Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Fred G. Suria, Jr., Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 23, 1977.
In a bench trial in the circuit court of Cook County, the defendant, Elmo Gilbert, was found guilty of murder and sentenced to a term of 15 to 30 years in the penitentiary. The appellate court reversed and remanded for a new trial on the ground that the trial judge had conducted an improper experiment in chambers with a shotgun which had been admitted in evidence. (38 Ill. App.3d 816.) We allowed the People's petition for leave to appeal.
At approximately 3:30 a.m. on December 3, 1972, Chicago police officer Everett Gully and his partner were on routine patrol when they were stopped by a Mr. Shores, who told them that a lady had been shot in the apartment building at 4639 South Langley Street. The officers went to that address, entered the building and saw the defendant bending over a woman, later identified as Elizabeth Samuels, who was lying in a pool of blood on the hallway floor just outside the apartment in which she and defendant lived. Defendant, who had wet blood stains on his pants and shoes, attempted to lift her up with both hands, but then put her back down. The woman had a wound in her back near the right shoulder blade and appeared to be dead. When Officer Gully asked what had happened, the defendant responded that he had been in the bedroom of their apartment when the deceased came home; she said she was hungry and was going to the kitchen to fix some food; as she left the room, he went to the record player in the living room to change the record; he then heard a noise that sounded like "wham." Defendant made no further statement at that time.
Officer Gully then followed a trail of blood leading from the woman's body into the apartment through a small living room and bedroom and down an interior hallway where a shotgun and a gun case were found on the floor. Blood was also discovered in a back bedroom near the kitchen. No one else was present in the apartment or in the outside hallway.
There was testimony that the gun was a .20-gauge single-shot shotgun with black friction tape wrapped around the butt. There was one spent shell in the chamber at the time it was recovered from the kitchen floor. Measurements of the gun indicated that the barrel was 26 inches in length and the distance from the end of the barrel to the trigger was 28 inches. There was further testimony that the gun did not have a hair trigger.
A police homicide investigator testified that when he arrived at the scene, he found the deceased lying on her back in the hallway immediately outside the apartment door. He observed wet blood in various rooms of the apartment and the existence of what appeared to be drag marks through the blood. An examination of the apartment indicated that the rear door was bolted shut, the windows were secure, and there were neither signs of forcible entry nor any indication of a struggle in the apartment. After interviewing Leola Sutton, who lived in an upstairs apartment, the investigator returned to the police station, where he advised the defendant of his rights and conducted an interview. When the defendant was asked about the incident, he gave substantially the same statement he had previously given to Officer Gully but added that he thought the deceased might have committed suicide. In response to a specific question, the defendant also stated that he and the victim were alone in the apartment at the time of the shooting.
A pathologist who performed an autopsy on the body of Elizabeth Samuels testified that the victim was 5 feet 5 inches tall and slightly obese. In his opinion, the cause of death was a shotgun wound in the back below the lower angle of the right shoulder blade. Shotgun pellets had entered her body at an upward angle of 45 degrees. In view of these facts he was of the opinion that it was "very, very unlikely" that the wound had been self-inflicted. He further testified that the deceased was under the influence of alcohol at the time of her death. A police mobile unit technician also testified that, other than the apparent gunshot wounds, he did not notice any cuts, bruises, scratches, lacerations or other wounds on the body.
Leola Sutton testified that she lived in a second-floor apartment in the same building in which the defendant and the deceased resided. On the night in question, decedent came up to her apartment at about 9 p.m. About 15 or 20 minutes later, the defendant came up and asked if she was there. The witness told him yes, and the decedent then got up and went into the washroom. The defendant stood at the door for a few minutes, but then left and went back downstairs. Shortly thereafter, decedent left the Sutton apartment by the back door. The defendant returned twice more to the Sutton apartment that night looking for decedent and was told that she had left by the back door. During one of the latter two visits the defendant became involved in an altercation with Leola Sutton's son-in-law. At that time, the witness noticed that the defendant kept his "leg sticking straight out," and she saw something black at his waistline from which she concluded that he may have had a shotgun in his pants leg.
Testifying in his own behalf, the defendant stated that he was alone in the apartment when he went to bed between 9 p.m. and midnight. Sometime after midnight he woke up and went to the living room to reject a record which had been playing on the phonograph. After doing so, he came back through the apartment to the kitchen and saw Elizabeth Samuels come "staggering out of the back room with a shotgun in her arms." The defendant demonstrated to the court how she was holding the gun in her right hand with her hand and the shotgun extended downward in the manner a hunter would carry a gun while walking. When he asked her what she was doing with the gun, she did not say anything, but instead turned around and started to walk away from him through the doorway to the back bedroom. The defendant grabbed the stock of the gun, and she hit back at him with her elbow causing the barrel of the gun to hit the door and the stock to strike the refrigerator on an angle. The gun discharged a single shot which hit the deceased. Defendant "grabbed her and sat her down" and then put on his clothes and went to the corner to try to find the police. Failing to find a policeman, he double-parked his car in front of the apartment and went back inside, where he attempted to pick her up for the purpose of taking her to the hospital. When he was unable to move her outside, he returned to the street, where he saw Mr. Shores and told him there had been an accident and that he needed some help in getting the victim to the hospital. Mr. Shores said he could not help but agreed to get the police.
The defendant explained that the reason he had made statements to the police which were inconsistent with his testimony at trial was that he was scared because seven or eight and maybe as many as 10 policemen were standing over him hollering and calling him a murderer. On cross-examination, however, he stated that only one policeman was present at the time he gave the statement at the police station and that there were not seven or eight policemen standing over him. On cross-examination the defendant also testified that he had gone up to Leola Sutton's apartment only once on the night in question and did not take a gun with him.
During closing argument there was some discussion as to whether the gun could fire without being cocked. The prosecutor also argued as follows:
"Consider also, Judge, the defendant's testimony here just a few minutes ago was Mrs. Samuels was carrying the gun like this (indicating), her hand on the bottom of the barrel, that he pulled the gun from the stock not by the trigger, but in the back by the stock and that while he was holding this gun like this (indicating) it hit up against the wall and went off into her back it just couldn't have happened that way."
Following closing argument, the judge declared a recess to review the evidence, stating: "If I may have the weapon, gentlemen, that is the only other item of evidence I will need." Following a short ...