APPEAL from the Circuit Court of Cook County; the Hon. JAMES
N. SULLIVAN, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant, Jacob Graves, was indicted for the offenses of attempt murder and aggravated battery for the shooting of Alex Barber. A jury found defendant guilty on the aggravated battery charge, but not guilty of attempt murder, and he was sentenced to a term of two to six years. On appeal defendant contends that: (1) he was denied an opportunity to fully present his defense by the trial court's failure to admit certain evidence and testimony; (2) the trial court erred in failing to instruct the jury, sua sponte, regarding the justifiable use of force; (3) he was denied a fair trial by the prosecutor's inquiry as to whether defendant told the police his exculpatory story following his arrest; (4) the State improperly examined the defense character witnesses regarding their knowledge of the events of the alleged offense; (5) the State improperly examined defendant regarding the credibility of other witnesses, and by posing questions that assumed facts not in evidence; and (6) he was not proved guilty beyond a reasonable doubt.
We reverse and remand for a new trial. The pertinent facts follow.
Alex Barber, the victim, testified that on April 2, 1976, he went to Riddle's Lounge in Dixmoor, Illinois, at approximately 6:30 p.m. There were two coin-operated pool tables in the lounge and when Barber arrived he saw defendant playing pool with Alex Smoot. Barber had known both men for over three years, so he sat on a bar stool to watch the game. Smoot won the game, but defendant accused him of "fouling" so they played a second game, which Smoot also won. Defendant then started arguing with Smoot again over the first game, at which point Barber offered to shoot a game of pool with Smoot and put a quarter in the table to release the balls.
Barber racked the balls to prepare for the game, but defendant took the cue ball from the table and told Smoot, "You won't play with this cue ball." Smoot then obtained another cue ball from behind the bar, and defendant started to push the rest of the balls into the pockets on the pool table. Barber then grabbed defendant's wrist and told him not to do that. Defendant responded that he would go get the key to open the table and retrieve the balls. He went into the back room of the lounge, approximately 15 feet away from the pool table, but while he was gone the barmaid opened the table with the key and let the balls down.
While Barber was again racking the balls he heard a commotion like someone had kicked over a bar stool. When he turned toward the noise, which had come from the rear of the lounge, he heard a shot and felt something strike him in the chest. He saw defendant standing approximately 15 feet away holding a gun with both hands and aiming it at his head. Defendant then fired a second shot which hit Barber in the right side of the face. The victim ran out of the lounge and looked back to see the defendant chasing him with the gun still in his hand. Barber ran into an alley where he collapsed, and someone called the police and an ambulance. Barber was taken to the hospital where he remained for three weeks. Surgery was performed on his chest and stomach, and the bullet which struck him in the face knocked out four teeth and left a scar where it exited below his ear.
Barber stated that he did not say anything to the defendant immediately before he was shot, and that he was not armed and did not threaten the defendant in any way.
Alex Smoot testified that he arrived at Riddle's Lounge on the day in question at about 5 p.m. Present when he arrived were defendant, the barmaid, and a man named Cecil. Defendant was shooting pool with Cecil but they started arguing and Cecil went to the bar. Smoot then offered to play defendant.
During their game defendant told Smoot he had fouled, so they played another game. Smoot won the second game, and when defendant started arguing again over the first game, Barber offered to play pool with Smoot. Defendant then grabbed the cue ball and raked the other balls into the pockets, and Barber grabbed his wrists. Defendant said he would get the key and went to the room in back of the bar, and the barmaid then came over and unlocked the table and released the balls.
The next thing Smoot knew he heard a shot like a firecracker and saw defendant standing next to the bar, holding a gun in his right hand over his left wrist and aiming it at Barber. When Smoot first heard the noise he saw Barber grab his side. He heard another sound like a firecracker and saw light flash from the gun. Barber then ran out of the door and defendant ran after him. Smoot heard another shot from outside the building.
Smoot stated that the only words exchanged between Barber and defendant occurred when the latter was pushing the balls into the pockets. Barber did not say or yell anything to defendant after the defendant moved toward the back room to get the key. In the back room there was a door leading outside and a stairway leading to the living quarters above the lounge.
The court reporter's notes for the testimony of December 3, 1976, were lost. However, the parties stipulated to a summary of this testimony, which was filed as a supplemental record in this court. Three witnesses testified that day: Dr. Felix Davila and Sergeant Robert Vinson for the State; and Cecil Smith for the defense.
Dr. Davila testified that he examined Barber on April 2, 1976, and the victim had a wound in the upper lip, loose teeth, and an abdominal wound. He explored the abdomen but did not remove the bullet. After sewing up the incision an infection developed which was still being treated at the time of the trial.
Sergeant Vinson of the Dixmoor Police Department testified that at 6:30 p.m. on April 2, 1976, he was assigned to investigate a shooting. He found Barber sitting in a chair behind a barber shop at 14206 South Wood Street, bleeding from the mouth and stomach. The victim told Vinson that, "Jake shot me." After an ambulance came, Vinson went to the lounge and spoke with the owner, Mr. Riddle. Vinson found a .38 caliber bullet in the lounge.
The officer then proceeded to the hospital but returned to the lounge about 20 minutes later and spoke to Alex Smoot. While he was there Riddle received a telephone call. Vinson then went to Art's Roller Rink where he arrested the defendant. When Vinson arrived at the rink defendant was crying and shaking, and he told the officer that he had thrown the gun away and that he was temporarily living upstairs at Riddle's Lounge. Defendant inquired about Barber's condition and Vinson told him he was holding his own.
Cecil Smith testified for the defense that on the day of the incident he arrived at Riddle's Lounge between 5 and 6 p.m. He watched the defendant and Smoot play pool. Defendant's right hand was bandaged around the hand and fingers, but he was still able to play pool. During the game there was some discussion that Smoot had fouled the defendant; however, the latter said that they would let it go until after the game was over.
In the meantime Alex Barber came in and put a quarter in the slot and started to play a game of pool. At that point defendant took one of the balls and put it in the pocket and scattered the others. Barber told defendant that he better give him a quarter because those were his balls. Defendant said he did not have a quarter and Barber told him, "Better get the keys or I'll cut your head off." Defendant said, "I'll get the key," and went into the back for three minutes. The barmaid got the key in the meantime and racked up a new set of balls. As defendant returned, Smith went in the back room by a washroom and watched from there. Defendant knocked over a heavy metal chair, calling attention to himself and the fact that he was carrying a gun. Defendant said something like, "Let me get out of here." As he passed by Barber, Barber swung at him with a cue stick and defendant fell to his knees, and as he did so he raised his arm and shot several times. Then he picked up his coat and hat and continued out.
Smith also stated that he had known defendant for three or four years, and he knew of no altercations between Barber and the defendant. Barber struck the defendant in the jaw when he spoke to him before demanding he get the key. When defendant returned he had the gun behind his back and to the side. Barber pulled his cue stick and reached in his pocket. Smith ran into the washroom after the first shot was fired. He only heard the other two or three shots. Smith did not remember how defendant had fired the gun. He never went to the police with his version of the incident.
Defendant testified in his own behalf that on April 2, 1976, he was living above Riddle's Lounge, and he had known Barber for two or three years. When the defendant was asked whether the victim had ever threatened him in the past, the State objected and a sidebar conference was held out of the presence of the jury.
In the course of that sidebar conference the trial judge noted that evidence of Barber's reputation would only be important if some evidence of self-defense was presented, which had not yet been done.
The defendant then presented an offer of proof. In that offer of proof the defendant testified to having several altercations with Barber prior to the day of the shooting, including one or two days before the shooting when the victim produced a knife. Noting that on the day of the shooting the defendant left the premises and returned with a gun, the trial judge stated that he still had not heard anything about self-defense.
The defendant then went on to testify concerning the events which led to the shooting. He testified that Barber stated he would cut the defendant's head off if he did not get the key to the pool table. He could not find the key. When the defendant came out of the back room with the gun he told Barber that he wanted to leave and at that time the victim lunged at him, raised his pool cue and put his hand in his pocket. Knowing that Barber carried a knife and a gun, the defendant turned his head and shot him and when he fell forward, the defendant fired again. The court ruled that the defendant had not shown that he shot the victim in self-defense.
Direct examination of the defendant then continued in the presence of the jury. Defendant stated that on the night in question he was playing pool with Smoot when Barber entered the lounge. During the game Smoot fouled a shot and defendant began his shot. Smoot took a ball off the table and did not permit defendant to shoot. Defendant asked Smoot to please put the ball back on the table and Smoot complied by just throwing the ball on the table. After defendant lost the game, Smoot started an argument with him and it was at that point that defendant snatched the cue ball off of the table and put it in his pocket.
Barber then told Smoot that he would play a game with him and Smoot agreed. Barber put his quarter in the table. The balls came onto the table and defendant pushed some of the balls off of the table and into the holes. Barber came up behind defendant, called him a name, and struck him in the jaw and knocked him down when he turned around. Barber demanded a quarter and told defendant, "I will cut your god damn mother fucking head off." Defendant asked Barber to please leave him alone, and told him that he was sorry and that he would get the key. Barber pushed him and told him he would still cut his "god damn mother fucking head off" if he did not get the key. Defendant broke loose from Barber and got up and ran in the back where the key was kept. The key was not there.
Defendant saw a pistol in the room. He did not know whose pistol it was but was not his. He grabbed the pistol and proceeded backing out of the door into the bar. He kicked over the stool and Barber looked up. Defendant said, "All I want to do is leave up out of here. Let me out of here." Barber said, "You are not going anywhere." Barber, who was seated on a stool at a table that was set up for drinks, lunged toward him and swung the pool stick. Defendant ducked the pool stick, turned his head and fired because he was on his knees. When Barber fell towards him he fired again. Barber then hobbled out of the tavern. Defendant went on over and got his hat and coat, laid the gun down, and left. He did not follow Barber.
At about 6:45 he called the tavern and spoke to Rubin Riddle, the owner of Riddle's Lounge. Defendant asked how Barber was doing and Riddle responded that Barber was in the hospital. Defendant told him that he would like to give himself up to the police so that this whole matter could be settled. Riddle asked him where he was and he said he was at Art's Roller Rink in the bowling alley and that he would be waiting outside for the police. Officer Vinson and Henry Riddle arrived subsequently. They transported him to the Dixmoor Police Station.
On cross-examination defendant testified that the door leading to the outside from the back room was not locked, but there was a Doberman Pinscher dog outside which prevented his using that door. After the shooting he laid the gun down and left, but he admitted telling the police he had thrown the gun away. Defendant also testified that he told the police that Barber had attacked him with the pool cue, and that Sergeant Vinson was lying if he testified that he did not so tell him. Both Barber and Smoot were lying when they testified that a third shot was fired outside the lounge.
Defendant further stated that when he fired at Barber it was to scare him and keep him away. Defendant did not know how far Barber was from him when he fired the first shot. He was on his knees and did not look when he fired. After the first shot Barber was some five feet away and he no longer held the cue stick, but when Barber slumped over and reached into his pocket, defendant fired again. Defendant did not hear Dr. Davila testify that the bullet traveled in a downward direction. He did not know that the bullet would not travel downward if he were on his knees and Barber was standing when he fired the shots.
On redirect examination the defendant was allowed to testify that the victim had a reputation in the community as being a violent man and a bully, but he was not allowed to testify concerning specific past acts of violence.
The defendant presented two character witnesses who testified that the defendant had a good reputation for peacefulness in the community. Both also testified that they were not present when the victim was shot and did not know what happened at Riddle's Lounge on April 2, 1976.
The defendant then rested.
Subsequently, just prior to the conference on instructions, defendant presented another witness to the court. The witness, Robert Fitzgerald, testified in an offer of proof that he had been drinking in Riddle's Lounge with Barber about a month before the trial. While conversing Barber told Fitzgerald that he had in fact struck defendant in the jaw before he went to get the key from the back room, but that he was going to "stick it" to the defendant anyway. Fitzgerald admitted he had not gone to the police with this information, and denied that he was being paid to testify. He had only informed defense counsel and defendant's wife about this conversation that very day. The trial court refused to reopen the case to allow the witness to testify.
Following instructions and closing arguments the jury found defendant guilty of aggravated battery and not guilty of attempt murder.
Defendant contends initially that he was denied an opportunity to fully present his defense by the trial court's exclusion of certain evidence and testimony. In reviewing the record we agree that two instances of trial court error occurred in this regard.
In the first instance, defendant attempted to testify that he had had prior altercations with Barber, and that the victim had committed recent acts of violence and made threats against the defendant. Specifically, defendant testified in an offer of proof that only two days before the instant occurrence there was an incident in which Barber had told him to move, and when he did not move fast enough, Barber pulled a knife on him. Another witness was also available to testify as to the same incident. The trial court excluded the proffered testimony, as well as evidence that defendant knew Barber carried knives and a gun, because he failed to see any evidence of self-defense. This was error.
1 The rule is that evidence of specific acts of violence and threats made by the victim should be admitted in a prosecution where the defendant is claiming self-defense. (People v. Singleton (1976), 41 Ill. App.3d 665, 354 N.E.2d 464.) While such evidence need only be admitted where some evidence of self-defense is introduced (see People v. Allen (1972), 50 Ill.2d 280, 278 N.E.2d 762), substantial latitude should be allowed in this regard. (See People v. Stombaugh (1972), 52 Ill.2d 130, 284 N.E.2d 640; People v. Singleton.) In this case there was a sufficient showing of self-defense to allow the introduction of such evidence, and its exclusion was prejudicial error.
2 During his offer of proof defendant testified that Barber had struck and threatened him prior to his going in the back room to retrieve the key, and that he fired the weapon only after again being threatened by Barber, and assaulted with a cue stick, and after Barber reached into his pocket. In addition, Cecil Smith had already testified that Barber had struck and threatened defendant, and that when the latter attempted to leave the bar Barber swung at him with the pool cue and reached into his pocket. We find that this evidence was clearly sufficient to raise the issue of self-defense. (See People v. Davis (1963), 29 Ill.2d 127, 193 N.E.2d 841; People v. Moore (1975), 27 Ill. App.3d 337, 326 N.E.2d 420.) Therefore, evidence that Barber had on prior occasions threatened defendant with a knife, and that defendant knew he carried a knife and ...