APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
SULLIVAN, Judge, presiding.
MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Miguel Angel Ortiz was charged, by information, with the murder of Jose Guevera. (Ill. Rev. Stat. 1975, ch. 38, par. 9-1(a)(1), 9-1(a)(2).) Ortiz was tried before a jury and was convicted of involuntary manslaughter. (Ill. Rev. Stat. 1975, ch. 38, par. 9-3(a).) He was sentenced to a term of 1 to 5 years in the penitentiary. Ortiz now appeals his conviction.
Officer Terrence Gainer of the Chicago Police Department testified for the State. On May 13, 1976, he took an oral statement from Ortiz at which time Ortiz stated that he shot Guevera in self-defense. Ortiz then related that on the night of May 12, 1976, he had been drinking in a tavern. At approximately 2:30 a.m. he left the tavern and went to his automobile. Guevera and three other men, Victor Colon, Julio Figueroa and a man named Cruz, were also in the car. While riding in the automobile, Guevera called Colon a "faggot." Ortiz responded by telling Guevera to stop talking like that in his car. After a brief argument between Ortiz and Guevera, Ortiz stopped the car and the men got out. A fist fight ensued, during the course of which Guevera hit Ortiz with the lid from a garbage can. Figueroa, Colon and Ortiz then reentered the car and drove off.
Ortiz took Colon home and then proceeded to the residence of Figueroa's sister, which was located on North Elizabeth Avenue in Chicago. After the two men got out of the car, Guevera shot at them. Ortiz ran to the west side of Elizabeth Avenue where he crouched behind some cars. Guevera was on the east side of the street and Ortiz saw him raising a gun. Some unknown person then threw Ortiz a gun and, as he saw Guevera raising his arm, he fired the gun. After Ortiz saw Guevera fall, he turned and ran down a gangway.
Gainer testified that in the presence of Assistant State's Attorney Donald Devlin, Ortiz again described the occurrence. This second statement by Ortiz substantially repeated the same facts that he had previously related to Gainer. However, Ortiz then claimed that Guevera chased him down the street before Guevera fired a shot at him. Ortiz also indicated that they were standing face-to-face when the shooting occurred.
Assistant State's Attorney Donald Devlin also testified for the State. His testimony essentially corroborated Gainer's testimony on Ortiz' statement to Devlin. Victor Colon, another State's witness, related the events of the fist fight and his version was substantially the same as that related by Officer Gainer.
Dr. Robert Stein, a pathologist, testified that an autopsy on Guevera's body revealed a single bullet wound at the back of the right chest. The path of the bullet was from right to left and angulated upward and perforated the right lung and heart. Dr. Stein was of the opinion that such a wound was inconsistent with a set of facts in which the deceased was standing face-to-face with his assailant but was consistent with a set of facts where the deceased had his back to the assailant. He also stated that the wound was consistent with a situation where the deceased party, while facing the shooter, took an evasive action immediately before the bullet struck him.
Ortiz testified in his own behalf. The version of the occurrence he related at trial coincided with the testimony of the State's witnesses, up to the point where he and Figueroa arrived at the Elizabeth Avenue location. Ortiz then testified that after arriving at Elizabeth Avenue, he and Figueroa began walking towards Figueroa's sister's home. Guevera then approached them with a pistol and announced that he was going to kill them. Guevera fired the gun at the defendant and one bullet grazed the defendant's hand. Ortiz then ran to the other side of the street with Guevera chasing him. Guevera re-crossed the street and pointed the gun at Ortiz. At that point Figueroa threw the defendant a gun. Then, as he began to run, the defendant turned and fired two shots. On cross-examination Ortiz explained that when he talked to the police he did not disclose the fact that Figueroa had given him the gun because he wanted to protect Figueroa. He also stated that when he fired the gun, it was pointing in the air and he denied telling the police that he had fired the pistol directly at Guevera. He further testified on cross-examination that he only fired once.
During the direct examination, Ortiz was not allowed to testify as to a conversation he had with Figueroa after the fist fight but prior to the shooting. Defense counsel later made an offer of proof which disclosed that Figueroa had told Ortiz that Ortiz had made a mistake "because [Guevera] is a killer. He has shot and killed Carmelo."
Ortiz stated that after the incident he went to his home and told his wife what had occurred. They then left and spent the night in their automobile somewhere on Grand Avenue in Chicago. The next morning they went to his wife's sister's home where they spent the night. The following day, the defendant went to the police because he heard that they were looking for him.
Ortiz' mother, Dionisia Arroyo, also testified for the defendant. She stated that the police contacted her and that she told them where her son lived. She was with her son at the police station while he was being questioned and the defendant, at that time, showed both her and the police a scab on his hand from the bullet wound he allegedly received. In rebuttal, Officer Gainer stated Arroyo told him that she did not know where her son was living. He further stated that the defendant did not state that he had been shot in the hand nor that he shot his pistol in the air.
On appeal, Ortiz raises five issues for review: (1) whether the State proved, beyond a reasonable doubt, that he was not justified in using force likely to cause death or great bodily harm, (2) whether the defendant was proven guilty of involuntary manslaughter beyond a reasonable doubt, (3) whether the jury was properly instructed on the crime of involuntary manslaughter, (4) whether the court erred in refusing to admit certain testimony by the defendant as to his state of mind, and (5) whether a "flight" instruction was improperly tendered to the jury. However, prior to reaching these questions, we must address the threshold issue of whether the defendant has waived these claims of error because he failed to raise them in a post-trial motion.
1 In general, a criminal defendant waives any issue which he failed to raise in a post-trial motion. (People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856; People v. Irwin (1965), 32 Ill.2d 441, 207 N.E.2d 76.) However, a reviewing court may consider an issue raised by a criminal defendant which was not properly preserved if the issue presents "[p]lain error or defects affecting substantial rights" (Supreme Court Rule 615(a), Ill. Rev. Stat. 1977, ch. 110A, par. 615(a)) or where the evidence is closely balanced. (People v. Howell (1975), 60 Ill.2d 117, 324 N.E.2d 403; People v. Pickett; People v. Davis (1977), 50 Ill. App.3d 163, 365 N.E.2d 1135.) The exercise of this authority, which provides the court with a means of moderating the harshness of the waiver rule, lies within the sound discretion of the reviewing court. People v. Pickett; People v. Davis.
2 In the present case, there exist genuine evidentiary conflicts as to the precise events which resulted in the death of Guevera. The resolution of these conflicts have a direct bearing upon the propriety of Ortiz' conviction for involuntary manslaughter and the validity of his claim of self-defense. The evidence which the defendant contends was erroneously excluded was directly relevant to the self-defense question and the instructions which the defendant contests were capable of adversely affecting the jury's deliberations. Under these circumstances, we feel that it ...