APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Defendant, Jackie Kelly, was indicted for the offense of murder and after a jury trial was found guilty as charged. The trial court entered judgment on this verdict and sentenced defendant to a term of 14 to 20 years.
Defendant now appeals and contends as follows: (1) that he was denied his right to a speedy trial under section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 103-5); (2) that the trial court committed reversible error in permitting the State, over defense objection, to impeach its own witness by means of an unidentified prior statement for which no foundation had been laid; (3) that the evidence was not sufficient to prove defendant guilty of murder because there was no showing that the fatal shot was fired from defendant's gun; (4) that even if the evidence were sufficient to establish that defendant fired the fatal shot at the decedent, the verdict finding defendant guilty of murder is contrary to the evidence which warranted, at most, a voluntary manslaughter conviction; and (5) that defendant was denied effective assistance of counsel.
The instant shooting occurred during the early morning hours of June 23, 1973, and inside of the apartment building where defendant resided at 4103 South Prairie in Chicago. The atmosphere surrounding the shooting was one of violence as attested to by five witnesses who all stated that they were shot in front of defendant's residence approximately one hour before the instant shooting.
Defendant's testimony indicated that at approximately 3 a.m. on June 23, 1973, defendant was asleep in his third floor apartment at 4103 S. Prairie when he heard a loud knock at the door. Defendant asked who was there and a loud voice responded "Bro". At this time defendant was aware of the fact that five people had been shot in front of his apartment one hour earlier and when defendant heard the word "Bro" he thought that the person at the door had arrived to shoot him. Defendant picked up his shotgun, then opened the door three or four inches. Defendant recognized "Bro" (later identified as Ward Haywood) as the same person he had talked to earlier in the day about fights occurring in the area. Defendant asked Haywood what he wanted and Haywood replied that he wanted to talk about a peace treaty to stop all the fighting and shooting. Defendant asked Haywood why he had shot five people in front of defendant's building and Haywood said he was not going to talk anymore. A shot then rang out from below and Haywood started to run downstairs. Defendant testified that he then shot at Haywood's back as Haywood ran down the stairs. Defendant further testified that Haywood had been trying to shoot him all day and that he knew this because when defendant had talked to Haywood earlier in the day Haywood pulled out a shotgun.
On cross-examination defendant testified that he did not notice a weapon on Haywood's person nor did he notice anybody else with a weapon. He did not see Haywood shoot the five people nor did he see the person who fired the shot before Haywood started to run. As Haywood ran away from the defendant, defendant fired a shot at Haywood's back but did not see Haywood fall. Defendant then went back into the apartment and told the people in the apartment to call the police. After abandoning the shotgun in front of the apartment building, defendant went to the sun porch where someone shot at him.
Defendant's brother, Larry Kelly, called as a witness by the State, testified that he was in the apartment at the time of the shooting and that at that time defendant had a shotgun. He heard defendant say that the person at the door was there to "shoot our whole people." Although Larry Kelly testified at trial that he could not hear the conversation between his brother and the man at the door, he admitted to testifying at the preliminary hearing that he heard the man at the door state that he was there to make peace and that his brother responded that after his friend was shot he wanted no peace.
Another of defendant's brothers, Sammy Kelly, also called as a witness by the State and inside the apartment at the time of the shooting, testified that defendant and the person at the door were talking about peace and the shooting occurred suddenly after they finished talking. Sammy Kelly stated that the defendant was armed with a shotgun and that he did not know if the other man was armed. After the door was opened, he heard two shots but did not see his brother shoot anybody. Over defense objection, the State was permitted to impeach Sammy Kelly, the State's own witness, with a prior statement that Sammy Kelly gave to police officers investigating the case. In this prior statement Sammy Kelly stated that he saw defendant shoot Haywood in the back as Haywood ran down the stairs.
Called as a witness by the State, Rudell Snead, a long-time friend of Ward Haywood, testified that he accompanied Ward Haywood to defendant's apartment on June 23, 1973. As Snead waited on the second floor of the building, Haywood went to defendant's apartment on the third floor. Shortly thereafter he saw Haywood turn his back to go downstairs at which time defendant shot Haywood in the back. Snead could not clearly see the gun that fired the shot but stated that defendant was holding the gun. After Snead heard the shot he started to run. He heard about three other shots but did not know the origin of these shots. Snead further testified that he did not shoot at anybody nor did he have a gun.
David Oravetz, an investigator for the Chicago Police Department, testified that he arrived at the scene of the shooting at approximately 3:30 a.m. and found Ward Haywood's body on the second floor landing. Officer Oravetz indicated that the stairway from the second floor landing to the third floor is completely open and that one could see from the third floor landing all the way down to the second floor. There was damage to plaster on the second floor landing and shotgun pellets on the floor. Officer Oravetz indicated that such damage could have been caused by a bullet. There was no evidence of bullets or pellets on the walls anywhere above the second floor landing.
Defendant first contends that he was denied his right to a speedy trial under section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 103-5). Defendant was in custody continuously from July 3, 1973, the date on which he surrendered himself to the police, until March 7, 1974, the date on which his trial began. Defendant argues that the last continuance he sought was until October 3, 1973, 155 days before the beginning of his trial. The State counters that on October 4, 1973, defendant moved for a continuance and filed a discovery motion thus occasioning delay suspending the 120-day statutory period.
1 A resolution of the above conflict depends upon to whom the October 4, 1973, continuance is attributable. At the hearing on defendant's motion for discharge it was revealed that on October 4, 1973, a determination of defendant's indigency was made, an attorney was appointed for defendant and reciprocal discovery motions were filed. According to the certified copy of the court transcript for October 4, the trial court granted a continuance to November 9 stating:
"State is given 15 days to respond to the defense's request for discovery and the defendant is given fifteen days thereafter to respond to the State's request for discovery. Order of the Court ...