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February 4, 1994


Appeal from the Circuit Court of Du Page County. No. 91-CF-1604. Honorable Edward W. Kowal, Judge, Presiding.

Colwell, Inglis, Quetsch

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Following a jury trial in the circuit court of Du Page County, defendant, Patrick Heaton, was found guilty of second-degree murder. (Ill. Rev. Stat. 1991, ch. 38, par. 9-2(a)(2) (now 720 ILCS 5/9-2(a)(2) (West 1992)).) The trial court imposed a sentence of 13 years of imprisonment. Defendant appeals, alleging that the trial court committed reversible error in instructing the jury as to the additional limits on the use of force available to the defendant without any evidentiary basis for the proposition that the defendant was the initial aggressor in the confrontation that led to the death of Roy Rauch. We affirm.

The events leading up to the incident concern two groups of friends. Defendant's group included Bill Bradley, Illya "Monte" Grigsby, Jay Weldon, and Bill Quigley, some or all of whom were associated with the "Latin Kings" street gang. The group of the decedent, Roy Rauch, included his brothers, Jay and Chris Rauch, Phil Herriman, and Steve Gramm. There is some suggestion that one of these individuals may have been affiliated with the "Gangster Disciples" street gang. The testimony at trial revealed, with some discrepancies, that the following incidents precipitated the events and eventual demise of Roy Rauch.

Jay Rauch was visiting his girlfriend, Kelly Leiser, at her home on July 3, 1991. Bill and Wayne Bradley came to Leiser's home requesting money allegedly owed to them by Leiser. Jay and Bill then got into a fight which resulted in Wayne hitting Jay in the head with a hockey stick and Jay returning blows to both Wayne and Bill with the hockey stick.

At around 10 p.m. on July 14, 1991, some friends dropped Jay Rauch off at the Glen Theatre in Glen Ellyn to meet Leiser. When Jay saw Bill Bradley and Monte Grigsby nearby, he thought "there might be trouble" and grabbed a wrench from the car and proceeded toward the theater. Jay was then chased by Grigsby, Bradley, Jay Weldon, Bill Quigley, and defendant. Defendant followed Jay Rauch into the theater, calling him a "pussy" and taunting him to fight. After theater personnel told Rauch and defendant to leave, defendant left and Rauch remained inside and called his brother, Roy. Shortly thereafter, Roy arrived at the theater with Chris Rauch, Phil Herriman, and Steve Gramm. They proceeded to drive around looking for defendant and his friends but were unable to locate them.

The Rauch group drove to a house where they thought they might find defendant's group. After this unsuccessful venture, they drove on and questioned two boys they found in front of Glenbard West High School. The boys did not know defendant's whereabouts. The Rauch group decided to proceed to Jay Weldon's house but stopped first at a White Hen Pantry along the way. Jay Rauch went behind the building to urinate. He grabbed a stick he found there in anticipation of a fight at Jay Weldon's house. The evidence indicates that someone in Rauch's group also purchased beer at the White Hen. They proceeded to Weldon's house in Glendale Heights at around 11 p.m. in Leiser's car and Chris Rauch's Ford Escort.

Jay Rauch said that when they arrived at Jay Weldon's house he saw several "Kings" standing in front of the house, including Weldon, Grigsby, and Bill Bradley. The Rauch group parked their cars a couple of houses down the street and proceeded toward the house. Jay carried the stick and others in the group carried beer bottles. Grigsby, who was standing closest to the Rauch group, heard the Rauch's group shout "KK. We're going to kill you, nigger." Grigsby testified that "KK" stood for "King Killer," which indicated the group wanted to beat him up or kill him. Grigsby stepped into the street and told them to "come on, bring it on." The Rauch group ran at Grigsby while throwing bottles at him and Grigsby threw a bottle that connected with one of them.

The testimony at this point varies. Jay Rauch testified that his group started to chase Grigsby up the front lawn of the Weldon house. Jay Rauch gave the stick to his brother, Chris. Chris then dropped the stick and began running back to their cars. Jay Rauch testified that he followed Chris to their cars and then jumped on the hood of the Escort. Bill Bradley began hitting Jay in the legs with a baseball bat and someone else was smashing the windows of the car. Chris and Jay Rauch were somehow able to drive the car down the street with Jay still on the hood. Jay then said they had to go back because Roy was left behind at the scene. When Jay and Chris neared the Weldon house, an ambulance had already arrived and was taking Roy to the hospital. Jay did not see what happened to Roy.

According to Monte Grigsby, some of the Rauch group chased after him and some chased after Bill Bradley. Grigsby then heard Jay Weldon's father come outside and ask what was going on. Grigsby testified that when Jay Weldon's father came out, the Rauch group ran down the street towards their cars. Jay Weldon, Bill Bradley, and defendant chased after them. Grigsby then saw someone wresting with Bill Bradley. When Grigsby got closer, he saw it was Roy Rauch wrestling with Bradley. Roy threw Bill off and was getting up when Grigsby kicked him in the head. Roy went back down to the ground. Roy grabbed for something and he and Bill continued wrestling until Roy threw Bill off again. Grigsby could not tell what Roy was grabbing for but he saw a big stick about two feet away. At that point, defendant took a "golf swing" and hit Roy in the ribs with an object Grigsby could not identify. Roy went down on his stomach and did not get up. Defendant hit him again in the ribs and Roy rolled on his back. Grigsby heard Jay Weldon's father shout that he had called the police. Defendant then took an overhead swing and hit Roy again on the front area on the chest and face but Grigsby did not see him hit Roy in the head. Grigsby still could not tell what defendant was using to hit Roy Rauch. About two minutes later when Grigsby and defendant were near the Weldon house, defendant said "I think I killed the Old Boy."

Grigsby also said that Roy's head hit the curb while he was wrestling with Bill Bradley. The State then questioned Grigsby about the discrepancy between his testimony at trial and his previous grand jury testimony. The State read previous testimony to the jury in which Grigsby had specifically testified that defendant hit Roy Rauch in the head with an aluminum baseball bat.

Matt Weldon, Jay Weldon's brother, testified that he was at the Weldon home on the night of the occurrence. Matt had a conversation with defendant after the fight during which defendant said he had chased down and hit the "Old Boy" on the head, the throat, the chest, and then on the head again. Matt asked defendant where the baseball bat was and defendant replied that "it was taken care of."

Anthony Mineo, a detective with the Glendale Heights police department, was notified by the police dispatcher that defendant had surrendered himself and wanted to talk to him. Defendant and Mineo had met several times in the past. Mineo testified that defendant approached Mineo at the Du Page County jail on July 20, 1991, and defendant said he wanted people to know the truth. Defendant ...

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