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12/30/94 PEOPLE STATE ILLINOIS v. ERWIN FEYRER

December 30, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ERWIN FEYRER, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE RICHARD NEVILLE, JUDGE PRESIDING.

As Corrected November 17, 1994. Rehearing Denied March 8, 1995. Released for Publication March 21, 1995.

The Honorable Justice Rizzi delivered the opinion of the court: Tully, P.j., and Greiman, J., concur.

The opinion of the court was delivered by: Rizzi

JUSTICE RIZZI delivered the opinion of the court:

Defendant, Erwin Feyrer, was found guilty on one count of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(a)), and two counts of attempted murder (Ill. Rev. Stat. 1987, ch. 38, pars. 8-4(a), 9-1(a)). The court sentenced him to 35 years imprisonment for murder, and two concurrent terms of 20 years each for attempted murder. We affirm.

The following issues are for review: (1) whether the trial court erred in instructing the jury on the State's burden of proof regarding defendant's use of force and the elements of murder, and on the specific intent element of attempted murder; (2) whether defendant was proven guilty of murder and attempted murder beyond a reasonable doubt; (3) in the alternative, if this court finds that defendant was proved guilty of murder beyond a reasonable doubt, whether his murder conviction must be reduced to second degree murder because he proved beyond a reasonable doubt that he believed that he was justified in defending himself; (4) whether the statutory provision on murder is unconstitutional; and (5) whether the trial court abused its discretion in sentencing defendant.

On October 21, 1988, a group of young men went to River Park located at 5049 N. Albany in Chicago, Illinois, to play soccer and to talk. Two of the young men in the group were wearing dark blue and gold Roosevelt High School soccer team uniforms. They had been sitting on a park bench for a few minutes when one of them said: "Be cool." They all then looked up and saw two men, later identified as defendant and James Maris, standing several feet away from them under a streetlight.

The men standing under the streetlight were facing the group. Defendant greeted the group. Both of the men took guns out of their coats and began shooting at the young men sitting on the bench. The young men sitting on the park bench started running in an effort to avoid being shot. Alfas Younan was shot in the back of his left shoulder. Sarkis Jado was shot in the back of his left hip and left wrist. Carlos Diaz was wounded and Fabian Diaz, Carlos' brother, died from multiple gunshot wounds, including wounds to the right side of the back of his head and on the back of his right knee.

On October 23, 1988, Chicago Police Officer Edward Wiora received information that defendant was involved in the River Park shooting. Officer Wiora entered defendant's name into a law enforcement data base and discovered that there was an outstanding warrant for his arrest for telephone harassment. Officer Wiora went to defendant's house and arrested him pursuant to the warrant. Defendant was later questioned about the murder of Fabian Diaz. Defendant told the police that he was at a party from 8:30 p.m. until 3 a.m. on the night of the shooting. Defendant was then released on an individual recognizance bond.

On October 30, 1988, Chicago Police Officers Thomas Czapiewski and Nancy Hartigan received a message that someone resembling a suspect in the River Park shooting was in a local "7-Eleven" store parking lot. Officers Czapiewski and Hartigan went to that location where they saw defendant. The police got out of their squad car and defendant walked toward the car. Defendant told them that he wanted to talk to them about the shooting in River Park and he admitted that he was there. Officer Hartigan then arrested defendant and advised him of his rights. Defendant subsequently told Officer Hartigan that he and "Andy" had gone to the park to buy some dope but that Andy pulled out his gun and started shooting.

Later, defendant was interviewed by Chicago Detective John Leonard. Defendant told Detective Leonard that he and Andy left a park known as "Teenage Wasteland" to go to River Park to purchase drugs and that as they approached a group of young men sitting on a bench in River Park, Andy pulled out a gun and began shooting. Defendant told Detective Leonard that Andy used a .38 caliber gun. Defendant and Maris were charged with first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(a)), attempt murder (Ill. Rev. Stat. 1987, ch. 38, pars. 8-4(a), 9-1(a)), armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A-2), and aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12-4). Defendant and Maris were tried in a joint trial, however, defendant was tried by a jury and Maris had a bench trial.

Defendant testified that he left "Teenage Wasteland" around 9 p.m. with Andy Maylaras. Defendant further testified that he and Maylaras walked to River Park where they saw a group of young people sitting on a bench. Defendant testified that the people sitting on the bench stood up and looked at him. Defendant testified that he then heard a gunshot and that he responded by firing a gun at the group. Defendant further testified after he ran out of bullets, he fled the scene, threw his gun in the river and then went to a party where he stayed until 3:30 a.m.

Defendant's cell mate, Jesse Smith, testified that defendant confessed to him that he committed the crime. Smith stated that defendant told him that Maris was chased by a group of boys, and that after Maris told defendant about being chased, the two men found some guns and went back to the park where he had been pursued. Defendant testified that upon arriving at the park, they hid behind some bushes. Smith further testified that defendant told him that he and Maris then came out from behind the bushes near a group of young men sitting in the park and that he began to shoot at their feet. Defendant told Smith that when the young men in the park began to run, they aimed the guns at their bodies. According to Smith, defendant told him that he and Maris then threw the guns in a garbage can in an alley, walked in separate directions and returned to a party where defendant had been previously.

Chicago Police Officer Daniel Noon, a gang crimes specialist, testified that River Park was considered part of the "territory" of the Latin Kings street gang and that the Latin Kings were enemies of the Simon City Royals street gang. Defendant and Maris were members of the Simon City Royals. Noon testified that the high school soccer uniform worn by Fabian Diaz and some of the other boys sitting on the bench, was dark blue and gold, colors associated with the Latin Kings.

Defendant was found guilty of the murder of Fabian Diaz and the attempt first degree murders of Alfas Younan and Sarkis Jado. Maris was acquitted. Defendant now appeals.

First, defendant contends (1) that his murder conviction must be reversed because the trial court violated his right to due process by failing to instruct the jury that the State had the burden of proving beyond a reasonable doubt with respect to the murder charge that his use of force was not justified; and (2) that his conviction for attempt murder must be reversed because the jury instructions allowed the jury to find him guilty of attempt murder whether or not he had a specific intent to kill.

The State maintains that defendant has waived review of this issue (1) by not tendering Illinois Pattern Jury Instruction Criminal, No. 7.06A (2d ed. 1981) (hereinafter IPI Criminal 2d) or a modified version of IPI Criminal 2d, No. 6.07, which provides that the State must prove beyond a reasonable doubt that defendant was not justified in using the force which he used; and (2) by failing to assert these alleged instructional errors in his post trial motion. In the alternative, if this court holds that the jury instructions were defective, the State contends that the jury was adequately instructed on the elements of murder and attempt murder and the State's burden of proof in demonstrating that defendant's actions were not justified and that even if the jury received improper ...


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