People v. LePretre

• Citation: 196 Ill.App.3d 111,552 N.E.2d 1319,142 Ill.Dec. 578
• Decision Date: 05 April 1990
• Docket Number: No. 4-89-0473,4-89-0473
• Parties: , 142 Ill.Dec. 578 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brian D. LePRETRE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1319

552 N.E.2d 1319

196 Ill.App.3d 111, 142 Ill.Dec. 578

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brian D. LePRETRE, Defendant-Appellant.

No. 4-89-0473.

Appellate Court of Illinois,

Fourth District.

April 5, 1990.

Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Springfield, Arden J. Lang, Asst. Defender, for defendant-appellant.

John B. Huschen, State's Atty., Eureka, Kenneth R. Boyle, Director State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, David E. Mannchen, Staff Atty., for plaintiff-appellee.

Justice LUND delivered the opinion of the court:

On April 21, 1989, following a jury trial in the circuit court of Woodford County, defendant Brian LePretre was convicted of committing the offense of attempt (murder). (Ill.Rev.Stat.1987, ch. 38, pars. 8-4, 9-1.) He was subsequently sentenced to the minimum six-year prison term. He now appeals, alleging (1) he was not proved guilty beyond a reasonable doubt; (2) the court improperly refused his tendered jury instructions; (3) he received ineffective assistance of counsel; (4) the court erred by refusing to allow him to recall a witness; and (5) the court's post-trial comments indicate the court should have granted defendant's post-trial motion. We affirm.

On January 5, 1989, defendant was charged in the circuit court of Woodford County with committing the offense of attempt (murder). (Ill.Rev.Stat.1987, ch. 38, pars. 8-4, 9-1.) The information alleged defendant performed a substantial step toward the commission of murder, in that he knowingly thrust a knife toward Bernard Remmert with the intent to kill him. Defendant raised the affirmative defense of voluntary intoxication. The jury trial commenced on April 19, 1989.

The State's first witness was Bill Myers, under-sheriff of Woodford County. He stated he interviewed defendant on January 5, after defendant's arrest for the instant offense. After waiving his Miranda rights, defendant told Myers that his sister and brother-in-law, Michelle and Daniel Schirer, picked him up on December 31 around 7:30 p.m., and they went to a bar in Metamora for a New Year's Eve party. While there, he had six to eight drinks of Jack Daniels and Coke. He also had one glass of champagne at midnight and two puffs from a marijuana cigarette. At approximately 2 a.m., they left the bar and returned home.

Defendant told Myers that the Schirers then dropped him off at his residence. However, he was not feeling well and decided to walk around for awhile. At this time, he thought it was around 2:30 a.m. He walked around for a couple hours. Around 5 a.m., he was at the north end of Remmert Funeral Home parking lot and he saw Bernard Remmert. Defendant knew who Remmert was, though he had not seen him or spoken to him for several years. Defendant walked through the parking lot and later returned. He chatted with Remmert for awhile, and Remmert invited him in for some coffee.

They entered the funeral home and went to Remmert's office, where Remmert began making coffee. Defendant then jumped Remmert and put his left arm around Remmert's chest and neck area. Defendant pulled a knife out of his coat pocket with his right hand, and they struggled. The next thing defendant remembered was that he was lying on the floor, with Remmert on top of him.

After they calmed down, Remmert let defendant up. They talked about the attack and drank coffee. Defendant could not remember why he attacked Remmert or the actual attack. Remmert then let defendant go home. Upon his return, defendant told his parents about the attack, but failed to mention the knife.

Myers recovered the knife from the scene. The blade had been broken during the fight. The knife had a four-inch body and a three-inch blade. On cross-examination, Myers acknowledged that defendant was always cooperative, never indicated he had an intent to kill Remmert, and could not remember any of the incident after he took the knife from his pocket.

Bernard Remmert testified that at 5 a.m. on January 1 he was at his funeral home, having just picked up a body from a nursing home. As he exited the hearse, he could hear someone walking in the alley behind him. As he entered the funeral home, Remmert waved a greeting at the person who continued through the parking lot, heading south. After entering, Remmert proceeded to turn up the heat, and thought the person might be his tenant who lives in the house to the north. He thought this tenant might have overindulged in partying the night before and was now walking it off. He decided to invite him in and offer him a cup of coffee.

Remmert stepped outside where it was still dark, and invited the person in for coffee. After they entered the building and the bright light, Remmert noticed the person was not the tenant. In response to Remmert's question, the person explained he was a Roanoke boy and his name was Brian LePretre. Remmert asked him if he was the son of Nancy and Armand, who are good friends of his. When defendant responded affirmatively, Remmert felt more comfortable. As they walked to his office, they discussed the fact that defendant had been in the military service in Germany and was discharged last April.

Once they entered the office, Remmert went to the coffee pot to make the coffee. Defendant was walking behind him. Defendant suddenly jumped on Remmert's back and got an arm lock, using his right arm, on Remmert's neck. The arm was under Remmert's chin and across his neck. Remmert was having trouble breathing.

The next thing Remmert knew, defendant started bringing his left arm down and, out of reflex, Remmert lifted his arm up to block it. Defendant's arm crossed Remmert's and, for the first time, Remmert saw the knife. The point of the knife pricked Remmert's shirt several times and cut a tear in his coat, but he was not injured. The knife was poised over his heart, and defendant was applying a lot of pressure. They wrestled around the room, breaking furniture and banging into the wall. Defendant kept pressing with the knife. Eventually, after several minutes, Remmert was able to shove defendant to the ground.

Remmert climbed on top of defendant and picked up the knife, which was now broken. Defendant then began saying he was sorry, and that he did not know what he was doing. Remmert helped defendant up and seated him on the couch. Remmert asked defendant why he attempted to kill him. Defendant repeatedly stated, "I don't know." Defendant said he was sorry and asked Remmert to not call the sheriff. Defendant explained he had never done anything like this before.

They then had a cup of coffee and talked. Remmert indicated he would not call the sheriff and stated that defendant should get in-house help. He let defendant go home. When he told his wife what happened, she insisted that he call the sheriff. He then called defendant's parents.

Remmert explained that other than various scratches, bruises and a banged-up ankle, he suffered no injuries. He did not believe defendant was intoxicated or high on anything. He denied telling defendant's mother that he thought defendant was high. He explained that he asked her if defendant was possibly on drugs or drank a lot. The State then rested.

Defendant's first witnesses were his sister and brother-in-law, Michelle and Daniel Schirer. They picked defendant up around 7:30 p.m., and arrived at the bar around 8 p.m. While there, Daniel drank screwdrivers, Michelle drank some beers and some sodas, and defendant drank Jack Daniels and Coke. They estimated defendant drank three to four drinks per hour. They all had some champagne at midnight. They stayed at the bar until around 3:45 a.m., and arrived at defendant's parents' house around 4 a.m.

They were both of the opinion defendant was intoxicated when they dropped him off. Daniel based his opinion on the fact defendant seldom drank, the amount he drank, and the fact his eyes were glazed. Michelle based her opinion on the amount defendant drank, his lack of drinking experience, his gayer and happier mood, and the fact he vomited on his parents' driveway when he exited the car.

However, neither observed that defendant had any trouble walking. They both acknowledged defendant danced some, and they did not observe him the entire evening. Michelle also admitted that, after vomiting, defendant responded to her question asking if he was alright.

Stan Schertz testified that he was also at the party with defendant. He left between 2 and 3 a.m. He was the designated driver of his group, so he drank only one glass of champagne. He estimated defendant consumed three to four mixed drinks per hour. It was his opinion, based on defendant's staggering walk and stuttering speech, that defendant was drunk when Schertz left.

Defendant's mother testified that, on January 1, Remmert told her that defendant was inebriated or high on something. She explained that Remmert never said that was his opinion, but she got the opinion from their conversation that it was. She also observed vomit in her driveway that morning.

Defendant testified he is 22 years old and currently lives with his parents. At the party, he drank Jack Daniels and Coke and one glass of champagne. He does not remember how many mixed drinks he drank. He also had two puffs on a marijuana cigarette. They left the bar around 2 a.m. and arrived home around 2:30 a.m. Once he got home, he threw up on the driveway. At that point, he decided to walk uptown to get some air. As he walked, he went through the funeral home parking lot and said hello to Remmert. He later turned around and went back to the parking lot. Remmert came outside and asked if he would like a cup of coffee.

They, then, went to the office. Prior to this, defendant did not know Remmert. As Remmert was working on the coffee machine, defendant remembered bringing his left arm up. Defendant is right-handed. The next thing he remembered is that he...