APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Defendants, Barry Mitchell and Eddie Mitchell, were found guilty of murder after a jury trial. Barry Mitchell was sentenced to 30 to 100 years and Eddie Mitchell to 14 to 20 years. They both appeal.
The following contentions are raised: (1) that the defendants' Fifth Amendment rights to remain silent were violated when police officers testified that they refused to respond to police questioning; (2) that the court erred in failing on its own motion to instruct the jury as to voluntary manslaughter; (3) that the court erred in refusing to submit a tendered instruction as to involuntary manslaughter; (4) that the court improperly limited cross-examination of a prosecution witness; (5) that the evidence was insufficient to support a conviction of either defendant beyond a reasonable doubt; and (6) that the sentence given to Barry Mitchell was excessive.
The State's evidence may be summarized as follows: On March 13, 1971, at about 11:15 P.M., Eddie Mitchell (who was 16 years old) entered the Homestead Tavern and attempted to purchase some beer. Upon being refused service by the bartender he went over to Troy Cline (the deceased) and insisted that the deceased purchase the beer for him. At the time the deceased was drinking with his brother Ronald Cline and others. The deceased refused and Eddie started an argument with him. A few blows were exchanged. Eddie then left the tavern saying that he was going to get his brother (Barry Mitchell) and come back and kill the Cline brothers. He returned to the tavern 15 minutes later and called for the Clines to come outside with him. The deceased became angry and started walking toward the tavern door. Ronald Cline went after him trying to prevent a fight. When they arrived at the door, Eddie began striking them with a radio antenna he had taken off an automobile. Ronald Cline took the antenna away from Eddie and attempted to get him into a car so that they could go to Eddie's brother's tavern to resolve the dispute; he was holding Eddie around the arms and waist but wasn't trying to hurt him; he was just trying to prevent Eddie from inflicting any injury. Barry Mitchell then came on the scene. He approached from the side of the street opposite the Homestead Tavern. When Barry got to the middle of the street, he held up a gun. Then, as Ronald Cline stated:
"I had a hold of Eddie at the time. I don't remember whether I turned him [Eddie] loose or whether he lurched, * * *, but anyway the shooting started."
Barry Mitchell fired about six shots, one of which killed the deceased. The deceased was holding a set of car keys in his hand at the time. There were about 18 to 30 people on the street. The deceased was 30 years old, six feet one inch, and weighed 175 pounds. Ronald Cline was 26, six feet tall and weighed 185 pounds.
The owner of the Homestead Tavern testifying for the prosecution stated that just prior to the shooting he heard Barry Mitchell holler, "Eddie, duck, I will get him." On cross-examination he was asked if the Cline brothers were good customers of his. He answered, "Yes, sir." The assistant State's Attorney then objected and the objection was sustained. He went on to testify, without objection by the State, that the Clines came to his tavern quite often.
The coroner's pathologist testified that the bullet which killed the deceased entered on the left side of his stomach and lodged in the right side of his back; it was possible that the deceased was turning toward his right at the time of the shot; it did not enter straight on.
Deborah Rogers, Barry Mitchell's girl friend, testified for the defendants. She saw Eddie Mitchell walking on the street some time after 11:15 P.M. Eddie told her that he had been beaten up and asked her to get Barry for him. She then got Barry and told him that "Eddie was getting beat up."
Eddie Mitchell testified in his own behalf. After the initial conflict with the deceased in the tavern, he ran over to Deborah Rogers and told her to get his brother. He admitted that when he left the tavern he told the deceased he "would get [his] brother to kill him." When Barry approached the middle of the street in front of the tavern, "the people were coming out in the middle of the street after us."
Barry Mitchell testified in his own behalf. Debbie Rogers had told him that a "bunch" of men were beating up his brother. As he approached the Homestead Tavern he saw a crowd of 25 to 35 people. His brother was being beaten but got away and ran past Barry. Barry then put the gun into the air "to scare the people." Some of the people began coming toward him. The deceased was first, Ronald Cline was behind the deceased and others behind Ronald Cline. The deceased had a metal object in his hand. Barry panicked and shot the gun "in their direction"; he was not aiming at anyone in particular; he "did not mean to hit" the deceased. He denied ever hollering, "Duck, [Eddie], I'll get him." When the gun was emptied, he fled. He was caught by the police and taken to the police station. His brother's face was swollen.
Carl Smith, a Chicago police officer, testified for the defendants. He was at the police station when the defendants were brought in. Eddie's face was red and swollen. Defense counsel asked Smith if he had a conversation with Eddie relating to his swollen face. Smith responded that he did and that Eddie said the deceased had struck him. On cross-examination Smith stated that he asked Eddie where his brother and the gun used in the incident were, but that Eddie would not respond. No objections were interposed as to these questions.
During direct examination of John Roberts, a Chicago police officer testifying for the State, Roberts stated (without objection by defense counsel) that after he advised the defendants of their "rights" at the police ...