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11/19/87 the People of the State of v. David Lee Whitelow

November 19, 1987





515 N.E.2d 1327, 162 Ill. App. 3d 626, 114 Ill. Dec. 56 1987.IL.1718

Appeal from the Circuit Court of Macon County; the Hon. Rodney A. Scott, Judge, presiding.


JUSTICE LUND delivered the opinion of the court. SPITZ, P.J., and GREEN, J., concur.


Following a jury trial on November 25 and 26, 1986, in the circuit court of Macon County, David Whitelow, defendant, was found guilty of the offenses of aggravated battery and reckless conduct in violation of sections 12-4 and 12-5, respectively, of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1985, ch. 38, pars. 12-4, 12-5). On December 11, 1986, defendant was sentenced to three years' imprisonment in the Illinois Department of Corrections. Defendant appeals alleging (1) the court erred by refusing to give self-defense jury instructions; (2) the court gave an erroneous jury instruction dealing with inconsistent verdicts; (3) the court considered improper factors in sentencing; and (4) the court improperly denied defendant credit for time served in another State awaiting extradition. We reverse.

During the trial, Bobby Joe Capers testified that on March 6, 1986, he and his cousin, Jessie DeBerry, were at a gambling house in Decatur, Illinois. An argument developed between DeBerry and Gene Woodland, and a fight ensued in the parking lot of a liquor store, Mr. Lucky's. After the fight, Woodland left and later returned with a shotgun. Capers went to Woodland and told him to put the gun down, which Woodland did. As Capers and DeBerry started to leave, defendant grabbed the gun from Woodland and fired it, striking Capers in the arm.

Sharon Evans testified she went to Mr. Lucky's on March 6 to purchase some beer. As she was leaving the establishment, she heard a shotgun blast and was struck by shotgun pellets. At the time, she was approximately one-half block from where the gun held by defendant discharged.

Jessie DeBerry testified similarly to Capers concerning the initial fight. However, he stated that upon leaving the gambling house, he and Capers saw Woodland with the shotgun. The defendant was standing next to Woodland. According to DeBerry, Woodland and Capers became involved in a Discussion about the previous fight. As DeBerry and Capers turned to leave, DeBerry heard gunfire and turned, seeing defendant holding the shotgun. Both DeBerry and Capers said they heard defendant say, "I'll shoot it," prior to the gun's being fired. DeBerry and Capers admitted prior criminal convictions.

Gene Woodland testified that he, the defendant, DeBerry, and Capers were arguing face-to-face prior to the shooting. Originally, he and DeBerry were arguing, but then defendant and Capers started arguing. According to Woodland, DeBerry was standing with a broken bottle in his hand and looking "like he was going to do something to him or something like that." However, he did not see anyone go after anyone else. It was at this point that defendant took the gun from him, and it "accidentally discharged."

Defendant testified he was walking past Mr. Lucky's when he became embroiled in an argument with Capers and DeBerry. The two started advancing towards defendant, and he was frightened as a result of Capers and his friends having beaten him on previous occasions. DeBerry had a broken bottle in his possession. Defendant ran looking for something with which to defend himself while Capers and DeBerry chased him. According to defendant, he ran up to Woodland and grabbed an object from his hands, not realizing it was a gun. He contended the gun discharged as he grabbed it. Defendant stated he did not intend to shoot or kill Capers.

Defendant was originally charged with the offenses of attempt (murder) and aggravated battery involving Capers and aggravated battery involving Evans. The jury found him guilty of the aggravated battery involving Capers and the included offense of reckless conduct involving Evans.

At the jury instruction conference, defendant submitted a series of instructions including those based on the self-defense theory. The court refused these, reasoning that defendant's theory of the case was accident and not self-defense. Defendant argues the court erred in refusing these instructions.

The State argues it was proper to refuse the instructions because defendant's defense was accident, and, in fact, he testified he did not intend to shoot Capers. However, we previously have held that a self-defense instruction may be appropriate even when the defendant testified the death resulted from accident. (People v. Sloan (1984), 129 Ill. App. 3d 242, 248, 472 N.E.2d 93, 98; People v. Buchanan (1980), 91 Ill. App. 3d 13, 15, 414 N.E.2d 262, 264.) In Buchanan, the defendant alleged ...

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