People v. Miner

• Decision Date: 28 February 1977
• Docket Number: No. 75--392,75--392
• Citation: 4 Ill.Dec. 766,360 N.E.2d 1141,46 Ill.App.3d 273
• Parties: , 4 Ill.Dec. 766 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Herbert L. MINER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1141

360 N.E.2d 1141

46 Ill.App.3d 273, 4 Ill.Dec. 766

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Herbert L. MINER, Defendant-Appellant.

No. 75--392.

Appellate Court of Illinois, Fifth District.

Feb. 28, 1977.

Michael J. Rosborough, Deputy State Appellate Defender, Daniel M. Kirwan, Asst. State Appellate Defender, Fifth Judicial District, Mount Vernon, for defendant-appellant.

Howard L. Hood, State's Atty., Murphysboro, for plaintiff-appellee; Bruce D. Irish, Principal Atty., Raymond F. Buckley, Jr., Staff Atty., Ill. State's Attys. Assn., Statewide Appellate Assistance Service, Mount Vernon, of counsel.

KARNS, Justice:

The defendant, Herbert L. Miner was convicted in the Circuit Court of Jackson County of 'felony murder.' He appeals.

On Sunday, January 12, 1975, sometime after 10:00 p.m., the Reverend Gary Tanner placed a telephone call to the Williamson County Sheriff's Department. Reverend Tanner, calling on behalf of the defendant, informed one Deputy Cradle that the defendant had been involved in a shooting earlier that night. Deputy Cradle agreed to meet Reverend Tanner and the defendant at the courthouse in Marion, Illinois. The defendant was subsequently taken into custody. Between twelve and one o'clock on the morning of January 13, acting upon information provided by defendant, the police discovered the body of James Starnes at the White Brother's mine, located approximately two miles northeast of Elkville, Illinois. The body was slumped over the steering wheel of a pick-up truck. The truck's lights were on and its engine was running. Starnes had been shot in the face with a shotgun. In a statement given to the police shortly after his arrest, defendant had indicated that another person, Paul E. Ledbetter, was with him when Starnes was killed. The police, therefore, drove to Ledbetter's home in Elkville in order to question him. Ledbetter and his wife were home when the police arrived. They denied any knowledge of James Starnes' death and claimed to have been out together most of the night. Ledbetter was arrested and subsequently admitted that he had been involved in the homicide. Ledbetter then called his wife and instructed her to give the police his sawed-off shotgun; she did so.

The defendant and Paul Ledbetter were jointly indicted and tried for the three counts of murder. The indictment charged defendants with murder under section 9--1(a)(1), (2) and (3) of the Criminal Code. ¹ (Ill.Rev.Stat.1975, ch. 38, par. 9--1(a)(1)--(3).) Prior to trial both defendants filed motions for a severance, arguing that their defenses were antagonistic and that the State planned to introduce at trial written statements made by each defendant inculpating the other. ² Defendants relied upon these statements as evidence of the existence of antagonistic defenses. The motions for severance were denied by the trial court. Defendant Miner subsequently renewed his motion for a severance both prior to and during trial. The trial court denied the renewed motions. After a jury trial, Paul Ledbetter was acquitted on all counts of the indictment. The defendant was acquitted on the first two counts, but convicted of 'felony murder' under section 9--1(a)(3). (Ill.Rev.Stat.1975, ch. 38, par. 9--1(a)(3).)

Defendant now raises three issues for review: 1) whether the trial court erred in refusing to instruct the jury on the offense of involuntary manslaughter, 2) whether the trial court erred in refusing to present to the jury an instruction defining 'attempt,' and 3) whether defendant should have been granted a severance because the defenses of the co-defendants were antagonistic. The following is a summary of the evidence adduced at trial.

The evidence presented by the State in its case in chief consisted almost entirely of the testimony of two witnesses. The first witness called by the State was Reverend Gary Tanner. Reverend Tanner testified that he spoke with the defendant at about ten o'clock on the night of January twelfth. The defendant was very nervous and upset at that time. According to Reverend Tanner, the defendant told him that, 'We killed a man or shot a man.' ³ Defendant then explained that he had driven to White Brother's mine earlier that evening to look for his brother and to get some gasoline. Defendant said that when he entered the mine property, James Starnes drove up to meet him. The men stopped and conversed. Defendant asked if his brother were there, and Starnes replied that he was not working that day. Defendant also asked Starnes if he could have some gas. Starnes said that he had two five-gallon cans, but defendant said that that was not enough to 'fool with.' The men then returned ot their trucks and drove off. Once Starnes was out of sight, however, defendant drove back to the mine and parked next to some gasoline storage tanks located on the property. Evidently, Starnes saw the defendant drive back to the mine, because he turned around and drove toward the parked car.

Defendant told Reverend Tanner that as Starnes approached, 'they got out of the car and went to the trunk, unlocked it and took out a (sawed-off shotgun).' Reverend Tanner's next statement, that 'the other person handed (defendant) the gun,' was objected to and the jury was instructed to disregard it. Defendant said that he tried, unsuccessfully, to cock the gun a number of times. He then got back into the car and waited for Starnes to approach. Starnes pulled up alongside the defendants' vehicle, facing in the opposite direction so that the driver's sides of the vehicles faced each other. Defendant put the barrel of the gun out the window and rested its stock in his lap. Defendant said that he didn't think the gun was loaded and 'stuck it up to bluff him (Starnes).' Defendant again tried to cock the gun. He told Reverend Tanner that the person who was with him reached over and cocked the weapon, and that it then discharged. Once again, an objection to this reference to defendant Ledbetter was sustained. Defendant said that he never intentionally aimed the gun at Starnes, but Starnes was hit by the shotgun blast and slumped over the steering wheel of his truck. Defendant panicked and drove away. He stopped at a tavern, had a drink and then drove back to the mine area. Upon seeing the headlights from another car, however, he turned around and drove to Paul Ledbetter's home. Defendant told Mrs. Ledbetter that 'they' had shot a man. The Ledbetters then drove the defendant to his home in Marion. Defendant subsequently contacted Reverend Tanner, who called the police. Reverend Tanner said that the defendant told the police the same story that defendant had related to him.

The next witness called by the State was John Halstead. ⁴ He testified that he was an Elkville police officer and knew Paul Ledbetter. Halstead said that during interrogation at the Sheriff's office, Ledbetter asked to speak with him in private. Once they were alone, Ledbetter said 'I am in a lot of trouble.' When Halstead asked why, Ledbetter replied, 'I did it * * * I was there.' Ledbetter went on to explain that he had gone to the mine property to steal gasoline. He said that he met James Starnes at the mine and spoke with him, and that he and Starnes then parted company, driving in opposite directions. When Starnes was out of sight, however, Ledbetter returned for the gasoline. Ledbetter said that when Starnes saw him and started driving back, Ledbetter loaded his sawedoff shotgun and handed it to defendant. Starnes pulled up and asked what Ledbetter and the defendant were doing on mine property. Ledbetter said that the barrel of the shotgun was placed over the windowsill of their car, that Starnes was shot, and that they then fled. Ledbetter told Halstead that later that evening he and defendant returned to the mine to make sure Starnes was dead. They turned around, however, upon seeing the headlights of another car. Halstead's testimony concerning subsequent events closely follows the testimony given by Reverend Tanner. He also stated that Ledbetter told him that his wife had hidden his shotgun before giving it to the police.

After submitting exhibits consisting of Ledbetter's shotgun, an autopsy report and pictures of the victim, the State rested.

Herbert Speller was the first witness called on behalf of Paul Ledbetter. Speller stated that he was presently incarcerated in the Jackson County Jail and had been confined in the jail at the same time as Ledbetter and the defendant. Speller lived in a cell next to the defendant's for an unspecified period of time and conversed with him on several occasions. Speller testified that on March 18, 1975, defendant told him that he had unintentionally killed a man. Defendant said that he put a shotgun out the window and pulled back its hammer, but could not remember what happened after that. According to Speller, defendant also said that if he had to testify at trial, he would take Paul Ledbetter to the penitentiary with him by testifying that Ledbetter reached over and pulled the trigger.

Paul Ledbetter's wife, Starla, testified that on January 12 her husband left home, alone, about 11:30 in the moring and returned with the defendant at approximately 6:00 p.m. Because both men appeared to be badly shaken, Mrs. Ledbetter asked what was wrong. Her husband replied that defendant had just shot and killed a man. Defendant affirmed Paul Ledbetter's statement, repeating it over and over. Defendant, suddenly remembering that Ledbetter's shotgun was still in the car, went outside and brought it in. He then demonstrated what had happened, holding the shotgun and saying, 'See I was holding it just like this, and I asked Starnes, 'Do you know what this is?' and it went off.' According to Mrs. Ledbetter, defendant threatened to tell the police that she had killed Starnes. He also demonstrated Starnes' facilal contortions after being shot. Defendant's erratic behavior worried Mrs. Ledbetter and she...