APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
A. WEXLER, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Jasper Johnson (defendant) was tried by a jury, found guilty of murder (Ill. Rev. Stat. 1971, ch. 38, par. 9-1) and sentenced to a term of 15-45 years. *fn1
The issues on appeal are: (1) did the trial court err in allowing an amendment of the record on appeal; (2) did the trial court improperly exclude certain evidence; (3) did the second playing of a tape recording of defendant's telephone conversation with the police prejudice defendant; (4) did the prosecutor's closing argument improperly refer to evidence outside the record; (5) did the trial court err in refusing to give a separate instruction on the defense of accident; and (6) was defendant proved guilty beyond a reasonable doubt.
On February 12, 1972, the dead body of Dovie Tillman was found in defendant's basement apartment at 9206 South Racine, Chicago, Illinois. It appeared the deceased died as a result of a bullet wound in the head. The police went to this apartment in response to a telephone call from defendant, who, calling from Helena, Arkansas, told the police he shot decedent and her body was in his apartment. After making this call, defendant returned to Chicago, Illinois, and voluntarily surrendered himself to the police. The evidence presented at that trial was as follows.
Nellie Tillman, decedent's mother, testified that she had last seen her daughter on February 10, 1972, when she left home to attend school, and next saw her at the County Morgue on February 12, 1972; that decedent and defendant had been going together for about three years at the time of Dovie's death, but that Dovie had been trying to break up with defendant since the beginning of 1972. While Nellie admitted she had never seen defendant physically abuse her daughter, she testified that in December of 1971, she noticed bruise marks on Dovie's neck, that the defendant had admitted to Nellie that he had choked Dovie, but said he would not do that again. Nellie also testified that on February 9, 1972, she overheard a telephone conversation between defendant and the deceased in which defendant threatened to get even with decedent if it was the last thing he did.
Two of decedent's brothers testified. Neither of them ever recalled seeing defendant physically abuse his sister. Matthew Tillman, decedent's brother, testified that in December 1971, he picked his sister up at a drugstore; and that she was crying and had marks on her neck. He noticed when he pulled away from the drugstore that defendant was following them in his car. The last time Matthew saw his sister alive was in front of their home in defendant's car at about 9 p.m. on February 10, 1972. David Tillman, a brother, testified that some time around Christmas 1971, he had seen defendant about 10 p.m. in front of the Tillman home with a gun; that he saw his sister, decedent, drive up to the house with a friend, and when she looked out of the car and saw defendant standing in front of the house, the car pulled away; and that shortly thereafter his sister came in the back door of the house.
Eugene McShane, a Chicago Police officer, testified he was on telephone duty between 7:30 and 7:45 a.m. on February 12, 1972, when a telephone call was received from defendant. A tape recording of the telephone conversation with defendant was introduced at trial and played before the jury. In that tape, defendant admitted shooting decedent and informed the police that her body would be found in his apartment. Because portions of the tape were unclear, the tape was played a second time over defendant's objection.
Ted Clemons, defendant's landlord, testified he received a telephone call from defendant at about 7:30 a.m. on February 12, 1972. In that call defendant asked Clemons for advice because he was in trouble. Defendant told Clemons he had shot a girl and did away with her body because he thought she was dead. Defendant told Clemons he was then in Arkansas and had done away with the gun so no one would find it. Clemons testified he told defendant to come back home and give himself up. After this conversation with defendant, the police arrived at Clemons' home and stated they were looking for a body in the basement. Clemons said he did not call the police, but took them to the basement as they asked him to do. Clemons unlocked the door to defendant's basement, one-room apartment and watched the police uncover the body of the deceased which was under a blanket on the bed in the room. About 4 o'clock that afternoon Clemons called defendant's mother, and she and two of her sons arrived about 8 p.m. to remove defendant's belongings from the room.
Both Clemons and the investigating officers testified to the condition of defendant's room and the decedent's body upon their entry. The room was disheveled and deceased's body was under a blanket on the bed, naked from the chest down, with a bullet wound in her head. A black fur coat was found on a chair in the corner of the room. There was blood on the door to defendant's room.
Investigator Patrick O'Hara of the Chicago Police Department testified concerning the scene of the crime, as well as a description of defendant's car which was discovered at the police auto pound. The car was found at the pound on February 14, 1972. O'Hara inspected the vehicle which had been towed to the pound from 167 North Clark near the Greyhound Bus Station. He found blood on the front seat and door frame of the car. Books and a purse, which were identified by Nellie Tillman as belonging to the decedent, were found in the front of the car. O'Hara testified that he could not recall finding any letter in the glove compartment of that car.
The pathologist testified that decedent died from a bullet which entered her left temple from a distance of two to three feet and traveled to the right parietal temple where it lodged. The stomach content of the body was not alcoholic. Decedent's blood type was "O" the same as that found on the seat of defendant's car.
Defendant's motion for a directed verdict was denied. Thereupon defendant testified he picked decedent up after school at about 8:15 p.m. on February 10, 1972, at the "L" station at 63rd and Halsted. He believed decedent may have been drinking prior to this time. They stopped and bought some food from a neighborhood Burger King and drove to decedent's home, 6811 South Emerald. The couple sat in defendant's car in front of decedent's home and had a conversation about a letter which defendant had written to decedent which was in the glove compartment. Dovie opened the glove compartment to take out the letter, but removed a gun, which defendant kept in that compartment, and pointed it at defendant. The couple struggled, decedent held the gun in her right hand and pointed it at defendant, defendant grabbed her right wrist with his left hand, and as defendant tried to take the gun away from the decedent, she was shot. Defendant denied pulling the trigger. He removed the gun from decedent's hand after the accident, put it in a brown bag, and drove to his apartment, 9206 South Racine about 20 blocks away. He carried decedent's body into his one-room basement apartment and put her on the bed and covered her with a blanket. Defendant testified that decedent was still wearing her black fur coat when he covered her with the blanket. He left the gun in a paper bag on the television set and went to his mother's home at 106th and Wentworth. He did not remember if he locked the door to his room when he left. When he arrived at his mother's, he felt ill, took some pills, and later was taken by his mother to the hospital. He was treated in the emergency room and returned to his mother's. Defendant then left his mother's and went to the Chicago Greyhound Bus Station and left for Little Rock, Arkansas. Defendant attempted to explain that he had gone to Little Rock to see Reverend Angelo Johnson with whom defendant had worked as a missionary. The trial court sustained the State's objection to this evidence, whereupon the defendant made an offer of proof regarding the alleged conversation between Dovie and the defendant immediately prior to her removing the gun from the glove compartment. The offer of proof was denied. When defendant could not find Angelo Johnson in Little Rock, he called the police in Chicago on February 12, 1972, and told them about the body in the basement at 9206 South Racine. Defendant returned to Chicago a few days later, appeared at the police station with his attorney, and surrendered himself.
Mary Lee Johnson, defendant's mother, testified at trial, corroborating defendant's version of the events of the evening of February 10, 1972, when he arrived at her home. She also described the condition of defendant's room as she found it on February 12, 1972. She noted there was no television in the room, as appeared in the State's exhibits showing the condition of the room at the time the body was discovered, and there was no brown bag with a gun on top of that television as described by defendant.
Four persons testified as character witnesses that defendant was a peaceful and law-abiding person.
First we consider defendant's contention that the trial court improperly amended the record on appeal. The original transcript of the proceedings, certified by the court reporter and filed with this court, recorded the taped telephone conversation between Officer McShane and defendant in part as follows:
Defendant: "I was playing around with her
I was playing with (unintelligible)."
The State moved before the trial court to correct the above portion of the transcript to read:
Defendant: "I was playing with a gun and I shot her in the head.
I was playing with a gun and I shot her."
The only support the State submitted in support of its motion was an affidavit of the prosecutor as to his recollection of what the tape said, and a statement made by the prosecutor during closing argument claiming defendant admitted shooting decedent in his conversation with the police. The prosecutor quoted the tape as reporting defendant said: "I was playing with a gun and I shot her." *fn2 Defendant did not object to this statement made during closing argument. The trial court then allowed the amendment of the record on appeal and a supplemental record was filed with this court.
• 1 Supreme Court Rule 329 (Ill. Rev. Stat. 1973, ch. 110A, par. 329) allows the amendment of a record where there is a material omission, inaccuracy, or improper authentication so that the record conforms to the truth. Our supreme court has held that in order to prove there has been such an omission or inaccuracy, the moving party must submit some note or memorandum from the records or quasi-records of the court to support the amendment. (People v. Miller (1936), 365 Ill. 56, 58-59, 5 N.E.2d 458.) The fact that an appeal has been taken does not deprive a trial court of the power to correct its record. (People v. Peatry (2nd Dist. 1976), 38 Ill. App.3d 332, 340, 347 N.E.2d 169.) This court has recently set forth what is necessary to amend a record after trial. In Hartgraves v. Don Cartage Co. (1st Dist. 1975), 27 Ill. App.3d 298, 301, 326 N.E.2d 461, aff'd, 63 Ill.2d 425, 328 N.E.2d 457, this court said:
"The law in Illinois is clear that a correction of the record cannot be made from either the recollection of the judge or from an affidavit. [Citations.] The rule was set forth most recently by this court in In re Application of County Collector (1974), 18 Ill. App.3d 272, 277, 309 N.E.2d 722, wherein we wrote:
`* * * to amend a record after trial or hearing more than oral testimony or proof of mistake is necessary. The proof must be underlined by the production of some note or memorandum either from the records of the court, or by the minutes of the judge, or by the documents on file in the cause, not by the memory of witnesses, the recollection of the judge, or by supporting affidavits.'"
In our opinion the affidavit of the prosecutor presented in support of the State's motion is not sufficient.
Neither do we find that a failure to object to a statement made in closing argument is sufficient to support an amendment of a record. Closing argument is not evidence. There may be several reasons for failing to object to an argument made by the opposing party trial strategy, inadvertence, uncertainty. We are in no position to presume the basis for the failure to object. In any ...