People v. Tucker, 2-87-0856

• Decision Date: 03 November 1988
• Docket Number: No. 2-87-0856,2-87-0856
• Citation: 176 Ill.App.3d 209,530 N.E.2d 1079,125 Ill.Dec. 670
• Parties: , 125 Ill.Dec. 670 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Billy B. TUCKER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1079

530 N.E.2d 1079

176 Ill.App.3d 209, 125 Ill.Dec. 670

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Billy B. TUCKER, Defendant-Appellant.

No. 2-87-0856.

Appellate Court of Illinois,

Second District.

Nov. 3, 1988.

Rehearing Denied Dec. 12, 1988.

Josette Skelnik (argued), Robinson & Skelnik, Elgin, for Billy B. tucker.

Dallas C. Ingemunson, Kendall County State's Atty., Yorkville, William L. Browers, Deputy Director, Marshall M. Stevens (argued), State's Attorneys Appellate Prosecutor, Elgin, for the People.

Justice UNVERZAGT delivered the opinion of the court:

The defendant, Billy B. Tucker, was charged in the circuit court of Kendall County with the murder of Kevin Neuman (Ill.Rev.Stat.1985, ch. 38, pars. 9-1(a)(1), (a)(2)) following a shooting at T's Tap, a tavern, in Plano, Illinois. The jury was instructed as to the offenses of murder and involuntary manslaughter and on the defendant's theory of self-defense. The defendant refused a voluntary manslaughter instruction. It found the defendant guilty of murder. Defendant was sentenced to 30 years' imprisonment.

The defendant raises these issues on appeal: (1) whether the State proved beyond a reasonable doubt that he was not acting in self-defense at the time of the shooting; (2) whether the jury was instructed correctly on the law of self-defense; (3) whether he was denied a fair trial due to the admission of improper other crimes evidence; and (4) whether he was denied a fair trial due to a private conversation between an assistant State's Attorney and a State witness which occurred in the presence and within the hearing of the jury.

On the evening of November 9, 1986, the defendant was sitting at the bar in T's Tap next to Hoyett Cantrell and Bruce Batchelor. Also sitting at the bar were Kevin Neuman and his girlfriend, Sandy Coffman, Brent Martin, Mike Hansen, and Jerry Smith. John Parrott was playing darts. Louise "Sue" Russell was tending bar.

When the defendant made a comment to Parrott, whom he thought was acting "goofy," Hansen told the defendant to leave Parrott alone. Further comments were then exchanged between the defendant and Hansen and the defendant and Kevin Neuman, and the defendant told Neuman that if he wanted to "whip [his] ass, [he could] come over and try." Neuman then went to the door and asked the defendant if he was coming outside. Neuman, Martin, Hansen, Parrott and the defendant then left the bar. Before leaving, however, the defendant retrieved a gun he had given to Hoyett Cantrell to hold for Eddie Smith. Smith, who had previously been barred from T's Tap, gave the gun to the defendant earlier that evening when the bartender had noticed Smith and called the police to have him removed from the bar. The defendant carried the gun around with him the rest of the evening until he gave it to Hoyett Cantrell just prior to the confrontation with Neuman.

Outside, according to John Parrott, the defendant and Neuman pushed each other. Defendant then stepped back and drew a gun out of his waistband. Bruce Batchelor, looking out the window, also saw the defendant pull out the gun. Brent Martin testified the defendant pointed the gun up, cocked it, and pointed it back down. Mike Hansen came back into the bar and notified the bartender to call the police because the defendant had a gun. Words were exchanged between the defendant and Neuman. Martin testified Neuman put up his hands and said, "Forget about it. Let's go back inside and I'll buy you a beer." Parrott similarly testified that Neuman said, "I can't fight with that," and the men went back into the bar.

The defendant's testimony was that Neuman grabbed him when he got to the door and that he jerked away from Neuman and shoved him. Brent Martin stepped behind the defendant, and the defendant told Neuman he was not going to fight him and all his buddies, too. When Neuman advanced on him, the defendant testified he pulled out the gun and said he was not going to fight Neuman. The defendant testified Neuman suggested he put the gun away, and he would send his friends back inside and then he would "whoop" him. Defendant told Neuman he knew of Neuman's reputation and was not going to fight him. Neuman again suggested the defendant put the gun down, and the defendant refused. When Neuman asked if the defendant was going to talk all night or was going to fight, the defendant stated he would do neither and told Neuman to stay away from him. The defendant stated he knew about "the man" (referring to Neuman) and was scared of him. When asked what he knew of Neuman's reputation, the defendant testified, "If Kevin Neuman gets you down, he'll hurt you. He'll stomp you. He'll beat you. Anything Kevin Neuman can do to you, he'll do it." The State's objection to this as being nonresponsive to the question was sustained, and the answer stricken.

Defendant testified Neuman then told him, "Well, you know, Tucker, I can't back down," and the defendant said, "Man, you ain't backing down. It's no backing down to it." Defendant told Neuman all he wanted to do was go back inside and get his keys and stuff and leave. The defendant testified Neuman agreed to this and told the defendant to go inside, suggesting that he put the gun away and go in first. The defendant testified he said no, he would not put the gun away, and suggested instead that Neuman and his friends go in first and he would come in after them and get his keys and stuff and leave. Neuman then said, "Okay, no problem," and the defendant said, "Hey man, you do this, I'll buy you a beer next time I see you."

Testimony conflicted as to whether the defendant preceded or followed Neuman back inside. It appears that defendant was the last one to reenter the bar, but that he then walked past Neuman when Neuman hesitated upon entering. The defendant then proceeded to walk toward his bar stool. Testimony also conflicted as to whether Neuman said anything to the defendant to attract his attention and cause him to turn around. Bruce Batchelor testified the defendant just turned around and shot Neuman. Hoyett Cantrell figured Neuman "kind of hollered" because he caught the defendant's attention. The defendant's testimony was that he heard a noise and then turned around.

Whether Neuman made a noise or not, it is clear from the record that he was making a move toward the defendant as the defendant turned around. Sandra Coffman, Neuman's girlfriend, testified Neuman gave her a "real serious look" just before he grabbed, or grabbed for, the defendant and was shot. John Parrott testified that when the defendant turned around, Neuman was "diving for him." Hansen testified Neuman followed the defendant as the defendant walked to his bar stool and that Neuman's hands were "kind of extended some." Hoyett Cantrell said Neuman "kind of lunged after" the defendant; Neuman was not in a football stance, but was down a little lower "like he was going to take off after the defendant." Bruce Batchelor testified that after the first shot, Neuman "kept moving toward the defendant" and that Neuman's arms were out to the side with his elbows at about a 45-degree angle to the floor. The defendant testified that when he turned around, he saw Neuman coming at him with his arms up. The defendant testified he still had the gun "right there" and that Neuman knew that he had it. All the defendant remembered was Neuman "up and coming down at him" hearing the gun go "bang," and something else hit him. He did not recall anything after that until the ambulance arrived.

After the first shot, Bruce Batchelor testified he heard Neuman say, "Oh, damn it, he shot me in the heart." Hoyett Cantrell heard Neuman say, "I have been shot." According to the record, the first shot entered Neuman's stomach area, and he could have survived with medical attention.

Brent Martin testified the defendant and Neuman were right next to each other when the second shot was fired. That shot entered Neuman's chest area, pierced the aorta, and caused Neuman's death. According to Martin, after the first shot, Neuman raised his arms up to the defendant, "because his legs buckled or something." Parrott said that after the first shot, the two men started falling back. Hansen testified Neuman "lunged" at the defendant after the first shot, and a second shot went off. Hoyett Cantrell testified Neuman's right hand, which was empty, "came up on top" of the defendant, and the defendant brought the gun up, shot Neuman in the chest, and the two men fell on the floor.

A third shot, which did not strike anyone, was discharged when Brent Martin was beating on the defendant's hand trying to remove the gun. Martin admitted he hit the defendant in the face while the defendant was on the floor, and Mike Hansen admitted he kicked the defendant in the shoulder while the defendant was down on the floor.

When the paramedics arrived on the scene, both men were on the floor, and Neuman was lying partially on top of the defendant. Neuman's right hand up to about his wrist was underneath the defendant's back; his left arm was draped across defendant's leg. There was blood on the floor and on the two men; neither man was moving, and Neuman had no pulse. There were abrasions and contusions on the defendant's face. Both men were carried out on stretchers. The defendant's keys, cigarettes and lighter were later found on the bar near where he had been sitting.

There was evidence the defendant was 45 years old, was 6 feet 1 or 1 1/2 inches tall and weighed between 140 and 145 pounds. Kevin Neuman was 25 years old, 5 feet 9 inches tall and weighed approximately 180 pounds. He was well-built and had average or better than average sized arms. Todd Wells, one of the paramedics who responded to the call to T's Tap, testified he lifted weights with Neuman two or three years earlier, and Neuman could bench-press 200 pounds. Bruce Batchelor testified he "palled around" and lifted weights with Neuman,...