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03/31/89 the People of the State of v. Peter Dunum

March 31, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

PETER DUNUM, DEFENDANT-APPELLANT

FOLLOWING A JURY TRIAL DEFENDANT, PETER DUNUM, WAS CONVICTED OF VOLUNTARY MANSLAUGHTER (ILL. RE

v.

STAT. 1985, CH. 38, PAR. 9-2) IN THE STABBING DEATH OF HIS STEPSON, WILLIE NOLAN. DEFENDANT WAS SENTENCED TO 14 YEARS' IMPRISONMENT AND WAS FINED $1,000.



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

537 N.E.2d 898, 182 Ill. App. 3d 92, 130 Ill. Dec. 569 1989.IL.459

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Maloney, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. MURRAY, P.J., concurs. JUSTICE PINCHAM, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

On appeal, defendant raises the following points in favor of reversal: the trial court prevented defendant from presenting exculpatory evidence of self-defense; the trial court improperly denied defendant's motion for mistrial regarding a question put to defendant on cross-examination; the trial court improperly denied defendant's motion "of acquittal and/or new trial"; the trial court improperly precluded, in granting a State motion in limine, evidence of statements made by defendant to the police; the trial court improperly precluded cross-examination of the State's pathologist regarding needle tracks on the victim's body and of the victim's blood-alcohol level; the trial court failed to properly inform prospective jurors regarding defendant's defense and to inquire of them their attitudes respecting that defense; the trial court improperly denied defendant's tendered jury instructions; the trial court improperly allowed the State to cross-examine defendant on an inflammatory matter not in evidence; the State failed to prove the elements of voluntary manslaughter by the requisite degree of proof; and the evidence did not prove defendant guilty beyond a reasonable doubt.

We affirm.

We summarize below testimony pertinent to our Disposition.

Norma Dunum, defendant's wife of 16 years, testified that she and her husband lived at 4037 West Adams Street in Chicago in a three-story building owned by defendant. The victim, Willie Nolan, her son by a previous marriage, lived in the basement of the building. Norma testified that early in the morning of February 1, 1985, she, her niece, and her brother returned home from a nearby tavern. The defendant had also been at the tavern with them.

Norma stated that, while they and other family members were in the kitchen, an argument ensued between defendant and the victim over replacement of a telephone pager which had melted when the victim placed it on a heater. Norma testified that the defendant told the victim to go downstairs. The victim did so, taking a plate of food with him. Norma stated that the defendant then got up, walked to the doorway to the stairs to the basement, and said, "I'll kill you, punk." Defendant went over to a kitchen drawer, pulled out a butcher knife, and went downstairs. Norma followed the defendant.

In the basement, defendant called the victim names and threatened him. At one point, the victim told defendant he wanted to call the police. Norma testified that defendant slapped the victim and continued to taunt him. At some point, the defendant pushed the victim and, as the victim staggered back, defendant approached. Norma stated the defendant still had the knife in his hand. She testified she positioned herself between the two men and begged defendant to return upstairs. Defendant, however, pushed her out of the way. At that point, the victim told the defendant to "do what he was going to do," and defendant stabbed the victim with the butcher knife. Norma stated the victim did not threaten the defendant at any time. After defendant stabbed the victim, she tried to push defendant upstairs. Norma stated that, before going, defendant told the victim, "If you come upstairs, I'm going to kill you." Eventually, paramedics were summoned to take the victim to a hospital.

On cross-examination, Norma admitted that after defendant said he was going to kill the victim, the victim told him to "come on" downstairs. She also admitted that the argument in the basement involved yelling and shouting by both the defendant and the victim. However, she stated that the victim never touched the defendant.

Frank and Annette Batte, Norma Dunum's nephew and niece, also testified they were in the kitchen on February 1, 1985. They similarly recounted the argument leading to defendant going downstairs with the knife. Both added that when defendant returned upstairs he washed blood off the knife in the kitchen sink.

Chicago police officer Leon Portillo testified that at approximately 3 a.m. on February 1, 1985, he was in his squad car and responded to a radio assignment to proceed to 4037 West Adams Street, about four blocks away from his, then, present location. Portillo was in the second of two squad cars proceeding westbound on Adams Street when they encountered defendant, who was walking eastbound on the sidewalk. Portillo stated that he noticed defendant because the defendant was not wearing a coat even though it was very cold. Both squad cars stopped and Portillo and another officer approached the defendant. Portillo testified that in response to the other officer, defendant stated, "[They] said I stabbed somebody." The officers put defendant in the back of a squad car and proceeded to 4037 West Adams Street. There, Portillo stated, Frank Batte told the officers that defendant had stabbed the victim. Portillo inspected the scene, retrieved the knife, and summoned police detectives.

On cross-examination, Portillo admitted that when the police first encountered defendant as he was walking eastbound on Adams, defendant did not run and, instead, came over to the officers when they called to him.

Yuksel Konacki, an assistant Cook County medical examiner, was qualified as an expert and testified as to the autopsy he performed on the victim. Konacki stated that the victim was killed by a single stab wound, 5 1/2 inches deep, to the area of the victim's left shoulder and chest, which penetrated over one inch into the left lung.

Peter Dunum testified on his own behalf. Defendant testified that at approximately 7:30 p.m. on January 31, 1985, he went down to a tavern to meet his wife and family and returned home for the evening with them at approximately 2 a.m. the following morning. After arriving home, defendant testified, they were all sitting at the kitchen table. The victim was also present. Defendant stated that his wife's niece had brought attention to the melted telephone pager. When the victim offered defendant's wife $0.50 for its replacement, an argument ensued between defendant and the victim. Defendant stated that he told the victim, "Instead of us arguing, you go on downstairs." Defendant stated that the argument became heated.

As the victim was going downstairs, the defendant got up and picked up a knife off of a counter. Defendant testified that the victim called to him to come downstairs. Defendant went downstairs with the knife in his hand. Defendant stated that when he arrived in the basement, he saw the victim reach from under a mattress with his right hand and put that hand in his pocket. Defendant stated that he did not see what the victim had in his hand. Defendant's wife was also present.

Defendant stated that he and the victim were standing face to face. The victim was pointing in defendant's face with his left hand. The victim's right hand was in his pocket. Defendant stated that the victim threatened to call the police and began to walk out of the room, but turned and came back toward defendant. The victim still had his right hand in his pocket. Defendant testified that the victim pushed defendant with his left hand and said, "I don't need no police, I will be my own police," and told defendant he would "blow [defendant] away." Defendant stated that when the victim began to remove his right hand from his pocket, defendant stabbed him. Defendant went upstairs. Defendant testified that shortly thereafter, he went downstairs and, seeing the victim's condition, went outside and ran down Adams Street to hail police. Defendant stated that he saw a police car and called to the officers to stop. The police drove him back to 4037 West Adams Street.

Defendant also testified that he was aware the victim had previously been convicted of armed robbery and robbery. Defendant also stated he had seen the victim with a gun about three weeks before the incident at issue.

On cross-examination, defendant admitted that while he knew of the victim's prior offenses, he permitted the victim to live in the building. Defendant stated that during the argument with the victim in the basement, the victim at all times kept his right hand in the pocket of his pants. Defendant never saw what was in the victim's right hand, nor did he see the victim's right hand ever come completely out of his pocket. Defendant also admitted saying that he intended to beat the victim, but denied saying that he intended to kill the victim. Defendant stated that even after he stabbed the victim in the left shoulder, the victim did not take his right hand out of his pocket but held his left shoulder with his left hand.

The parties stipulated that, if Michael I. Shaper, an expert toxicologist, were called as a witness, he would testify that tests on the victim's blood, urine, and bile indicated the presence of alcohol and that further tests on fluid samples were negative for the presence of various other narcotics.

Norma Dunum was called by the State to testify as a rebuttal witness. Norma stated that, while she was in the basement during the continuing argument between defendant and the victim, she never saw the victim put his hands in his pockets and, at the time defendant stabbed the victim, the victim's hands were at his sides.

Opinion

Initially, we note that three of the points cited by defendant for reversal are not addressed in the argument section of defendant's opening brief, and we therefore decline to consider their relative merits. Defendant does not anywhere identify any purported exculpatory evidence of self-defense that he asserts the trial court did not allow him to present. Similarly, defendant's brief presents no argument and cites no authority in support of contentions that denial of his motion for mistrial violated his due process rights or that denial of his motion "of acquittal and/or new trial" constituted error. Absent the bare statement of those specific contentions in the section of defendant's opening brief enumerating points supporting reversal, defendant does not address those issues in the brief's argument section. As those issues have not been properly addressed in defendant's brief, we conclude they have been waived on appeal pursuant to Supreme Court Rule 341(e) (107 Ill. 2d R. 341(e)). Williams v. Danley Lumber Co. (1984), 129 Ill. App. 3d 325, 472 N.E.2d 586.

We consider first whether the trial court properly precluded evidence of statements made by defendant to the police.

At the close of its case in chief, the State moved to preclude testimony as to any oral or written statement of defendant in response to questions pertaining to any statement made by defendant to police. Defendant's counsel objected, pointing out that the State had been permitted to elicit testimony of defendant's statement to police officers called to the scene. Counsel argued that if such testimony was not allowed, the jury would incorrectly infer that defendant had related nothing to police in the way of an explanation. Defendant urged the court to allow that testimony at least to establish defendant's willingness to answer questions put to him at the police station.

The trial court, however, refused to permit testimony of defendant's exculpatory statements, explaining that the State was allowed to present testimony of defendant's initial statement to police because it was a statement by defendant against his own interest. The court further stated that establishing defendant's willingness to answer questions later was irrelevant and, in the absence of testimony as to the nature of the statements, would mislead the jury. The court also pointed out that defendant's initial statement to police, that defendant had stabbed somebody, was consistent with defendant's trial defense since defendant did not deny that fact, but relied on a theory of justification.

Generally, trial courts are expected to guard against unduly restricting a defendant's case in granting a motion in limine brought by the State, and a reviewing court will not, therefore, reverse a trial court's grant or denial of a motion in limine absent an abuse of discretion. (People v. Downey (1987), 162 Ill. App. 3d 322, 515 N.E.2d 362.) We find no such abuse present in the instant case. First, any statement made by defendant of an exculpatory nature while in police custody would constitute inadmissible hearsay, the contents of which would be properly excluded by the trial court. (See People v. Visnack (1985), 135 Ill. App. 3d 113, 481 N.E.2d 744.) Further, we are convinced that the trial court properly precluded testimony to show defendant's willingness to cooperate with police. We consider that evidence irrelevant and determine that its preclusion could not conceivably restrict defendant from establishing a theory of self-defense. We agree with the court below that defendant's initial statement that he stabbed somebody is consistent with defendant's theory of self-defense and was otherwise properly admissible as a statement against interest. We further agree that testimony establishing that defendant later gave a statement to police, without eliciting its contents, would tend to mislead the jury that other evidence, favorable to defendant, existed but was being withheld from the jury's consideration.

We next consider whether the trial court properly limited the cross-examination of Yuksel Konacki.

During cross-examination of Konacki, the State posed an objection, in the nature of a motion of in limine, to prohibit the defense from questioning Konacki as to both the presence of needle tracks on the victim's body and the victim's blood-alcohol level. The State argued that the presence of needle track marks was irrelevant and that testimony pertaining to the victim's blood-alcohol level was beyond Konacki's field of expertise as a pathologist. The State pointed out that the parties were prepared to stipulate to the amounts of alcohol present in the victim's body as determined by a toxicologist (and later, at trial, did so).

The court so limited cross-examination.

Defendant contends the trial court's decision was erroneous and argues that evidence of needle track marks and the victim's blood-alcohol level indicated a propensity for violence. Defendant directs attention to People v. Crump (1955), 5 Ill. 2d 251, 125 N.E.2d 615.

We conclude the cross-examination was properly limited. Questions pertaining to both the victim's blood-alcohol level and to the existence of needle track marks on the victim's body were well beyond the scope of the direct testimony of Konacki, a pathologist, who testified only as to the cause of the victim's death. Moreover, evidence tending to show a victim's propensity for violence is only properly admissible once a foundation for such evidence is laid by introduction of evidence of self-defense. (People v. Allen (1972), 50 Ill. 2d 280, 278 N.E.2d 762.) No such foundation for that testimony had been established at the time Konacki testified. Lastly, the decision in Crump provides no support for defendant's position as the issue there, whether an accomplice witness' credibility can be properly challenged by evidence of that witness' drug addiction, bears no relation to any issue present here.

We turn to defendant's contentions on appeal that the trial court failed to properly inform prospective jurors regarding defendant's defense and to inquire of them their attitudes respecting that defense.

Prior to commencement of voir dire, defendant's counsel requested the trial court to ask the following questions of potential jurors regarding defendant's defense:

"1. Do you believe that a person should have the right to kill another person whom he reasonably believes is about to ...


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