APPEAL from the Circuit Court of Will County; the Hon. MICHAEL
A. ORENIC, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant Robert Carpi appeals from a conviction of murder by the Circuit Court of Will County in a bench trial. Defendant was sentenced to a term of imprisonment of not less than 14 years nor more than 14 years and 1 day.
On appeal in this court, defendant alleges, in light of defendant's assertion that his actions were justified as self-defense, that the State failed to prove defendant guilty beyond a reasonable doubt and, secondly, that the evidence is sufficient to justify a reduction of defendant's conviction of murder to voluntary manslaughter. Defendant also contends that the statutory scheme under which defendant was indicted and convicted, which charges felony murder based upon the forcible felony of aggravated battery, is unconstitutional under the equal protection and due process clauses of the Illinois Constitution.
It should be noted that the grand jury of Will County returned a three-count indictment against defendant. The first count of the indictment charged that defendant, on May 6, 1975, committed the offense of armed violence in that defendant, while armed with a handgun, committed the offense of aggravated battery, by intentionally and without legal justification causing bodily harm to Donald Wysocki, by striking Wysocki upon the head with the handgun. The second count of the indictment charged that defendant committed the offense of murder in that he committed the offense of aggravated battery on Donald Wysocki by striking Wysocki on the head with a handgun which caused a bullet to be discharged into the head and brain of Wysocki, and, as a result of the wounds, Wysocki died on May 19, 1975. The final count of the indictment charged that defendant committed the offense of murder in that he, knowing that his act created a strong probability of great bodily harm to Wysocki, struck Wysocki upon the head with a handgun, which caused the handgun to discharge a bullet into the head and brain of Wysocki and that as a result of the wounds caused by such bullet, Wysocki died.
As we have indicated, the trial of this case was conducted by the court without the intervention of a jury. The evidence by the State included testimony of several occurrence witnesses. The only defense witness presented, was the defendant himself. By reason of the nature of the offense and the factual issue as to the sufficiency of the evidence and, also, the contention made for reduction of the conviction from murder to voluntary manslaughter which is raised on appeal, it becomes essential that we set forth summaries of the testimony of the major witnesses at the trial.
Witness Steven Pozzi, who was called by the State, lived in the same apartment complex with the deceased Wysocki and the defendant. At approximately 5:30 p.m. on May 6, 1975, Pozzi was at his residence with his wife and 3-year-old daughter. At that time Wysocki and William Richards came to his apartment and invited Pozzi to play Frisbee with them in a grassy area within the apartment complex. This involved tossing a plate-shaped article so that it would sail through the air to be caught by the people playing. Pozzi told Wysocki and Richards that he would join them later, as soon as he finished eating his supper. While he was waiting for his wife to prepare the meal, Pozzi glanced out his apartment window a few times and saw Wysocki standing in the grassy field of the apartment complex. The third time that Pozzi looked out, he observed Wysocki and the defendant standing near each other. Pozzi was approximately 150 to 200 feet from Wysocki and the defendant and had an unobstructed view of them from his second floor apartment window. Although he opened his window, Pozzi could not make out what Wysocki and defendant were saying. Wysocki and defendant were standing about two feet from each other, and it appeared to Pozzi that the pair were arguing. Wysocki's back was toward Pozzi and defendant was facing Pozzi. Wysocki and defendant were facing each other. Defendant was talking and gesturing with his hands toward the building in which defendant lived.
After a brief period, defendant turned around and started toward his building. Wysocki turned around and started walking in the opposite direction. Defendant then turned around and walked toward Wysocki at a fast pace. At this time, defendant unbuttoned his coat and Pozzi observed a gun sticking out of defendant's belt. Wysocki turned around and again defendant and Wysocki were facing each other. Defendant shouted at Wysocki, pulled out the gun and shook the gun at waist level in a back and forth motion to the side. After an interval of about 15 seconds, Wysocki turned and started walking away. After Wysocki took about three steps away, defendant leaned forward and struck Wysocki in the head with the gun and the gun discharged. Wysocki then fell to the ground. Wysocki's arms were at his side when he was hit. Pozzi did not see any physical contact between defendant and Wysocki before defendant struck Wysocki with the gun. Nor did he see the defendant pointing the gun at Wysocki prior to that time. Pozzi also testified that once in awhile he and others, including Wysocki and Richards, would throw firecrackers near the apartment complex.
Richards, who shared an apartment with Wysocki, testified that he had been playing Frisbee in the grassy area at the apartment complex with Wysocki for 5 to 7 minutes on the afternoon referred to, when he noticed defendant coming around the corner of the building. Wysocki then threw the Frisbee toward Richards. Richards walked over to retrieve the Frisbee and then turned around and walked toward Wysocki. Richards was then about 50 feet away from defendant and Wysocki. They were standing 2 or 3 feet from each other, engaged in conversation. Richards observed Wysocki move his hands in a gesture. Richards could hear portions of the conversation, including Wysocki stating that he and Richards did not have to stop playing Frisbee. The conversation ended, and Richards observed defendant turn and walk away. Wysocki turned around, facing Richards and facing away from the defendant. After defendant walked about 5 feet away, Richards saw defendant turn toward Wysocki, and raise his arm. At this time, Richards first noticed that defendant had a gun in his hand. Richards then saw defendant strike Wysocki in the back of the head with a gun which was held in defendant's right hand. Richards heard a gun shot and Wysocki fell to the ground. Richards admitted that he had a conversation with Steven Pozzi in which Richards told Pozzi "if we are going to go to court, we are going to have to sit down and get our stories straight." Richards insisted, however, that his conversations with Pozzi were only for the purpose of refreshing Richard's recollection.
William Matchus, who testified for the State, said he was in the parking lot at the apartment complex driving his car at a speed of 2 to 3 miles per hour through the parking lot when he observed, at a distance of 35 to 40 feet, defendant and Wysocki standing on the front lawn, where the two appeared to be arguing. The witness observed defendant and Wysocki making motions with their hands but did not see any physical contact between the two. They had been standing face to face, the witness testified, when Wysocki turned around and started walking away. Defendant then reached inside his coat, raised his arm and brought his arm straight forward. The witness then heard a sound like a firecracker and after the witness got out of his automobile, he saw Wysocki lying on the ground, with defendant standing over Wysocki. The witness did not see an object in defendant's hand.
Gayla Harris testified that she was driving an automobile in the apartment complex and also observed Wysocki who had been facing defendant, turn away from defendant, when defendant reached inside his jacket. As defendant raised his arm, the witness said she could see that he had a small gun in his hand. She saw defendant lower his arm, striking Wysocki in the back of the head with the gun. At that time she heard a sound like a shot and saw smoke in the air as Wysocki collapsed to the ground. Although she testified at the trial that she saw no physical contact between defendant and Wysocki prior to the time when defendant struck Wysocki, she admitted to stating in a deposition that defendant and Wysocki had been pushing each other prior to the incident.
The State presented three more occurrence witnesses. One, a passenger in the Matchus automobile, and two who were passengers in the Harris automobile. Two of these witnesses testified in a substantially similar fashion to the prior State's witness. The third witness' testimony was generally consistent with that of the other State witnesses, but that witness testified only to seeing defendant and Wysocki arguing and losing sight of them as she entered an apartment building, where she thereafter saw Wysocki lying on the ground when she looked out of the window of her apartment.
A firearms expert employed by the Illinois Department of Law Enforcement testified that he had examined the weapon which was used by the defendant. He identified it as a 32-caliber semiautomatic pistol. He testified that for the gun to operate, the weapon would be required to be cocked by withdrawing the slide backwards, both safeties on the gun would have to be set at the off position, and the trigger would be required to be pulled. This expert stated he had tested the weapon by striking the muzzle with a rubber hammer and by rapping the muzzle of the gun on a hard surface, but he had been unable to fire the weapon without actually pulling the trigger.
A doctor who testified for the State, stated that he had performed an autopsy upon Wysocki, and that a bullet had entered Wysocki's head, traveling from the rear of his head to the front, and that the cause of Wysocki's death was the gunshot wound to the head.
Defendant was the only defense witness at the trial. On May 6, 1975, he was a 71-year-old retiree, living on Social Security in the apartment complex. He lived in the apartment complex from November of 1974. Defendant stated he had, on numerous occasions, complained to the management about his windows being struck, firecrackers being exploded outside his windows, persons shouting into his windows, and other annoyances. He said the managers, security guards, and maintenance men to whom he complained told ...