2011 IL App (1st) 081228
Ill. App. Ct.2011Background
- Defendant Antonio Perry was convicted of first-degree murder after a large group beat the victim, Dewone McClendon, who lay defenseless on the ground; the beating included use of a bottle as a weapon and occurred while a gang of eight or nine surrounded the victim.
- Trial court refused to instruct on involuntary manslaughter and refused the second paragraph of IPI Criminal 4th No. 5.01B defining knowledge; the court also declined Zehr/Rule 431(b) voir-dire and admitted multiple prior inconsistent statements from witnesses who later recanted.
- The jury returned a general verdict of first-degree murder; there was no second-degree or involuntary murder verdict.
- Perry argued he was entitled to credit for time served from December 28, 2005, in Minnesota, but the mittimus credited only 706 days; the court later held he was entitled to 819 days prior to sentencing.
- The appellate court affirmed the conviction and sentence in part, but remanded to amend the mittimus to reflect 819 days of credit and otherwise affirmed the judgment.
- The opinion includes extensive analysis of the involuntary manslaughter standard, the knowledge instruction, Zehr/431(b) compliance, prior inconsistent statements, and sentencing credit under Williams and related authorities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether involuntary manslaughter instruction was required | People argues trial evidence supported recklessness to justify manslaughter | Perry argues evidence showed only recklessness, not intent or knowledge | No reversible error; instruction not warranted |
| Whether the second paragraph of IPI 5.01B on knowledge should have been given | People contends knowledge instruction was applicable | Perry contends it was necessary since count II required knowledge | Harmless error or not required; general verdict presumption supports intentional murder; no reversible error |
| Whether Zehr principles were properly conveyed to the venire under Rule 431(b) | People argues Rule 431(b) compliance was required | Perry contends failure to strictly adhere to Rule 431(b) affects fairness | Forfeited; plain error analysis declined because not closely balanced and impact on fairness was not shown |
| Whether admission of more than one prior inconsistent statement was error | People contends multiple statements allowed; impeachment and substantive use | Perry argues cumulative, unfair bolstering | No reversible error; statements admissible under 725 ILCS 5/115-10.1 as substantive and impeachment evidence; no plain error |
| Whether Perry is entitled to credit for time served from Minnesota arrest | People concedes Minnesota credit should apply | Credit should start from arrest date; mittimus timing offsets presentence credit | entitled to 819 days credit; mittimus corrected to reflect 819 days; sentencing date excluded |
Key Cases Cited
- People v. Davis, 233 Ill. 2d 244 (2009) (defines murder states of mind and explains one-good-count rule)
- People v. Lovelace, 251 Ill. App. 3d 607 (1993) (instruction on knowledge when both conduct and result at issue)
- People v. Griffin, 351 Ill. App. 3d 838 (2004) (limits on giving dual 5.01B paragraphs when multiple theories present)
- People v. DiVincenzo, 183 Ill. 2d 239 (1998) (discusses involuntary manslaughter standard and DiVincenzo factors)
- People v. Botsis, 388 Ill. App. 3d 422 (2009) (admission of 5.01B paragraphs where conduct vs. result issue)
- People v. Griffin, 178 Ill. 2d 65 (1997) (general verdict and multiple means analysis under Griffin doctrine)
- People v. Thompson, 238 Ill. 2d 607 (2010) (Rule 431(b) plain-error framework after amendment)
- People v. Williams, 239 Ill. 2d 503 (2011) (mittimus timing and when credit counts as sentence day)