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December 20, 1994


Appeal from the Circuit Court of Cook County. The Honorable John A. Wasilewski, Judge Presiding.

Presiding Justice DiVito delivered the opinion of the Court: Hartman and Scariano, JJ., concur.

The opinion of the court was delivered by: Divito

Presiding Justice DiVito delivered the opinion of the Court:

The issues presented in this case are whether the circuit court properly denied defendant's request for a jury instruction concerning second degree murder based upon sudden and intense passion, and whether judgments for both first degree murder and home invasion were proper. For the following reasons, we affirm.

A summary of the evidence heard by the jury, emphasizing the facts that defendant contends justify the second degree murder instruction, follows. In August 1989, defendant Demarco Yarbrough resided in a Richton Park apartment with Debra Turner, Richard Clerk, and Irma Jean McCastle. Defendant and Turner had been living together for six months. On Friday, August 18, 1989, defendant, the other occupants of the apartment, two of Turner's children (from a different relationship), and two of her other relatives were present at a dinner party at the Richton Park apartment. At some point during the night, Turner's relatives and Richard Clerk left the apartment and James Clerk, Richard's nephew, joined the party. The guests consumed alcohol, heroin, cocaine, and marijuana.

When the party ended early Saturday morning, defendant and Turner went to sleep in the bedroom they shared, McCastle went to sleep in her room, and James Clerk went to sleep on the couch in the living room. Defendant awoke Saturday afternoon and left the apartment to pick up his paycheck. He was away from the apartment for approximately 45 minutes to an hour. Turner testified that as she remained sleeping on the bed, while lying on her stomach and dressed in a nightshirt with no underwear, she was partially awakened by the feel of someone's fingers in her vagina. Half asleep, hung over from the night before, and still in a drugged state, she thought defendant was fondling her. When the person tried to adjust her legs to enter her, the movement popped Turner's hip and caused her pain. The pain awakened her, and she turned around to find that the man was James Clerk, not defendant. Turner screamed at him, asking what he was doing. Clerk responded that defendant was not present and since he and Turner had known each other for a long time he thought they could have intercourse. Turner shouted that he had better leave, and Clerk left the bedroom.

When defendant returned to the apartment, he drove James Clerk to a liquor store in Ford Heights and continued on to visit some relatives in Chicago. James Clerk's girlfriend, Shelia Harris, testified that Clerk seemed upset and jumpy that evening, continually looking out the windows.

Defendant testified that he left Chicago around midnight on that Saturday night, returned to the Richton Park apartment, and went to sleep, without speaking to Turner. On Sunday afternoon defendant noticed Turner's distressed state and asked what was upsetting her. While crying hysterically, Turner replied defendant did not know what happened, and asked why he would leave her in the house in the state that she was in. Defendant testified that Turner then said that Clerk had raped her. Turner testified that she was unsure whether she used the word "rape", "attack", or "molest", but it was a word in that category.

Defendant stated that he felt his stomach drop and, while crying, he immediately drove off to the 100 block of West Hickory Street in Chicago Heights where both his brother Dwayne Yarbrough and James Clerk resided. Defendant recklessly pulled his car into Dwayne Yarbrough's driveway at 130 Hickory Street. Defendant exited from the car, slapped a beer from the hands of his brother Demetrious Yarbrough and yelled, "That nigger raped Debra."

Defendant testified that he wanted to find out if it was true that Clerk had raped his girlfriend. Following defendant's request, Dwayne took him to Clerk's apartment, down the block, at 120 West Hickory Street. Defendant knocked on Clerk's second floor apartment door, and Clerk eventually answered the door, allowing defendant into the apartment. Shelia Harris was also in the apartment at the time. Defendant did not want to speak in front of her, so he said, "I need to speak to you about something that's important." Clerk appeared shocked and agreed to meet defendant downstairs outside of the apartment. Defendant's signed statement to the police on September 27, 1990, detailing the events, failed to include any mention of defendant asking Clerk to meet him outside.

Defendant testified that he exited the apartment, went downstairs, waited for Clerk for a minute or two, and then went back to Dwayne's apartment. While in the apartment, defendant retrieved a large automatic rifle, measuring approximately three to four feet in length. Defendant grabbed the rifle for protection; he did not trust Clerk, viewing him as a threat. Defendant was emotional, confused, and hurt. He tried to place the rifle inside of his pants, but it did not fit.

Defendant testified that he exited Dwayne's apartment and headed back to Clerk's residence. Clerk was not in front of the apartment when defendant arrived. As defendant knocked on Clerk's door, he was hurt, his stomach felt funny, and he thought Clerk should have been outside by then. When Clerk answered, he smiled at defendant. At that moment, defendant thought Clerk had raped Debra Turner. Clerk attempted to run, and defendant fired the gun several times in Clerk's direction. Defendant claimed that he pulled the automatic trigger only one time.

Sheila Harris testified that she opened the bedroom door when she heard a pop sound and observed Clerk lying on the ground, with both his hands up, "yelling for his life." James Rossi, an evidence technician for the Cook County Sheriff's Office, testified that a bullet recovered from the floor at the scene indicated that defendant fired that particular shot while standing over the deceased. Clerk had been shot five times.

Defendant then ran back down the street and through the gangway alongside Dwayne's apartment building, dropped the weapon, and continued into the forest preserve. Approximately one week later, defendant and Debra Turner fled to Minneapolis, where defendant was arrested over a year later, on September 19, 1990. The following day defendant ...

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