APPEAL from the Circuit Court of Cook County; the Hon.
ROBERT L. MASSEY, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant, Charles Vance, was charged by indictment with the offense of murder in connection with the homicide of defendant's neighbor, Jesse Chappell. (Ill. Rev. Stat. 1973, ch. 38, par. 9-1.) Upon a jury trial defendant was found to be guilty of the lesser included offense of voluntary manslaughter. Judgment was entered on the verdict and defendant was sentenced to serve a term of confinement of 6 years, 8 months to 20 years in the Illinois State Penitentiary.
From entry of the judgment of conviction defendant appeals contending: (1) that certain conduct of the prosecution in presenting its case to the jury was improper and served to deny defendant a fair trial; (2) that the evidence properly adduced at trial was insufficient to establish defendant's guilt beyond a reasonable doubt; and (3) that the sentence is excessive.
Our review of the record indicates that on July 10, 1974, the deceased, Jesse Chappell, and his wife Virginia (hereinafter "Virginia") resided in one of six apartments which comprised the fourth floor of a rooming house located at 503 North Wells Street in Chicago, Illinois. The defendant occupied an apartment adjacent to the Chappells' and located approximately 15 feet away. Defendant's apartment was located directly opposite the door giving access to the fourth floor from the street level and was positioned approximately midway between the floor's community kitchen and the Chappells' apartment which were situated at either end of a narrow hallway. Near the community kitchen was a community lavatory.
At trial, Virginia Chappell testified that she had the opportunity to observe defendant on several occasions during the day in question. She initially discovered defendant outside her doorway at noon and detected an odor of alcohol emanating from his person. She told defendant that he was intoxicated and suggested that he return to his apartment and "sleep it off." Defendant complied and she subsequently informed her husband, the deceased, that she had found defendant standing outside her door in a condition which she described as "pretty well lit up."
Several hours later, at approximately 6 p.m., she heard her husband enter the hallway through the fourth floor access door. She stated that soon thereafter she heard a "thud" which sounded as if "something had fallen." As she continued to listen, she heard her husband's voice which caused her to step into the hall. Looking toward the community kitchen, she observed her husband, defendant, and a neighbor named Mabel Boyd. Defendant was sitting upon the floor of the kitchen and the deceased was standing over him. The deceased ordered defendant to "stop throwing his weight around, respect the ladies and be nice." She also heard her husband order defendant to apologize for his actions. Defendant denied any act worthy of apology but, upon further urging by the deceased, defendant told Mrs. Chappell that he was sorry for whatever transgression concerned the deceased. Virginia persuaded her husband to return to their apartment. At trial, she denied that defendant had been disrespectful to her, stated that she had known defendant several years, and indicated that there had been no enmity between her husband and defendant prior to that date.
Approximately three hours later, at 9 p.m., and before retiring for the evening, the deceased left his apartment carrying a small bucket to draw some water from the community kitchen. He returned with one bucket of water and then left once again in order to procure a second ration. Virginia Chappell remained in the kitchen of her apartment.
Virginia testified that she heard her husband making his way down the hallway when defendant was heard to say, "Hey nigger. Why did you hit me for?" She stated that she heard her husband reply, "Man, what is wrong with you?" She then heard three shots fired in rapid succession.
Virginia ran to the hallway where she observed her husband and defendant struggling for a gun held by defendant. Both men subsequently fell to the floor at a point approximately 15 feet from the Chappells' apartment. Virginia testified that as they lay on the floor she screamed, "You killed my husband, you bastard." According to Virginia, defendant replied, "You white bitch. I am going to shoot your ass, too." She fled and summoned police.
Chicago Police Officer Michael Fitzgerald testified that he arrived on the scene at approximately 9:45 p.m. and observed the deceased lying on top of the defendant on the hallway floor near the door to defendant's apartment. The deceased's head was positioned in the direction of the community kitchen. Officer Fitzgerald stated that he noticed blood covering both bodies, water on the hallway floor, and a galvanized bucket laying approximately three feet from the men. The bucket was neither inventoried nor submitted to chemical analysis.
Officer Fitzgerald examined the two men for vital signs and finding none in the deceased proceeded to defendant. Defendant began to speak incoherently and Officer Fitzgerald noted a strong odor of alcohol emanating from defendant.
Chicago Police Officer Robert Margelewski also arrived on the scene and conducted a search for the weapon. It was discovered underneath a bathtub in the community lavatory where it had been placed by a resident of the building shortly after the shooting. The firearm was owned by defendant and ballistics evidence adduced at trial established that this weapon had discharged the bullets which had killed Jesse Chappell. Post-mortem examination of Chappell's body revealed that Chappell had sustained gunshot wounds in the hand and chest and that the latter was discharged from a distance of 2-5 feet and proved fatal.
Defendant testified in his own behalf and admitted shooting Jesse Chappell but asserted that his actions were in self-defense.
Defendant stated that in the late afternoon hours of July 10, 1974, he was sitting in the fourth floor community kitchen in the company of Mabel Boyd. According to defendant, the deceased approached, accused defendant of being disrespectful to Virginia Chappell, struck defendant in the chest with his fist causing defendant to fall to the floor and, drawing a butcher knife, ordered defendant to apologize. Defendant's protestations of innocence were to no avail and the deceased continued to threaten defendant at knifepoint saying, "Apologize you black son-of-a-bitch or I'll kill you." Defendant pleaded for his life, apologized and fled when the deceased returned to his apartment in the company of Virginia Chappell.
Defendant testified that he remained in his apartment for one hour and then walked downstairs to a tavern where he consumed a shot of whiskey and a glass of beer. Defendant thereafter walked to a mechanic's shop operated by a man identified as "One-legged Al," then, after obtaining a haircut at the private home of a friend, returned home, where he visited the apartment of a neighbor for approximately 30 minutes. Entering his apartment at approximately 9 p.m. and, according to defendant, due to a felt need to protect himself from Jesse Chappell, defendant placed a cocked and loaded revolver in the waistband of his trousers.
Thus armed, defendant left his apartment in order to walk his dog. Defendant indicated that as he was returning he was struck from behind three times about the head, the force of which caused him to stumble forward. He testified that he was approximately eight feet from his apartment when he turned, drew his gun, saw the deceased and said, "Get back nigger. Why you hit me for? Get back."
Defendant admitted that the deceased was unarmed but, according to defendant, Jesse Chappell lunged toward defendant and seized the hand in which defendant held his gun. A struggle ensued and one shot was fired into the air causing the men to be thrown apart. Defendant stated that when he regained his balance he observed the deceased at a distance of 45 feet and beginning to move toward defendant again. Defendant testified that he uttered, "My God, he is going to kill me," after which he shot the deceased twice and collapsed into unconsciousness. Defendant was transported to hospital facilities where he received medication and treatment for a head wound which required several stitches.
On cross-examination and over defense objection, defendant testified that he kept another loaded gun in his apartment. The prosecution also attempted to elicit testimony from defendant to the effect that he had informed a nurse who had treated him that he had been a heavy drinker. Defense objection to his line of questioning was sustained by the trial court.
Defendant also adduced the testimony of Mabel Boyd who substantially corroborated defendant's testimony regarding defendant's afternoon altercation with Jesse Chappell. Although unable to ascertain from where the deceased drew his eight-inch butcher knife, Boyd testified that she observed the deceased wield the knife above defendant and, fearing that he would "come down with it," screamed and fled to her apartment.
In rebuttal, the prosecution adduced the testimony of Johnnie Mae Odis, the nurse who had treated defendant after the shooting. Odis stated that she had no independent recollection of treating defendant. She was allowed to refresh her memory by reading a report which she had written regarding defendant's medical condition. Odis then testified that defendant was treated for a laceration which he had received to his scalp. She further stated that while she was treating defendant she detected an odor of alcohol about his person and made a notation to this effect on defendant's chart. Her observations in these regards were reinforced on cross-examination. The prosecution also questioned Odis, "Did you have occasion at that time to ask Mr. Vance about his drinking habits?" Defense objection to this question was immediately sustained and the court instructed the jury to disregard the question.
Virginia Chappell was also called in rebuttal and testified that at the time of his death her husband had stood 5'7" and weighed 135 pounds. At the time of trial, defendant was of similar stature, standing 5'6" and weighing 133 pounds.
Defendant initially contends that he was acting reasonably in shooting decedent; that, in effect, he used reasonable force which he reasonably believed was necessary to save himself from imminent death or bodily harm. The State maintains that the proof established beyond a reasonable doubt that defendant's belief regarding necessity for use of force was unreasonable so that he was properly found guilty of voluntary manslaughter.
Section 9-2(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 9-2(b)) defines voluntary manslaughter as follows:
"A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable."
Section 7-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 7-1) states:
"A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to ...