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December 22, 1994


Appeal from the Circuit Court of Kankakee County, Illinois. No. 92-CF-418. Honorable Daniel Gould Judge, Presiding.

Rehearing Denied and Released for Publication February 1, 1995.

Present - Honorable Kent Slater, Presiding Justice, Honorable Allan L. Stouder, Justice, Honorable Tom M. Lytton, Justice. Presiding Justice Slater delivered the opinion of the court: Lytton and Stouder, J.j., concur.

The opinion of the court was delivered by: Slater

PRESIDING JUSTICE SLATER delivered the opinion of the court:

Defendant Edward Jennings was convicted of first degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9-1) in the shooting of Carl Riley and of attempted murder (Ill. Rev. Stat. 1991, ch. 38, par. 8-4) and aggravated battery with a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 12-4.2) in the shooting of Bernard Grant. The trial court vacated the attempted murder conviction based on the prohibition against multiple convictions for a single physical act. (See People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, 6 Ill. Dec. 891.) Defendant was sentenced to a 22-year term of imprisonment for murder and a concurrent six-year term for aggravated battery with a firearm. On appeal, defendant maintains that Riley's death was accidental or "at worst the product of a mere reckless act." Defendant also contends that his actions were justified on the basis of self-defense or were the result of an unreasonable belief in the need for self-defense. Finally, defendant argues that he is entitled to a new trial because he did not waive his right to a jury trial in writing as required by section 115-1 of the Code of Criminal Procedure of 1963 (the Code) (Ill. Rev. Stat. 1991, ch. 38, par. 115-1).

Deborah Sextion testified that at approximately 8:30 p.m. on June 8, 1992, she was watching a pick-up basketball game from her car at Washington Park in Kankakee. Sextion stated that she heard what sounded like firecrackers and saw people running off the court. Sextion then saw a person whom she identified as the defendant slipping or stumbling while at the same time firing a gun as he wavedit back and forth. According to Sextion, as her boyfriend, Darryl Williamson, got out of the car to confront defendant, Carl Riley, who had been standing nearby, grabbed his chest and fell into the car while spitting up blood. Williamson ran up to defendant yelling, "What the f--- are you doing? Don't you see all these people out there?"

Phillip McCarty testified that he was among those playing basketball in Washington Park on the evening of June 8. McCarty stated that there were approximately fifteen people and three or four cars in the immediate area. During the course of the game a player named Bernard Grant, whom McCarty described as six feet tall and weighing 175 to 180 pounds, argued with defendant. The record shows defendant was somewhere between 5'5" and 5'7" and weighed between 135 and 159 pounds. McCarty heard what sounded like a punch and saw that defendant had been knocked to the ground in a daze.

When defendant got up, he appeared to be "dizzy" and fell several times as he walked off the court toward a fence and a small bag. As defendant walked away, Grant threatened to hurt the defendant. When defendant got to the fence, he reached in the gym bag and pulled out what appeared to be a .22 or .25 caliber handgun. According to McCarty, everyone ran when they saw the gun and defendant then fired four shots toward Grant. McCarty admitted on cross-examination that in a statement he gave to police about a week after the shooting, he said that Grant and the others began to run after the defendant started shooting.

Eric Williams testified that he, too, was playing basketball in the park on June 8. Williams stated that during the course of the game Grant and the defendant argued over fouls. Williams heard a loud pop and saw Grant standing over the defendant. As the defendant tried to get up, Grant went towards him again yelling, "Round two, round two." According to Williams, the defendant stumbled and fell as he made his way off the court to a pouch or bag located nearby. Williams ran toward Riley's car and was trying to enter the car when he saw defendant coming onto the basketball court holding a gun. Defendant began shooting in Grant's direction as Grant ran away. On cross-examination, Williams agreed that defendant was "stumbling", "staggering" and "falling" as he fired the gun. Williams denied, however, that Grant was coming towards the defendant while he held the gun. According to Williams, by the time he first saw defendant with the gun, Grant had run off the basketball court and into the parking lot.

Chris Barnes testified that he was shooting baskets on the courtadjacent to the full-court game on the evening of June 8. Barnes saw Grant arguing with defendant on the other court. Barnes also saw the defendant take a gun from a small black bag located next to a fence by the tennis courts and shoot towards Grant, who was running away. Barnes saw defendant fire three shots and then fall to the ground with the gun in his hand. As defendant hit the ground the gun went off a fourth time, hitting Carl Riley. Barnes acknowledged that he could not, of course, see the bullet hit Riley, but Riley did not react or fall down until the fourth shot, which was fired as the defendant fell to the ground.

Bernard Grant testified that he was arguing with the defendant during the basketball game on June 8. Grant testified that he hit defendant with an open hand but he acknowledged signing a statement which indicated that he had punched the defendant. Grant stated that the force of the blow knocked the defendant to the ground, and when he got to his feet he was staggering and his eyes were glazed. As defendant walked towards the tennis court, Grant followed him saying, "Are you ready for round two?"

Grant stated that as defendant retreated he stumbled and fell several times. Grant testified that he stopped near the edge of the basketball court and watched the defendant as he pulled a handgun from a black bag. Grant turned and ran and he began to hear gunshots. Looking back as he ran, Grant saw that defendant was stumbling and staggering as he fired the gun. It was later determined that a bullet had grazed Grant's hip. Grant acknowledged telling the police that he saw Williamson slap defendant and take his gun, but he admitted that had not occurred. Grant also testified that he began running before the first shot was fired.

Officer Maurice Mietzner testified that he found two shell casings and a live round of .25 caliber ammunition on the basketball court. Mietzner did not, however, find a gym bag or a weapon.

Forensic pathologist Joseph Sapala testified that he performed an autopsy on Carl Riley on June 9. Sapala determined that Riley bled to death from a gunshot wound to his upper left chest area. The State's final witness, Doctor J. Michael Panuska, testified that he treated Bernard Grant for a gunshot wound to his hip on June 8. Panuska treated and released Grant without admitting him to the hospital.

The defendant testified that at approximately 5:30 p.m. on June 8 he was playing basketball at Washington Park. Bernard Grant became upset because he was not getting the ball and he resorted to calling traveling and double dribble violations. Defendant responded to Grant's conduct by saying, "Some of you all can't play ball good noway" [sic]. Grant responded to defendant's comment by saying, "Well, I can fight good" [sic] and punching defendant in the face.

Defendant testified that the force of Grant's punch knocked him down and knocked him out. According to defendant, when he awoke, he felt dazed and was unable to control his body. Defendant got up and twice asked Grant why he had hit him. Grant did not answer and came towards the defendant, who stumbled backwards looking for a brick or stick to defend himself. According to the defendant, he picked up an unzipped black bag, saw a ...

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