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12/28/88 the People of the State of v. Joey Isbell

December 28, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOEY ISBELL, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

532 N.E.2d 964, 177 Ill. App. 3d 854, 127 Ill. Dec. 135 1988.IL.1891

Appeal from the Circuit Court of Lake County; the Hon. Jack Hoogasian, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. NASH and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Following a jury trial, the defendant, Joey Isbell, was found guilty but mentally ill of the offenses of murder, armed violence, and aggravated assault. The trial court imposed a sentence of natural life imprisonment on the defendant for the offense of murder and 364 days on the offense of aggravated assault, to run concurrent with the sentence for murder. Defendant appeals.

On appeal, defendant raises the following issues: whether the insanity defense he raised was proved by a preponderance of the evidence; whether the court erred in refusing to give defendant's self-defense instructions; whether the court erred in refusing to give defendant's voluntary manslaughter instruction; and whether defendant's sentence was improper.

Fahim Ahmad, a 16-year-old black male, was shot and killed by a bullet fired from a .357 Magnum revolver in Shiloh Park in Zion, Illinois, at a carnival for the celebration of the Fourth of July holiday. There is no dispute that defendant fired the fatal shot.

THE INCIDENT

Several witnesses present at the carnival grounds at the time of the shooting described the scene immediately prior to the shooting. Mary Catherine Loder testified that she saw the defendant walk up to a group of black youths and start pushing them around. Defendant had a gun in his hand. The youths started backing away. Defendant put the gun inside his bib overalls, which he wore without a shirt. He then reached for Fahim, who was on a bicycle but who then fell off. Fahim stood up and moved back. Defendant then pulled out the gun and shot Fahim. Defendant then walked away, tossing the gun under the cab of a nearby truck. On cross-examination, the witness did not recall telling the police that after defendant pushed Fahim, the latter pushed the defendant.

Gary Lee Shaff, a carnival worker, testified that just before the shooting, he saw the defendant and a black youth having a "talk session which seemed like a little conflict." After the shooting, defendant walked around a corner and stood by a ride "like as if he were wondering what was happening to the black youth." He then walked around the corner, and the witness lost sight of him. Shaff summoned a park ranger, who yelled to defendant to halt and get on the ground. The ranger had to yell two or three times before defendant complied.

Kimberly Dill, age 14, testified that a number of young people were sitting on a fence or standing next to it when defendant came by and sat down next to Wayne Patton. She described defendant as wearing bib overalls and having a beard, mustache, and black hair. Defendant just sat there for 15 or 20 minutes. Then he pulled the gun out again and pointed it at Wayne Patton's head, telling him "you are one lucky nigger." Defendant then took the gun away from Wayne's head. Kimberly then saw Fahim and heard him tell the defendant to put the gun away. Defendant knocked Fahim off of his bicycle, and Fahim pushed him back. Defendant then pushed Fahim again and shot him.

Morniki Patrice Howard, age 15, was at the carnival with Kimberly and her cousins. She described the incident between defendant and Wayne Patton. She then saw defendant push Fahim, who almost fell off of his bicycle. Fahim got up and told defendant not to push him again. Defendant told Fahim he had a gun, but Fahim said he didn't care. Defendant pushed Fahim again and then shot him. During the time defendant was sitting on the fence, he just looked around or stared at the ground.

Vincent M. Patton, age 15, testified that he had first noticed the defendant about 20 minutes before the shooting. He noticed the defendant because of the way defendant was looking at people, "eyeing them strangely." Vincent described defendant's eyes as "mean looking like -- they were just strange looking." Defendant came over to a group of youngsters and started yelling at them. Defendant then sat down on the railing next to Vincent's younger brother, Wayne. Defendant told Wayne, "You niggers sure are lucky." Wayne talked to him and was asking him why he called them niggers. Defendant then jumped up and said, "I can call you nigger if I want." He then grabbed Wayne, pulled a gun out of his overalls, and pointed it at Wayne, shaking him. Defendant then pushed Wayne out of the way. Defendant then said, "All you niggers get away from here or I'll blow your heads off." Defendant put the gun back in his overalls. When Fahim came riding up on his bicycle, defendant jumped off the railing and pushed him off of the bicycle. Fahim asked defendant why he had grabbed him since he had not done anything to defendant. Defendant told him to "shut up." Defendant then pulled the gun out of his overalls, announcing to Fahim that he had a gun. Fahim told him that he was not afraid of the gun, and he had not done anything to defendant. Defendant then pushed Fahim. Fahim was bending over to pick up his bicycle when defendant shot him.

Michelle Mendez, a 15-year-old white female, testified that she and two of her white girl friends were talking with two black male youths. Defendant walked over to the girls and asked them if those were their kind of friends. After the girls responded yes, defendant walked off and leaned against a tree. The girls walked over to Fahim and some of his friends to say good-bye. Defendant was leaning up against a tree looking in their direction.

Sylvester Hampton, a Zion police detective, testified that the gun used in the shooting belonged to James Isbell, defendant's father.

Roman Hrynewycz, a park district ranger who apprehended defendant, testified that he had to tell defendant several times to stop and get down on the ground before he responded. As he put defendant in the squad car, he noticed that he had a blank look on his face.

Over defendant's objection, Dale Clark, a Zion auxiliary police officer, testified that defendant told him, "He pulled a knife on me and I had to do it. I wouldn't back down." Clark also overheard defendant's telephone conversation with his father in which he said, "Dad, he pulled a knife on me. I had to do it. I wouldn't back down.", DEFENDANT'S BACKGROUND

Extensive testimony was presented as to defendant's family and social background. That testimony is summarized as follows.

Defendant and his family resided in Zion until his parents were divorced. His father remained in Zion while the rest of the family moved to Mississippi and later to Alabama. While in Alabama, defendant and his younger brother, Tommy, attended school and played with black children without any difficulty. When he was seven, defendant and Tommy returned to Zion to live with their father. In Zion, they played and socialized with black children and their families. Defendant never showed any signs of racial aggression towards blacks.

As a child, defendant was nervous and had problems sleeping. At night, he would wake up screaming and had to sleep with a light on for him.

While living with their father, the boys were often alone and had to fend for themselves. After high school, defendant went into the construction business, building houses and pouring concrete. He was so employed at the time of the offense.

In November 1979, defendant shot himself with a shotgun and was hospitalized. His father, who was in the hospital at the same time for an unrelated reason, asked him why he shot himself. Defendant responded that he thought his father was going to die, and he thought the two of them could go together.

While defendant was recovering from the gunshot wound, he and some friends went snowmobiling. Defendant was very depressed and was driving excessively. One friend tried to get him to stop, and he would reply "[Who] cares?" Later, when his snowmobile ran out of gas, he refused to ride on one of the other snowmobiles, arguing that he had nothing to live for. It took 20 minutes in subzero temperatures to convince the defendant to get on another snowmobile. Later at the lodge, defendant stood on a radiator and said he'd kill anyone who tried to move him. Then, he began to laugh as if it were all a joke.

On another occasion, defendant, who had been drinking, complained of chest pains and was driven to the hospital. The hospital refused to treat defendant because he would not sign the consent form. Defendant stated that he did not care and wanted to die anyway.

There was testimony from several witnesses as to defendant's problems sleeping and the nightmares he suffered from and his drinking problem. On one occasion, sitting with his father, working out how much siding he would need to put on one of the houses his father owned, he announced he was going to kill his father and then himself. His father described his expression as "different." Then "his color came back to him," and he went back to discussing the siding.

According to witnesses, defendant would often have a blank or preoccupied look on his face. He would do things and forget that he had done them. He also told people he ...


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