APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
E. WILSON, Judge, presiding.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:
The defendant, Norman Schwartz, was indicted for the crime of murder of Dr. Enrique Fuentes, to which he pleaded not guilty. In a bench trial defendant was found guilty of voluntary manslaughter and sentenced to the penitentiary for a term of 4 to 14 years. On appeal defendant contends:
(1) That he was not proven guilty beyond a reasonable doubt;
(2) That the trial court improperly excluded testimony regarding the nature and contents of a telephone conversation defendant had with his wife shortly before the shooting;
(3) That the trial court erred in permitting certain rebuttal testimony introduced by the State; and
(4) That the trial court erred in permitting a police officer to describe certain items which had been taken from the defendant, but which were not introduced in evidence or preserved by the State.
The facts are as follows:
Dr. Fuentes and Dr. Schwartz first became acquainted in 1962, when Dr. Fuentes applied for a position in the medical partnership of Dr. Kenneth Gill and Dr. Schwartz. Dr. Fuentes was hired and continued his employment-association with the partnership until early 1970. At times during their relationship, Dr. Schwartz had occasion to criticize Dr. Fuentes' medical procedures. Nevertheless, Dr. Fuentes continued to be employed by the partnership on a year-to-year contractual basis, beginning on the first of the year and ending on December 31st. In October, 1969, Dr. Fuentes engaged Dr. Schwartz in a conversation in which Dr. Fuentes demanded participation in the partnership. Dr. Schwartz responded that they would be willing to allow this participation if Dr. Fuentes made an investment in the partnership, as he had done. Dr. Fuentes replied that he did not want to invest any money, but that he wanted participation or he would leave. When Dr. Fuentes made this threat, Dr. Schwartz requested that he and Dr. Gill be given notice of exactly when Dr. Fuentes intended to leave. Dr. Fuentes said he had not completed his future plans as yet and he would let them know as soon as he did so. At this point, Dr. Schwartz told Dr. Fuentes that he could use the facilities of the medical center, that he would be paid for his services and that he expected to receive at least 30 days notice prior to Dr. Fuentes' leaving. The conversation concluded with Dr. Fuentes promising to give Dr. Gill and Dr. Schwartz "plenty of notice."
Dr. Schwartz did not receive any notice from Dr. Fuentes in the succeeding months. Dr. Fuentes left some time toward the beginning of November, but returned at the beginning of December. His contract was not renewed on December 31, but he remained in the office after the first of the year. He was paid for his services on a per-patient basis. Dr. Fuentes left again for approximately 2 weeks some time during January or February but returned before the end of February.
On Tuesday, March 3, Dr. Schwartz was advised for the first time by an employee of the medical center that Dr. Fuentes had left the office on Saturday, February 28, saying he was not returning. When Dr. Schwartz inquired concerning Dr. Fuentes' whereabouts, he learned that Dr. Fuentes was out of town and was scheduled to work in the emergency room at St. Francis Hospital on April 2.
Dr. Schwartz went to the hospital on April 4 and saw Dr. Fuentes in a doctors' room in the emergency area complex. Dr. Schwartz was dressed in his street clothing, and carried on his person, as he always did when dressed in his street clothing, his gun and knife. He gave Dr. Fuentes the original of a letter regarding the status of Dr. Fuentes' professional insurance. He told Fuentes that he had brought the letter to him in person because of Fuentes' habit of desregarding his mail and his concern that Fuentes knew that, according to the contents of the letter, the Gill-Schwartz partnership would no longer pay the premiums on Dr. Fuentes' insurance.
During this same conversation, Dr. Schwartz and Fuentes discussed what would be done regarding the referral of Dr. Fuentes' patients. The conversation, from Dr. Schwartz' point of view, concluded on an apparently amicable basis. A hospital dinner was held on the evening of April 5. Dr. Schwartz and his wife were too tired to attend that dinner. Later the next day, however, while Dr. Schwartz was at the hospital, he learned from his wife that someone who had attended the dinner had heard Dr. Fuentes making derogatory remarks at the dinner concerning Dr. Schwartz. This knowledge prompted Dr. Schwartz to seek out Dr. Fuentes on the morning of April 6.
Dr. Schwartz arrived at St. Francis Hospital at approximately 7:15 A.M. He wore normal street clothes. He entered the hospital from the parking lot in the front, checked in at the doctors' bulletin board, hung his outer coat on a coat rack, checked his mail box, took an elevator to the second floor, where he dropped off a throat culture in the pathology lab, and then went to the doctors' locker room, which was also on the second floor. As he was scheduled to assist Dr. Santos in surgery at 8 A.M. that morning, Dr. Schwartz changed from his street clothing into a hospital surgical scrub suit in the locker room. Dr. Schwartz shared a locker with another doctor. He hung his sport jacket, his tie and his shirt on a hook in his half of the locker. He then removed his street shoes and placed them in the bottom of the locker. Prior to removing his trousers, which were also to be hung on the hook in the locker, he removed a gun and knife he carried in his trousers pocket and folded them in a towel which he kept in the locker. This was done so that the weight of these objects would not pull the trousers from the hook in the locker.
Dr. Schwartz had owned a pistol for a number of years prior to April 6. In approximately 1965, he had purchased a .25 caliber automatic. Because of house calls he had to make at night, in dark and desolate areas where there had been assaults, because he carried his medical bag containing narcotics with him during these hours, and because he also made late-hour emergency calls at the hospital or his office, where he had been fired upon one late evening in November or December, 1969, Dr. Schwartz habitually carried the pistol on his person for a number of years. Dr. Schwartz had also carried a pocket knife on his person for a number of years. He used this knife to open packages in his home or in the office. Some time in 1967 he lost this knife. Shortly thereafter, he found another knife in the hospital parking lot. The blade of this knife moved in and out of the handle by means of a sliding button. When Dr. Schwartz found the knife, he placed a piece of masking tape in front of the button, so that the knife would not open accidentally. The masking tape was on the knife on the morning of April 6 when Dr. Schwartz entered the hospital. He did not remove it at any time that morning. When the knife was turned over to Sgt. Kooyenga later that day, the masking tape was in place, preventing the knife from being opened.
After replacing the towel containing the knife and the gun in his locker on top of his street shoes, Dr. Schwartz hung his trousers on a hook in the locker, closed his locker and dressed in the usual surgical scrub outfit. The pants to that outfit, as with all surgical outfits, had no pockets. At that time he did not have any intention of seeing Dr. Fuentes. Upon learning that Dr. Santos, whom he was scheduled to assist in surgery, was delayed, Dr. Schwartz made a telephone call to Attorney Henry Gentile concerning matters unrelated to Dr. Fuentes. He made an appointment with Mr. Gentile for late that evening. Following the telephone call Dr. Schwartz started his hospital rounds. He interrupted these rounds at approximately 8:15 A.M., to ...