People v. McClendon
| Decision Date | 09 May 1990 |
| Docket Number | No. 4-89-0500,4-89-0500 |
| Citation | 143 Ill.Dec. 856,554 N.E.2d 791,197 Ill.App.3d 472 |
| Parties | , 143 Ill.Dec. 856 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Freddy Bernard McCLENDON, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Peter L. Rotskoff, Asst. Defender, Springfield, for defendant-appellant.
Craig H. DeArmond, State's Atty., Danville, Kenneth R. Boyle, Director, State's Attys. Appellate Prosecutor, Robert J. Biderman, Deputy Director, Linda Susan McClain, Staff Atty., Springfield, for plaintiff-appellee.
During a series of altercations occurring in Danville, defendant shot and killed Keith Bevly. Defendant was charged with three counts of first-degree murder (Ill.Rev.Stat.1987, ch. 38, pars. 9-1(a), 9-1(a)(2)) and with armed violence based upon aggravated battery (great bodily harm) (Ill.Rev.Stat.1987, ch. 38, par. 33A-2). The jury convicted him of armed violence. It could not reach a decision on the murder counts. The trial court sentenced defendant to 30 years' imprisonment for the armed violence conviction. Subsequently, defendant pleaded guilty to second-degree murder (Ill.Rev.Stat.1987, ch. 38, par. 9-2) and was sentenced to a concurrent 15-year term of imprisonment.
Defendant argues the trial court erred in instructing the jury; he was denied his constitutional right to confront witnesses by admission of an evidence deposition; his conviction of armed violence should be vacated because he subsequently pleaded guilty to second-degree murder; and the We affirm.
[143 Ill.Dec. 858] trial court abused its discretion in sentencing.
The incident occurred during the late evening hours of August 22, 1988, in the main parking lots of the Fair Oaks apartment complex in Danville. There are two lots separated by a curb and a sidewalk. Several persons were gambling near the smaller lot. Defendant had parked his car in the smaller lot near a light pole and the gamblers. He was there with his cousin, James "Termite" Graham.
Gregory "Wheat" Foreman, Steve Butler, and Keith Bevly came to the area in the same vehicle. Bevly parked the vehicle in the larger lot. Then, he and the others walked over to the smaller lot. As Bevly crossed into the smaller lot, Boo Strong (Willie Williams), defendant's uncle, asked Bevly what he wanted in the parking lot. Bevly responded that it was a free lot and he could go where he wanted. Strong then told Bevly to move away from his car, a fight started, and Bevly hit Strong.
Defendant approached Bevly and asked why he was fighting with his uncle. Defendant then tried to grab Bevly's legs, lift him, and throw him to the ground. However, Bevly wrestled defendant to the ground. Michael "Meathead" Foreman, Gregory Foreman, and several others broke the fight up. Bevly walked back to his car and put on a pair of gym shoes.
Robert Moore testified he left the lots for a few minutes after Bevly went back to his car. When he returned, defendant, Bevly, Termite, and Wheat were shouting. Bevly walked over to the small lot, near Termite and defendant. Termite said, " 'Ain't nobody going to fuck with Freddy.' " Bevly then said he was going to hit Termite with a beer can, which he was carrying. Bevly was about 18 feet from defendant when he said this. Moore stated he left when Bevly and defendant were within arm's reach of each other. Moore saw a chrome gun at defendant's side. He did see Bevly running but did not see him fall. He heard three to four shots. Moore admitted he was subpoenaed to testify and was escorted to trial.
On cross-examination, Moore stated Bevly, defendant, and Termite were yelling across the lots and threatening each other. This occurred after Bevly returned to his car. As Bevly walked back, Termite was yelling at him. Moore did not hear Bevly make any threat other than he would hit Termite with a beer can. Wheat Foreman tried to persuade Bevly to stay out of the smaller lot. On redirect examination, Moore stated he saw defendant point a gun in Bevly's direction.
Wheat Foreman stated 30 minutes elapsed between the first fight and the shooting. He, Bevly, and Butler were standing on the other side of the lots from defendant and Graham. As they walked across the lots, Graham said, " 'Ain't nobody going to fuck with Fred.' " Bevly said, " 'What's up.' " Wheat did not remember whether Bevly had a can of beer in his hand. He had been drinking earlier. Wheat did not see Bevly make any gestures or movements toward Graham or defendant. Bevly was facing defendant when defendant shot him. Bevly turned and ran. Then, defendant fired three more times. Wheat stated Bevly got hit and stumbled on the third shot; but he kept running. Wheat further testified there was a delay between the first shot and the next three. Bevly turned and was running away when the second shot was fired.
Donny Duckworth was gambling that night but observed the shooting. Duckworth stated that after the initial fight Bevly returned to his car. Then, defendant and Wheat Foreman started arguing. Bevly told Wheat he could handle his own battles. Bevly stated he would "whup" Graham like he had the others. Graham then said, " 'Ain't nobody going to fuck with Freddy, now.' " Bevly then walked up to Graham, holding a beer bottle or can. However, defendant stepped in front, pushed Graham back, and shot Bevly. Defendant and Bevly were very close to each other when the shooting occurred. After Steve Butler testified that he, Bevly, and Wheat Foreman were talking after the first fight. Defendant came to the sidewalk and wanted to know whether they were all going to "jump him." Defendant and Bevly started to argue. Then, Graham came up. Bevly said, " " This meant Bevly would hurt him. Butler heard defendant say, " " Then defendant pulled a gun out and started shooting. Defendant fired four times. Bevly did not have anything in his hands when the shooting started. However, he had been drinking canned beer earlier.
[143 Ill.Dec. 859] defendant shot Bevly the first time, Bevly turned and ran into the other parking lot. Bevly was running around the buildings when the other shots were fired. However, Bevly had not reached the buildings. Duckworth saw four to five shots being fired.
After the first shot, Bevly turned and ran. Bevly was across the sidewalk by the time defendant fired the second shot. Butler stated he thought Bevly was shot first in the chest; then, shot again as he turned.
Defendant gave a statement to the police on August 30, 1988. Defendant stated that after Bevly started kicking his uncle, defendant intervened. Defendant did not want to fight, but Bevly threatened to knock him out. They fought. Graham broke up the fight. Bevly kept threatening defendant, who told Bevly to leave him alone. Graham said, " 'Fuck the punk.' "
Defendant saw Wheat Foreman hand Bevly a blue steel gun. Graham then handed defendant a gun. Defendant told Graham he was going home. However, he turned around and saw Wheat and Bevly running toward him. Defendant told Graham to get back, begged Bevly to leave him alone, saw Bevly pull a gun out of his shirt, and saw Bevly point the gun at him. Because Bevly was threatening to kill defendant, defendant shot Bevly. Defendant threw the weapon he used away. It was a silver .32 or .38 caliber handgun with a brown handle. Graham had given him the handgun in between his first fight with Bevly and the shooting. Defendant did not fire the handgun after Bevly turned around.
Theresa Graham, defendant's cousin, stated she arrived at the main parking lots at approximately 11:30 p.m. on August 22, 1988. She observed the initial fight between Bevly and defendant. Defendant told her about the fight between Bevly and Strong. She heard Bevly threaten to kill defendant; then she heard Bevly threaten her brother. Bevly threatened defendant and put his hand inside his shirt or jacket. He walked toward defendant. As Bevly started to remove his hand from his jacket, defendant shot him twice. After he was shot, Bevly initially continued to walk toward defendant; then, he turned and ran.
On cross-examination, Graham stated she did not remember telling the police she left her apartment at 12:45 a.m. on August 23, 1988. After the second shot, Bevly made three, 360-degree turns, and then ran away. She did not see Bevly with a weapon. She saw defendant aim at the ground and fire again after Bevly was out of sight.
Defendant stipulated to the admission of a videotaped evidence deposition. Dr. Stanley Bobowski stated there were two entry wounds on the body. Bevly had been shot in the chest and the left buttock. The bullet which entered the left buttock took an upward angle and severed the aorta. Bevly was either running or falling when he was shot in the left buttock. Bevly died from shock caused by massive blood loss. The chest wound did not destroy any vital areas. Bobowski admitted that the oblique angle of entry could have been caused by the weapon being held at a 60 degree downward angle.
During the instruction conference, in conjunction with the murder instructions the prosecutor offered the following Illinois pattern jury instruction:
"Force which is likely to cause death or great bodily harm includes [ (the firing of a firearm in the direction of a person to be arrested, even though no intent exists to kill or inflict great bodily harm) (the firing of a firearm at a vehicle in which the person to be arrested is riding) ]." Illinois Pattern Jury Instructions, Criminal, No. 24-25.15 (2d ed. 1981).
Defense counsel objected to the instruction. The prosecutor then modified the instruction. Defense counsel...
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