People v. Moon

• Decision Date: 11 June 1982
• Docket Number: No. 80-448,80-448
• Citation: 437 N.E.2d 823,63 Ill.Dec. 174,107 Ill.App.3d 568
• Parties: , 63 Ill.Dec. 174 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Paul Douglas MOON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 823

437 N.E.2d 823

107 Ill.App.3d 568, 63 Ill.Dec. 174

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Paul Douglas MOON, Defendant-Appellant.

No. 80-448.

Appellate Court of Illinois Fifth District.

June 11, 1982.

Randy E. Blue, Deputy State Appellate Defender, E. Joyce Randolph, Asst. State Appellate Defender, Mount Vernon, for defendant-appellant.

John H. Ward, State's Atty., Taylorville, Martin N. Ashley, Deputy Director, Stephen E. Norris, Staff Atty., State's Attys. Appellate Service Commission, Mount Vernon, for plaintiff-appellee.

KARNS, Presiding Justice:

Defendant, Paul Douglas Moon, appeals from a judgment of conviction entered on a jury verdict in the Circuit Court of Christian County finding him guilty of the offense of murder. He was sentenced to a term of forty years' imprisonment.

On appeal, defendant raises the following issues: (1) whether the trial court erred in failing to give his tendered instructions on the defense of voluntary intoxication; (2) whether the trial court erred in failing to instruct the jury sua sponte on the definition of armed robbery, the predicate felony to the charge of felony-murder; (3) whether the trial court erred in giving a supplemental jury instruction; and (4) whether the trial court abused its discretion in sentencing him to a term of forty years' imprisonment where a co-felon received a term of thirty-two years' imprisonment.

Evidence introduced at trial establishes that on the afternoon of March 5, 1980, defendant and Nicky John Clucas joined Ronald Dean Battles at the Pasttime Club, a tavern located in Pana, Illinois, where they drank, talked and played pool for about two hours. Prior to leaving the tavern, defendant purchased a case of beer and Battles purchased a quart of vodka. Battles invited defendant and Clucas to his brother's house in Millersville and Clucas called his friend, Tom Coleman, for a ride. Coleman picked up the men at the Pasttime Club and on the way to Millersville they stopped at the Victory Tavern where Battles went inside to purchase more liquor. Coleman testified that while Battles was inside the tavern, defendant and Clucas told Coleman that they planned to beat Battles and take his money. After arriving at the house, Coleman drank one beer and left.

At trial, Clucas admitted that he had pleaded guilty to Battles' murder and was awaiting sentencing. Clucas stated he first met Battles on March 5. He claimed that only defendant made statements to Coleman concerning the plan to beat and rob Battles. Clucas testified that after Battles made two sexual advances towards him he hit Battles three times with his fist. Clucas further testified that defendant and Battles then went into the bedroom and that he heard sounds as if someone was being struck. Clucas then related that after he and defendant revived Battles in the bathtub, they both struck Battles repeatedly with their fists and with two wooden boards or clubs.

The recorded statement made by defendant to the police following his arrest that evening was heard by the jury. Defendant recalled the plan to get Battles drunk, beat him and take his money. Defendant stated that after they had been drinking at Battles' house and Clucas continually "egged it on," to get the money, defendant devised a scheme to get Battles' pants off in order to search the pockets for money. Defendant then hit Battles and tied his wrists and ankles with belts. Defendant stated that Clucas entered the bedroom and began hitting Battles in the head with a board while they both asked Battles where his money was located. Defendant then threatened Battles with a large fork that he had taken from the kitchen. Defendant stated that he wanted to "get even" with Battles because Battles the previous year had drugged him and sexually assaulted him. Defendant stated that he only hit Battles once with the club striking him on the back. Defendant further stated that he took about 75 cents from Battles.

Defendant and Clucas were walking towards Pana when they were given a ride by Phillip Palmer. Palmer took the men to the address that they gave him. Palmer saw defendant and Clucas squat behind a car, thought it was suspicious so he drove to the police station to report the incident.

Shortly thereafter, Benny Battles arrived at the police station. He and his wife had returned to their home and found his brother's body. Given the information from Palmer and Battles, the police officers went to look for defendant and Clucas. They were located and arrested.

At trial, Dr. Slifer, who performed the autopsy, testified that Battles' death was caused by a compressed skull fracture on the left side of the head. He also found that the jaw had been broken on both sides, there were abrasions on the knees and forehead and puncture wounds on the back which appeared to have been made by a large fork.

Defendant first assigns as error the refusal of the trial court to give his tendered instructions on the defense of intoxication. He argues, in substance, that the evidence was sufficient to place before the jury the question of whether he was so intoxicated as to negate the intent to commit murder.

During the instructions conference, defendant tendered I.P.I. Criminal 24.02 (Voluntary Intoxication or Drugged Condition) and I.P.I. Criminal 25.02 (Issues in Defense of Voluntary Intoxication or Drugged Condition.) At defendant's request, defense counsel did not tender an instruction on voluntary manslaughter. The trial court refused these instructions on the basis that there was insufficient evidence to raise the defense of intoxication. We conclude that a fair reading of the evidence supports the trial court's refusal to give the tendered defense instructions on intoxication.

In order to raise the defense of voluntary intoxication, the accused must show that his intoxication was so extreme as to suspend all reason. (People v. Zynda (2nd Dist. 1977), 53 Ill.App.3d 794, 11 Ill.Dec. 471, 368 N.E.2d 1079.) Merely being drunk or intoxicated is insufficient to create a defense of intoxication (People v. Williams (1st Dist. 1973), 14 Ill.App.3d 789, 303 N.E.2d 585.) At trial, Clucas testified that on the date the offense was committed, he and defendant drank a quart of gin, and they drank several beers and about two quarts of vodka with the victim. He further testified that after leaving Battles' house, defendant was staggering and needed assistance to get into Palmer's van. Palmer testified that he saw defendant walking along the highway and when he backed up his van to offer defendant a ride, defendant was lying on the highway. Palmer also stated that defendant was unable to sit upright in the van without Clucas' help.

Although the evidence showed that defendant had been drinking, no evidence was introduced to prove that defendant's mental processes were so impaired that he was unable to reason. Indeed, defendant's recorded statement belies this contention. A detailed recollection of the offense tends to prove that the defendant's power of reasoning was not suspended entirely. (See People v. Walcher (1969), 42 Ill.2d 159, 246 N.E.2d 256; People v. Hare (1962), 25 Ill.2d 321, 185 N.E.2d 178.) Defendant's statement showed a detailed memory of the brutal attack on the victim. Defendant recalled his plan to get the victim drunk in order to take his money. Defendant also stated that the victim had made a sexual advance towards him the previous year and he wanted to "get him back." Although defendant claimed a lack of memory of the events following the murder at no time did defendant state that he did not know what he was doing during the commission of the offense.

We conclude that the evidence would not have justified a jury determination that defendant was so intoxicated as to suspend his power of reason entirely. Therefore, we hold that the trial court did not err in refusing the tendered defense instructions on intoxication.

Defendant next contends that the trial court committed reversible error in failing to instruct the jury on the definition of armed robbery, the predicate felony to the alternative charge of felony-murder.

The trial court gave defendant's tendered definitional and issues murder instructions. (I.P.I. Criminal 7.01 Modified and 7.02 Modified.) The given instructions defined murder as follows:

"A person commits the crime of murder who kills an individual if, in performing the acts which cause the death,

1) he intends to kill or do great bodily harm to that individual; or

2) he knows that such acts will cause death to that individual; or

3) he knows that such acts create a strong probability of death or great bodily harm to that individual; or

4) he is committing the crime of armed robbery."

Defendant failed to tender an instruction on the definition of armed robbery, but now argues that such failure did not constitute a waiver because the omitted instruction related to the essential elements of the charged offense.

It is primarily the duty of the parties and not the trial court to prepare jury instructions. (Ill.Rev.Stat.1979, ch. 110, par. 67; 73 Ill.2d R. 451.) In addition, "no party may raise on appeal the failure to give an instruction unless he shall have tendered it." (73 Ill.2d R. 366(b)(2)(i); People v. Underwood (1978), 72 Ill.2d 124, 129, 19 Ill.Dec. 12, 14, 378 N.E.2d 513, 515.) In criminal cases, however, the waiver rule does not preclude judicial review of "substantial defects" in the jury instruction where "the interests of justice require." (73 Ill.2d R. 451(c).) The issue raised, therefore, is whether the definitional instruction on armed robbery was so basic to the murder instructions that the failure of the trial court to sua sponte give the instruction resulted in an unfair trial. See People v. Underwood ; People v. Carey (2nd Dist. 1981), 94 Ill.App.3d 631, 50 Ill.Dec. 125, 418 N.E.2d 1119.

The committee comment to I.P.I. Criminal 7.01 states that when the felony...