APPEAL from the Circuit Court of Macon County; the Hon. ALBERT
G. WEBBER III, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the Circuit Court of Macon County defendant Gary Harris was found guilty of murder and sentenced to imprisonment for a term of 20 to 60 years. On appeal defendant contends that the trial court erred in (1) refusing to submit an instruction on self-defense to the jury, and (2) denying his motion to suppress oral statements he made to police officers.
1 We first consider defendant's contention that a self-defense instruction should have been given. It is well settled that a defendant is entitled to have the jury consider any legally recognized defense which has some foundation in the evidence and that "very slight" evidence on a given defense entitles defendant to an instruction on that defense. (People v. Bratcher, 63 Ill.2d 534, 540; People v. Kucala, 7 Ill. App.3d 1029, 1035, 288 N.E.2d 622, 626; see also United States v. Grimes (7th Cir. 1969), 413 F.2d 1376, 1378.) In considering whether there was evidence to require the giving of a self-defense instruction in the instant case it is necessary to review the facts presented at trial.
Certain facts are undisputed. At approximately 4 on the afternoon of May 9, 1974, John Lewis Rice was fatally shot by defendant at Rice's apartment in Decatur, Illinois. About a week prior to the shooting, defendant's girl friend Gussie Lee, who had been living with defendant for two years, left him and moved in with deceased. The night before the shooting, defendant went to deceased's apartment, was refused admittance, kicked the door down, went into the bedroom where deceased and Gussie Lee were, and fired three shots into the ceiling. The next afternoon defendant went back to deceased's apartment to talk to Gussie Lee. They were outside talking when deceased returned and invited them to come inside to finish their conversation. Gussie Lee and defendant were in the bedroom talking when, at some point, defendant went into the living room where deceased was playing records and shot him three or four times. Brandon Childress, a friend of Gussie Lee, was also present in the living room at the time of the shooting. After the shooting defendant walked around for a while, telephoned several people and told them he had shot deceased, and then turned himself in at the Macon County sheriff's office.
However, some of the evidence relating to the circumstances surrounding the shooting is conflicting. Defendant testified that he had had a dispute with Gussie Lee over some furniture she had taken from his house. The night before the shooting he went to deceased's apartment to talk to Gussie Lee and to try to get his furniture back. He fired the shots into the ceiling because deceased reached for his pants and defendant thought he might have a gun. Defendant put his gun away when he realized deceased was not armed.
Earlier in the afternoon of the shooting, deceased went to defendant's house to discuss Gussie Lee and the furniture. He told defendant, "You don't need to get a gun because I don't have mine on me, I left mine at home." Deceased also told defendant that he was going to bring back all of the furniture that Gussie Lee had taken and that defendant should go get things straightened out with Gussie Lee. Defendant's friend Alonzo Warren testified that he was present during this conversation and corroborated defendant's testimony that deceased said he had left his gun at home.
Defendant further testified that when deceased invited him into the apartment just before the shooting, he saw deceased checking a revolver and placing it in his right front pocket. Then while defendant was still talking to Gussie Lee, some words were exchanged with deceased and "he reached for his pocket and I already had my hand in my pocket, I was standing there talking to him and when he reached for his pocket I fired." On cross-examination defendant stated that what had happened was that he went into the living room and told deceased he wanted his furniture back. Deceased responded with a profanity and reached quickly for his pocket, at which time defendant pulled his gun out of his back pocket and fired. The shots were almost together. On redirect he stated that his feeling when deceased reached for his pocket was that he (defendant) was going to die.
Defendant also testified on cross-examination that in an earlier confrontation in which he caught Gussie Lee and deceased taking away some of his furniture, deceased acted as though he had a gun in his pocket, although defendant did not actually see a gun that time.
Defendant further stated that he was upset when Gussie Lee left him but that he never intended to shoot deceased and never told Gussie Lee he was going to shoot him. He said he could not recall what he told the police officers after he turned himself in but denied changing his story.
However, evidence was presented indicating that defendant's testimony at trial was at variance with statements he made to police officers after turning himself in. A deputy sheriff testified that he was on duty when defendant turned himself in and that while he was taking defendant to the jail, defendant said, "I didn't mean to kill that guy" and started crying. A short time later the deputy turned defendant over to two detectives from the Decatur Police Department who transported him to the city jail. One of the detectives recalled that defendant told them that he had been hurt over a woman and that before he shot deceased, he told him he was sorry but he just had to do it. Defendant also told the detectives that he decided to turn himself in because he had done wrong. He did not mention to them that he thought deceased might have had a gun.
The booking officer at the city jail testified that while he was booking defendant, defendant said, "You know I'm sorry. I told that dude I'm sorry man, but I got to shoot you."
Two other detectives testified that they interviewed defendant after he had been taken to the city jail. He told them about the shooting but did not mention that he thought deceased might have had a gun. However, when the detectives later went over the statement with defendant, he told them that deceased had had his hands in his pockets and defendant thought he might have had a gun. Later in the evening defendant asked to make a written statement, which was witnessed by the two detectives.
On cross-examination one of the detectives stated that defendant said he thought deceased had a gun because when deceased came to defendant's house earlier in the day, he indicated he had a gun then. He told defendant that he did not have a gun when defendant broke into his apartment the night before; otherwise he would have shot defendant when he kicked the door in. On redirect, the detective testified that defendant never told him he had ever actually seen a gun in deceased's possession.
In his written statement, which was also admitted into evidence, defendant gave the following account of the shooting:
"I went to John['s] house last night and we got into a hass[le] then today he came into my house and told me that I shouldn't have kicked in his door or fired my gun in his house. He also said that he gave his pistol to his sister last night and he had it on him. I asked him could I go back into his house and talk to Gussie which I only wanted to do, he said that I could and that he didn't mind. He said he wasn't going right home but it was OK if I went on. I was [there] awhile then he came home and I was in the hall talking to Gussie and he asked me to come in so I did. After I had talked to Gussie awhile longer he said something to me and I said something to him. (I don't remember just what we said to each other) but he put his hand in his pocket and I acted too fast and I fired. I fired three times. I think I hit him twice in the face and once in the chest."
Defendant's testimony was also somewhat inconsistent with that of other witnesses. Gussie Lee testified that the night before the shooting defendant asked her to come back to him and, when she refused, said that he was going to kill deceased. She also testified that deceased did not have a gun that night when defendant forced his way into the apartment and fired shots into the ...