APPEAL from the Circuit Court of Cook County; the Hon. MARK
E. JONES, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
A jury found defendant guilty of voluntary manslaughter, *fn1 and she was sentenced to a term of three to nine years. On appeal, the following issues were presented: (1) whether she was proved guilty beyond a reasonable doubt; (2) whether the conduct of the trial court denied her a fair trial; (3) whether certain evidence was erroneously admitted and constituted reversible error; and (4) whether her sentence was excessive.
It appears undisputed that Willie Mac Hurns, the deceased, and defendant had cohabited for nine years until defendant asked him to leave early in August 1975. He returned frequently to visit their adopted daughter, Lisa, age nine. On the late afternoon of August 28, 1975, Hurns and Myra Henderson, his girl friend, drove to the parking lot of a food store near defendant's home. After parking the vehicle, a pickup truck, Hurns went to defendant's home and, 20 to 30 minutes later, both of them entered the parking lot. Upon reaching Hurns's truck, a .38-caliber derringer in defendant's hand discharged and mortally wounded Hurns.
The preliminary hearing testimony of Myra, who died of unrelated causes, was read. She testified that she observed Hurns approaching the truck, followed by defendant. The latter was carrying a gun and, when Hurns was within one foot of the driver's door, defendant, then about eight feet away, fired one shot which struck Hurns. Frank Shaw, who observed the incident from another parking lot two doors to the east, testified that seconds before the shot was fired he saw defendant approaching Hurns with a towel in her hand. When defendant came within four to five feet of Hurns, she opened the towel displaying a gun. She then fired the weapon, and Hurns fell to the ground. Hurns's sister, who had lived with defendant for several months prior to the incident, testified that defendant had on previous occasions said she was going to kill Hurns.
Defendant, to the contrary, testified that when Hurns arrived at her home an argument ensued concerning the ownership of garments which Hurns thought to be male clothing. Hurns struck her and then pulled her from the house, insisting that she apologize to Myra for remarks uttered on a previous visit. Defendant protested but was forcefully pulled into the back yard, where Hurns picked up a brick with which he threatened her and, in fact, struck her with the brick three or four times about the neck and shoulder on the way to the truck. In the meanwhile, their daughter Lisa asked him to stop hitting her mother; whereupon, he told Lisa to go home. Lisa complied but returned with Hurns's gun wrapped in a handkerchief and handed it to her mother, who was aware that a gun was within the handkerchief. Then, as she and Hurns neared the truck, he hit her once more knocking her against the truck, which caused the gun to discharge. She said it was still in the handkerchief when it went off. Her finger was not on the trigger, and she didn't know whether it was cocked when it was handed to her. At the coroner's inquest, however, her testimony differed in that she said after she was knocked against the truck and turned around to go back he hit her again, when her back "began jerking" and "the gun went off." At trial and at the coroner's inquest, she testified that she did not intend to fire the weapon. Other witnesses testified at trial that a common house brick and a .38-caliber derringer were found near Hurns's body.
Agnes Green, a defense witness, testified that while walking through the alley separating defendant's back yard and the parking lot, she observed Hurns and defendant fighting. As he pushed defendant into the parking lot toward a parked truck, Green saw him hit her six or seven times with a brick. Ms. Green also observed a little girl carrying a towel step in between them and then leave. When Hurns and defendant reached the truck, he shoved her against it, and the gun discharged.
The State and defense each presented expert testimony concerning whether defendant was injured during the incident and as to the likelihood of the accidental discharge of the weapon in question. Dr. Geis of the Loyola Medical Center testified that defendant complained of pain in her neck and shoulder on the evening of August 29, but that neither his examination or the X rays taken of her revealed any objective signs of trauma or any straightening of the curvature of the spine in the area of the neck. Dr. Zeitlin, called by the defense, testified that the X rays showed an abnormal straightening of the spine in the area of the neck. He further testified that when rotation of the neck is painful, the muscles will spasm to hold the neck in a stiffened position, thus straightening the natural curvature of the spine in that area. In his opinion, this straightening could have resulted from a blow to the neck and shoulder area with a brick. He could not, however, offer an opinion as to how long the condition had existed but stated it could have been more than 24 hours.
Regarding the likelihood of the accidental firing of the gun, David Brundage, a firearms examiner for the State of Illinois, testified that it could only be fired when the hammer was drawn back to a fully cocked position and pressure is applied to the trigger. He found that the gun was in good working order, and he tested it by fully cocking the hammer and jarring the top, bottom and sides of the weapon and also by hitting the back of the hammer itself. At no time during this testing procedure did the gun discharge. Paul Haberly, a gunsmith testifying for the defense, stated that the derringer was a dangerous weapon because it could accidentally discharge. He said, however, that this could occur if it was jarred while it is being loaded or if dropped when fully cocked. Haberly did not test the gun in question to determine under what conditions it might accidentally discharge but said that forward pressure must be applied to a fully cocked hammer before it could happen.
During cross-examination, defendant admitted that she had been in an automobile accident in February 1975, and the fact that she and her three passengers went to the hospital on the advice of the police. In rebuttal, Catherine Ferris, one of those passengers, testified that defendant complained of a head injury and, on the following day, she observed that defendant had a black eye. The parties stipulated that at the hospital on this occasion X rays were taken only of her head.
Defendant first contends that she was not proved guilty beyond a reasonable doubt, because her testimony of an accidental shooting was corroborated by an impartial witness (Green) and by the testimony that a brick, a towel, and a gun were found in close proximity to Hurns's body; whereas, she argues that the State's evidence consisted of the testimony of witnesses who either did not have an adequate opportunity to observe the incident or were suspect because of their relationship with the deceased.
• 1 Weight of evidence and credibility of witnesses are questions for the jury to resolve (People v. Therriault (1976), 42 Ill. App.3d 876, 356 N.E.2d 999), and a court of review will not set aside its determination unless the evidence is so unsatisfactory as to leave a reasonable doubt of guilt (People v. Hood (1974), 59 Ill.2d 315, 319 N.E.2d 802; People v. Houck (1977), 50 Ill. App.3d 274, 365 N.E.2d 576). Conflicts or discrepancies in testimony go only to the weight to be given to the testimony (People v. Ellis (1976), 41 Ill. App.3d 377, 354 N.E.2d 369), and the trier of fact may believe as much or as little as it pleases of a witness's testimony (People v. Fleming (1976), 42 Ill. App.3d 1, 355 N.E.2d 345). Moreover, friendship with the deceased of itself does not destroy the credibility of the State's witnesses. People v. Myrick (1969), 106 Ill. App.2d 88, 245 N.E.2d 585.
Here, defendant was observed by Frank Shaw and Myra Henderson following deceased with a gun in her hand and moments later was seen firing it at him. While Shaw, as argued by defendant, made conflicting estimates of the distance separating him from the shooting site, he readily identified his position when shown a photograph of the scene and in other respects gave clear and positive testimony. This photograph was made part of the record and reveals that his view of the incident was unobstructed. We believe that Henderson's testimony was also clear and positive in character, and it appears that the jury was fully informed of her relationship with the deceased. In addition, there was testimony that on ...