People v. Bost, 77-506

CourtUnited States Appellate Court of Illinois
Writing for the CourtHARRISON; JONES, P. J., and KASSERMAN
Citation36 Ill.Dec. 314,80 Ill.App.3d 933,400 N.E.2d 734
Parties, 36 Ill.Dec. 314 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David BOST, Defendant-Appellant.
Docket NumberNo. 77-506,77-506
Decision Date06 February 1980

Page 734

400 N.E.2d 734
80 Ill.App.3d 933, 36 Ill.Dec. 314
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
David BOST, Defendant-Appellant.
No. 77-506.
Appellate Court of Illinois, Fifth District.
Feb. 6, 1980.

[80 Ill.App.3d 937]

Page 738

[36 Ill.Dec. 318] John H. Reid, Deputy Defender, Patricia L. Morris, Asst. State Appellate Defender, Fifth Judicial Dist., Mount Vernon, for defendant-appellant.

Kelly D. Long, State's Atty., Hillsboro, Raymond F. Buckley, Jr., Deputy Director, Gillum Ferguson, Staff Atty., State's Attys. Appellate Service Com'n, Mount Vernon, for plaintiff-appellee.

HARRISON, Justice:

Defendant, David Bost, was charged by indictment with four counts of murder and was found guilty by jury of one count of voluntary manslaughter. He was sentenced to 6 to 18 years imprisonment. On appeal he contends: (1) that the State did not prove beyond a reasonable doubt that his belief that the killing of Robert Lancaster was justified was unreasonable; (2) that the trial court erred in refusing to submit to the jury a non-IPI Instruction; (3) that he was denied a fair and impartial trial due to numerous acts of prosecutorial misconduct; and (4) that the sentence he received was excessive.

The trial of this cause lasted six days. Twenty-eight witnesses testified for the State, while nine gave testimony for the defense. Three other witnesses testified in chambers out of the presence of the jury. The transcript of these trial proceedings exceeds 1000 pages, with the entire record encompassing 14 volumes. Therefore, we recite only those matters necessary for a clear understanding of this case.

A four count information was issued against defendant as a result of the shooting death of Robert Lancaster in Farmersville, Illinois, on December 21, 1976. On December 30, 1976, a four count murder indictment was issued against defendant. From March 7 through March [80 Ill.App.3d 938] 14, 1977, a jury trial was held in Montgomery County circuit court. However, the jury was deadlocked and a mistrial was declared. Pursuant to his motion for a change of venue, defendant was re-tried in the circuit court of Fayette County from May 2 through May 7, 1977.

The evidence showed that the defendant was hired to work at the Virden Crown 2 Mine in Farmersville as a repairman beginning on December 6, 1976. He rented an apartment there while his family remained in Belleville. Defendant had first met the victim, Robert Lancaster, at their physical examination for their new jobs during the last week of November. Other than a few minutes of conversation, they did not see each other again until December 11, 1976.

Defendant encountered Lancaster at the Uptown Tavern in Farmersville on December 11. When defendant pulled some money from his pocket to buy a round of beer for Lancaster and some of his friends, a .38 caliber wadcutter fell from his pocket. A wadcutter, as shown at trial, is a bullet with a flat, rather than protruding, rounded projectile which is used mainly for target shooting. At that time, Lancaster apparently initiated a discussion as to what effect he thought the wadcutter would have when it was fired into a one-gallon milk jug filled with water. Lancaster hypothesized that it would make a clean hole, while defendant opined that it would blow the back of the jug out because of the flat projectile. Finally, a $20 bet was made regarding the dispute, which bet was written down by a woman in the bar, Sue Ellen Morgan, and signed by defendant.

Several discussions followed as to how and when to settle the bet. The following

Page 739

[36 Ill.Dec. 319] night, December 12, Lancaster took defendant to Lancaster's truck where he had two milk jugs. Lancaster told defendant that he had won the bet, because it had taken "his .357 to do what I said the .38 would do." Defendant told Lancaster that since the .38 wadcutter had not been fired, the bet was still not settled. Defendant testified that Lancaster then said "that I would pay him or I would find out what that other bullet would do but it wouldn't be on any jug." They agreed to settle the bet the following morning.

That night while working, defendant injured himself. Therefore, defendant did not meet Lancaster the next morning as planned. According to defendant, when the two next encountered each other at work on Wednesday, December 15, Lancaster walked toward him "like he wanted to say something." However, Lancaster's friend, Ray Stansbury, "told Robert to come on, that that wasn't the time or place," and no further discussion occurred. While the argument subsided for the moment, defendant claims that the next morning, Thursday, December 16, Lancaster threatened him with a hammer.

After work on Thursday, defendant went to Belleville to see his [80 Ill.App.3d 939] family. Defendant testified that on Thursday evening he went to Sir Arthur's Tavern where his wife had worked for approximately three weeks prior to his getting the job in Farmersville. There he spoke about purchasing a gun with a man who referred him to another man from whom he purchased a .22 caliber revolver. Defendant said he purchased it because he had "never once been threatened * * * and when somebody threatens my life I consider it, well, a danger to me." He also testified that he was afraid of Lancaster at the time he bought the gun. Defendant did not know the full name of the man who sold him the gun and that person did not testify at trial.

After working the midnight shift on Tuesday morning, December 21, defendant said he drove to Zalar's Tavern, arriving at approximately 8:45 a. m. He ordered a beer and one shot of brandy. About twenty minutes later, according to defendant, Lancaster and Stansbury came into the bar. Defendant bought them both a beer. Defendant testified that Stansbury left about one-half hour later, but no witnesses ever saw Stansbury at the bar. In fact, Stansbury testified that he did not go to the tavern at all that morning, but arrived only after he learned of the shooting.

About 11:00 a. m. Lancaster went outside and brought in the two milk jugs, claiming to have won the bet. The argument went on for a while, but died down. The argument commenced once more and continued for approximately one-half hour. About this time Lancaster took defendant to the other end of the bar to discuss the bet with Illinois State Trooper Charles E. Traylor, an acquaintance of Lancaster's who was off duty and in the tavern. Traylor was with another off-duty State trooper, Ronald Wilton. Defendant claimed that Traylor was not introduced to him as a police officer, although "it might have been said but I didn't hear it." However, Traylor testified that he was introduced as a State trooper. Nonetheless, Traylor said he could not settle the bet for them.

Defendant further testified that in order to show Lancaster he was not trying to back down, he tried to raise the bet to one hundred dollars. He took out a one hundred dollar bill and slapped it on the bar in front of Lancaster who picked it up and asked Frank Zalar, the owner of the bar, to change it, give him his twenty dollars and return the balance to defendant. Zalar testified that he did not want to have anything to do with any bets and refused to change it. At this time Lancaster threw the bill back to defendant telling him not to "let him see me again until I was ready to settle the bet."

Defendant then testified: "Well, I was wanting out of the tavern. I was pretty scared. I was wanting out of the tavern so I left." He said he got into his car but it would not start, claiming that he had also had trouble starting it earlier that morning. Two State's witnesses, however, Loren Guthals and Robert Gorman, were outside the

Page 740

[36 Ill.Dec. 320] tavern while defendant was at his car and testified that he did not get in behind the [80 Ill.App.3d 940] wheel but only opened the driver's door. But neither could really tell what defendant was doing at the car. Defendant testified that he remembers leaving his cigarettes and lighter in the bar and returning to get them as well as to ask Guthals, whom he had seen inside earlier, to give him a jump start. However, he said he was afraid of Lancaster, and therefore, took the .22 pistol from the floor of his car and put it in his pocket.

Defendant's version of the story continued as follows. He went back in the tavern and went straight to the bar. He did not see Lancaster when he first arrived, but then Lancaster came up beside him and started to drink his beer. According to defendant, Lancaster "asked me if I was back for some crap or if I came back to settle the bet." Defendant replied that he had only come back for the lighter and while they continued to argue, he started walking toward the door to leave. He had taken a few steps when he turned to Lancaster and said he was not trying to back down from a "(obscenity) thing", claiming that the obscenity was not directed personally at Lancaster. While continuing toward the door, defendant heard chairs rattling or crashing and someone say "oh, no, or oh, my God, no." Upon turning around he saw Lancaster coming toward him "at a good clip." Lancaster's jacket was open and his arms were at his side, but he could not see his hands. Lancaster appeared angry and defendant said he was scared so he reached in his pocket and pulled his gun. Defendant told Lancaster to "hold it right there" and said a profanity. All this time defendant claimed to be backing up toward the door.

About the time defendant said he issued his warning, he heard someone say, "he's got a gun." At the same time he heard this, the defendant testified that Lancaster's hand started coming out from behind his coat when they were within a few feet of each other. He further testified:

"When someone said 'he's got a gun' my first thought was 357 because that is what he had been talking about that morning several times. He had mentioned his 357 and what it would...

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