Appeal from the Circuit Cour of the 9th Judicial Circuit, McDonough County, Illinois No. 96--CF--84 Honorable William D. Henderson, Judge Presiding
The opinion of the court was delivered by: Justice Lytton
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Following a jury trial, defendant Kendall Moore was convicted of second degree murder, armed violence, aggravated battery and mob action (720 ILCS 5/9--2(a)(2), 33A--2, 12--4(a), 25--1(a) (West 1996)). He was sentenced to concurrent prison terms of six years for second degree murder, three for armed violence, two for aggravated battery and one for mob action. Defendant appeals, claiming that (1) the trial Judge erred in sustaining the State's objection to extrinsic evidence offered by defendant to impeach a State's witness; (2) his convictions of armed violence and/or aggravated battery must be vacated; and (3) the State failed to prove beyond a reasonable doubt that he did not act (a) in self defense, or (b) recklessly. We affirm in part and vacate in part.
Damenion Burnett died as a result of blunt trauma to the head. Charges of first degree murder, armed violence, aggravated battery and mob action were brought against defendant and Darrell Mitchell, who were tried jointly. Testimony at trial centered around two fights in Macomb, Illinois, on the night of June 14 and early morning hours of June 15, 1996.
The State's evidence established that defendant, Mitchell, Steve Tinch and several college friends were having drinks at the Regulator Bar around midnight, June 14. Defendant and his companions belonged to a social fraternity known as the Omega Psi Phi fraternity (Q-dogs), which was affiliated with the Zeta Phi Beta sorority (Zetas). Members of both groups were in the bar, as well as other non-affiliated friends from the neighborhood. Eileen Tarjan and her boyfriend, Damenion Burnett, were not Zetas or Q-dogs but socialized with them. As the bar was closing, a Zeta accused Tarjan of burning her with a cigarette. The confrontation between the two women erupted into a fight which spilled out into the street. Defendant and Mitchell entered the melee, along with Burnett and his friends, Mike Hawkins and Delrico Nelson. The fight ended abruptly and the crowd dispersed when Hawkins fired two shots into the air from a nine-millimeter semi-automatic gun.
Hawkins' gun was handed to Nelson as they drove away from the bar. Nelson next met Burnett at the apartment in Villa Westbrook where Tarjan and Burnett stayed. Defendant, Mitchell and Tinch went to Mitchell's apartment in Villa Westbrook, one floor above Tarjan's. Defendant took a baseball bat into Tarjan's apartment and banged it on a stereo speaker. He was asked to leave, and he did.
Burnett and Nelson started to fight with Tinch. Nelson retreated, and the confrontation between Tinch and Burnett moved outside, where Mitchell and defendant joined in. Tarjan testified that she saw defendant and another man fighting with Burnett. She said that Burnett was unarmed and was trying to stand while the two men beat him. She could not see if a weapon was used in the fight, but she saw Nelson fire a couple of shots into the air and the grass before she left the scene with a friend. On cross-examination, Tarjan admitted that she had lied to the police when she told them she neither saw nor heard any shooting outside her apartment.
Nelson testified that he stood outside the apartment building and watched the fight. He said defendant went to his truck and returned with a bat to fight with Tinch and Mitchell against Burnett. He saw defendant club Burnett in the head. After Burnett fell, defendant struck again while Mitchell kicked and stomped on Burnett. Nelson yelled, "Stop!" and fired two shots into the ground and another into the air. Other witnesses heard between four and eight shots. Nelson said the fight was still in progress when he heard police sirens. He dropped the gun and ran from the scene.
Forensic testimony established that six nine-millimeter casings and two bullets were recovered from the ground immediately outside Tarjan's apartment, two bullets were recovered from buildings across the street, and two casings were found outside the Regulator. All of the bullets and casings were fired from the same nine-millimeter semi-automatic gun.
Burnett was declared brain dead on June 17, 1996. In addition to a fractured skull, both sides of his jaw were broken and his liver was lacerated. There was no evidence that he had been shot.In the defense case, Mitchell testified that he and Tinch used Burnett's body to shield themselves from Nelson's fire. Both defendant and Mitchell testified that defendant joined the fight after Nelson fired the gun. Defendant admitted he clubbed Burnett several times with the bat, but testified that he believed Burnett had a gun. At some point during the beating, the bat broke. Defendant and Mitchell fled the scene, and defendant deposited the head of the bat in a nearby dumpster. The police later recovered the handle portion of the bat from the ground next to Burnett's body.
Jesse Johnson, also testifying for the defense, stated that he followed defendant and Mitchell from the Regulator to Villa Westbrook. He said he was talking with friends when he heard shots. He and his friends walked to Tarjan's apartment and saw a crowd of people in the street, including Tarjan, who was crying. Johnson asked her if she had seen what happened and who did it. Tarjan said that her boyfriend got into a fight, but she denied knowing what had happened.
Counsel then asked if Johnson had talked with Tarjan later on June 15. Johnson stated he had a conversation with her around 1 p.m. outside his apartment. The prosecutor objected, arguing that defense counsel had failed to lay a proper foundation for impeachment of Tarjan by a prior inconsistent statement. Defense counsel stated that he believed Johnson would testify that Tarjan told him during the second conversation that ...