People v. McClendon

554 N.E.2d 791, 197 Ill. App. 3d 472, 143 Ill. Dec. 856, 1990 Ill. App. LEXIS 645
CourtAppellate Court of Illinois
DecidedMay 9, 1990
Docket4-89-0500
StatusPublished
Cited by20 cases

This text of 554 N.E.2d 791 (People v. McClendon) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. McClendon, 554 N.E.2d 791, 197 Ill. App. 3d 472, 143 Ill. Dec. 856, 1990 Ill. App. LEXIS 645 (Ill. Ct. App. 1990).

Opinion

JUSTICE McCULLOUGH

delivered the opinion of the court:

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 trial court abused its discretion in sentencing.

We affirm.

Background

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.

STATE’S WITNESSES

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 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.

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, “ ‘What’s up with you? I will faze [fade] you.’ ” This meant Bevly would hurt him. Butler heard defendant say, “ ‘Watch out, Termite [Graham], I am going to have to do the time. Watch out, I’m going to do time.’ ” 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.

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’S STATEMENT

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 bluesteel 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.

DEFENDANT’S WITNESS

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Cite This Page — Counsel Stack

Bluebook (online)
554 N.E.2d 791, 197 Ill. App. 3d 472, 143 Ill. Dec. 856, 1990 Ill. App. LEXIS 645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mcclendon-illappct-1990.