APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
Defendant, Otis Carter, was found guilty of murder following a bench trial. He was sentenced to a prison term of not less than 15 nor more than 30 years in the State penitentiary.
On appeal, the defendant raises the issues of whether he was denied a fair trial if the trial court excluded introducible evidence and whether the defendant was proven guilty beyond a reasonable doubt.
Chicago police investigator Timothy Nolan testified at trial he visited apartment 1003 at 120 North Hermitage on May 2, 1973. Barbara Carter and the defendant were there, and identified the apartment as Barbara Carter's apartment. Officer Nolan talked with the defendant and, after informing him of his "Miranda rights" obtained certain statements of fact. According to these statements, defendant and a group of friends were in Barbara Carter's apartment. Defendant saw "Cowboy" on the street below and asked someone to fetch a rifle, which the defendant had originally obtained because of a previous quarrel with "Cowboy." Defendant turned off the lights and pointed the gun out the window. Defendant cocked the gun and said he was going to "Blow his ["Cowboy's"] ass away." Before the defendant pulled the trigger, Stevens reached over, took the gun and said, "Let me do it." Stevens fired out the window but missed "Cowboy," striking and killing Sylvania Heath. Defendant and Stevens then both agreed they had made a mistake in that they had shot the wrong person.
Although defendant did not testify at trial, at the hearing on his motion to suppress the oral confession he denied ever making any incriminating statement and denied any involvement in the shooting of Sylvania Heath.
By various eyewitness testimony, at the party in Barbara Carter's apartment were defendant, Johnny Stevens, Carl Dixon, Douglas Jerri Archie, Charles Clopton, Elaine Johnson and Barbara Carter.
Charles Clopton testified he was in the washroom of Barbara Carter's apartment at the time the shot was fired. He heard the sound, left the washroom, ran to the front of the apartment and looked out of the window. Clopton testified he heard the defendant say to Stevens, "Man, you shot that girl." This testimony was objected to by the State's attorney, as being hearsay. The objection was sustained and that part of the testimony was stricken.
Carl Dixon testified on defendant's behalf. He and the defendant were sitting together in the apartment for 1 hour and 25 minutes when Stevens entered. Stevens retrieved a .22-caliber rifle and played with it for 2 or 3 minutes whereupon Dixon left the room. Dixon testified that prior to the shooting he never saw the defendant with either bullets or the rifle in his hands. Dixon indicated he re-entered and saw Johnny Stevens point the gun out the window, aim and fire it. Dixon estimated anywhere from 2 to 8 minutes elapsed from the time the shot was fired until the time Johnny Stevens came out of the bedroom and went into the living room, where he was allegedly told by the defendant, "Man, you shot that girl."
Douglas Jerri Archie also testified on behalf of the defendant. Archie stated at the moment the shot was fired he and the defendant were sitting on the bed, 2 or 3 feet from the window. Archie never saw anyone other than Johnny Stevens in possession of a rifle.
Defendant's brother, Bobby Carter, testified he was standing 4 inches from Miss Heath as she fell. He was not permitted to testify regarding what Stevens said to him subsequent to the shooting, just after Stevens had come out of the apartment.
Defendant was found guilty as charged, and was sentenced to a term of 15 to 30 years.
The defendant claims he was not proven guilty beyond a reasonable doubt. The accountability section of the Illinois Criminal Code provides, in pertinent part:
"A person is legally accountable for the conduct of another when * * * [e]ither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. * * *" Ill. Rev. Stat. 1973, ch. 38, par. 5-2.
Defendant admitted the following: his presence on the date and time in question in the apartment where the fatal shot was fired; he had been in a previous altercation with "Cowboy"; as a result of this altercation defendant ordered someone to provide him with a rifle; the group entered the bedroom of the apartment, turned off the lights and looked out the window; defendant and Stevens went to the window where defendant pointed the rifle toward the street, aimed and cocked the firing mechanism; the defendant expressed an intention to "Blow his ["Cowboy's"] ass away"; Stevens seized the ...