People v. Place

605 N.E.2d 634, 238 Ill. App. 3d 1035, 178 Ill. Dec. 840, 1992 Ill. App. LEXIS 2034
Appellate Court of Illinois·Decided December 17, 1992·No. 4-91-0942·Published·Cited by 7 cases

Opinion

JUSTICE GREEN

delivered the opinion of the court:

On November 11, 1991, following a jury trial in the circuit court of Pike County, defendant Herschel Joseph Place was convicted of first degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9—1(a)(1)), attempt (first degree murder) (Ill. Rev. Stat. 1991, ch. 38, par. 8—4(a)), and two counts of armed violence (Ill. Rev. Stat. 1991, ch. 38, par. 33A—2). He was subsequently sentenced to concurrent terms of 25 years’ imprisonment for first degree murder and 15 years’ imprisonment for attempt (first degree murder). Defendant was not sentenced on the two armed violence convictions.

On appeal, defendant contends the trial court abused its discretion by (1) denying his motion for a change of venue based on adverse publicity, and (2) granting the State’s motion in limine preventing defendant from offering any evidence regarding whether he suffered from post-traumatic stress disorder (PTSD). In addition, defendant contends the court erred in sentencing by considering as a factor in aggravation that his conduct caused serious harm, and ordering him to pay restitution within 12 months of his release from the Department of Corrections. We affirm in part and reverse in part.

Defendant was originally charged with the offenses of first degree murder and armed violence for the shooting death of Steve Howland. In addition, defendant was charged with the offenses of attempt (first degree murder), armed violence, and two counts of aggravated battery for shooting and injuring James McDowell. Prior to trial the court granted the State’s motion to nol-pros the two counts of aggravated battery. Following a trial on September 13, 1991, the court entered an order declaring a mistrial after the jury was unable to reach a verdict. Subsequently, defendant was tried a second time and convicted on all counts.

Defendant does not challenge the sufficiency of the evidence supporting the convictions; therefore, only a brief summary of the evidence is necessary for an understanding of the issues. The evidence adduced at trial established that on October 8, 1990, defendant was at the Black Lantern Tavern located in Barry. Defendant arrived at the tavern at approximately 8:30 a.m. and indisputably continued to drink from approximately 10 a.m. until 4:30 p.m., at which time the shootings occurred. The victims, Howland and McDowell, arrived at the tavern somewhere between 9 a.m. and 11 a.m., and they too drank continuously until the time of the shootings. The bar at the tavern was shaped like an L, and throughout the day defendant was seated in the middle of the long side of the L, and the victims were seated at the short side of the L. There were other patrons also seated at the bar that day. Numerous witnesses to the shootings testified at the trial, as well as the complaining witness McDowell, and defendant.

McDowell testified regarding the shootings at the Black Lantern Tavern as follows: (1) around 10:30 a.m. defendant said “something about a 965” (the local union) and using offensive language he responded to defendant indicating he disliked “965”; (2) he believed defendant kept glaring at the end of the bar where he was seated and at approximately 3:30 p.m. or 4 p.m. he approached defendant and “asked [defendant] if he had something on his mind that e a glared down there, if there was a problem [he would] like o now what it was, and [defendant] said, No, go away and [leave] him alone”; (3) he then returned to where he was seated and stepped behind Steve Howland to hear what another person was saying; (4) he then heard “a crack like a loud firecracker and [he] looked down, and [Howland] was humped over, and [he] looked down, and there was defendant with a gun pointed that direction, and [defendant] said McDowell *** I’m going to kill you”; (5) he grabbed a barstool, using it to attack defendant, and he and defendant wrestled over the gun; (6) he got shot in the head twice but was able to take the gun from defendant; and (7) he threw the gun on the floor.

Defendant testified as follows: (1) he did not intend to harm Howland; (2) he does not know if he killed Howland at the Black Lantern Tavern; (3) he had known McDowell for four to five years; (4) on the day of the shootings he did not intend to harm McDowell; (5) he did not dislike McDowell; (6) he did not remember hurting anyone at the tavern; (7) he joined the Army and later served in Vietnam; (8) he was involved in combat in Vietnam and operated a bulldozer there to cut down trees; (9) he had a close friend in Vietnam who was killed in combat; (10) he was very much bothered by the loss of his friend; (11) he remained bothered from the loss of his friend after leaving the military, which manifested in nightmares, particularly each fall, which was the time of year his friend was killed; (12) he did not recall thinking of his friend who died in Vietnam on October 8, 1990, but he heard he had mentioned his friend’s name after the shootings; (13) he consumed a lot of alcohol in Vietnam; (14) he has been drinking alcohol after work for the last 20 years and the amount of his consumption of alcohol has been increasing; and (15) on the day of the shootings he consumed 15 to 20 or more beers.

Defendant further testified that the last thing he remembered prior to the shootings was drinking a shot of whiskey and several beers. The next thing he remembered was getting off the floor after wrestling with McDowell. Defendant stated both he and McDowell had blood all over them. He picked his glasses off the floor and noticed his pistol lying against the wall and picked it up and laid it on the bar. Defendant testified he then asked Charlotte Brown, who was standing there, what had happened and she said “I think you just shot a guy.” Brown then helped defendant make a phone call to his brother.

Various witnesses testified they either heard a gunshot coming from defendant’s direction or saw defendant standing with a gun in his hand pointing toward where Howland was seated. Steven Colburn testified that approximately 10 to 14 days before the shootings he saw a loaded .22 caliber handgun in the glove compartment of defendant’s car. Deputy sheriff Chris Dolbeare testified that in the squad car en route to the hospital defendant stated that he had gotten into a fight with McDowell, but denied getting a gun from his car or touching the gun used in the shootings prior to finding it on the floor and placing it on the bar. Defendant had several expert witnesses testify establishing he had a 0.23 blood-alcohol content following the shootings, and that he had been an alcoholic for 20 years and had experienced alcoholic “blackouts.”

Initially, defendant maintains the court erred in denying his pretrial motion for change of venue. The motion asserted that the inhabitants of Pike County were prejudiced against him to such a degree that he could not receive a fair trial in Pike County. In particular, the 'motion advanced that defendant believed “that many people in the county [knew] the facts of this case and that they believe[d] that [he] did shoot a firearm on October 8, 1990, which caused the death of Steve Howland and caused the injuries to James McDowell,” and that this prejudice first became known to him on September 9, 1991. In support, defendant attached to the motion the affidavits of approximately 103 citizens of Pike County. The contents of all the attached affidavits were identical, and stated as follows:

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People v. Place, 605 N.E.2d 634, 238 Ill. App. 3d 1035, 178 Ill. Dec. 840, 1992 Ill. App. LEXIS 2034 (Ill. Ct. App. 1992).

605 N.E.2d 634 (People v. Place) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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