APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
The familiar but lethal combination of a domestic quarrel and a loaded pistol was the cause of the tragic events disclosed by this record. Charles McClellan (defendant) was indicted for the murder of Starlon McClellan, his daughter (Ill. Rev. Stat. 1971, ch. 38, par. 9-1(a-2)); aggravated battery on his wife, Freddie McClellan (Ill. Rev. Stat. 1971, ch. 38, par. 12-4; also par. 12-4(b-1)) and for aggravated assault upon Della Leslie, his wife's sister (Ill. Rev. Stat. 1971, ch. 38, par. 12-2(a-1)). The count for aggravated assault was dismissed before trial. After a jury trial, defendant was found not guilty of murder but guilty of aggravated battery. He was sentenced to 2 to 10 years in the penitentiary. Defendant appeals.
In this case, defendant presents six points of alleged reversible error: the court advised the jury that defendant would assert the defense of accident and thus shifted the burden of proof to him; the comments by the trial court prior to trial which advised the jury that defendant would testify, which in essence forced him to do so; refusal of the trial judge to allow counsel for defendant to question prospective jurors directly; unfairly preventing defense counsel from using evidence favorable to the defendant; not holding an in camera hearing into the value, validity and admissibility of evidentiary tapes sought to be introduced by defendant; and the calling by the State of defendant's wife for a second time, only to identify the photo of her deceased daughter which was done solely to prejudice the jury. Defendant raises no point regarding the sufficiency of the evidence to prove him guilty of aggravated battery beyond a reasonable doubt. The State has taken the position that none of these issues present reversible error which would require reversal of the judgment.
Although the sufficiency of the evidence of guilt is not questioned, a factual statement is essential. Freddie McClellan testified that she was the wife of defendant. Their daughter, Starlon, was born September 28, 1960. The parties lived in Cairo, Illinois. They separated on August 19, 1972, and the wife and daughter went to live with the former's sister, Della Leslie, in Chicago.
On September 16, 1972, the wife, the daughter and the former's sister were driving in an automobile in Chicago. The sister was driving and the wife sat in the front right-hand seat. The daughter, then some 12 years of age, sat in the right rear seat. They saw defendant driving an automobile in the opposite direction. The wife testified that then she noticed defendant following them. When they stopped at a traffic light, defendant came over to the left side of the automobile and told the sister to pull over as he wished to speak to his wife. At the wife's request, her sister disregarded this and proceeded. When they stopped at another light, defendant came out of his automobile, which he had parked to their right, and walked over to them. He asked to speak to the wife and she responded that there was nothing to talk about. The wife testified that defendant reached inside of his coat with his right hand, pulled out a pistol and fired a shot which struck her behind the right ear and a second shot which struck her in the right shoulder. She then slumped over and heard some more shots. She was then taken to the hospital where she remained until December 20, 1972, and then to a rehabilitation center where she was at the time of trial in February of 1973. She denied that she had ever touched defendant's hands or struggled with him for possession of the gun.
Della Leslie, the sister, corroborated this testimony and testified that after firing the two shots which wounded the wife, the husband stuck his hand inside the front window and shot his daughter once. The witness got out of the automobile and heard two more shots. She then reentered the car and drove to obtain assistance.
The daughter entered the hospital on the day of the shooting. She subsequently died as a result of a bullet wound which had severed her spinal cord and caused other injuries.
Defendant called a clerical witness who testified without objection to his good reputation for being a nonviolent person and for truth and veracity. He also called his employment supervisor to give opinion evidence regarding his truth, veracity and honesty. He also called a minister, an aunt of defendant, who testified that she had a telephone conversation after the incident with Della Leslie who told her that there had been a scuffle over a gun and that Freddie McClellan and Starlon had been shot. This was partly corroborated by the minister's secretary who had made the call and listened to the conversation. She testified that Della said that there had been a "tussle" over a gun between defendant, the wife and the daughter.
Defendant testified in his own behalf. He agreed that the parties had lived together near Cairo and that his wife had left and gone to Chicago with the daughter sometime in August of 1972. He testified that he bought the pistol on August 30, 1972, but that he never saw it again until September 16, 1972. On August 30, 1972, the gun was in a dresser drawer at home. He went to Chicago on September 15, 1972, in connection with his employment. He did not have the gun in his possession then. He encountered the automobile driven by Della Leslie on September 16, 1972, only by chance. He drove up to the side of their car and asked Della Leslie to stop as he wished to speak to his wife. She responded with a profanity and proceeded. At another light, he got out of his automobile, approached the other car where his wife was seated and said that he would like to talk to her. She responded, "You are fixing to get your F'g head blown off." Defendant asked if the daughter could ride along with him. He did not have the gun when he approached the car. His wife then raised up the gun in her hand and when he saw it, he grabbed it. The little girl jumped up and grabbed hold of the gun at which time it went off. He grabbed the gun back and "it fired off two more shots." His wife's hand then went limp and he had the gun in his hand. Della Leslie then drove off in the automobile and he was standing with the gun. In due course he went over to the police station, surrendered and gave them the gun.
The gun is a revolver which holds five cartridges. It was empty when the police received it. Defendant testified that he had removed the bullets or shells which remained. Ballistic evidence confirmed that this was the gun which had caused the death of the daughter. A police officer testified that, after being properly advised of his rights, defendant stated that he had the gun on his person in his waistband when he went up to the car. This was because he had trouble with his wife and he was afraid that she would shoot him. He pulled the gun out of his waistband and his daughter reached from the back seat so that the gun was accidentally discharged. Defendant stated that he could not recall how many shots had been fired. Defendant denied making this statement to the police.
• 1 Defendant first points out that when the trial judge made a preliminary statement to the prospective jurors, he told them that defendant had filed an answer as part of pretrial discovery in which he asserted that his defense would be that he was not guilty but that the mishap was caused by the acts of Freddie McClellan and that the death of the daughter was an accident caused by these acts. Defendant urges that this had the effect of shifting the burden of proof to him.
After examining all of the remarks made by the court on voir dire, we cannot agree as to the effect of this portion of the statement by the court. On a number of instances, the trial judge properly emphasized that the burden of proof rested on the State and that defendant had no need to testify. In addition, in the opening statement made by defendant's counsel to the jury, he described the occurrence as an accident in quite a similar manner. Furthermore, an examination of the given instructions shows that the court properly instructed the jury regarding the presumption of innocence and the burden of proof which rested on the State throughout the case. (IPI Criminal 2.03.) We cannot agree that the jury was under any illusion or misapprehension as regards the burden of proof.
We will also point out here, as we will concerning additional contentions, that defendant made no objection to this portion of the preliminary statement by the court; did not ever move the court to discharge the jury for this reason and did not include any reference to this alleged error in his written motion for a new trial. It is therefore clear that, even if any error did exist in this regard, it has been waived by failure to object and failure to include the matter in the motion for new trial. See People v. Studdard, 51 Ill.2d 190, 198, 281 N.E.2d 678, regarding failure to object; People v. Hairston, 46 Ill.2d 348, 366, 367, 263 N.E.2d 840, on failure to include the matter in the written motion for new trial; also, People v. Davis, 18 Ill. App.3d 793, 797, 310 N.E.2d 682, and People v. Smith, 17 Ill. App.3d 494, 496, 497, 308 N.E.2d 257, covering both of these points.
• 2 The second point raised by defendant is actually an extension of his first claim regarding the initial statements of the trial court. He urges that as a result his "counsel had no choice but to place him on the stand." The one and only authority cited by defendant in support of this contention is People v. Weinstein, 35 Ill.2d 467, 220 N.E.2d 432. That case is completely inapplicable. There, the supreme court reversed a conviction for murder because of repeated argument by the prosecutor to the jury that it was the duty of defendant to "create a reasonable doubt of ...