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11/08/95 PEOPLE STATE ILLINOIS v. AARON NEWBERN AND

November 8, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
AARON NEWBERN AND JIM RILEY, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Edward Fiala, Judge Presiding.

Petition for Leave to Appeal Denied April 3, 1996.

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

The opinion of the court was delivered by: Tully

The Honorable Justice TULLY delivered the opinion of the court:

Defendants, Aaron Newbern, Jim Riley and Gail Bonds were indicted for first degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9-1 (now 720 ILCS 5/9-1 (West 1994))), aggravated discharge of a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 24.1 (now 720 ILCS 5/24-1.2 (West 1994))), home invasion (Ill. Rev. Stat. 1991, ch. 38, par. 12-11 (now 720 ILCS 5/12-11 (West 1994))), attempted first degree murder (Ill. Rev. Stat. 1991, ch. 38, pars. 8-4, 9-1 (now 720 ILCS 5/8-4, 9-1 (West 1994))), conspiracy to commit robbery (Ill. Rev. Stat. 1991, ch. 38, par. 8-2, 18-1 (now 720 ILCS 5/8-2, 18-1 (West 1994))), residential burglary (Ill. Rev. Stat. 1991, ch. 38, par. 19-3 (now 720 ILCS 5/19-3 (West 1994))), armed robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18-2 (now 720 ILCS 5/18-2 (West 1994))), aggravated battery (Ill. Rev. Stat. 1991, ch. 38, par. 12-4 (now 720 ILCS 5/12-4 (West 1994))) and aggravated unlawful restraint (Ill. Rev. Stat. 1991, ch. 38, par. 10-3.1 (now 720 ILCS 5/10-3.1 (West 1994))). The State entered a nolle prosequi as to the charges of conspiracy, aggravated battery, aggravated unlawful restraint and aggravated discharge of a firearm. All defendants were tried simultaneously in severed trials; Bonds in a bench trial with Newbern and Riley before separate juries. Following trial, Bonds was acquitted of first degree murder and found guilty of armed robbery and residential burglary; Riley was found guilty of home invasion and residential burglary, but acquitted of all other charges; and Newbern was found guilty of felony murder, armed robbery, home invasion and residential burglary, but acquitted of the other murder counts in the indictments. Newbern was sentenced to 25 years' imprisonment for the first degree murder and to three 6-year sentences for the burglary, armed robbery and home invasion, all sentences to run concurrently. Riley was sentenced to two 6-year terms of imprisonment for the charges of home invasion and residential burglary, both sentences to run concurrently. It is from the judgments of conviction that Newbern and Riley separately appealed to this court pursuant to section 6 of article VI of the Illinois Constitution (Ill. Const. 1970, art. VI, ยง 6) and Supreme Court Rule 603 (134 Ill. 2d R. 603). We consolidated the appeals. Bonds is not a party to this appeal.

For the reasons which follow, we affirm in part and reverse in part, and remand with directions.

FACTUAL BACKGROUND

The following facts were adduced at trial. John Thomas was the owner of the three-flat apartment building situated at 8053 S. Champlain Avenue, Chicago, Illinois. His two sons resided there. One of the owner's sons, Eric Thomas (hereinafter Eric), lived on the first floor apartment with his girlfriend, Elizabeth Richardson, and a boarder, Lisa Harding. The other son, Bronson Thomas (hereinafter Bronson), lived on the second floor apartment. James Graham lived on the third floor. Willie Parnell and Estelle Self were visiting the first floor residents on January 26, 1991.

Graham testified that he worked as a switchman for the Burlington Northern Railroad. At the time of the incident, he was 56-years-old. He knew Bonds for about four years. On January 26, 1991, at approximately 5 p.m., Bonds had visited Graham and left his apartment 30 to 40 minutes later, after drinking, smoking cocaine and having sex with him. Later that night, Bonds telephoned Graham and arranged to go to his apartment to purchase cocaine.

At around 7:30 p.m., Bonds, Newbern and Riley arrived at 8053 S. Champlain Avenue. Graham testified that Bonds rang his apartment, and he buzzed her upstairs. Newbern and Riley also entered the building at this time. Once in Graham's apartment, Bonds purchased cocaine and had a drink with him. As she was leaving, Graham opened the door, and simultaneously, Newbern and Riley pushed their way in, announcing that they were the police. Newbern held up a gun. Graham testified that he did not believe they were police officers. He took hold of the gun and struggled with Newbern. Defendant shouted repeatedly, "Do you want to die, nigger[?]" Riley grabbed Graham, and began choking him. Graham let go of the gun and Riley hit him several times in the face.

Defendants queried Graham as to where his money was. Riley then took between $300 and $400 from Graham's wallet. In addition, defendants took a gun, a telephone book, and a Crown Royal bag with money in it and then fled.

Parnell, Self and Harding testified that they had seen all three defendants enter the building while they were exiting. Parnell and Harding then had returned to the building to retrieve something while Self waited in a car outside. Parnell and Harding began talking to Eric and Richardson in the hallway, when they heard a voice shouting "I'll kill you, turn it lose [sic], mother fucker, I'll kill you." Eric gave Parnell, who remained on the first floor, a shotgun. Eric and Richardson then ran upstairs to Bronson's apartment. Richardson testified that as she went upstairs, she saw Bonds running downstairs and out of the building. Afterwards, Bronson fired a gun straight ahead at the second floor landing wall. At the same time, Eric yelled out to Newbern and Riley that they should not come downstairs and that the police are on their way. Eric and Richardson went back into Bronson's apartment and shut the door. Bronson and Richardson then stood behind the door.

A short time later, Newbern and Riley exited Graham's apartment. Richardson looked through the peephole and observed Newbern and Riley coming downstairs. While passing the second floor apartment, Newbern fired two to four shots at the door. One of the bullets hit Richardson's left arm. Another bullet hit Bronson in the shoulder and he fell. Richardson then hauled Bronson to the bathroom where he subsequently died.

Self testified that she had remained in the double-parked vehicle and saw Bonds leave the building and get into a car. Bonds continuously honked the horn because her egress was blocked off. Since Self could not drive, she honked her horn until Harding came out and moved the car, allowing Bonds to leave. Self testified that shortly ...


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