motorcycle boots. After the one kick the defendant walked back towards the bar.
McClellan then "somersaulted" Bear into the back seat of Chernetzki's car, and Chernetzki drove to a home in Schaumburg, where paramedics were summoned. Bear was alive during the drive to Schaumburg but was having difficulty breathing. One of the paramedics testified that when he arrived a short time later, Christo was dead.
Officer Roy Derby of the Bloomingdale police department testified concerning an interview he had with the defendant in a jail in North Carolina approximately two weeks after the occurrence. According to Derby, the defendant told him that on the night in question he had had only one beer because he had taken some speed earlier. At some point during the night he walked outside of the bar with Jerry Bokina and saw a fight going on next to the tavern. The defendant walked over to see what was going on. A bunch of guys were standing around another guy who was lying on the ground. According to Derby, the defendant said that somebody at the scene told him that the guy on the ground "had called him Henchkids." The defendant said he then walked over, stomped on the guy's head, and walked away.
A written statement the defendant gave to Derby was also admitted into evidence. It was similar to the defendant's oral statement, but added the fact that when he left the scene, other people were still punching and kicking the guy on the ground.
Officer Derby also testified about a statement made by Stocki, but the jury was instructed not to consider it against the defendant.
Dr. Robert Stein, the chief medical examiner of Cook County, who performed an autopsy on the body of the decedent, testified that death was caused by multiple injuries of blunt trauma.
The State also presented evidence about blood found on the defendant's motorcycle boots. The boots were obtained from his property box at the Du Page County jail while he was awaiting trial. Judie Welch, a forensic scientist with the Illinois Department of Law Enforcement, testified that there was type A blood on Deacon's boots. Both Christo and Deacon had type A blood. Stocki's blood was type O. Welch stated that 40% of the Caucasian population has type A blood. She also testified that certain blood found on the parking lot of the Bigger Jigger after the incident was type A. The PGM type of that blood, however, was consistent with that of Christo and inconsistent with that of the defendant.
The defense presented the testimony of two occurrence witnesses, Kathy Hadamik and Jerome Bokina. Hadamik was not available to testify in person, so her testimony from a preliminary hearing and from Olson's trial was read by a court reporter.
Hadamik's testimony was substantially similar to Chernetzki's up to the point that the women picked Bear up from the parking lot. Hadamik stated that she did not think that someone kicked Bear out of their arms, but that Bear just collapsed. Then the women got one of the men at the scene to help them put Christo in Chernetzki's car, and they left the scene.
Jerry Bokina was another member of the motorcycle club. He was at the Bigger Jigger on the night in question. He testified that at about 1:30 a.m. he walked out of the front door of the bar and heard somebody yelling. He walked around to the side of the building and saw two people arguing. Bokina testified that one of the two people, subsequently identified as Brad Olson, hit the other guy (Christo) four or five times. The force of the blows propelled Christo into a dark area near the building, and Olson followed. Christo fell to the ground, and Chernetzki's car pulled up. The two women got out of the car and started yelling.
Bokina testified that he then went back into the bar because he did not want to get involved. He saw the defendant inside the front part of the bar and told him that there was a fight going on outside. Bokina subsequently left the Bigger Jigger, along with the defendant, Stocki and David Stone. In the meantime, Bokina never saw the defendant leave the bar, although Bokina did not spend that time with him, nor did he try to keep track of the defendant's movements.
Following presentation of the evidence and the closing arguments, the jury was instructed. Instructions were given concerning the charged offense of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(2)), and the lesser included offenses of involuntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, par. 9-3), aggravated battery and battery.
During its deliberations the jury sent the judge the following question:
"If charged with murder, does that mean a defendant is automatically guilty of the three other offenses listed, including involuntary manslaughter, aggravated battery, and battery? Or is each determined independently of the others?"
Because of the ambiguity of this note, the judge sent the jury a request for clarification of the question. The jury then reworded its question as follows, "Can a defendant be found guilty of murder but not guilty of involuntary manslaughter?" After some ...