APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
Rehearing denied August 7, 1974.
After a bench trial, defendant was found guilty of the offense of voluntary manslaughter, in violation of section 9-2(b) of the Criminal Code, and was sentenced to a term of 3 years to 10 years. (Ill. Rev. Stat. 1971, ch. 38, par. 9-2(b).) He appeals, contending that he was not proven guilty beyond a reasonable doubt, that he was denied a fair trial by certain rulings of the trial court, and that the findings of guilt was based upon irrelevant and prejudicial evidence.
On October 30, 1971, Elmer Russell was shot by the defendant and later died of the wound so inflicted. The indictment charged defendant with the offense of voluntary manslaughter, in that he "shot and killed Elmer Russell with a shotgun, unreasonably believing at the time of the killing that the circumstances were such as to justify the killing * * *." Defendant maintained at trial that he had killed the deceased while under the reasonable, although mistaken, belief that the deceased had been armed with a handgun and had intended to harm him.
Robert Norvall, aged 23, testified for the People that on October 30, 1971, he went to a building on East 48th Street in Chicago about 9 P.M. to pick up his younger brother, Bernard, who was in attendance at a party. An argument developed between Robert Norvall and a 17-year-old female, Fabian Carter, concerning an improper advance made by him upon her; the argument continued outside the building where Carter drew a handgun on Norvall. Robert Norvall proceeded to his home a short distance away, and on the way he met Elmer Russell, the deceased, who had apparently witnessed the incident. On their return to the building in question, Norvall and Russell discussed "getting drunk", and Russell also told Norvall that he would handle the matter between Norvall and the girl. Russell told Norvall to stand away; Russell walked toward Fabian Carter and a group of youths which had gathered outside the building; a shot was fired, and Russell fell to the street. Robert Norvall noticed nothing unusual about Russell at the time he approached the crowd; he did not see the crowd back away as Russell approached; and, although Russell had been drinking that evening, Norvall observed him with no liquor bottle at that time. Robert Norvall thereupon fled the scene. Elmer Russell was 42 years of age at the time of his death.
Chicago Police Officer Haywood Liggett investigated the shooting. A search of the area and of the deceased's clothing disclosed no weapon or other like object; although 8 to 10 police vehicles arrived at the scene, the officer did not know whether any of the other officers found a weapon or a liquor bottle upon a search of the scene.
Bernard Norvall, aged 14, testified for the People that his brother arrived at the party in question to pick him up and an argument ensued between his brother and a female named Fabian. His brother left the building and Fabian followed him; Fabian drew a handgun on his brother; and Elmer Russell, who had been outside, told his brother to stay back and approached Fabian who was among a group of seven or eight youths assembled outside the building. When Russell approached to within 8 to 15 feet of the crowd, the defendant walked out of the building with a sawed-off shotgun. While walking toward the crowd, Russell held his hand inside his coat; people in the crowd shouted: "Shoot before he shoots you"; and the defendant fired the shotgun at Russell. Prior to the shooting Russell did not move the hand held inside the coat, and nothing was said between Russell and the defendant. The witness had not seen his brother or Russell with a weapon that evening, nor had he seen Russell with a liquor bottle.
Clifton Longs, aged 19, intially testified for the People but was later made a court's witness upon request by the prosecutor. Longs testified that he had attended the party in question with the defendant, Larry Freeman, Fabian Carter, and another person. He testified that Elmer Russell had approached a crowd which had gathered in front of the building, and that he (Longs) heard a shot emanate from a shotgun held by the defendant. After the shooting, the defendant and the witness went to a vacant building frequented by people in the area, and the witness testified that he placed nothing into the building. The prosecutor then represented to the court that Longs had previously told him that he (Longs) had placed the shotgun into the building and later removed it. Thereupon, at the request of the prosecutor, the court made Longs a court's witness. It was then educed from the witness that the shotgun and a handgun, the latter of which had been in the possession of Larry Freeman on that evening, had been hidden in the vacant building after the shooting and had thereafter been removed from the building to the witness' home. A defense objection was raised to the testimony concerning the handgun and was denied by the court, subject to the People's introduction of evidence tying that weapon to the case. Neither the witness nor the defendant had had words with Elmer Russell prior to the shooting, nor had the witness known Russell prior to the shooting. After the shooting had occurred and after the shotgun and the handgun had been hidden, the witness, the defendant, and the three others who had arrived together at the party proceeded to another party.
Clifton Longs further stated that he had given a statement to the police after the shooting, apparently in writing and signed by him. A defense objection to Longs' testimony was based upon the failure of the People to furnish a copy of that statement to the defendant upon the latter's request in a pretrial discovery motion. The objection was denied after the People represented to the court that the statement was not in the People's file and after it was also determined that the statement was not in the police file in the case.
Fabian Carter, aged 17, testified for the People that she had had an argument at the party with Robert Norvall because he had made improper advances toward her; that she and Norvall had gone downstairs where she had pointed the handgun at him, which weapon she had received from Larry Freeman; and that, after that incident, she had heard a gunshot from behind her. She had seen no weapon in the defendant's hands, whom she had known prior to the party.
Tony Hackman, aged 19, testified for the People that he had attended the party in question and had observed Elmer Russell walk up to Larry Freeman outside the building, Russell holding his hand inside his jacket. Freeman at that time was in possession of a handgun, whereas the witness did not see Russell with a gun; the crowd of people which had gathered outside the building was moving away from Russell as he approached, and the witness heard shouts from the crowd that Freeman should shoot "because he had a gun." The witness did not see defendant prior to the shooting.
Chicago Police Officer Timothy Tidmarsh testified for the People that he investigated the shooting and interviewed several witnesses at the scene, among whom were Longs and Robert Norvall. The witness then recovered a shotgun, used by defendant on the night in question, and a handgun, used by Freeman and Carter on the night in question, from the residence of Clifton Longs, along with shotgun shells and several other types of munitions. The officer also secured custody of defendant in Memphis, Tennessee, on December 30, 1971, where the witness had gone to effect defendant's extradition to Illinois. Defendant was advised of his constitutional rights and made a statement to the officer that, at the time of the shooting, the defendant thought that Russell was armed but that the defendant did not see a gun in his possession. An objection to the officer's testimony concerning the statement, on the grounds that the statement did not appear on the People's answer to the defendant's pretrial discovery motion, was denied. Questions asked of the officer by the defense (whether defendant had "voluntarily" turned himself over to the Memphis police and whether the officer had trouble in bringing defendant back to Illinois) were objected to by the People and the objections were sustained.
Defendant's mother testified on defendant's behalf that she had been visited by the police on October 31, 1971, relative to her son's having shot someone, after which she had sent her son by bus to Memphis (to her father's house there). The witness later wrote to defendant and advised him that the police had returned to the apartment and were looking for him. Objections by the People to defense questions (whether the defendant had protested the witness' sending him to Tennessee and whether he had "voluntarily" left Chicago) were sustained.
Defendant testified in his own behalf that he was 18 years of age and had attended the party in question with Freeman, Longs, Carter, and another youth; and that he did not recall seeing the Norvall brothers at the party. The defendant held no conversation with either Robert Norvall or Elmer Russell that night, nor did he know whether words were exchanged between Robert Norvall and Fabian Carter. He testified that area teenagers were causing trouble with defendant and his companions, and that he and Longs went to Longs' residence where they secured a shotgun. Upon their return to the party, they learned that the teenagers had since left; the defendant then took the shotgun from Longs, and the two youths left the party to return the weapon to the Longs' apartment. Longs and the defendant met Larry Freeman in the vestibule of the building where the party was being held; a crowd of persons from the party had gathered outside the building. The defendant held no conversation with anyone at that time nor noticed anything in the hands of Longs or Freeman. Elmer Russell, whom the defendant had never seen and with whom he had had no contact in the past, walked toward the building, wearing a suitcoat and holding his hand inside his trouser waistband. As Russell approached, the crowd backed away; Russell moved his hand in such manner as to indicate to defendant that he had a gun, and the defendant saw what he thought was a portion of a gun in Russell's possession. The defendant thought Russell was going to kill him, and he fired the shotgun at Russell for his own protection. The defendant testified that he had first noticed Russell when he (defendant) was inside the vestibule of the building and Russell was outside the building, about 4 feet away. After the shooting, the shotgun was hidden in the vacant building, and the defendant, Longs, and the others went to ...