Appeal from the Circuit Court of Cook County. 06 CR 11309 The Honorable James M. Schreier, Judge Presiding.
The opinion of the court was delivered by: Justice Pucinski
JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
Presiding Justice Gallagher and Justice Lavin concurred in the judgment and opinion.
Following a jury trial, defendant, Antonio Perry, was convicted of first degree murder and sentenced to 22 years in prison. In this appeal, defendant asserts the trial court committed reversible error in the following: (1) refusing to instruct the jury on the lesser-included offense of involuntary manslaughter; (2) refusing to give the second paragraph of Illinois Pattern Jury Instructions, Criminal, No. 5.01B (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 5.01B) on the definition of knowledge; (3) failing to question the venire in accordance with People v. Zehr, 103 Ill. 2d 472, 469 N.E.2d 1064 (1984); (4) allowing the introduction of more than one prior inconsistent statement for several witnesses who recanted their prior statements at trial; and (5) allowing credit for time served only from the date he was imprisoned in Illinois, and not from the date of his arrest and incarceration in Minnesota.
We determine that: (1) defendant was not entitled to a jury instruction for involuntary manslaughter where the evidence showed the intent to kill or do great bodily harm, or knowledge that the acts committed create a strong probability of such result, and not merely reckless conduct which is likely to cause death or great bodily harm; (2) there was no reversible error in the trial court's refusal to instruct the jury based on IPI Criminal 4th No. 5.01B where any error would have been harmless under the one-good-count presumption that arises under a general verdict, there was no specific jury request regarding mental states, and the trial court gave the appropriate instructions which correctly stated the law for each method of murder; (3) defendant forfeited review of his claim that the trial court did not comply with People v. Zehr, 103 Ill. 2d 472, 469 N.E.2d 1064 (1984), and Illinois Supreme Court Rule 431(b) (eff. May 1, 2007), and did not establish plain error because, although the court violated Rule 431(b), the evidence was not closely balanced and the violation of Rule 431(b) was not a structural error that affected the fairness of trial; (4) defendant forfeited review of whether the introduction of several prior inconsistent statements of witnesses was error, and there was no plain error because the statements were properly admitted as prior inconsistent statements; and (5) defendant is entitled to credit for time served from the date of his arrest in Minnesota, excluding the date of sentencing. Therefore, we affirm defendant's conviction and sentence, but order that the mittimus be corrected to reflect 819 days served by defendant prior to sentencing.
The following facts were adduced at defendant's jury trial. The State presented the testimony of several eyewitnesses: Andre Edwards; Charles Bills; Sheila Bills; Jasmine Cummings; Jamal Hayes; Harry Hardy; and Deandre Boozer.
Andre Edwards is the victim Dewone McClendon's cousin, and he was with Dewone on June 21, 2005, the date of Dewone's murder. Andre testified that they were at a party at 105th and Indiana for Dewone's birthday. Sometime after 8:30 p.m., they left the party to get chicken at a store and meet some girls. Dewone was carrying a bottle of vodka. Both Andre and Dewone had been drinking. They encountered defendant and a group of eight or nine boys on 104th Street between Michigan and Indiana. The group of boys said "GDK," meaning "Gangster Disciple Killer," which is said by gangs who are rivals of the Gangster Disciples, "all is well" and "BPSN," which means "Black P Stone Nation." Andre and Dewone said that they were not gang bangers, that they were just "trying to chill" because it was Dewone's birthday, and that they were getting ready to walk away. The boys followed them and they all argued. Defendant then punched Dewone in the jaw, and someone else punched Andre. Andre tried to break away, but four or five boys followed him and kicked and hit him after he fell onto the street. He did not see what happened to Dewone. When the boys ran, Andre got up and started walking toward 103rd to the chicken place. En route, he encountered his mother and told her what happened, and she walked over to Dewone.
Andre went to the police station in the early morning hours of June 22, 2005, and returned to the station several times thereafter. On March 20, 2006, Andre identified defendant from a photo array as the person who punched Dewone. On April 20, 2006, Andre also identified defendant in a lineup as the person who punched Dewone.
Charles Bills and Sheila Bills were sitting on their porch at 10356 South Indiana the evening of June 21, 2005, with their upstairs neighbor Joyce Sutter and their friend Jasmine Cummings. Charles Bills testified that just after 8:30 p.m., he saw a bigger group of boys chasing a small group of boys down the street. The big group of boys caught one of the boys from the small group in front of Charles's house. A boy from the big group punched a boy from the small group in the head, and he fell to the street and did not move. The big group of boys began kicking and stomping the boy on the ground on his head and torso. Someone from the big group threw a bottle at the boy on the ground. Charles called to his son to call the police. When the sirens were heard, the big group of boys ran while the boy on the ground remained motionless.
Sheila Bills testified that she observed a group of young men who were arguing stop in front of her house. One boy from the group removed his shirt, grabbed the boy who died and hit him with his fist. The boy fell to the ground, and when he tried to run, he was hit again. The boy again fell and this time did not move. A couple of the boys, including the one who punched him, were stomping on the boy on the ground with their feet. The boy on the ground was not moving. The big group of boys continued to stomp on the boy who died until they could hear the sirens. Then the boys in the big group ran. There was another boy also on the ground who broke free and ran. Some boys attempted to pursue him. That boy brought his mother to the boy who was on the ground.
Jasmine Cummings testified that she and her 11-year-old daughter were visiting Charles and Sheila Bills at 10356 South Indiana, sitting on their porch. She saw two boys being followed by a group of eight to nine boys. Two boys, one from each group, were arguing. One boy took his shirt off and punched one of the two boys, who fell to the ground. The boy tried to get up but was pulled back down. The big group of boys, including the boy who threw the punch, moved in on the boy on the ground and started to kick him all over. The major focus of the kicking, however, was the boy's head. The boy on the ground was not moving or fighting back. The other boy from the group of two ran. Some of the boys from the big group at first started to chase him but then returned and continued kicking the boy on the ground. Someone from the group picked up a bottle and cracked it over the boy's head, using the bottle like a club. Jasmine and the Bills yelled at the boys to stop but could not intervene because there were too many boys. The boys continued kicking the boy on the ground until they heard the sirens.
Jamal Hayes testified that he was in his car near 104th and Indiana listening to music. He observed a group of people in front of Joyce Sutter's house at 10356 South Indiana arguing, including Dewone and Dewone's cousin. Hayes did not know the person arguing with Dewone. Hayes testified there was a large fight and that he saw Dewone fall to the ground but did not know what happened to cause Dewone to fall, but Dewone did not move again. After Dewone fell to the ground, several people were kicking and punching Dewone but Hayes could not see who they were. Someone also hit Dewone with a bottle. It could have been the same person who hit Dewone. Hayes exited his car and ran to the corner, shouting, "Enough." Just then, he heard sirens and the boys ran. The police and Dewone's aunt arrived on the scene. Dewone's condition was very bad. Hayes asked someone to turn Dewone over because he was afraid Dewone was choking on his own blood. Hayes later met with the police and a prosecutor and gave a signed statement, and he also testified before the grand jury that one person punched Dewone in the face, kicked and punched Dewone on the ground, and hit him with the bottle.
Harry Hardy testified that he was at 104th and Indiana playing basketball when he saw Dewone and another person walking down Indiana. He testified that he did not see or remember much of the incident. Dewone encountered defendant and was yelling something but Hardy did not know what he was saying. Hardy saw defendant punch Dewone, did not see anyone else hit him, and did not see the fight. Hardy testified he did not see anything happen to Dewone. Hardy admitted he gave a signed, written statement to police and a prosecutor, but denied the making the statements contained therein. Assistant State's Attorney Kim Ward testified that she spoke with Hardy and took his statement at the police station. She wrote a summary of his account, and when she finished, Hardy reviewed it, made some changes, and signed it. Ward then published portions of the statement to the jury.
According to Hardy's statement, Dewone told defendant he was going to turn his back on defendant and put his bottle down. Defendant then took his shirt off and punched Dewone in the face. Dewone did not put his hands up and did not threaten defendant. Dewone fell after defendant hit him and defendant kicked him. No one else hit Dewone. Dewone did not fight back and was not moving. Defendant picked up the bottle. Hardy claimed the statement was written outside his presence and, while he was allowed to make some changes, he was not allowed to "do everything he wanted" with the statement. Hardy also denied making these same statements under oath before the grand jury. However, Assistant State's Attorney Thomas Simpson testified that on November 8, 2005, he met with and presented Harry Hardy as a witness before the grand jury. Hardy was with his father. Hardy answered questions under oath about the incident. Hardy acknowledged that the statement he gave to Assistant State's Attorney Ward was true. It was stipulated that the court reporter from the grand jury proceedings would testify that Hardy gave those answers to questions before the grand jury.
Defendant and the State stipulated that if Early Key, an investigator, were called to testify, he would state that he was present when defense attorneys interviewed Hardy on January 24, 2008, and that Hardy told the attorneys that he heard Dewone and Andre arguing with the other group and that Dewone yelled, "BPSK"and "Y'all some bitch ass niggers" during the argument.
DeAndre Boozer testified that he was playing basketball near 104th and Indiana when defendant and a group of ten or more boys asked to play. Boozer told them they would have to wait until he finished his game. Boozer continued playing basketball and saw Dewone and his cousin Andre walking. The same group of boys began arguing with Dewone on the corner down the street. Boozer heard "GDK" and "BPSK." He also heard Dewone say that it was his birthday and that he would turn his back on them and tried turning around from the group. Boozer then saw the group of boys rush in and fight. Boozer could not tell if someone grabbed Dewone and punched him, but he knew that Dewone had been hit because Dewone was on the ground. Boozer did not see Dewone threaten or swing at anyone. While Dewone was on the ground, the group was still punching and kicking Dewone. Dewone was still moving at that time. Defendant was one of the people who punched Dewone. Boozer saw the bottle of liquor Dewone had been holding fly into the air. Dewone's cousin ran. Boozer walked toward the fight but the fight stopped. Boozer testified he could not see all of the fight because people who were out on the street also gathered around the fight.
On November 1, 2005, Boozer identified defendant from a photo array at the police station. He gave a written statement and identified photographs, all of which he signed. Boozer identified a photo of defendant as the person who asked to play basketball with him and then yelled "GDK" and argued with Dewone. In his statement, Boozer said that Dewone said he was going to turn his back on the group and he and his cousin turned and started to walk away but defendant caught up to them. Defendant took his shirt off. Dewone tried to run but defendant grabbed him and punched him in the face. Dewone's head jerked back and Dewone hit the concrete. Dewone had not swung at or threatened defendant or anyone in his group. While Dewone was on the ground, defendant punched Dewone, stomped on Dewone's face, and then took the bottle Dewone had been holding and hit Dewone twice in the head with it, causing it to break. The fight ended when they heard the sirens. Boozer also testified to these facts before the grand jury and testified that he identified defendant in a lineup as the person who hit Dewone in the face.
However, at trial Boozer denied telling police that defendant hit Dewone. He testified that when he made the statement, he had been taken to the police station by two detectives who told him that someone placed him at the scene. He was afraid and thought he would get into trouble. He felt he had to provide certain answers to the prosecutor, and based on his conversation with the detectives he knew the answers the prosecutor was seeking. Therefore, Boozer told the prosecutor things he did not actually see that he "got from everyone else's story," such as defendant punching Dewone before Dewone went down. He also testified that he lied to the grand jury because he thought that was what they wanted to hear. The same two detectives escorted him to the grand jury and he was scared. Boozer testified that his grand jury testimony was not wholly truthful because he did not actually see certain events.
Chicago police detective Brian Forberg was assigned to investigate the beating of Dewone around 9:30 p.m. the evening of June 21, 2005. At first, Detective Forberg proceeded to Christ Hospital, where Dewone was transported by the ambulance. However, on the way to the hospital Forberg learned that Dewone had died from his injuries. Detective Forberg then went to the scene of the incident, 10356 Indiana, to investigate. Forberg testified that he interviewed Charles and Sheila Bills, Joyce Sutter, and Andre Edwards. Forberg began looking for defendant but was unable to locate him. On November 2, 2005, Officer Forberg obtained an arrest warrant for defendant. On December 28, 2005, Forberg learned that defendant was in custody in St. Paul, Minnesota. Defendant was arrested on the warrant and Forberg brought defendant back to Chicago in April and conducted lineups. Edwards and Boozer both identified defendant.
Chicago police officer John Kaput, a forensic investigator, was assigned to the homicide investigation. Kaput spoke to police officers, photographed and videotaped the scene and marked evidence to be taken for processing. Kaput identified the bottle recovered from the scene, which was in two pieces. Sheila Daugherty of the Illinois State Police, a forensic specialist in latent fingerprints, testified that she examined the bottle for latent fingerprints but did not find any that were suitable for comparison. The prints could have been wiped off or washed off by any liquid.
Dr. Kendall Crowns was the deputy Cook County medical examiner who performed the autopsy on Dewone on June 22, 2005. He testified that his external examination revealed a broken nose and numerous abrasions and bruises to the left side of his face, an abrasion to the left ear and earlobe, bruising on the inner surface of his upper and lower lips, bruising and swelling on the right side of his head by his ear and an abrasion by his eye. Dr. Crowns testified that these injuries were consistent with blunt force trauma caused by an object without a sharp edge, such as a fist, foot, or smooth bottle. There were also two bruises on the back of Dewone's left arm, which were consistent with blunt force trauma or being grabbed.
Dr. Crown's internal examination revealed that Dewone suffered a subgaleal hemorrhage in the mid parietal region of his brain, the cause of which would be a blunt force trauma. Dewone also had a diffuse subarachnoid hemorrhage all over his brain, which was a little more prominent at the back and base of the brain. Such a hemorrhage irritates the brain and results in swelling, which then compromises the brain stem and in turn compromises a person's respiratory and heart rate, resulting in death. Someone with a subarachnoid hemorrhage would lose consciousness and die within a matter of minutes. One would have to receive a very hard blow to the head to result in a subarachnoid hemorrhage, an extremely hard hit which jolts the head like that in a boxing match. In total, there were 17 individual injuries, all by blunt force trauma in the form of "very, very hard blow or very hard strikes to the head." Dewone could have suffered more strikes and blows which did not leave any marks. Dr. Crown did not observe any defensive wounds on Dewone, when an individual is trying to block whatever is hitting him, usually along the forearms and the back of the hands. Dewone's blood alcohol level was 0.23. The legal limit for intoxication is 0.08. Dewone's intoxication level would have made him less coordinated. Dr. Crown concluded that Dewone's injuries were consistent with being kicked, stomped, and punched about the head. The cause of death was ruled cerebral injuries due to an assault, and the manner of death was homicide.
An arrest warrant for defendant for first degree murder was issued on November 2, 2005. On May 16, 2006, defendant was indicted for two counts of first degree murder and one count of aggravated battery. At trial, the court gave the jury definitional and issues instructions for first degree murder. The court also gave the first paragraph of IPI Criminal 4th No. 5.01B, defining knowledge, but refused defendant's request to also give the second paragraph. The trial court also refused defendant's request to give the jury an instruction for involuntary manslaughter. The court found that the facts adduced at trial did not support giving the instruction. At 4:47 p.m., the jurors sent a note with the following question to the trial court: "Can we consider another charge like 2nd degree murder?" The court sent the written response, "No."
The jury convicted defendant of first degree murder under a general verdict. Defendant's motions for a new trial were denied. The trial court sentenced defendant to 22 years in prison and gave 706 days credit. Defendant requested credit from the date of his arrest in Minnesota, but the trial court found that the statute calls for credit only for days in custody when he returned to Illinois.
Defendant argues that the trial court erred in the following: (1) refusing to instruct the jury on the lesser-included offense of involuntary manslaughter; (2) refusing to give the second paragraph of IPI Criminal 4th No. 5.01B on the definition of knowledge; (3) failing to question the venire in accordance with Zehr and Supreme Court Rule 431(b); (4) allowing the introduction of more than one prior inconsistent statement for several witnesses who recanted their prior statements at trial; and (5) allowing credit for time served only from the date he was imprisoned in Illinois, and not from the date of his arrest and incarceration in Minnesota. We address each argument in turn.
I. Instruction on Lesser-Included Offense of Involuntary Manslaughter
We begin with defendant's contention that the trial court committed reversible error when it refused to instruct the jury on the lesser-included offense of involuntary manslaughter. Defendant argues that the evidence presented at trial supported an inference that he only recklessly caused Dewone McClendon's death.
Initially, defendant and the State disagree as to our standard of review. The State maintains that the giving of jury instructions is reviewed for an abuse of discretion, citing to People v. Jones, 219 Ill. 2d 1 (2006), and People v. Castillo, 188 Ill. 2d 536 (1999). Defendant maintains that whether the evidence warranted an instruction on a lesser offense is a question of law and is reviewed de novo, citing People v. Everette, 141 Ill. 2d 147 (1990). However, Everette addressed a self-defense instruction, not an instruction on a lesser-included offense, and does not espouse a de novo standard of review. The appropriate standard of review in determining whether a trial court's decision whether to give an instruction on a lesser-included offense is abuse of discretion. People v. Cardamone, 381 Ill. App. 3d 462, 507-08 (2008) (citing People v. Garcia, 188 Ill. 2d 265, 283 (1999)).
A "lesser-included offense" is an offense proven by lesser facts or a lesser mental state, or both, than the charged offense. People v. Davis, 213 Ill. 2d 459, 477 (2004). "Simply identifying the existence of a lesser-included offense does not necessarily create an automatic right to an instruction on that offense." People v. Greer, 336 Ill. App. 3d 965, 978 (2003) (citing People v. Novak, 163 Ill. 2d 93, 108 (1994)). Whether an instruction on a lesser-included offense is warranted depends on the facts and circumstances of each case. People v. Grimes, 386 Ill. App. 3d 448, 451 (2008). An instruction on the lesser-included offense of involuntary manslaughter is justified when there is some credible evidence to support the giving of the instruction. People v. DiVincenzo, 183 Ill. 2d 239, 249 (1998). However, "[a]n instruction on a lesser-included offense is not required where the evidence rationally precludes such an instruction. [Citations.]" Greer, 336 Ill. App. 3d at 976. A manslaughter instruction should not be given where the evidence shows that the homicide was murder, not manslaughter. People v. Sipp, 378 Ill. App. 3d 157, 163 (2008).
Here, the evidence supported instructions for first degree murder, not involuntary manslaughter. A defendant commits first degree murder when he kills an individual without lawful justification and, when he performed the acts which resulted in the death, he intended to kill or do great bodily harm to the person, or he knows that such acts create a strong probability of death or great bodily harm to that individual or another. 720 ILCS 5/9-1(a)(1), (a)(2) (West 2004). A defendant commits involuntary manslaughter when he unintentionally kills by performing acts that are likely to cause death or great bodily harm to another and he performs those acts recklessly. 720 ILCS 5/9-3(a) (West 2004). A person acts recklessly when he "consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow *** and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." 720 ILCS 5/4-6 (West 2004). Murder and the included offense of involuntary manslaughter are thus distinguished only in terms of the mental state required; murder requires the intent to kill or do great bodily harm, or knowledge that the acts committed create a strong probability of such result, while involuntary manslaughter requires only reckless conduct which is likely to cause death or great bodily harm. People v. Basden, 264 Ill. App. 3d 530, 542 (1994), appeal denied, 158 Ill. 2d 554 (1994).
Although not dispositive, certain factors may suggest whether a defendant acted recklessly and whether an involuntary manslaughter instruction is appropriate. These include: (1) the disparity in size and strength between the defendant and the victim; (2) the brutality and duration of the beating, and the severity of the victim's injuries; and (3) whether a defendant used his bare fists or a weapon, such as a gun or a knife. In addition, an involuntary manslaughter instruction is generally not warranted where the nature of the killing, shown by either multiple wounds or the victim's defenselessness, shows that defendant did not act recklessly. DiVincenzo, 183 Ill. 2d at 250-51.
During the discussion of the involuntary manslaughter instruction at the jury instruction conference, the trial court discussed the factors outlined in DiVincenzo and concluded that the facts of this case simply did not warrant an involuntary manslaughter instruction:
"In this case we have a defenseless victim by all accounts. We have, through principles of accountability, if not a direct eyewitness attribution of the bottle and the striking of the victim with the bottle, a weapon used by the defendant, either by direct eyewitness testimony or under principles of accountability.
We have, most importantly, a gang of eight or nine gang members, one of whom is the defendant, who surround and aggressively attack the victim. The disparity between the sides is not even close.
We also have not some mutual fight or combat, but the victim turning his back and making no gesture whatsoever to engage or -- in a fight, or to possibly bring about a mutual combat situation as opposed to DiVincenzo where the victim clenched his right fist and indicated in a posture-type situation that he was ready to fight.
You have multiple wounds lasting more than a moment or two, as opposed to DiVincenzo. And in DiVincenzo, in the light most favorable to the defense, you have no weapons involved, a very short duration, two men of equal size, an argument of swearing back and forth between the victim and the defendant for sometime -- I think they might have even mentioned for about five minutes, and you have, according to the defendant's testimony, again, could a reasonable jury find that the defendant, DiVincenzo, said he punched the victim once and knee'd him in the side.
Really, a factual situation, which is not really close at all to this situation, which involves 17 separate abrasions or fractures -- fracture to the nose area, 5 to 11 *** [p]oints of blunt trauma."
We concur with the court's reasoning. The facts of the instant case are unlike the facts in DiVincenzo, People v. Taylor, 212 Ill. App. 3d 351 (1991), and People v. Tainter, 304 Ill. App. 3d 847 (1999), cited by defendant. In DiVincenzo, the defendant and the victim fought one-onone and were of the same general size and strength, there were only two blows, no weapon was used, the fight was over in a matter of seconds, and the resulting injury was a rare phenomenon.
DiVincenzo, 183 Ill. 2d at 251. In Taylor, both the defendant and the victim were intoxicated, the defendant punched the victim one time, causing him to fall to the ground, then hit and slapped him to attempt to revive him, picked him up to place him in his car but dropped him again and his head hit the concrete. Taylor, 212 Ill. App. 3d at 356. Thus, there was no evidence of intent to kill or cause great bodily harm. In Tainter, the defendant alone punched and kicked the victim, causing bruises and a broken jaw that did not appear immediately life-threatening, there was testimony that the beating was the result of a jealous rage, the parties had both been drinking, and the victim had an unusual cause of death. Tainter, 304 Ill. App. 3d at 850-51.
In great contrast in this case, defendant was not drunk or acting alone, nor did he merely deliver several blows which did not appear life-threatening, and Dewone's death was not a rare phenomenon. Rather, defendant attacked Dewone with a gang of eight or nine boys, severely beat Dewone for five minutes, punching and stomping on his head, even after he lay motionless on the ground, completely defenseless. Defendant began by punching Dewone with no provocation and continued to severely beat him and stomp on his head for some time, also using the liquor bottle as a weapon, while Dewone lay defenseless on the ground.
Defendant argues that he "would not necessarily have known the severity of Dewone's injuries as they were internal" and that defendant thus "had no reason to suspect Dewone's injuries would be fatal." However, this argument is belied by the severity and duration of the beating, with 17 distinct injuries inflicted while defendant beat and stomped on Dewone's head, coupled with the fact that Dewone was lying on the ground motionless.
The evidence adduced at trial showed that by beating Dewone so severely about his head defendant "intend[ed] to kill or do great bodily harm" to Dewone (720 ILCS 5/9-1(a)(1) (West 2004)) or knew that such acts create a strong probability of death or great bodily harm (720 ILCS 5/9-1(b) (West 2004)) and did not merely "consciously disregard a substantial and unjustifiable risk" (720 ILCS 5/4-6 (West ...