Appeal from Circuit Court of McLean County-No. 99CF184 Honorable Donald D. Bernardi, Judge Presiding.
The opinion of the court was delivered by: Justice Myerscough
In February 1999, the State charged defendant, Larry Fonneill Billups, with two counts of aggravated battery (720 ILCS 5/12-4(b)(8) (West 1998)) and one count of domestic battery (720 ILCS 5/12-3.2(a)(2) (West 1998)). A jury convicted defendant of one count of aggravated battery but acquitted him of the other charges. In September 1999, defendant filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied defendant's motion and sentenced him to a five-year prison term.
Defendant appeals, arguing that (1) the State failed to prove beyond a reasonable doubt that defendant committed aggravated battery, (2) defense counsel rendered ineffective assistance, and (3) the prosecutor made improper comments during closing arguments, which denied defendant a fair trial. We affirm.
In February 1999, the State charged defendant, Larry Fonneill Billups, with two counts of aggravated battery (720 ILCS 5/12-4(b)(8)(West 1998)) and one count of domestic battery (720 ILCS 5/12-3.2(a)(2)(West 1998)). The following evidence was presented to the jury.
In early 1999, defendant had separated from his wife, Tameka Billups. In February 1999, Tameka observed defendant and his girlfriend, Wanda Brooks, driving in defendant's car. Tameka and her cousin pursued defendant's car, honking at defendant and Wanda for approximately 10 minutes. Later that afternoon, Tameka and her sister, Brandi Thornton, met defendant as he was waiting in his car outside Wanda's residence to drive Wanda to work. Tameka and Brandi began arguing with defendant about his relationship with Wanda. According to Wanda, when she came out from her residence, Tameka, Brandi, and defendant were arguing and Brandi was brandishing an ice scraper. Brandi, however, testified that she never had an ice scraper at Wanda's residence. Tameka also testified that she did not remember Brandi's having the ice scraper at Wanda's residence.
Thereafter, defendant drove Wanda to her job; Tameka and Brandi followed. In the parking lot at Wanda's job, Tameka approached defendant on the driver's side of his car, and Brandi approached Wanda, who was sitting in the passenger's seat. Tameka opened defendant's car door and began to argue with defendant. Defendant attempted to close his door, but Tameka held the door, preventing defendant from doing so. Defendant began to push and pull the car door, attempting to break Tameka's grip from the car door. According to Tameka's testimony, Tameka then slapped defendant's face. Defendant responded by slapping Tameka across the face.
Brandi, who had engaged Wanda in a verbal confrontation on the other side of the car, saw defendant slap Tameka. In response, Brandi then walked around to the driver's side of the car. The testimony regarding the next events is in conflict.
Brandi testified that, after she saw defendant slap Tameka, Brandi went to the car that she was driving and retrieved an ice scraper. Brandi then approached defendant and hit him in the neck and back with the ice scraper.
Wanda testified, however, that Brandi already had the scraper in hand at the time that defendant slapped Tameka. Wanda claimed that as soon as defendant slapped Tameka, Brandi hit defendant behind his left ear. Wanda never testified that Brandi retrieved the ice scraper from the car before approaching defendant.
Tameka testified that, after Brandi supposedly struck defendant with the ice scraper, defendant slapped Brandi across the face, causing Brandi to fall to the ground. Wanda then went into her workplace, and defendant left in his car.
The State called Gary Parrish as an eyewitness to the event. Parrish testified that he pulled into the gas station adjoining Wanda's workplace and noticed two cars parked in tandem. Parrish noticed two women talking to the driver of one of the cars. Parrish then saw the driver's side car door burst open and defendant jump out of the car, and the two young women began backpedaling away from defendant. Defendant shoved Tameka, causing her to fall off the curb onto the ground. Defendant went after Brandi as she attempted to retreat. As defendant pursued Brandi, he "just hauled off and punched her with a closed fist right in the face." Defendant hit Brandi so hard that "the first thing that hit the ground was the back of her shoulders." Defendant returned to his car and drove away. Parrish immediately pulled up to the scene and offered assistance. Parrish saw Brandi get up from the ground yet never saw an ice scraper or other such object in her hand or lying on the ground around her. In fact, Parrish never observed anything in Brandi's hand during the incident.
Brandi immediately telephoned the police, and Wanda went into work. After the police arrived, Tameka and Brandi each gave the police a written statement, describing the incident. Although she spoke with the officers, Wanda refused to give a written statement. Neither Tameka nor Brandi mentioned an ice scraper in their accounts to the officer. In fact, until opening arguments at trial, no one had ever mentioned the presence or use of an ice scraper.
At trial, although the State had called Tameka and Brandi as witnesses for the prosecution, the State was forced to impeach its own witnesses with evidence of their prior inconsistent written statements to police after Tameka and Brandi testified as to new facts that aligned with defendant's self-defense theory. In response, the State produced Tameka's and Brandi's written police reports as prior inconsistent statements, highlighting the conspicuous absence of any reference to an ice scraper.
Defendant claimed self-defense as to both Tameka and Brandi. A jury convicted defendant of aggravated battery against Brandi but acquitted him of the other charges regarding Tameka. In September 1999, defendant filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied ...