Appeal from the Circuit Court of Winnebago County. No. 91-CF-525. Honorable David A. Englund, Judge, Presiding.
Released for Publication May 18, 1994. Petition for Leave to Appeal Denied October 6, 1994.
The opinion of the court was delivered by: Bowman
JUSTICE BOWMAN delivered the opinions of the court:
Defendant, Johnny Mangum, was convicted by a jury of second-degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9-2 (now 720 ILCS 5/9-2 (West 1992))), and the court sentenced him to a maximum extended term of 30 years in prison. He contends on appeal that the trial court improperly imposed a maximum extended-term sentence.
On February 26, 1991, police were called to the Rockford home of Randy Eklund by friends who had discovered that the door to the house was open. The police entered the home and found a large amount of blood in the kitchen area. Eklund's body was found on the second floor, lying on its stomach in a pool of blood. His feet were tied together and his hands were tied behind him. Defendant was ultimately charged with first-degree murder in an indictment alleging that he strangled Eklund, knowing that his act created a strong probability of death and, in fact, causing death.
At trial defendant acknowledged that he was involved in Eklund's death but denied that he had murdered him. Defendant said he first met Randy Eklund at Pribby's Tavern in Rockford. Eklund, a homosexual, was described as 6 feet 3 inches tall and weighing 210 pounds. The two men began a conversation, and Eklund bought a number of drinks for defendant. Eventually, the defendant accepted Eklund's invitation to his home for another drink, and the two rodeto the house in Eklund's car. Eklund prepared drinks for them in the kitchen, and defendant agreed to attend a party with Eklund. During the last of several phone calls he made at this time, Eklund became upset and was still cussing when he rejoined defendant in the kitchen. He then reached over, grabbed the defendant's crotch, and started squeezing.
Defendant, who indicated he was 5 feet 7 or 8 inches tall and weighed 142 pounds at the time, pushed Eklund's hand away and told him to stop. Eklund did not do anything immediately; he just looked at defendant. Then he got up, walked over, and pulled defendant toward himself by the coat collar, saying, "I bought you all those drinks and I'm going to suck your dick." Defendant said that, at this point, he "snapped" and "freaked out." The situation scared him. He described Eklund as a lot bigger than himself and very intimidating.
Defendant, who had trained as a boxer and fought as a novice in a local "Golden Gloves" competition more than 10 years ago, got up and started hitting Eklund. The two men fought through the kitchen onto the landing at the top of the basement stairs, near the back door. Eklund shoved defendant down the stairs and then started to go out the back door. Although defendant had hurt his head and leg in the fall, he was now angry, as well as scared. He climbed up the basement stairs, pulled Eklund back inside, and punched him, knocking him to the floor. Eklund got up and ran out of the kitchen.
According to defendant, he thought Eklund was going to get a gun so he followed him upstairs and again hit him until he went down. Defendant testified that, as part of his training for boxing, he was taught to use the knuckles of his index and middle fingers to strike opponents. Defendant also admitted that he hit Eklund all over his face, head, neck, and chest, and that Eklund was cut and bleeding during the fight. After Eklund fell to the floor, defendant told him to get on his stomach. When Eklund did so, defendant used the laces from Eklund's shoes and from his own boots to tie Eklund's hands behind his back and his feet together. Defendant said he did not hit Eklund again after he fell to the upstairs floor.
After tying Eklund, defendant started looking into the bedrooms. However, Eklund sat up and then fell on his back, making a gurgling noise. Thinking Eklund might be choking on his own vomit, defendant turned him over onto his stomach. The gurgling stopped and defendant then searched through the bedrooms for a gun, with no success. At the time defendant left the second floor, Eklund seemed okay. Since the gurgling had stopped, defendant figured Eklund was alive and no longer choking.
Defendant then filled a garbage can with bottles of liquor belonging to Eklund and put it, along with Eklund's microwave oven, in Eklund's car. Having found Eklund's car keys, defendant first drove to Roger Conley's apartment and left the liquor and microwave. He then drove the car to the vicinity of Pribby's Tavern and parked it, figuring that Eklund would report it stolen and that it would be found there.
Later that evening defendant attended a party at Conley's apartment. According to witnesses, he paced about and seemed preoccupied and was overheard to say to Conley: "I hit the guy and I hope he doesn't die." When asked why he was not wearing his boots, defendant responded that he had to get rid of them because he had "robbed a faggot and beat the guy up and tied him up and left him in the house."
Defendant said that it was three or four days after the fight that he first learned Eklund had died. He then left Rockford and hitchhiked through various States until he was arrested in Wichita, Kansas, some five months later.
Additional evidence was presented by Barry Meyers, a friend of Eklund's for about 25 years, who testified that, while Eklund did not have a long-term romantic relationship with anyone, he would pick people up, bring them to his home, and entertain them in his basement. The forensic pathologist who performed the autopsy on Eklund's body testified that hemorrhaging in the areas where Eklund's wrists were bound evidenced that Eklund was alive when he was tied up. The pathologist, Dr. Blum, saw evidence of internal bleeding in the area of Eklund's ribs and lower neck, but no evidence of rib fractures. While there was some bruising around the heart, Eklund's abdominal organs and intestines appeared normal. Similarly, there was no evidence of either injury to the brain or a skull fracture.
In Dr. Blum's opinion Eklund died as the result of manual strangulation due to bilateral compression of the neck resulting in asphyxia. He reached this Conclusion because he found internal contusions, or bruises, on both sides of the victim's neck. The contusions, in turn, were associated with various injuries to the internal structures in the neck, including the injuries that led to Eklund's death. However, there were no marks on Eklund's neck that were consistent with pressure having been applied by fingers and thumbs or by the use of a ligature, i.e., a rope-like object used to tie something up. The witness testified, though, that external bruising is not always present in cases of manual strangulation. Dr. Blum acknowledged that a blow, kick, or punch to the neck area could have damaged the internal structures of the neck and caused strangulation, although it would have taken considerable force.
The State argued that defendant choked Eklund to death after tying him up, while defense counsel submitted that defendant, who was reacting to Eklund's homosexual assault, had only hit the victim with his fists and that one such blow to Eklund's neck or throat had caused his death. The jury, which was instructed on second-degree murder and involuntary manslaughter as ...