APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
The defendant, Frank E. Bailey, was charged by a four-count indictment with the murder of Robert Lawrence and the aggravated battery of Charles Lawrence. In a bench trial, the court granted the defendant's motion for a finding of innocent regarding the two counts of murder on the ground that the defendant acted in self-defense; but the defendant was found guilty of the two aggravated battery counts and was sentenced to a term of 1 to 8 years in the penitentiary. The defendant appeals from these two convictions entered in the circuit court of Cook County raising five issues on appeal: (1) the defendant did not knowingly and intelligently waive his right to counsel; (2) the defendant did not knowingly and intelligently waive his right to a jury trial on the aggravated battery charges; (3) the defendant was denied due process of law by the court's denial of the defendant's motion to be given sufficient opportunity to interview the witnesses to the shooting; (4) the State did not prove beyond a reasonable doubt that the defendant was not acting in self-defense when he shot Charles Lawrence; and (5) the defendant should not have been convicted of two counts of aggravated battery when both counts resulted from the same conduct.
Frank E. Bailey's two convictions for aggravated battery grew out of an incident in which the defendant shot both Robert and Charles Lawrence who were brothers. Robert Lawrence died as a result of two bullet wounds the defendant inflicted. The defendant was acquitted of the murder of Robert Lawrence in a bench trial by a finding that the defendant had acted in self-defense when the defendant fired the fatal shot at Robert Lawrence. However, the court did not find that the defendant had acted in self-defense when he shot Charles Lawrence. The defendant was, therefore, convicted of two counts of aggravated battery. The evidence taken in this matter was presented at the defendant's bond hearing which was transformed into a trial by the mutual agreement of the defendant and the prosecution during that proceeding. The defendant acted as his own defense counsel in the matter.
The events leading up to the shooting, except for the last few moments before the shooting, were not in substantial dispute. The shooting took place in a third-floor apartment at 6012 South King Drive in Chicago, Illinois, during the afternoon of February 27, 1973. Eight persons were present during the shooting and the events which led to that shooting. These persons were Shirley Henderson, the lessee of the apartment; Corney Houston Bey, Shirley's boyfriend; Alice Tyler; Robert Lawrence, the deceased; Charles Lawrence, Robert's brother; Cleo Atkins, Charles Lawrence's stepson; the defendant, Frank E. Bailey; and Richard Bryant, an acquaintance of the defendant. All of these persons were called as State witnesses except for the deceased, the defendant who testified in his own behalf, and Alice Tyler who did not testify.
All the witnesses except Cleo Atkins testified that the defendant was the last to arrive and that he arrived alone, apparently looking for Richard Bryant who was to play basketball with the defendant. Atkins testified that the defendant and Bryant arrived together. Shortly after the defendant arrived, he and Robert Lawrence, the deceased, got into a very vocal argument. The nature of this argument was never disclosed. The defendant and Richard Bryant then left the apartment. Robert and Charles Lawrence went out into the hall after them, and the argument between Robert and the defendant continued. At some point Robert Lawrence became aware of the fact that the defendant had a gun in his pocket. Robert accused the defendant of "pulling a gun on him." The defendant denied this and handed the gun to Richard Bryant as a show of good faith. Bryant placed the gun in his pocket. The argument continued. Those still inside the apartment asked them to come inside, apparently because of a phone call complaining of the noise in the hall.
The defendant and the two Lawrence brothers returned to the apartment. Richard Bryant, who was still in possession of the gun, remained outside for a short time and then re-entered the apartment. The argument between Robert Lawrence and the defendant was still going on. Shirley Henderson and the defendant testified that Robert Lawrence challenged the defendant to a fight. Shirley Henderson testified that Robert said to the defendant, "I am going to kick your ass." The defendant, Shirley, and Richard Bryant testified that the defendant refused to fight and demanded to be allowed to leave the room. Robert Lawrence, they testified, refused to let the defendant leave. Charles Lawrence was then standing with Robert in front of the door. Five of the six witnesses to the occurrence testified that they heard Robert say to the defendant that the only way that the defendant was going to leave the room was "out the window." Three witnesses testified that the window in the apartment was open. The apartment was on the third floor.
The Lawrence brothers' attention then turned to the fact that Richard Bryant was still holding the defendant's gun. Corney Bey testified that Robert said he was going to get the gun. Bey also testified that both Robert and Charles Lawrence then patted Richard Bryant for the gun and pulled on Bryant, urging him to go with them. Bryant refused to give up the gun. Bryant testified that Robert Lawrence demanded to see the gun and that Charles Lawrence said, "Well, you know we can just take it from Shank [Bryant's nickname]." Shirley Henderson testified that Robert Lawrence had demanded the gun from the defendant. Charles Lawrence also testified that his brother Robert had demanded the gun from Bryant. Bryant then testified that after the demands for the gun were made on him, Charles Lawrence started advancing toward Bryant. At this point the defendant asked Bryant for his gun and grabbed it from Bryant.
What happened during the next few moments was in some dispute among the witnesses. Shirley Henderson, a witness for the State, testified that when the defendant asked for his gun from Bryant, she ran into the closet. The shots were fired while she was in the closet.
Richard Bryant, another State witness, testified that after the defendant grabbed the gun he put it in his pocket. Robert and Charles Lawrence both advanced on the defendant. The defendant then pulled the gun out of his pocket and cocked it and said, "Man, get out from in front of the door." Corney Bey then got between the defendant and Robert Lawrence but jumped back when the defendant pointed the gun. The defendant began firing. The first shot hit Robert Lawrence who was only two feet from the defendant. Charles Lawrence then rushed the defendant and was hit by the second shot. Charles was almost "on top" of the defendant when he was shot. Bryant then testified that he, Bryant, headed for the door and heard two more shots as he was exiting.
Corney Bey, a State's witness, testified that after the defendant had retrieved the gun from Bryant, Robert Lawrence began advancing on the defendant. The defendant pulled the gun out of his pocket where he had placed it. The defendant told Robert to get out of the way and Robert replied that the only way the defendant was going to go was out the window. Bey then stepped in between Robert and the defendant. The defendant then pointed the gun and Robert pushed or motioned Corney Bey out of the way and continued toward the defendant. The defendant fired at Robert Lawrence when Robert was about 3 feet away. At this time, Corney Bey testified, Charles Lawrence was behind Robert and about 6 feet from the defendant. Corney Bey then headed for the closet in the room. Before he got into the closet he heard two more shots. When Bey came out of the closet he observed Robert and Charles lying on the floor together.
Cleo Atkins, another witness for the State and Charles Lawrence's stepson, testified that when the defendant got his gun back he was near the window. Robert and Charles Lawrence were near the door, about 12 feet from the defendant. The defendant, Atkins testified, moved away from the window toward Robert and Charles and begin firing. The first shot hit Robert and the second shot hit Charles. Robert and Charles fell to the floor and defendant fired two more shots at the Lawrence brothers.
Charles Lawrence, also a witness for the State, testified that the defendant was near the window when he got his gun back from Richard Bryant. Charles was standing next to his brother near the door. The defendant then pointed the gun at Robert, and Charles tried to push his brother Robert out of the way at the moment his brother was shot by the defendant. Robert's fall tripped Charles. As Charles was falling, he testified he was hit by the defendant's second shot. Charles fell on top of Robert. Both Charles and Robert tried to get up but were each struck by another shot fired by the defendant. At this time, Charles testified, the defendant was "still standing close to my brother."
The defendant testified in his own behalf. He testified that after he took his gun back from Bryant, Robert Lawrence demanded that the defendant turn over the gun. The defendant refused and both Robert and Charles Lawrence began moving toward the defendant. The defendant backed up to the open window. Robert said he was going to push the defendant out the window. The defendant then took his gun out of his pocket where he was keeping it. Corney Bey then got between Robert Lawrence and the defendant, putting a hand on Robert's chest to halt his advance. Robert swung Corney into the wall and then reached for the defendant. The defendant testified he than started shooting. "I just I shot at all at both of them and * * * Cleo went to screaming and just stopped all my attention and I stopped [firing]."
Many of the witnesses testified that the room where the shooting took place was very small. Bryant estimated it to be 9' x 12', Corney Bey estimated it to be 10' x 12', and the defendant said it was a "twelve foot room." Whatever the precise locations of the defendant and the Lawrence brothers at the time of the shooting, they all were at ...