APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
548 N.E.2d 674, 192 Ill. App. 3d 225, 139 Ill. Dec. 289 1989.IL.1960
Date Filed: December 15, 1989; As Corrected May 3, 1990.
Appeal from the Circuit Court of Cook County; the Hon. Stephen Schiller, Judge, presiding.
PRESIDING JUSTICE MURRAY delivered the opinion of the court. PINCHAM* and COCCIA, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
Defendant Larry Robinson appeals from his jury convictions of murder and robbery, for which he was sentenced to concurrently serve 60 years for murder and seven years for robbery. On appeal, defendant contends that the evidence was insufficient to meet the guilty beyond a reasonable doubt standard and, further, the trial court erred in failing to instruct the jury on voluntary manslaughter.
William Delemore was found dead with his body set afire at approximately 5:30 a.m. on April 29, 1986. He was lying in the building lobby at 511 East Browning Street (511 building) near a blood-spattered wall. No wallet or identification was found on the body. In response to a call, several hours later police officers were given articles belonging to Delemore, e.g., credit cards, paycheck, by a resident living in apartment 502 in a building located at 514 East 36th Street (514 building); defendant lived almost directly above in apartment 601. The resident had found the items on the floor approximately one foot from the elevator which was near her apartment.
The record reveals the following facts. During the evening of April 28, 1986, there was a social gathering at which liquor was consumed in an apartment in a building located at 540 East 36th Street (540 building). (All three buildings being discussed are a part of the Chicago Housing Authority Ida B. Wells project.) Andre Daniel, a State witness, lived in this apartment with his fiancee. Sometime during the evening, defendant's girl friend, Mugette Jackson, called the party and asked defendant to come home; it is not known when defendant actually left the 540 building. Defendant lived with Jackson in the 514 building.
Daniel testified that around 4:30 a.m. on April 29, he was returning home from a store with a six-pack of beer when he met defendant, either outside or in the lobby of the 514 building. The two men had a short, general conversation during which Daniel noticed a man asleep on the lobby floor. According to Daniel, defendant grabbed the sleeping man (later identified as Delemore) by his collar, and with two hands, started banging Delemore's head against the wall. When defendant asked Delemore his name, there was no response. Daniel said that Delemore did not fight back. When Daniel grabbed defendant and told him to let the man alone because he was drunk, defendant said that he would do the same to him (Daniel). Daniel left the building while defendant was still banging the victim's head and ran into Lee Moore. The two men returned to the 514 building and pulled defendant off Delemore. Daniel noticed that the victim was bleeding around his head. As the men held defendant, Daniel told Delemore to run. Delemore ran toward the 511 building with defendant running after him. Buildings 514 and 511 are across a playground from each other.
Daniel then went to his fiancee's apartment in the 540 building, told her what was happening, and then went back down to the 511 building 5 or 10 minutes later. As he walked into the building, he saw defendant beating Delemore and stomping on his face and chest for quite a while. Delemore did not speak or move and had blood all over his face. Defendant then went through Delemore's pockets, removed his wallet, and took money from it. Daniel returned to the 540 apartment, but went back to the 511 building no more than 10 minutes later. He saw that a man's outstretched legs were on fire and returned to his apartment and called the "We Tip" emergency service. This call was later verified. However, it is not clear whether Daniel made the call during his second return to his apartment or after seeing the fire.
Lee Moore also testified for the prosecution. He stated that during the early morning hours he descended the inside stairs to the lobby of the 514 building and saw defendant and Delemore fighting, with Daniel watching. Delemore was stumbling and weaving from side to side, and he and defendant were swinging at each other. Moore and Daniel broke up the fight but defendant broke loose and started hitting Delemore again. Moore and Daniel stopped the fight a second time, after which defendant picked Delemore up off the floor and threw him out of the building. Moore last saw the stumbling and tripping victim head towards the 511 building, followed by defendant. On cross-examination, Moore stated that both defendant and Delemore had blood on them and that they both had their fists raised (as though they were protecting their faces). Although both men were trying to kick each other, only defendant succeeded and, at some time, Delemore was knocked to the ground. Moore also said that he heard both men speak and that he saw defendant start the second fight.
Defendant testified that he had stayed at Daniel's home until 2 a.m., when he started home. When he got to the 514 building (where he lived), Delemore came up behind defendant and put a hand on his shoulder. Defendant objected, and Delemore said that he was putting his hand back on his shoulder, after which defendant slapped Delemore. Daniel then came into the building. Delemore put up his hands to fight, and defendant asked him if he wanted to fight. Delemore said yes, and the two men went to a clearing between the 511 and 514 building. Defendant hit Delemore exactly 14 times and only with an open hand, periodically asking Delemore in between hits if he wanted to continue fighting. Defendant won the fight and said that he had left Delemore, bleeding but conscious, sitting against a door of the 511 building. Defendant then went home at approximately 2:30 a.m. He cleaned blood off his shoes with a wet rag and then went to sleep.
Testifying for the State, Mugette Jackson said that defendant did not come home from the party until 6 a.m. on April 29. When she came home from work later that day, Jackson saw the gym shoes that defendant had been wearing that morning soaking in a bucket of water. Later that evening, she gave the wet shoes, two pairs of defendant's jeans, and other ...