APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant was charged by indictment for the murder on June 30, 1973, of Betty Taylor. After a bench trial he was found guilty of murder and sentenced to a term of 14 to 20 years in the Illinois State Penitentiary. On appeal he contends that the State failed to prove beyond a reasonable doubt that he was guilty of murder and that he was not acting in self-defense. We affirm. The pertinent evidence follows.
Albert Cobbins testified for the State. He had been acquainted with both defendant and Betty Taylor. On the night of the shooting he met Betty at a tavern where they remained for about 5 hours. When he took her home at approximately 4 a.m., he noticed defendant's car parked near her apartment. He left Betty at the front door of her apartment at about 4:30 and went to stay with Leonard Brooks who lived across the hall. At about 5 o'clock, Mary Adams, Betty's sister, summoned them and they went with her to Betty's apartment. Cobbins went into the bedroom alone where he saw Betty lying on the bed and defendant lying on the floor. He stayed only long enough to check her pulse. He did not see a gun. After he joined the others in the living room the police arrived.
Cobbins also testified that on June 2, 1973, about 4 weeks before the incident, he had stopped at Betty Taylor's home to make a telephone call. At that time he saw her and defendant fighting. Defendant bit and struck her and threatened more than a dozen times to kill her. After the fight he had blood on his face and some of his teeth were missing; Betty's face was bruised and bleeding from the nose and mouth. Cobbins drove defendant home in defendant's car, then went next door to Earl Taylor's home where he saw defendant a half hour later with a .22-caliber gun in his hand. Defendant said he was going to kill "that bitch," and put the gun in his right pocket. The three men drove away together in Earl Taylor's car. Before Cobbins was dropped off he heard defendant tell Earl Taylor not to stop at Betty's house if the police were there, and he heard defendant again say that he was going to kill her.
Mary Adams testified for the State. She lived with her sister Betty, another sister, and Betty's small son by defendant. She arrived home about 6 hours before the shooting; she watched television alone in the living room and did not see Betty or know when she came home. About 4:30 in the morning she turned off the television, and while lying on a couch near the door to Betty's room she heard the telephone ring at 5 o'clock; about 5 minutes later she heard Betty admit defendant into the apartment. When he walked in he was not carrying anything; the two of them walked past her into the bedroom and closed the door. She heard Betty say, "Don't R.C. [defendant's nickname], don't load the gun in this room." She saw defendant walk in and out of the bathroom, and he was not carrying anything. When he returned to the bedroom, leaving the door open, she heard Betty say, "R.C., don't do this," and a few seconds later she heard four or five shots. On cross-examination she could not recall whether the shots were in rapid succession. After hearing the shots she ran to the front door and called Betty about three times, then ran to the bedroom door where she saw her sister lying on the bed with her head on the pillow. Defendant was bleeding from the mouth and kneeling on the floor next to the bed with his head and chest on Betty's stomach. She did not see a gun. She then ran to another bedroom and called the police, then summoned Cobbins and Brooks from across the hall. When the three returned to her apartment Cobbins entered the bedroom alone; she never went back in there. Mary also testified that on June 2, 1973, she had noticed that Betty had a black eye. She had seen defendant beat Betty with his fists on January 1, 1973.
Officer Michael Murphy testified for the State. He is an investigator with the Chicago Police Department. When he arrived at the scene of the shooting at about 5:25 a.m., uniformed police were there. He observed four expended cartridge casings on the floor beside the bed and a .38 blue steel revolver about 14 to 18 inches under the bed with another spent cartridge casing some 12 inches from the gun. He saw bloodstains on the floor and on the bed. He also saw a bullet hole in the ceiling directly above the headboard and a .38-caliber bullet on the bed. He did not examine the trajectory of the bullet hole in the ceiling. The gun, together with the cartridge next to it, was moved closer to the edge of the bed after he arrived and before being photographed by the police. He saw the gun dusted for fingerprints, but none were found. The gun, which was locked, was then opened in his presence; an expended cartridge was directly under the hammer and the other chambers in the cylinder were empty. The gun was a .38-caliber break-open revolver which must be broken open to remove expended cartridge casings.
Dr. Culala, a coroner's pathologist, testified for the State. The deceased had received four bullet wounds, three in the head and one in the left hand. The hand wound was through the first web of the left hand, the bullet having exited from the palm side. One of the head wounds was caused by a bullet which entered the upper left portion of the head and was recovered from the tissue on the right side of the neck. Another was a through-and-through wound caused by a bullet entering near the left upper lip and going out from the right cheek. The bullet which caused death entered the head in the area of the left ear, followed a downward trajectory, and was recovered from the brain stem. Two complete bullets and a fragment were removed from the head of the deceased; all bullets entered from the front while she was alive.
It was stipulated by the parties that if John Sadunas, a ballistics expert, testified he would state that the bullet recovered from the bed and the five casings were fired from the .38 revolver which was the only weapon found at the scene, and that the three bullets recovered from the body were ballistically similar to the weapon. It was stipulated that the gun was a 6-shot .38-caliber revolver registered to defendant; that there was one spent .38 cartridge in the chamber; and that the gun and the cartridge casing in it were destroyed by the Chicago Police Department about 3 weeks after the shooting. It was further stipulated that if Dr. Andaya were called he would testify that defendant sustained a bullet wound through the left upper lip, with the bullet traveling in an upward direction and lodging in the left ear canal.
Willie Redmond, Betty Taylor's brother-in-law, testified for the defense. He has known defendant and Cobbins all his life, and Betty for about 6 or 7 years. On several occasions he saw the three of them together at Betty's house but he also saw Cobbins and Betty alone together many times. On June 2 he noticed defendant had some teeth missing and had a scar on his forehead; the injuries appeared to be recent.
Charlie Jenkins testified for the defense. He works about three blocks from defendant's home and has known him for about 12 years. Defendant's reputation in the community is good.
Reed Pitchford, Jr., defendant, testified in his own behalf. On June 30, 1973, he left work at 12:45 a.m., dropped his check off at home with his wife, went out to eat, and drove to Betty Taylor's home. He had received two telephone calls from her before leaving work. No one was there when he arrived, so he parked his car and dozed off in the front seat. He awoke at about 3:50 a.m., telephoned Betty, and went to her apartment about 5 minutes later. When she let him in they went to her bedroom and talked for about 20 minutes. He had left a .38-caliber gun there while he was out of town so that his children would not have access to it. He took the gun out of a clothes hamper in the bedroom where he had previously left it, put the cylinder in and laid the gun on the night stand next to the bed. When Betty asked if it was loaded he said it was. He then went to the bathroom and when he returned Betty had the gun; he took it from her and laid it back on the night stand. Betty was lying on the bed and defendant sat on the bed facing her with his head down. He testified "She told me, don't fool around with her and play her for no other woman." He told her he could not spend so much time with her. When he looked up she was pointing the gun at him and shot him just above the lip. The force knocked him to the foot of the bed, and as he pulled himself up he knocked the gun from her hand onto the bed, picked it up and fired at her. She was still lying on the bed as he fired from above. He remembered firing one shot, but nothing thereafter until he awoke 7 or 9 days later in the hospital. One June 2, 1973, about 4 weeks before the shooting, he was teasing Betty and she hit him on the forehead, causing a scar; she also hit him in the mouth, causing him to lose some teeth. On cross-examination he testified that at that time he hit her a couple of times, possibly once in the eye; he denied ever threatening to kill her or carrying a .22-caliber gun on June 2.
It was stipulated by the parties that if Dr. Andaya, who examined and treated defendant at St. Anthony's Hospital, were to testify he would state that on June 30, at about 5:30 a.m., defendant was conscious but shaking when brought into the hospital immediately after the shooting. It was further stipulated that if Investigator Murphy were called he would testify that subsequent to leaving the scene of the shooting he had a conversation with defendant in the intensive care unit of the hospital and that defendant was then conscious and alert.
1 On appeal, defendant contends that he acted in self-defense and that he was not proved guilty beyond a reasonable doubt. In section 7-1 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 7-1) it is stated:
"§ 7-1. Use of Force in Defense of Person.] A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary ...