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September 20, 1994



Petition for Leave to Appeal Allowed February 1, 1995.

Scariano, Hartman, McCORMICK

The opinion of the court was delivered by: Scariano

JUSTICE SCARIANO delivered the opinion of the court.

Defendant, Demetrius Thomas, shot and killed Richard Hillsberg while the two were in the midst of a struggle in an alley behind a tavern. At his bench trial, he maintained that he acted in self-defense. The court found that his fear for his safety, although genuine, was unreasonable; it therefore found him guilty of second-degree murder. Due to two earlier felony convictions, defendant was sentenced for this Class 1 offense within the range provided for Class X crimes. He accordingly received a sentence of 15 years.

At trial, the State presented the testimony of Michael McWherter who stated that on February 8, 1991, he arrived at the Bonanza Lounge, located at the corner of Lawrence Avenue and St. Louis Avenue, with his long-time friend Richard Hillsberg, and Nanette Forman. Prior to going to the lounge, McWherter, who had a previous conviction for burglary, and Hillsberg had spent the afternoon together, during which they each consumed around four or five cans of beer, an amount which McWherter described as "minimum." The autopsy of Hillsberg disclosed that at the time of death, his blood-alcohol level was .104 percent, which is above the legal allowable maximum level for the purpose of operating a motor vehicle.

As McWherter and his party were leaving the lounge, he saw three African-Americans seated at the bar, two men and a woman. Defendant, who was one of the males at the bar, was speaking to his friend and he gestured toward Nanette Forman as she walked past them toward the door.

Hillsberg asked defendant if he had a problem; defendant responded affirmatively. Defendant then suggested that the two go outside to resolve their dispute, something which Hillsberg agreed to do. The six people, Hillsberg, defendant and all of their companions, walked outside in file and pursuant to defendant's friend's proposal, they went into the alley so as to avoid detection and interference by the police.

There, Hillsberg asked defendant, "What's up," to which defendant answered by stating "I'll show you what's up." He then reached into his waistband, withdrew a pistol, which McWherter described as being big and black, about a foot in length, and hit Hillsberg in the face with it. Hillsberg's hands immediately went to protect his head, and he bent into a protective position, shielding his face from defendant.

In the next instant, defendant began firing the weapon at Hillsberg, who tried to flee. McWherter, who was running from the scene along with Hillsberg, heard three or four shots. As they ran, Hillsberg informed him that he had been struck by a bullet. McWherter assisted Hillsberg into McWherter's car, and he noted that Forman was waiting for them in the back seat. They drove down the alley where the shooting took place and saw defendant as he ran toward their car, still holding the pistol and aiming it at the vehicle. McWherter drove Hillsberg to the emergency room of a hospital, where he later died. According to the medical examiner, death was caused by multiple gunshot wounds.

During his cross-examination, McWherter admitted that his testimony regarding the events of the evening of the shooting did not strictly comport with the statement he gave police that night, but he blamed the multiple disparities and omissions on the fact that he was upset that night, and because he feared for his own safety.

The State also presented the testimony of Vanessa Sanders. On February 9, 1991, she resided at the Ainslee Hotel with her mother and her ex-boyfriend, where she was a neighbor of defendant. That morning at about 2 o'clock, at which time she was accompanied by Sylvia Jones, she saw defendant entering the hallway of the hotel. Defendant told the two of them that he had shot Marcia, whom Vanessa assumed to be her acquaintance Marcia Samuels. She was also the woman whom McWherter had earlier described as defendant's female companion at the Bonanza Lounge.

Vanessa left the hotel and went to the Bonanza Lounge in an unsuccessful attempt to find Marcia. On her way back to her residence, she and three other friends were met again by defendant, who told them at that time that he had just been in an argument with two white men. He explained that after being verbally challenged by one of the men, he brandished his pistol, and the man pushed it. Defendant consequently struck him on the side of his face with the weapon, causing it to discharge. That round struck Marcia, according to defendant.

Marcia Samuels testified that on the night of the incident, she went to the Bonanza Lounge with defendant, where she estimated that the two each had one beer. At approximately 1:30 a.m., two white men and a white woman entered the lounge, approached her as she sat at the bar, and one of them made what was presumably a vulgar remark to her as they passed. She responded in kind, but defendant remained silent, apparently unaware that something had been said to her.

After she cursed him, the man who had harassed her left the bar, but returned soon thereafter. This time he confronted defendant, inquiring "what was he looking at." Defendant responded by asserting his right to look anywhere he pleased, and suggested that the two take their disagreement outside. As McWherter had testified, six people walked outside, defendant, Marcia, and their friend, Colin, along with two white males and one white female, the three she had seen enter ...

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