APPEAL from the Circuit Court of Cook County; the Hon. PHILIP
ROMITI, Judge, presiding.
MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
Walter Pickett, the defendant, was indicted for the murder of Henry McNeil, found guilty by a jury of voluntary manslaughter and sentenced to a term of not less than 5 nor more than 15 years.
The defendant's testimony established that prior to the homicide he was provoked by the following acts of the deceased. On February 16, 1973, he had a beer at a bar in Chicago and as he was leaving the deceased approached him, gave him a gang signal and said, "the nation runs it." The deceased then grabbed a dollar bill defendant was holding in his hand and when the deceased would not return the money, the defendant snatched it back. As the deceased started to take off his coat, the defendant hit him. Two men grabbed the defendant and told him to leave. Four days later as defendant was walking down a street in the late evening he encountered the deceased who apologized for the previous incident, shook defendant's hand and then cut the defendant's throat with either a knife or a razor. The cut required 23 stitches. On the same night after receiving medical treatment, the defendant purchased a .22-caliber pistol for $15 from a man he knew by sight and happened to meet on the street. Defendant had not previously owned a gun. This testimony is not disputed.
The defendant also testified that the next day he was carrying the gun and trying to find a fellow worker to get a ride to work. He saw his friend's car parked at 48th and Prairie and looked for him in a tavern at 48th and Indiana. Not finding him there, the defendant went to a nearby pool hall to look for him. When he entered the poolroom he saw the deceased sitting on a stool.
The testimony of three eyewitnesses established that the defendant started to shoot at the deceased immediately after opening the poolroom door, that the deceased was shot as he turned toward the door when it opened, that the deceased was sitting on a stool when the defendant fired the first shot, and that after the first shot the deceased got up from the stool and ran towards the back of the poolroom and into a washroom while the defendant fired a gun at deceased's back. The defendant ran out of the poolroom, the deceased staggered out of the washroom, collapsed and died. The autopsy revealed a bullet wound in deceased's face, one in the chest and three in the back. When the police arrived at the poolroom, the body of the deceased was on the floor, but they found no weapons.
The defendant surrendered to a police officer shortly after the shooting. A police investigator testified that the defendant told him what had happened, stating that as he entered the poolroom, the deceased made a pocket play. The officer explained that a "pocket play" is a movement of the hand toward the pocket as if there was a weapon in the pocket. The defendant testified that as he entered the poolroom the deceased spun around, jumped off a stool, went in his coat and pulled out a gun. It was at that point, according to the defendant's testimony, that he pulled his gun and started shooting. The defendant testified that he told the investigating officer that the deceased had a gun in his hand, but the officer denied that defendant told him this.
An assistant State's attorney who interviewed the defendant testified that the defendant gave a voluntary oral statement in which he said he went into the poolroom, saw the deceased there, shot him once in the front and continued to fire the weapon while the deceased was running. The assistant State's attorney did not ask and the defendant did not mention a "pocket play" by the deceased or that deceased had a gun. The defendant agreed he did not tell the assistant State's attorney that the deceased made a pocket play or pulled a gun.
• 1 The first question is whether the defendant acted in self-defense. The State's three eyewitnesses did not see the deceased reach toward his pocket, let alone pull a gun. The defendant argues that because of their position in the poolroom at the time of the shooting they did not have the opportunity to see what the deceased was doing. He also contends that their testimony is inconsistent and not credible, and that one of the eyewitnesses was not even in the poolroom at the time of the shooting. However, the resolution of conflicts between the testimony of the eyewitnesses and the defendant was for the jury to decide. (People v. Holtz (1974), 19 Ill. App.3d 781, 790, 313 N.E.2d 234; People v. Kendricks (1972), 4 Ill. App.3d 1029, 283 N.E.2d 273.) While the defendant's version of the shooting contradicts that of the eyewitnesses, the contradiction does not render the State's evidence insufficient to prove beyond a reasonable doubt that the defendant was not acting in self-defense. (People v. Brown (1972), 52 Ill.2d 94, 106, 285 N.E.2d 1; People v. Thornhill (1975), 31 Ill. App.3d 779, 333 N.E.2d 8.) The evidence is not so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt regarding whether the defendant was acting in self-defense, and this court cannot, therefore, substitute its judgment for that of the jury in deciding the credibility of witnesses or the weight to be given their testimony. People v. Schwartz (1974), 58 Ill.2d 274, 278, 319 N.E.2d 23; People v. Clay (1973), 55 Ill.2d 501, 507, 304 N.E.2d 280; People v. Clark (1972), 52 Ill.2d 374, 288 N.E.2d 363; People v. Catlett (1971), 48 Ill.2d 56, 64, 268 N.E.2d 378; People v. Kendricks (1972), 4 Ill. App.3d 1029, 283 N.E.2d 273.
• 2, 3 The essential difference between a justified killing in self-defense and one not justified amounting to voluntary manslaughter is whether the belief that it was necessary to use deadly force was reasonable under the circumstances. (People v. Joyner (1972), 50 Ill.2d 302, 306, 278 N.E.2d 756.) While the defendant may have feared the deceased might injure him, his use of deadly force was not justified unless under the circumstances it was reasonable for him to believe that he was in danger of death or great bodily harm. (Ill. Rev. Stat. 1971, ch. 38, §§ 7-1, 9-2(b); People v. Brown (1946), 392 Ill. 519, 64 N.E.2d 739; People v. Young (1973), 11 Ill. App.3d 609, 297 N.E.2d 298; People v. Martinez (1972), 4 Ill. App.3d 1072, 283 N.E.2d 268; People v. Galarza (1972), 3 Ill. App.3d 853, 279 N.E.2d 372.) Where, as here, a defendant is not found guilty of murder, the circumstances that might have been considered to show premeditation or malice need not be disregarded in determining the reasonableness of his belief that he had to use deadly force. People v. Schwartz (1974), 58 Ill.2d 274, 277, 319 N.E.2d 23.
• 4 Defendant Pickett was still in the doorway of the poolroom when he claimed the deceased made his pocket play or pulled his gun, and he could have retreated out the door. The defendant continued to shoot while the deceased was running away from him. The investigating officer testified that defendant never told him that the deceased had a gun in his hand. Defendant's suggestion that the deceased had a gun which was disposed of by his friends before the police reached the poolroom was apparently rejected by the jury. The jury could also have rejected defendant's explanation as to why he entered the poolroom carrying the gun he purchased the previous night. The testimony of the eyewitnesses showed the defendant to be the aggressor. Thus, the evidence, if believed by the jury, was sufficient to establish defendant's guilt of voluntary manslaughter beyond a reasonable doubt, and as in the case of the issue of self-defense, the credibility of the witnesses was for the jury to decide. People v. Schwartz (1974), 58 Ill.2d 274, 278, 319 N.E.2d 23.
The defendant also contends that he is entitled to a new trial because of several errors which occurred during his trial. In response to a discovery request by defendant for any statements he has made, the State referred to the police report. In his opening statement, the assistant State's attorney told the jury the defendant had said to the police, "I walked the streets looking for him. I bought a gun." When the defendant objected that the prosecutor had not disclosed the statement in the response to his discovery motion, the State pointed out it was based on testimony of a police officer at the coroner's inquest. The State then amended its discovery answer by adding the words "and inquest testimony" after the reference to the police report. The defendant presented a motion in limine to exclude reference to any testimony at the inquest which did not appear in the police report. The motion in limine was made on the second day of the trial. The only witnesses to testify had been two police officers and neither of them had referred to the statement in controversy. No more testimony was heard until the eighth day of the trial, and thus the defendant had ample time to prepare for the testimony in question.
• 5, 6 Under these circumstances, the denial of the motion in limine was not error. Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194, is not applicable because the testimony in question was unfavorable rather than favorable to the defendant. Supreme Court Rule 415 (g) gives the trial court broad discretion in dealing with a claim that a party has failed to comply with a discovery order. There is no mandate that a court respond to failure to disclose evidence during discovery by excluding it. As alternatives, the court can order disclosure of these matters, or grant a continuance. The defendant here in effect received the benefit of both of these alternatives. It does not appear that he was prejudiced by the State's failure to refer to the inquest testimony in its original answer to his discovery motion particularly because no testimony was actually offered by the State with respect to the subject matter of the statement testified to at the inquest.
• 7 Next, the defendant objects to the prosecutor's use of the words "confession" or "admission" in referring to the defendant's statements to police officers. When these words were used by the prosecutor in his closing argument, objections were sustained and the jury was instructed to disregard the prosecutor's comments. The error is, therefore, deemed cured. (People v. Carroll (1973), 12 Ill. App.3d 869, 878, 299 N.E.2d 134.) When "confession" was mentioned in the opening statement, the judge pointed out that this was only what the State hoped to prove. The error, if any, was harmless.
• 8 Defendant, relying on People v. Gates (1973), 14 Ill. App.3d 367, 302 N.E.2d 470 (abstract opinion), also contends that it was error for the State to urge in closing argument that defendant's first statement that the deceased drew a gun was not until trial. In Gates, the defendant refused to make any statement to the police. The defendant in this case chose to give the police his version of the shooting. In Gates, the prosecutor implied that if the defendant had been acting in self-defense he would have told the police of that defense instead of remaining silent. The defendant in this case told the police from the beginning he was acting in self-defense. The prosecutor, in commenting about a crucial detail which the defendant testified to at the trial but failed to disclose during police interrogation, did not penalize the defendant for exercising any fifth amendment ...