People v. Perry

• Decision Date: 28 February 2012
• Docket Number: No. 1–08–1228.,1–08–1228.
• Citation: 962 N.E.2d 491,356 Ill.Dec. 806,2011 IL App (1st) 081228
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Antonio PERRY, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 081228
356 Ill.Dec. 806
962 N.E.2d 491

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Antonio PERRY, Defendant–Appellant.

No. 1–08–1228.

Appellate Court of Illinois, First District, Fourth Division.

March 31, 2011.Rehearing Denied Feb. 28, 2012.

[962 N.E.2d 494]

Michael J. Pelletier, State Appellate Defender; Patricia Unsinn, Deputy Defender, Emily S. Wood, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, IL, for appellant.

Anita M. Alvarez, State's Attorney of Cook County, Chicago, IL (

[962 N.E.2d 495]

Alan J. Spellberg, Janet C. Mahoney, of counsel), for the People.

OPINION Justice PUCINSKI delivered the judgment of the court, with opinion.

[356 Ill.Dec. 810] ¶ 1 Following a jury trial, defendant, Antonio Perry, was convicted of first degree murder and sentenced to 22 years in prison. In this appeal, defendant asserts the trial court committed reversible error in the following: (1) refusing to instruct the jury on the lesser-included offense of involuntary manslaughter; (2) refusing to give the second paragraph of Illinois Pattern Jury Instructions, Criminal, No. 5.01B (4th ed.2000) (hereinafter, IPI Criminal 4th No. 5.01B) on the definition of knowledge; (3) failing to question the venire in accordance with People v. Zehr, 103 Ill.2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984); (4) allowing the introduction of more than one prior inconsistent statement for several witnesses who recanted their prior statements at trial; and (5) allowing credit for time served only from the date he was imprisoned in Illinois, and not from the date of his arrest and incarceration in Minnesota.

¶ 2 We determine that: (1) defendant was not entitled to a jury instruction for involuntary manslaughter where the evidence showed the intent to kill or do great bodily harm, or knowledge that the acts committed create a strong probability of such result, and not merely reckless conduct which is likely to cause death or great bodily harm; (2) there was no reversible error in the trial court's refusal to instruct the jury based on IPI Criminal 4th No. 5.01B where any error would have been harmless under the one-good-count presumption that arises under a general verdict, there was no specific jury request regarding mental states, and the trial court gave the appropriate instructions which correctly stated the law for each method of murder; (3) defendant forfeited review of his claim that the trial court did not comply with People v. Zehr, 103 Ill.2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984), and Illinois Supreme Court Rule 431(b) (eff. May 1, 2007), and did not establish plain error because, although the court violated Rule 431(b), the evidence was not closely balanced and the violation of Rule 431(b) was not a structural error that affected the fairness of trial; (4) defendant forfeited review of whether the introduction of several prior inconsistent statements of witnesses was error, and there was no plain error because the statements were properly admitted as prior inconsistent statements; and (5) defendant is entitled to credit for time served from the date of his arrest in Minnesota, excluding the date of sentencing. Therefore, we affirm defendant's conviction and sentence, but order that the mittimus be corrected to reflect 819 days served by defendant prior to sentencing.

¶ 3 BACKGROUND

¶ 4 The following facts were adduced at defendant's jury trial. The State presented the testimony of several eyewitnesses: Andre Edwards; Charles Bills; Sheila Bills; Jasmine Cummings; Jamal Hayes; Harry Hardy; and DeAndre Boozer.

¶ 5 Andre Edwards is the victim Dewone McClendon's cousin, and he was with Dewone on June 21, 2005, the date of Dewone's murder. Andre testified that they were at a party at 105th and Indiana for Dewone's birthday. Sometime after 8:30 p.m., they left the party to get chicken at a store and meet some girls. Dewone was carrying a bottle of vodka. Both Andre and Dewone had been drinking. They encountered defendant and a group of eight or nine boys on 104th Street between Michigan and Indiana. The group of boys [356 Ill.Dec. 811]

[962 N.E.2d 496]

said “GDK,” meaning “Gangster Disciple Killer,” which is said by gangs who are rivals of the Gangster Disciples, “all is well” and “BPSN,” which means “Black P Stone Nation.” Andre and Dewone said that they were not gang bangers, that they were just “trying to chill” because it was Dewone's birthday, and that they were getting ready to walk away. The boys followed them and they all argued. Defendant then punched Dewone in the jaw, and someone else punched Andre. Andre tried to break away, but four or five boys followed him and kicked and hit him after he fell onto the street. He did not see what happened to Dewone. When the boys ran, Andre got up and started walking toward 103rd to the chicken place. En route, he encountered his mother and told her what happened, and she walked over to Dewone.

¶ 6 Andre went to the police station in the early morning hours of June 22, 2005, and returned to the station several times thereafter. On March 20, 2006, Andre identified defendant from a photo array as the person who punched Dewone. On April 20, 2006, Andre also identified defendant in a lineup as the person who punched Dewone.

¶ 7 Charles Bills and Sheila Bills were sitting on their porch at 10356 South Indiana the evening of June 21, 2005, with their upstairs neighbor Joyce Sutter and their friend Jasmine Cummings. Charles Bills testified that just after 8:30 p.m., he saw a bigger group of boys chasing a small group of boys down the street. The big group of boys caught one of the boys from the small group in front of Charles's house. A boy from the big group punched a boy from the small group in the head, and he fell to the street and did not move. The big group of boys began kicking and stomping the boy on the ground on his head and torso. Someone from the big group threw a bottle at the boy on the ground. Charles called to his son to call the police. When the sirens were heard, the big group of boys ran while the boy on the ground remained motionless.

¶ 8 Sheila Bills testified that she observed a group of young men who were arguing stop in front of her house. One boy from the group removed his shirt, grabbed the boy who died and hit him with his fist. The boy fell to the ground, and when he tried to run, he was hit again. The boy again fell and this time did not move. A couple of the boys, including the one who punched him, were stomping on the boy on the ground with their feet. The boy on the ground was not moving. The big group of boys continued to stomp on the boy who died until they could hear the sirens. Then the boys in the big group ran. There was another boy also on the ground who broke free and ran. Some boys attempted to pursue him. That boy brought his mother to the boy who was on the ground.

¶ 9 Jasmine Cummings testified that she and her 11–year–old daughter were visiting Charles and Sheila Bills at 10356 South Indiana, sitting on their porch. She saw two boys being followed by a group of eight to nine boys. Two boys, one from each group, were arguing. One boy took his shirt off and punched one of the two boys, who fell to the ground. The boy tried to get up but was pulled back down. The big group of boys, including the boy who threw the punch, moved in on the boy on the ground and started to kick him all over. The major focus of the kicking, however, was the boy's head. The boy on the ground was not moving or fighting back. The other boy from the group of two ran. Some of the boys from the big group at first started to chase him but then returned and continued kicking the boy on the ground. Someone from the group picked up a bottle and cracked it [356 Ill.Dec. 812]

[962 N.E.2d 497]

over the boy's head, using the bottle like a club. Jasmine and the Bills yelled at the boys to stop but could not intervene because there were too many boys. The boys continued kicking the boy on the ground until they heard the sirens.

¶ 10 Jamal Hayes testified that he was in his car near 104th and Indiana listening to music. He observed a group of people in front of Joyce Sutter's house at 10356 South Indiana arguing, including Dewone and Dewone's cousin. Hayes did not know the person arguing with Dewone. Hayes testified there was a large fight and that he saw Dewone fall to the ground but did not know what happened to cause Dewone to fall, but Dewone did not move again. After Dewone fell to the ground, several people were kicking and punching Dewone but Hayes could not see who they were. Someone also hit Dewone with a bottle. It could have been the same person who hit Dewone. Hayes exited his car and ran to the corner, shouting, “Enough.” Just then, he heard sirens and the boys ran. The police and Dewone's aunt arrived on the scene. Dewone's condition was very bad. Hayes asked someone to turn Dewone over because he was afraid Dewone was choking on his own blood. Hayes later met with the police and a prosecutor and gave a signed statement, and he also testified before the grand jury that one person punched Dewone in the face, kicked and punched Dewone on the ground, and hit him with the bottle.

¶ 11 Harry Hardy testified that he was at 104th and Indiana playing basketball when he saw Dewone and another person walking down Indiana. He testified that he did not see or remember much of the incident. Dewone encountered defendant and was yelling something but Hardy did not know what he was saying. Hardy saw defendant punch Dewone, did not see anyone else hit him, and did not see the fight. Hardy testified he did not see anything happen to Dewone. Hardy admitted he gave a signed, written statement to police and a prosecutor, but denied the making the statements contained therein. Assistant State's Attorney Kim Ward testified that she spoke with Hardy and took his statement at the police station. She wrote a summary of his...