Appeal from the Circuit Court of Cook County. No. 96 CR 9614 The Honorable Marcus R. Salone, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cohen
Defendant Bernard Burnette was charged by indictment with multiple counts of first degree murder, home invasion, armed violence and residential burglary. After a bench trial, Burnette was convicted of one count of involuntary manslaughter (720 ILCS 5/9-3 (West 1998)) and one count of home invasion (720 ILCS 5/12-11(1) (West 1996) (now 720 ILCS 5/12-11(3) (West 2000)) and was sentenced to concurrent prison terms of 5 and 20 years, respectively. On appeal, Burnette challenges both the sufficiency of the evidence supporting his convictions as well as the basis of his sentence. We affirm in part and vacate in part.
Burnette testified that he lived in an apartment at 2414 Monticello in Chicago. The apartment was burglarized twice, on February 13 and March 18, 1996. Property taken in the burglaries included a television, a stereo system and articles of clothing. Shortly after the first burglary, while awaiting the repair of his front door, Burnette purchased a .38-caliber handgun and ammunition on the street for $50, "to use as protection." Burnette testified that on March 19, 1996, he had a telephone conversation with ex-girlfriend Latrice Grant, during which Grant confessed to him that she had burglarized his apartment. She also told him that he could retrieve his property the following weekend at her apartment at 2321 West Dickens, which Burnette knew Grant now shared with Michael Wells. Burnette stated that he had known Wells since 1994.
Burnette testified that on Sunday, March 24, 1996, after first attempting to contact Grant by telephone, Burnette went to her apartment to collect his property. Burnette testified that his gun was in the pocket of the "Starter" jacket he wore to the apartment. Burnette denied that he had intentionally taken the gun to the apartment, stating that since he purchased the gun, he had carried it on a continuing basis for personal protection. Upon arriving at the apartment, Burnette climbed the five steps to the porch and knocked on the back door, which had been his custom while dating Grant. Wells answered the door, allowing Burnette into the kitchen and leaving him there while Wells walked further into the apartment to notify Grant of Burnette's arrival. Wells returned shortly, telling Burnette that Grant was busy and that Burnette should return later. As he made his way out the door, Burnette asked Wells to tell Grant that he would be returning later that evening. As Burnette exited the back door, Wells closed the door on the fingers of Burnette's left hand, causing pain but no injury. When Burnette complained, Wells smirked and said that Burnette "should[n't] have had his hand there anyway." Burnette called Wells a "silly ass," pushed the door back into Wells, and turned to walk away. As he turned, Burnette heard Wells say, "You motherfucker." Wells then followed Burnette out onto the porch and struck him on the back of the neck with his fist.
A fight then ensued on the back porch. Burnette, who is 5 feet 6 inches tall and weighs approximately 140-150 pounds, testified on direct examination:
"Q: This struggle that happened at that point, tell the Judge what happened to the best of your ability?
A: Well we start. By him being bigger [5 feet 10 inches, 198 pounds] than I was, I went to hit him and he hit me. I figured if I can go down and grab him by the leg and try to scoop him and flip him, but he was too heavy for me and somehow he, then I went down and he grabs me in a headlock.
A: Yeah, and choke hold, whatever you want to call it.
A: And then we was tussling right there and I am still trying to flip him and somehow we wind up into the kitchen. I don't know because I got my head down."
Wells and Burnette crashed into the cabinets and appliances opposite the kitchen door, with Wells threatening to kill Burnette and Burnette demanding to be released. During their struggle in the kitchen, Burnette's gun fell from his pocket to the kitchen floor, spinning to rest approximately three feet from the back door.
Burnette then grabbed Wells' testicles, causing Wells to release Burnette from the headlock. Wells then dove for the gun. Just as Wells grasped the gun, Burnette kicked Wells' arm, causing the gun to fall to the floor a second time. Both men then went to their knees and took hold of opposite ends of the gun. Defense counsel asked Burnette:
"Q: [W]hy did you go for the gun as [Wells] was going for it the second time?
A: I was afraid he might shoot me with it. He was talking about he was going to 'kill me, nigger.' 'I will kill your ass.' And I didn't want him shooting me with the gun."
Burnette testified: "[Wells] grabbed the barrel of the gun and I grabbed the other end of the gun while, you know, I was down on my knees. And he, and when [Wells] was coming [to his feet] the gun went off."
Burnette retrieved the gun and ran from the apartment through the kitchen door. As he ran down the porch steps, he encountered a woman and her daughter, who both started screaming when they saw the gun. Burnette hastily discarded the gun on a set of stairs leading to the building's basement and ran through an adjoining alley.
Burnette denied that he had intended to shoot Wells, that Wells had ever tried to bar him from entering the apartment or that he had forced his way into the apartment.
The State's occurrence witnesses, convicted felons Latrice Grant and Dion Nickles, testified that they were present in Wells' apartment on the day of the shooting but offered conflicting accounts of the surrounding events. Grant testified that at 10 p.m. on the night before the shooting, she and Nickles arrived at Wells' apartment with their baby. Grant testified that she saw Burnette sitting in a car outside Wells' apartment when she and Nickles arrived that night, but Burnette denied being present at that time.
Nickles and Grant both testified that at 1:30 p.m. the next day, they were in bed with the baby in the bedroom of Wells' apartment. Grant was asleep but awoke to the sound of banging on the back (kitchen) door and the sound of an angry male voice asking, "Where's my shit?" They then heard Wells reply that he did not know what the man was talking about. Grant testified that she recognized the angry male voice as Burnette's; however, the parties stipulated that Grant had not identified Burnette to investigating officers as the speaker.
Nickles testified that he then exited from the bedroom doorway, stepped two to three feet into the hall and, from a distance of approximately 20 feet, saw Wells standing with his hands against the back door attempting to hold it closed against someone pushing in from the outside. *fn1 Nickles further testified that he heard a gunshot while standing in the hallway, at which point he returned to the bedroom, locked the door behind him and informed Grant that someone was forcing his or her way into the apartment.
Nickles testified that after he returned to the bedroom, he heard people walking around the apartment and the same voice asking, "Where is my shit?" The bedroom doorknob was rattled and a female voice said, "It's locked." The bedroom door was then kicked in and Nickles saw Burnette standing at the door and holding a black steel .38-caliber revolver. A black female with a 9-mm handgun and a black male with a low-caliber semi-automatic handgun were standing behind and on either side of Burnette.
Grant also testified that a few seconds after she heard the shot, the bedroom door was kicked in. Burnette and two others, a man and a woman, stood at the doorway holding handguns. Burnette asked Grant "where his shit was," looked at them, shook his head and left.
Grant denied either having a previous conversation with Burnette about his missing property or knowing what Burnette was talking about when he asked "where his shit was." Nickles and Grant both testified that they had informed police about seeing three people holding guns when the bedroom door was opened; however, the parties stipulated that Grant had not told the police about seeing anyone with Burnette when the door was kicked open.
Nickles and Grant both testified that they waited in the bedroom for three to four minutes after Burnette left before phoning for assistance for Wells, whom they could hear moaning from the kitchen. Grant testified that when they reached the kitchen, the oven door was broken and hanging by a single hinge, and that it had been undamaged the previous evening. Paramedics arrived at 1:31 p.m. and transported Wells to Illinois Masonic Hospital, where he was pronounced dead at 2:10 p.m.
The medical examiner, Dr. Chira, determined on post-mortem examination that Wells bled to death as a result of the gunshot wound. The bullet struck Wells on the front of his left thigh, five or six inches from the groin, severed the left common iliac artery, traveled on a slight upward angle through Wells' left leg and pelvis, and exited Wells' right leg just below the hip. Dr. Chira testified that there was no stippling, or powder burn, at the site of the entrance wound, indicating that the gun had been at least 18 inches away from Wells' leg when the shot was fired. Dr. Chira further testified that the path of the bullet was consistent with Wells standing with his hands against the door and someone reaching around the door with a gun and firing blind at Wells; however, Dr. Chira stated, such a scenario was not consistent with the absence of stippling on Wells' body. According to Dr. Chira, unless Wells had been wearing many layers of clothing -- which he had not, because the police recovered Wells' blood-soaked underwear and walking shorts from the kitchen -- stippling would have been present on the body if the shot had been fired from fewer than 18 inches. The record reflects that no gunshot residue test was performed post-mortem on Wells' hands.
Upon observing Burnette's automobile near the intersection of Courtland and Pulaski, police arrested Burnette and took him to Area 5 headquarters, where he was identified by Nickles, who was at the time being interviewed by a detective in an open office area.
Former Assistant State's Attorney Nicholas Arvanitis testified that he and Detective Richard Curley met with Burnette at Area 5 around 8:15 p.m. on the day of the shooting. At that meeting, Burnette gave an oral statement in which he told Arvanitis about the burglaries, related his suspicions regarding Wells and Grant, described purchasing the gun and explained ...