People v. Denby, 80-284

• Decision Date: 17 November 1981
• Docket Number: No. 80-284,80-284
• Citation: 58 Ill.Dec. 475,102 Ill.App.3d 1141,430 N.E.2d 507
• Parties: , 58 Ill.Dec. 475 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Billy B. DENBY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 507

430 N.E.2d 507

102 Ill.App.3d 1141, 58 Ill.Dec. 475

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Billy B. DENBY, Defendant-Appellant.

No. 80-284.

Appellate Court of Illinois, Fifth District.

Nov. 17, 1981.

Rehearing Denied Dec. 21, 1981.

S. Russell Meyer, Wyss, Meyer & Stillwell, Alton, and Jona Goldschmidt, Carbondale, for defendant-appellant.

Donald Weber, State's Atty., Madison County, Edwardsville, and Martin N. Ashley, Deputy Director, Raymond F. Buckley, Jr., Staff Atty., State's Attys. Appellate Service Commission, Mount Vernon, for plaintiff-appellee.

KASSERMAN, Presiding Justice:

Defendant, Billy B. Denby, was charged by amended information with murder, armed violence, and involuntary manslaughter. All of the charges involved the death of Edward Pence, Jr. Following a jury trial in the circuit court of Madison County, defendant was convicted of armed violence, found not guilty of involuntary manslaughter, and a mistrial was declared as to the murder count due to the jury's inability to reach a verdict. Defendant was sentenced to a term of imprisonment of five years. The following issues are raised by defendant's appeal: (1) whether defendant has waived all issues by failing to file a written post-trial motion; (2) whether the armed violence statute is unconstitutionally vague; (3) whether the verdicts were consistent; (4) whether defendant's motion to suppress his statements was properly denied; (5) whether defendant was proved guilty beyond a reasonable doubt; (6) whether the trial court improperly restricted defense counsel's cross-examination of a State witness; and (7) whether the trial court erred in excluding certain statements made by the decedent. We affirm.

Prior to trial, defendant filed a motion to suppress certain statements made while in the custody of the Granite City Police. After a hearing, wherein the trial court heard the testimony of Detectives David Reubhausen and Jerry Wilson, the motion was denied.

At the trial, James Lloyd, the chief of police in Roxana, Illinois, testified that on October 3, 1979, at approximately 9 a. m., the defendant, with whom he was socially acquainted, entered the police station and stated that he "had to kill a man last night" at his house in Granite City. Chief Lloyd drove defendant to the Granite City police but did not discuss the killing. However, at one point in the conversation, defendant asked Chief Lloyd if he had "ever been backed up against the wall" and suggested that was what happened regarding the killing.

Kenneth Brueggeman, the defendant's brother-in-law, stated that at about 8:30 a. m. on October 3, 1979, the defendant visited his house and informed him that he thought he had killed a man the night before and mentioned something about being attacked.

Donna Landcaster, a barmaid at Ken's Lounge in Granite City, testified that Mr. Pence had been at her place of employment between 5:30 and 6:30 p. m. on October 2, 1979. During this time she observed him have one drink and stated he did not appear intoxicated. She never heard Mr. Pence mention the defendant.

Claude L. Robertson, defendant's neighbor, stated that while returning from work at about midnight, he noticed a strange car parked near defendant's house. It was established through other testimony that this car belonged to Mr. Pence's daughter and that Mr. Pence drove it occasionally.

Lieutenant Gerald Pinkerton of the Granite City police testified that on October 3, 1979, he was dispatched to the defendant's house where he observed the deceased's body lying on the kitchen floor. He said that there was a considerable amount of blood and that it was his opinion, based upon his experiences with head injuries, that the amount of blood he saw was not less than one would expect.

Detective Ruebhausen testified as follows. On October 3, 1979, he took defendant into custody, read him his Miranda rights, and participated in the investigation of the defendant's house. He observed a pool of blood about five to six inches in diameter under the deceased's head, a light splattering of blood on the floor and the wall, and shattered glass, apparently from a lamp, lying about and under the deceased's body. He saw an open bottle of whiskey and detected an odor of alcohol. He stated that a baseball bat spotted with blood was found in the bedroom. Detective Jerry Wilson corroborated some of the details of this testimony.

Dennis Aubuchon, a forensic serologist, testified that the blood on the baseball bat matched the decedent's blood type. On cross-examination he stated that no blood was found on the defendant's clothes.

Detective Jerry Wilson, recalled by the State, testified that at approximately 11 a. m. on October 3, 1979, he interviewed the defendant. Wilson stated that defendant gave him the following account of the events. He related that Mr. Pence arrived at defendant's house sometime after 6 p. m. the previous evening with a bottle of whiskey and that Mr. Pence asked defendant to play some cards but defendant declined. About 30 minutes after Mr. Pence's arrival, and for some reason which defendant could not remember, an argument occurred and Mr. Pence took a swing at the defendant. Later, Mr. Pence again tried to strike the defendant, who, at that point, went into the bedroom and got a baseball bat. Defendant told Officer Wilson he had been drinking that day and could remember nothing after that.

On October 4, 1979, while they were returning from the hospital where defendant's blood sample was taken pursuant to court order, Detective Wilson, after reminding defendant of his right to silence, asked the defendant what Mr. Pence did which caused defendant to react so violently. The defendant responded that Mr. Pence did nothing to provoke a violent reaction but that it was just something which had built up over time.

Dr. Steven Paul Nuernberger, a pathologist, testified that Mr. Pence's death was caused by a trauma to the head inflicted by a blunt instrument, possibly a baseball bat. He also was of the opinion that, based on his observation of the scene, the location where the body was found was not where the decedent was killed because the amount of blood present was inconsistent with decedent's head injuries. Dr. Nuernberger placed the time of death between 4 p. m. on October 2, 1979, and 8 a. m. the next day.

Rose Murphy, another barmaid at Ken's Lounge, testified for the defense that between 2:30 and 6 p. m. on October 2, 1979, she saw Mr. Pence at the bar. Mr. Pence appeared nervous and anxious and kept going to the phone booth. On cross-examination she stated that Mr. Pence did not appear either angry or intoxicated.

Donald D. Brueggeman, defendant's nephew, testified that on October 3, 1979, he observed 14 or 15 beer cans in a wastebasket and a bottle of gin or vodka on the counter in the defendant's house.

Defendant then called Officer Roger Hayes of the Granite City police and recalled Officers Ruebhausen and Wilson. Officers Hayes and Ruebhausen stated that they observed no evidence that the crime scene had been cleaned.

Jerry Lee Nelson, the owner of a bar in Pontoon Beach, Illinois, testified that between 4:30 and 6:30 p. m. on October 2, 1979, he saw defendant at his establishment and that he appeared to have been drinking.

The defendant, in his testimony, gave the following version of what transpired. On October 2, 1979, he spent much of the day drinking beer. Early that evening, Mr. Pence, a long-time acquaintance, stopped by the defendant's house in Granite City with a bottle of whiskey and 7-Up. Defendant and Mr. Pence conversed and drank for a time. Then, Mr. Pence said that defendant owed him $100 from a card game which had taken place a year earlier. Defendant recalled Mr. Pence saying "if I don't get that $100 from you pretty soon, I am going to take this knife out and skin you alive." Subsequently, Mr. Pence took a swing at the defendant but missed. As the defendant walked to the bathroom, Mr. Pence started poking him in the chest and Mr. Pence and the defendant began shoving each other. The next thing he could remember was waking up in his apartment located in Wood River, Illinois. The defendant denied telling Detective Wilson that he went to the bedroom to get a baseball bat and explained that in response to one of Detective Wilson's questions he said it was a good possibility that he went for the baseball bat. Defendant completely denied subsequently telling Detective Wilson that things had been building up between him and Mr. Pence. On cross-examination defendant said he never mentioned the shoving match between himself and Mr. Pence to either Chief Lloyd, Kenneth Brueggeman, or Detective Wilson. He stated that he was not "stumbling drunk" but had consumed 18 to 24 beers and some whiskey.

Dr. Nuernberger, recalled to the stand by the defense, reiterated his opinion that the amount of blood which he observed in the area where Mr. Pence's body was found was inconsistent with the head injuries received. Dr. George E. Gantner, Jr., a professor of pathology at the St. Louis School of Medicine and Chief Medical Examiner for the City of St. Louis, concurred with Dr. Nuernberger's analysis.

Lovie Williams, the defendant's housekeeper, described Mr. Pence as a mean and impolite man and described the defendant as quiet and courteous.

In rebuttal, the State recalled Officers Pinkerton, Ruebhausen, and Wilson. Detective Wilson testified that defendant never mentioned in his statement of October 3, 1979, that Mr. Pence had demanded $100 from him, nor did he mention any physical contact between himself and Mr. Pence.

On surrebuttal, the defendant recalled Officers Ruebhausen and Wilson. Detective Ruebhausen testified that he observed a bag of beer cans near defendant's Wood River apartment. Detective Wilson reaffirmed his earlier testimony that while it was possible that he had questioned the defendant about the baseball bat, he...