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01/12/88 the People of the State of v. Clay Scott Clark

January 12, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

CLAY SCOTT CLARK, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

518 N.E.2d 763, 165 Ill. App. 3d 210, 116 Ill. Dec. 141 1988.IL.21

Appeal from the Circuit Court of Will County; the Hon. Robert R. Buchar, Judge, presiding.

APPELLATE Judges:

JUSTICE STOUDER delivered the opinion of the court. HEIPLE and SCOTT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

Late on the evening of July 3, 1986, at least 20 individuals gathered around a bonfire at "the Pit" to celebrate Independence Day. The defendant arrived after 10 p.m., and Michael Pegram arrived after midnight. At that time Pegram's face and cheek were bruised from an altercation the previous night. Five witnesses knew of Pegram's past, sporadic involvement in fights but considered him nonviolent. A lengthy, heated argument ensued between newly acquainted Pegram and the defendant. David Ward saw each smack the other's hand. Raymond Wenke heard the defendant ignore Pegram's request that he leave. Suddenly, Pegram struck the defendant's nose. The defendant fell but stood up to punch Pegram's chest. The defendant stabbed Pegram. When Pegram fell, Kelly Ward smacked him with her crutch and the defendant punched his back twice. Pegram ran.

The defendant twice threatened Pegram's life and chased Pegram. Ron Walls ran after the defendant and caught him with a bloody knife. Ward and Walls dragged the defendant back to Ward's car. The defendant was wild. After Walls punched the defendant three times, the defendant admitted that he had killed Pegram. The group then searched at least 30 minutes before discovering Pegram in a nearby gully. When the defendant saw Pegram, he poked him with a crutch and told him to "[get] up so I can finish you off."

The blood on the knife hilt could have been Pegram's. Blood saturated Pegram's shirt and spotted his other clothes and shoes. When the group found him, Pegram had no pulse. He was never revived.

While performing the autopsy, Dr. Lawrence Blum detected bruises over the deceased's left eye and on his right forehead, right cheek, right temple and right eyebrow. He noted that various other, possibly prior, bodily scrapes were healing. The deceased also had a six-inch incised wound from his mid-front neck base to his right breast, two other nonpenetrating chest wounds, and two left chest stab wounds. The largest wound only penetrated the muscle and subcutaneous fat. A more serious smaller wound began at the front fifth rib, entered the breast cavity and pierced both the heart covering and the heart muscle. In Dr. Blum's opinion, blood had accumulated around Pegram's heart and his left lung and his heart had collapsed. Dr. Blum added that after the fatal stabbing Pegram could have run 50 feet, as death was not instantaneous and he was conscious until the onset of shock. Dr. Blum concluded that Pegram died of hemorrhage and shock due to internal bleeding from his pierced heart.

After the incident, the defendant's face was bruised; his left eye and lips were swollen; and his upper left teeth were loose due to a blunt blow to his mouth. He explained to Will County deputy Charles Malinowski that Pegram had called his girlfriend, Kelly Ward, foul names before striking the defendant's eye and mouth. The angered defendant then poked Pegram's stomach with his knife and, when Pegram came after him, he poked Pegram's chest two more times. When Pegram ran, the defendant chased him and again poked Pegram's left shoulder. According to the defendant's statement, he had known that Pegram was hurt and he had lost his head.

According to the defense, the defendant met Pegram that night at approximately 1 a.m. As they conversed, Pegram spoke rudely to Kelly Ward and then threatened to rip his heart out. Pegram poked the defendant's chest and their conversation ignited. The defendant was afraid, so he took a knife from Ward's vehicle. Pegram laughed when the defendant asked him to leave him and Ward alone. The defendant started to walk away. Pegram struck the defendant's head. The defendant fell. As they struggled, Pegram punched the defendant. As the defendant again tried to rise, Pegram struck him. The defendant stabbed Pegram. Pegram struck the defendant twice and lunged toward him. The defendant again stabbed Pegram. The defendant chased Pegram 50 yards but then became afraid and ran away. The defendant intended only to scare Pegram, not to kill him.

Initially, we address the defendant's argument that due to his claimed self-defense and evidence of acts of sudden, intense passion, the court was sua sponte obliged to give a voluntary manslaughter instruction based on unreasonable belief. Alternatively, the defendant urges this court to consider the absence of the instruction as a substantial defect pursuant to Supreme Court Rule 451(c) (107 Ill. 2d R. 451(c)), and to find his trial counsel ineffective. The State responds that the defendant, assisted by effective counsel, waived the issue by deliberately not requesting the instruction. We agree.

At the conference on jury instructions, the court agreed with the defendant that self-defense was applicable. The defendant's counsel then indicated that they had discussed, but the defendant had chosen not to tender, a voluntary manslaughter instruction. The court honored this decision and later instructed the jury on the elements of murder and justifiable use of force.

When the defendant argued his post-trial motion, he suggested that the close facts tended to establish the victim as the aggressor. He concluded that Justice demanded a voluntary manslaughter conviction. The court acknowledged that the instruction could have affected the verdict but that the defendant's ...


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