APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant, Arthur Walden, was found guilty of murder and sentenced to serve 15 to 30 years in the penitentiary. Defendant appeals and presents four issues: (1) whether the evidence was sufficient to sustain a murder conviction over defendant's claim of self-defense; (2) whether an alleged statement by defendant to police should have been allowed as substantive evidence when there was no corroboration and the defendant under oath denied making any statement; (3) whether the trial court erred in denying the defense motion to suppress the statement; and (4) whether guilt was manslaughter at the very most. We affirm. The pertinent evidence follows.
On April 28, 1973, Lynn Taylor was shot and killed by defendant. There has never been any denial that he killed the deceased, his claim being that the homicide was a justifiable act of self-defense. Defendant was the only eyewitness to testify to the actual shooting; the only other eyewitness died the same day in a separate incident.
Dorothy Latham testified that she was defendant's common-law wife and had lived with him for 11 years. She owned two cars, a 1965 Mercury and a 1965 Pontiac. During the evening of April 28, 1973, she observed a man getting into the Pontiac. When she went out and spoke to him he followed her into her apartment, made a telephone call, then left. About 15 minutes later, defendant came to the apartment with another man and a woman. He told Dorothy Latham he wanted the Pontiac; she told him he could not have it but that she would drive him where he wanted to go. They left in the Pontiac, and the other couple followed in Taylor's car. Dorothy Latham dropped defendant off at 66th Street and Cottage Grove, parked the car, then went into a barber shop where she remained for 10 or 15 minutes. Someone told her that defendant wanted to see her outside, and she went out and saw defendant holding his hand which was bleeding. He said he had shot Lynn and asked to be taken to the hospital. On the way there she saw him put a gun under the car seat. She identified the gun as belonging to defendant. She testified that when she asked him what happened to his hand defendant said his gun "backfired." At the hospital she gave police permission to search her car.
On cross-examination the witness testified that defendant also told her that Taylor had hit him over the head with a chair, but she could not recall if he told her he had been shot while backing up. Defendant told her his gun had "misfired." She remembered that Taylor and defendant had had an argument in a bar about two months before, but could not recall the details except that she had not at that time seen anything in Lynn Taylor's hands.
Georgia Walls testified. On April 28, 1973, she was in the R & T Movers and Furniture Store at 6552 Cottage Grove, together with defendant, Lynn Taylor, Joe Ellis, the owner of the store, and Mr. Ellis' secretary. Joe Ellis was the only other eyewitness to the actual shooting, but he was killed later that day in an unrelated incident. The witness remained about 15 minutes, then left with defendant and another man to "get something for Lynn" from defendant's house, but she did not know what it was. Defendant went into his house and about five minutes later left with his wife in the Pontiac. Georgia Walls followed, and while parking her car in front of the store she heard shots. As she ran in, defendant walked out of the store with a gun in his hand and he was bleeding. She saw deceased lying on the floor but saw no weapons. She identified a series of photographs as fairly and accurately depicting the premises at the time of the incident.
Officer Ronnie Watson testified. On the night of the incident he went to the Billings Hospital emergency room where he talked with Dorothy Latham. He then went to her car and recovered a gun from under the front seat. At the time, the gun contained five expended shells and one live one. The live shell had apparently been struck by the firing pin but failed to go off, as evidenced by the markings on the back.
Defendant testified in his own defense. While shooting dice with Taylor and Ellis in the store, he borrowed $50 from Taylor and pawned his wife's Mercury to him. A $200 bet was made between them, and as the game continued defendant accused Taylor of cheating, whereupon Taylor hit him and a scuffle ensued. Taylor insisted defendant owed him $50 and that he had to pawn his wife's other car to cover the debt. He took a key from defendant and gave it to a man and a woman to get the 1965 Pontiac. They returned without the car because they had the wrong key. Defendant then asked Taylor to let him talk Dorothy Latham into giving him the car. When he went to talk with her she refused to give him the car but did drive him back to the store. After he returned and told Taylor he could not get the car, Taylor jumped up and hit him with a chair, knocking him down. As defendant got up, Taylor fired a gun at him. Defendant's hand was wounded when he held it up as protection. The shot knocked him down again and he then drew his own gun. The first shot misfired but he continued firing and killed Taylor. After the shooting he left the store and had Dorothy Latham drive him to the hospital. He told her he "shot Lynn," but could not recall telling her his gun had "backfired." He testified that his gun misfired and did not backfire. Defendant further testified that he alllowed Taylor to treat him as he did because he had fought with him over a pool game in a bar a month or two earlier. At that time Taylor had pulled a gun on him, had taken his money, and made him "kiss his shoe."
On cross-examination defendant testified that as he was backing away, Taylor shot him in the hand; that Taylor fired only the one shot; and that defendant did not pull his gun until he was knocked down for the second time by the shot. He was carrying his gun in his waistband. He recalled waking up at the police station after passing out at the hospital, but denied making any statement to the police.
Officer Edward Czekala testified in rebuttal for the State. On April 28, 1973, he had a conversation with defendant at homicide headquarters and read the Miranda warnings from a card. Defendant indicated that he understood each of these rights. Officer Czekala then asked if defendant wanted to tell him what happened in the store. At that point defense counsel objected and made a motion to suppress the statement, based on lack of adequate waiver. The trial court overruled the objection at the time but specified that defendant could later present further evidence on the motion. Officer Czekala then related his conversation with defendant. Defendant said he shot Taylor while the latter was sitting at a table in the store. He first fired while Taylor was seated, then as he started toward him defendant pulled the gun back to his side, near his belt. He put his left hand out to ward off Taylor and continued firing. He indicated it was then that he had "probably shot himself in the hand." Officer Czekala called for a court reporter to take a written statement, but defendant said he was not feeling well and did not wish to give a statement at that time. The officer made arrangements to transport defendant to the hospital for further treatment of his injury. At no time during their conversation did defendant indicate he had been hit with a chair, nor did he say that deceased had been shooting at him.
On cross-examination Officer Czekala testified that he investigated the scene of the shooting. During a conversation with Joe Ellis he learned that the deceased was his brother-in-law. He did not search Ellis. His examination of defendant's gun showed no evidence of its having backfired. Upon further questioning by the court, Officer Czekala testified that his conversation with defendant was brief and that defendant appeared to be in great pain due to his injury.
Defendant was recalled as a rebuttal witness in his own defense. He testified that he passed out while at Billings Hospital, and when he came to, he was in a wheelchair. He was taken to the police station and handcuffed to the wall. He denied making any statement to police. After he was excused the court denied defendant's motion to suppress the out-of-court statement.
• 1 Defendant initially contends that the evidence was insufficient to sustain a murder conviction over his claim of self-defense. He argues that he was the only eyewitness to testify, that his testimony showed deceased to have been the aggressor at all times, and that the only contradictory testimony was his alleged out-of-court statement as to how he was shot, which he denied in court under oath.
Once some evidence of self-defense is raised, the burden devolves upon the State to prove beyond a reasonable doubt that defendant's actions were not justified by self-defense. (People v. St. Pierre (1975), 25 Ill. App.3d 644, 324 N.E.2d 226; People v. Graham (1971), 2 Ill. App.3d 1022, 279 N.E.2d 41.) The burden of proof never shifts to the defendant. People v. Durand ...