APPEAL from the Circuit Court of Cook County; the Hon. JOHN F.
HECHINGER, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
By jury verdict, defendant Stanley Wright was found guilty of murdering Steven Hearn and committing aggravated battery with a deadly weapon upon Bradford Crowell. Defendant was sentenced to 20 to 60 years for the murder and 3 to 9 years for the aggravated battery with a deadly weapon, the sentences to run consecutively.
On appeal the defendant raises a number of issues. We shall discuss only the following issues which are pertinent to our decision in this matter: (1) whether testimony elicited from a State's witness the arresting officer and from the cross-examination of the defendant concerning the defendant's failure to claim self-defense at any time prior to his taking the witness stand was proper; (2) whether the court erred with respect to the jury instructions; (3) whether defendant, 17 years old at the time of the offense, was deprived of equal protection as guaranteed by the U.S. Constitution by provisions of the Illinois Juvenile Court Act making that act applicable to females under 18 and males under 17; and (4) whether the sentences and the fact that they are to run consecutively are excessive within the meaning of section 5-8-4 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-8-4). Other issues involving matters arising during the trial and whether the evidence was sufficient to establish defendant's guilt beyond a reasonable doubt not pertinent to this opinion are not discussed in detail.
As this case is being reversed and remanded for a new trial, only so much of the record as is necessary for an understanding of our action will be set forth. At trial, four witnesses, Randy White, Gary Nolen, Reginald Cornelious and Bradford Crowell, testified for the State as to the circumstances of the incident. At approximately 6 p.m. on September 2, 1972, the four witnesses were in the vicinity of 4213 West 21st Place in Chicago along with the deceased. The defendant was walking on the opposite side of the street. Two witnesses testified the defendant was alone, and two witnesses testified there was another person with the defendant. All four testified that defendant was wearing a red jacket or coat and a red hat, that he shouted "Soul, Love" and that he removed a gun from his waistband and fired between three and six shots in the direction of the group. Crowell testified that one of the bullets struck his forehead for which he received six stitches. One of the men, Steven Hearn, was shot and thereafter died. Nolen, Crowell and Cornelious testified they observed no one else draw a gun or threaten the defendant, and White testified that he did not threaten the defendant or chase him down the street. Witness White testified he recognized the defendant from a party which he had previously attended. All four testified that they identified the defendant that evening in a line-up.
Officer Harold Szafranowski, of the Chicago Police Department, testified that he arrived at the scene at about 6:15 p.m. that evening, observed a body lying in the backyard of the house at that location, checked for vital signs and found none; that he ascertained the deceased to be Steven Hearn; and that he observed no weapons on or near the body.
Officer Arnold Cross, the arresting officer, testified that he went to defendant's home that evening in response to a radio call. The defendant answered the door and Cross advised him of his rights. In response to questioning by the State, Cross testified that he asked defendant if he had anything to do with a shooting on 21st Street and that defendant "said he didn't have anything to say." Defendant's counsel, in a sidebar conference, moved that Cross's testimony be stricken and the jury admonished that defendant had a right to remain silent. The judge denied the motion. Cross further testified that his partner, Officer Siller, had asked defendant if he had changed clothes, and that defendant said he had. Clothes similar in color to those described by the four eyewitnesses as having been worn by the individual firing the shots were found on a chair in the room of the arrest.
Bessie Rowland, the deceased's sister, testified for the State that she saw Steven Hearn alive on September 1, 1972, and dead in the morgue on September 2, 1972. Lovie Hearn, the deceased's mother, was then called to the stand and testified that she saw the deceased alive at 4:45 p.m. on September 2, 1972. She next saw him when she arrived at the scene of the incident later that evening. After she stated that "I ran to [Steven Hearn] and put his head in my lap, and I tried to talk to him," defendant's counsel moved, at sidebar conference, that her entire testimony be stricken alleging she was put on the stand to have her cry before the jury. His counsel also moved for a mistrial. Both motions were overruled. The judge then excused himself from the court, and while the judge was gone from the bench, the witness began crying hysterically in the presence of the jury. The clerk removed her from the stand. In chambers, defendant's counsel renewed his motion for mistrial or, alternatively, admonishing the jury after making the judge cognizant of the witness's subsequent demeanor. In proceedings before the jury, the State withdrew the witness and the judge instructed the jury to wholly disregard the witness's demeanor.
Defendant testified he had transferred high schools because he had been threatened by Disciples *fn1; that Gary Nolen, a State witness, had "threatened" him at Farragut High School by asking him whether he was a member of the gang. Additionally, he was purportedly threatened at a party where, he admitted, he had only talked to girls who, he further admitted, had not threatened him. Though he testified there were no other threats, defendant subsequently alleged that Randy White had, at a basketball game in 1971, threatened him and then that he had "struck" defendant. The defendant alleged he had not reported this incident to the police. After being reminded of earlier contradictory testimony, defendant then stated that he had told the police.
As to the incident itself, defendant twice said he left home in the clothes Cross found him dressed in and did not change them in the interim; that he was on his way to visit a friend, Tyrone Doherty, and since Doherty lived in a neighborhood defendant allegedly feared, David Wright, a friend, not related to defendant, gave defendant a gun and defendant went into the neighborhood alone; that when he reached the street upon which the incident occurred, he observed a group standing in front of the house at 4213 West 21st Place; and that one member of the group, who he believed to be Randy White, pulled out a gun and shot at him three or four times while running after him. In response to questioning objected to as "improper," defendant said he had never told anyone including his attorney that Randy White had been firing a gun at him. The objection was overruled.
The trial court, in its instructions, gave a definition of murder as provided in Illinois Pattern Jury Instructions Criminal No. 7.01 which does not include the phrase "without lawful justification." Defendant did not object to the giving of this instruction. Defendant did not tender or object to the absence of an instruction relating to voluntary manslaughter.
In closing argument, the State emphasized the change of clothes as evidence of defendant's guilt and defendant's denial that he had changed clothes as further evidence of his guilt. It also indicated the impossibility of defendant's story in relation to where the body had been found. It characterized defendant's alleged actions as "slaughter on the streets." In defendant's closing argument, counsel described the State's eyewitness testimony as "pat," analogized the fact that they did not testify against one another as "just like the Mafia," and depicted the neighborhood of the incident as a "jungle." On rebuttal, the State pointed out contradictions in defendant's testimony concerning the alleged threats, accused the defendant of "lying" which was not objected to emphasized the defendant's (but not Cross's) testimony that he failed to tell anyone of his having been shot at, and remarked that either defendant or Cross was "lying" about the change of clothes. An objection to this latter remark was sustained. The State further characterized defendant's case as being that defendant was a "victim of society, a victim of circumstances," an objection to which was also sustained, agreed that the area was a jungle "because of murderers like him" (not objected to), and depicted the defendant as a "murderer in lamb's clothes."
The decisive issue is whether the trial court erred in improperly admitting testimony on behalf of the State regarding defendant's refusal to answer questions and the defendant's failure to inform anyone, including his attorney, of his claim of self-defense. The State contends that such testimony was admissible under Harris v. New York (1971), 401 U.S. 222, 28 L.Ed.2d 1, 91 S.Ct. 643, and that, in any event, its admission was not prejudicial. Defendant contends that ...