{ "id": 12124713, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD M. KIRWAN, Defendant-Appellant", "name_abbreviation": "People v. Kirwan", "decision_date": "1981-05-13", "docket_number": "No. 79-774", "first_page": "121", "last_page": "127", "citations": [ { "type": "official", "cite": "96 Ill. App. 3d 121" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "338 N.E.2d 239", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill. App. 3d 736", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2871194 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/33/0736-01" ] }, { "cite": "397 N.E.2d 439", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "78 Ill. App. 3d 695", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5603043 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/0695-01" ] }, { "cite": "397 N.E.2d 888", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "892" } ], "opinion_index": 0 }, { "cite": "78 Ill. App. 3d 902", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5605750 ], "pin_cites": [ { "page": "907" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/0902-01" ] }, { "cite": "397 U.S. 358", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054393 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/397/0358-01" ] }, { "cite": "417 N.E.2d 827", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "93 Ill. App. 3d 808", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3136918 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/93/0808-01" ] }, { "cite": "394 N.E.2d 1044", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1048" } ], "opinion_index": 0 }, { "cite": "76 Ill. App. 3d 9", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3279534 ], "pin_cites": [ { "page": "12, 13" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/76/0009-01" ] }, { "cite": "348 N.E.3d 854", "category": "reporters:state_regional", "reporter": "N.E.3d", "opinion_index": 0 }, { "cite": "39 Ill. App. 3d 502", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5379633 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/39/0502-01" ] } ], "analysis": { "cardinality": 822, "char_count": 15678, "ocr_confidence": 0.898, "pagerank": { "raw": 1.219639026605913e-07, "percentile": 0.5978885255472424 }, "sha256": "1a46862951df5719067258d41bdc14169ed98212bdf4eb13ad64b855d8fbb5bb", "simhash": "1:a7073e5fe32a46c2", "word_count": 2574 }, "last_updated": "2023-07-14T16:31:40.709125+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SCOTT, P. J., and HEIPLE, J., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD M. KIRWAN, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE BARRY\ndelivered the opinion of the court:\nThe defendant, Edward Kirwan, was indicted by the grand jury of Peoria County for the offense of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9 \u2014 1(a)(2)). Following a jury trial in the circuit court of Peoria County, Kirwan was convicted, and sentenced to the Department of Corrections for a term of (25) years. He now appeals from the judgment entered on the jury verdict, raising three issues for our consideration: First, was the evidence presented at trial sufficient to prove him guilty of murder beyond a reasonable doubt; second, did reversible error occur when one of the jurors revealed to the court the fact he overheard his wife discussing Kirwan\u2019s trial with some acquaintances; and finally, did the trial court err in refusing to permit defense counsel to cross-examine the State\u2019s principal witness with regard to the latter\u2019s prior acts of perjury.\nThe record reveals that sometime during the morning hours of February 8,1979, Richard Monckton was shot three times and killed in his Peoria home by a murderer wielding a .380 automatic pistol. The only occurrence witness was Brad Abraham, who testified on behalf of the State and identified Monckton\u2019s murderer as Edward Kirwan, the defendant. Abraham\u2019s testimony was substantially as follows.\nAbout 5 p.m. on February 7, 1979, Abraham was at Kirwan\u2019s Peoria home. Shortly thereafter, they were joined by Dennis Ruprecht and Tim Dougherty. The four remained at Kirwan\u2019s house for about 2-3 hours, drinking beer and hard liquor. While at Kirwan\u2019s, Abraham saw two handguns, a revolver and an automatic.\nSubsequently, the four left Kirwan\u2019s house and went to Two Brothers\u2019 Bar, a Peoria tavern. They remained at Two Brothers\u2019 until 12 midnight, drinking pitchers of beer. Abraham testified that while at Two Brothers\u2019, the defendant had the automatic tucked into his belt and was wearing the revolver in a holster at his hip.\nAfter Two Brothers\u2019 Bar closed, the four decided to continue their drinking at Weedy\u2019s Tavern, also located in Peoria. They stayed at Weedy\u2019s until approximately 3:30 a.m. At this time the defendant, Abraham, Ruprecht, and a woman they had met at Weedy\u2019s, Linda Silva, left to go to Richard Monckton\u2019s home. Dougherty did not go with them.\nThe drinking continued at Monckton\u2019s house. Abraham testified that at this time \u201cRichard was talking bad about Ed\u2019s wife.\u201d Specifically \u201cDick was saying Ed\u2019s wife isn\u2019t good enough for Ed.\u201d Then Monckton and the defendant began to wrestle. The wrestling lasted about five minutes, after which time the argument between Monckton and Kirwan subsided, but not the drinking. Abraham testified that during the wrestling Kirwan was wearing a hunting knife on his belt and subsequently told Abraham that \u201cI should have slit his [Monckton\u2019s] throat.\u201d Abraham further testified that Kirwan was still wearing the revolver in a holster at his hip. Ruprecht, however, was then in the possession of the automatic. Abraham further testfied that Monckton brought out his shotgun, discussed its use with the defendant, and threw it off to his right without pointing it at the defendant.\nSometime following the wrestling, Linda Silva, Ruprecht, and Monckton passed out in the living room. Silva and Ruprecht were sleeping on one of the two living room couches. Monckton was sleeping on a recliner. Abraham and the defendant left for more beer and returned a short time later. Ry now it was daylight.\nAbraham testified that after he and the defendant returned with more beer, they sat in Monckton\u2019s living room. Abraham sat alone on the other couch facing Monckton, and Kirwan sat on a chair to Abraham\u2019s right. Suddenly Kirwan stood, stated \u201cI\u2019m going to blow this fucker away,\u201d and shot Monckton three times. After the shooting, Kirwan said \u201cNobody talks bad about my wife.\u201d Monckton died as a result of the shooting. The ammunition used in the murder was identified as ammunition for a .380 automatic. However, the .380 automatic Abraham stated he had seen in Kirwan\u2019s possession earlier that evening was never recovered.\nRuprecht was awakened by the shooting. The defendant said \u201cLet\u2019s go,\u201d and he left with Ruprecht and Abraham in Ruprecht\u2019s vehicle. According to Abraham, while in the car Kirwan said, \u201cI love you guys. I know you guys aint\u2019 going to rat on me.\u201d In response, Ruprecht stated, \u201cI\u2019m not going to rat on you.\u201d Ruprecht then dropped Kirwan off at the latter\u2019s house, and drove Abraham home. Monckton\u2019s body was subsequently discovered by Linda Silva, who apparently slept through the entire incident.\nAbraham underwent strenuous cross-examination at Kirwan\u2019s trial. Defense counsel elicited from Abraham the fact that he was involved in a motorcycle accident in 1971 or 1972 that resulted in brain damage and loss of sight in his left eye. Abraham underwent brain surgery at St. Francis Hospital in Peoria, and he admitted that he becomes spacy on occasion. He also admitted heavy alcohol and some drug use. In the course of his recuperation at St. Francis Hospital in Peoria, he said he experienced two seizures and a temperature of 107\u00b0. To control the seizures he had been taking dilantin. However, at trial he insisted during cross-examination that dilantin had been prescribed for his pneumonia.\nDefense counsel further examined in some detail Abraham\u2019s ability to recollect the events which transpired on February 7-8, 1979. Abraham drank a considerable amount of beer before arriving at Monckton\u2019s house the early morning hours of February 8, and admitted that while at Monckton\u2019s he drank three tequila sunrises, part or all of eight beers, and a shot of brandy. In response to defense counsel\u2019s query as to whether or not he was drunk at Monckton\u2019s, Abraham replied, \u201cWell, I wasn\u2019t \u2014 I was feeling it but I wasn\u2019t falling over drunk.\u201d He further admitted he did not actually see the gun when the defendant shot Monckton, but he thought Kirwan shot Monckton three times in the chest. In actuality, although Monckot was shot three times, only one bullet struck him in the chest. The remaining two bullets hit Monckton in the back and behind his right ear. Finally, defense counsel obtained from Abraham an admission that he was testifying in exchange for a grant of immunity from prosecution for perjury.\nThe first issue raised by the defendant on appeal concerns the credibility of Abraham, the only State\u2019s witness to positively identify Kirwan as Monckton\u2019s killer. The defendant contends that in light of Abraham\u2019s incredible, impeached, and contradictory testimony, which he describes as \u201ccontrary to human belief and experience,\u201d the record fails to support the jury verdict of guilty. The law in this area is well-settled:\n\u201cUnless the evidence is so palpably contrary to the verdict or so unsatisfactory as to raise a reasonable doubt of a defendant\u2019s guilt, a reviewing court will not set aside a jury\u2019s verdict, for any inconsistencies or discrepancies in the testimony of the witnesses, any possible bias or interest affecting the credibility of the witnesses, and the weight to be attributed to the testimony of the witnesses are matters peculiarly within the province of the jury. This is so because the jury is in a better position to assess each witness\u2019 ability to remember and opportunity to observe, weighing any discrepancy in light of all the evidence. People v. Henderson (1976), 39 Ill. App. 3d 502, 348 N.E.3d 854.\u201d (People v. Seiber (1979), 76 Ill. App. 3d 9, 12, 13, 394 N.E.2d 1044, 1048.)\n(Accord, People v. Crossno (1981), 93 Ill. App. 3d 808, 417 N.E.2d 827.) Viewing, as we must, all of the evidence presented in this case in light most favorable to the prosecution to determine whether any rational trier of fact would have found the defendant Kirwan guilty of murder beyond a reasonable doubt (see In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068; Crossno), we cannot conclude that the jury verdict was so palpably erroneous or unsatisfactory that a reversal is warranted. Abraham positively identified the defendant as Monckton\u2019s killer. His testimony in this regard is unrefuted. Despite defense counsel\u2019s concerted effort to implicate one of the other individuals present at Monckton\u2019s house the morning of his death (Ruprecht), there is absolutely no evidence that anyone other than Kirwan shot Monckton. Neither Silva nor Ruprecht were called by the State to testify. Both, however, were called by the defense. Ruprecht was asked only one question on direct examination: Did he shoot Monckton. His answer was in the negative.\nWith regard to the various facts brought out by defense counsel in his cross-examination of Abraham \u2014 Abraham\u2019s motorcycle accident and subsequent brain surgery, his partial blindness, his occasional \u201cspaciness,\u201d his alcohol and drug use, his testimony under immunity \u2014 they all have a bearing upon one thing and one thing only; Abraham\u2019s credibility as a witness. Weighing the credibility of a witness is particularly within the province of the jury. It is the jury, and not the reviewing court, that witnessed the trial and was afforded the unique opportunity to observe Abraham. Accordingly, it is the jury, and not this reviewing court, that is in the best position to determine whether his testimony is worthy of belief. The jury verdict of guilty evinces its conclusion that despite the impairment of his mental and physical faculties, his drug use, and the grant of immunity, Abraham was believable. The jury obviously found that the numerous defense witnesses who were called to impugn him were not. The cold record does not compel us to disturb this finding. \u201cWe cannot rule that evidence is insufficient for conviction merely because it consists of bizarre incidents related by less than respectable citizens.\u201d People v. Kester (1979), 78 Ill. App. 3d 902, 907, 397 N.E.2d 888, 892.\nThe second issue raised by defendant is whether reversible error occurred when one of the jurors informed the court that he overheard his wife discussing Kirwan\u2019s trial with some acquaintances, but was allowed to remain on the jury. The record discloses that during the trial juror Gale Randall revealed to the court that he overheard his wife telling someone over the telephone that Kirwan would not receive the death penalty if convicted. Following this revelation, the court asked juror Randall if he would be influenced in any way by what he heard his wife say, whether what he heard would affect in any way his thinking or judgment in acting as a juror and reaching a verdict, and whether what he heard would prevent him from being completely fair and impartial. Juror Randall responded \u201cno\u201d to each of these questions. He was then asked by the court if he would \u201clay aside what you heard and base your verdict or verdicts in the case entirely on the evidence presented in the courtroom and the law given to you by the Court.\u201d He answered this question affirmatively. Both the State\u2019s attorney and defense counsel indicated that they were satisfied with Mr. Randall\u2019s answers, and neither made a motion to exclude him from the jury.\nLater in the trial, Mr. Randall indicated that he wished to once again address the court. In the absence of the other jurors, Randall clarified the circumstances under which he heard the death penalty comment. Under questioning by defense counsel, he reaffirmed that he would be fair and impartial, and was not affected in any way by what he had heard. Defense counsel again indicated that he was satisfied with juror Randall\u2019s responses, and made no motion to exclude him.\nIt is manifestly evident from the foregoing that defense counsel never objected to Gale Randall\u2019s retention on the jury during the trial. Further, an examination of defendant\u2019s post-trial motion reveals that he does not therein assert as error the trial court\u2019s failure to exclude Randall after he disclosed he had obtained extraneous information. It is well settled that error is not preserved on appeal if it is neither objected to at trial nor asserted in a post-trial motion. (People v. Cook (1979), 78 Ill. App. 3d 695, 397 N.E.2d 439; People v. Guynn (1975), 33 Ill. App. 3d 736, 338 N.E.2d 239.) As a consequence, the defendant in the instant case has waived any error concerning juror Randall\u2019s retention for purposes of appellate review.\nFinally, the defendant contends that the trial court erred in refusing to allow defense counsel to impeach Abraham by bringing to the jury\u2019s attention the fact that Abraham committed perjury while testifying in the Woodford County case of People v. Clarence Bradshaw (76-TR-713) on March 31, 1976, and that he was paid $5 by the defendant Bradshaw in exchange for his perjury. However, it is apparent that Abraham was never charged or convicted of the crime of perjury. (111. Rev. Stat. 1979, ch. 38, par. 32 \u2014 2.) Consequently, defense counsel was attempting to impeach Abraham with proof of a prior specific act of misconduct.\nAccording to one authority on Illinois evidence law, impeachment of a witness with evidence of prior acts of misconduct not leading to a conviction is expressly prohibited. (E. Cleary & M. Graham, Handbook of Illinois Evidence \u00a7608.5 (3d ed. 1979).) \u201cInquiry with respect to specific acts of misconduct is barred on the ground that such examination is regarded as overly prejudicial in relation to its probative value.\u201d (E. Cleary & M. Graham, Handbook of Illinois Evidence \u00a7608.5, at 282 (3d