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People v. Divincenzo

June 18, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE, V. VINCENT DIVINCENZO, APPELLANT.


The opinion of the court was delivered by: Justice Nickels

Agenda 5

March 1998.

After a jury trial in the circuit court of Du Page County, defendant was convicted of first degree murder (720 ILCS 5/9-1(a)(2) (West 1994)) and sentenced to 26 years' imprisonment. The appellate court affirmed (No. 2-95-1454 (unpublished order under Supreme Court Rule 23)). We allowed defendant's petition for leave to appeal (166 Ill. 2d R. 315).

BACKGROUND

The case was presented to the grand jury on June 16, 1993. The State presented evidence showing that defendant had beaten the victim, Joseph Novy, following an argument between the two young men on May 27, 1993. At some point during the argument, defendant punched and kicked the victim several times, resulting in the victim's death. Assistant State's Attorney Creswell asked the grand jury to return an indictment charging defendant with first degree murder. The State sought to indict defendant on the theory that he acted with the knowledge that his acts created a strong probability of death or great bodily harm. See 720 ILCS 5/9-1(a)(2) (West 1994). It did not ask the grand jury to indict defendant for first degree murder based on an intent to kill. See 720 ILCS 5/9-1(a)(1) (West 1994). After deliberating, the grand jury stated that it would return a "no bill" as to first degree murder but would consider lesser charges after adjourning for lunch. Creswell told the grand jury that she would return in the afternoon with a "no bill" form.

During the lunch break, one of the grand jurors approached a Westmont police officer and told the officer that the grand jury had returned a "no bill" because the State failed to prove that defendant had an intent to kill. The police officer reported this conversation to the prosecutors. During the afternoon session, Assistant State's Attorney Kinsella asked the grand jury to reconsider its decision not to indict defendant for first degree murder. Kinsella discussed the difference between first degree murder and involuntary manslaughter. The grand jury then returned a "true bill" on first degree murder.

Defendant filed a motion to dismiss the indictment based on the violation of secrecy and prosecutorial misconduct. The circuit court conceded that communication had occurred between the grand juror, police officer, and prosecutors. The circuit court determined, however, that the grand jury transcript showed no undue coercion or misrepresentation of law constituting prosecutorial misconduct. Accordingly, the circuit court denied defendant's motion to dismiss the indictment.

Trial commenced on June 9, 1995. At the time of the fight on May 27, 1993, defendant was 18 years old and a senior at Addison Trail High School. In the evening of May 27, defendant was a passenger in a vehicle driven by his friend, Daniel Frasca. While stopped at a red light, defendant observed the victim driving a Geo Tracker. Defendant testified that he disliked the victim because the victim had dated defendant's girlfriend several years earlier.

While stopped at the red light, defendant noticed the victim staring at him and this upset defendant. Defendant told Frasca to follow the victim's vehicle. Defendant and Frasca followed the victim's vehicle for some time as it traveled along several different streets. Eventually, the victim turned his vehicle into the driveway of a friend's home. At this time, defendant told Frasca to stop the car. Defendant and the victim exited their respective vehicles and met each other on the grass parkway near the driveway.

Defendant testified that the two men started arguing and swearing at one another. The victim asked what defendant was doing and whether defendant still had a grudge about his girlfriend. Defendant said that he was still upset about the victim's relationship with the girlfriend. Defendant asked why the victim had stared at him. The victim said he did not know what defendant was talking about.

Defendant testified that the victim placed his hand on defendant's chest and pushed defendant backwards. Defendant immediately pushed the victim's hand away from his chest. Defendant testified that the victim stepped back with his right foot and clenched his fist, as if getting ready to throw a punch. In response, defendant hit the victim in the mouth with the open palm of his hand. This blow caused the victim to stumble backwards, and the victim raised his hands to his face in a defensive posture. Defendant testified that he then punched the victim on the side of the face. This blow knocked the victim to the ground. Defendant testified that he told the victim to stay on the ground.

In defendant's recorded police statement, he stated that after the victim had fallen to the ground, he kicked the victim once in the stomach. At trial, defendant denied that he kicked the victim but testified that he kneed the victim once in the side. Defendant testified that he got into Frasca's vehicle and left. Defendant did not think that the victim was injured seriously.

Daniel Frasca also testified. Much of his testimony was consistent with defendant's. Defendant told Frasca to follow the Geo Tracker because defendant knew the individual in the vehicle. When the victim pulled into a driveway, defendant told Frasca to stop their car. Frasca testified that the three of them all exited their respective vehicles. After exiting the vehicles, defendant and the victim started arguing and swearing at each other. At some point, defendant and the victim began to shove each other. The victim stepped back with his right foot and clenched his right fist. Defendant slapped the victim and punched him, knocking him down to the ground. Defendant told the victim to stay down. Frasca testified that he and defendant left in their vehicle. Frasca did not see defendant kick the victim.

Janet Berens, a neighbor, testified that she witnessed the incident from the window of her home, which was next door. She testified that she saw Frasca, defendant, and the victim standing outside just before 7 p.m. She testified that she saw defendant move his arms. After this movement, she saw the victim fall to the ground. Berens testified that, while the victim was lying motionless on the ground, defendant kicked the victim three times, twice to the back and once to the head. Following the third kick, defendant and Frasca got into their vehicle and left. She testified that the entire incident was over in seconds.

Janet Berens' husband, Leon Berens, also testified at trial. He testified that he was watching television at the time of the incident. His wife told him that a boy was being badly beaten outside. Leon Berens testified that he ran out of his house and yelled at the boys. When he yelled, defendant and Frasca got into Frasca's vehicle and left. Leon Berens approached the ...


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