APPEAL from the Circuit Court of Cook County; the Hon. MICHAEL
S. JORDAN, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was convicted of aggravated assault in violation of section 12-2(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 12-2(a)(1)) and sentenced to probation for a period of two years. On appeal, he contends that: (1) he was not proven guilty beyond a reasonable doubt; (2) the trial court erred in refusing to instruct the jury on the defense of justification; (3) the trial court erred in admitting immaterial and irrelevant evidence; (4) he was denied a fair trial by the State's closing argument, and (5) he was deprived of the effective assistance of counsel.
At trial the following pertinent evidence was adduced.
K. Fowler, a Chicago Police Officer
On Sunday, July 27, 1975, he was on duty in a police vehicle along with his partner Keith Baker. They were wearing summer uniforms which consisted of light blue short sleeve shirts open at the neck, dark blue pants, black shoes and hats. The words "Chicago Police Department" appeared on one sleeve of each shirt. At approximately 8 p.m., he and Baker received a radio assignment directing them to the apartment of Mr. and Mrs. Chalice on the 15th floor at 5901 N. Sheridan Road where they were told by the Chalices that they had observed two individuals who appeared to be arguing on the fifth floor balcony of a building directly across Sheridan Road to the west. From the balcony of the Chalice apartment, he observed "an individual, sitting, slumped" on the floor of the balcony. He and Baker immediately went to 5906 N. Sheridan Road and rang several bells until "somebody buzzed us in." Proceeding to the fifth floor they went to the north end of the building where they observed what appeared to be a bullet hole in a door on the east side of the corridor. They then drew their service revolvers, knocked on the door, and announced, "This is the police." The door was opened by a woman later identified as Peggy Klein who immediately retreated into a bedroom.
After Baker entered the apartment, Fowler followed a foot behind and to the right. The living room furniture was in disarray, potted plants were tipped over and there was soil on the carpeting. When he was about six feet into the apartment he also observed in the living room, "a male, white, with his back to us," standing facing east toward the balcony. The man's arms were to his sides and in his right hand he held an automatic pistol. Although he was not certain whether the lights were on or off, he could see clearly because "the room was well lit."
The man with the gun swiveled around, raised his arm and pointed the pistol directly at them and said, "Who the hell are you?" He identified the man as defendant, Stephan Sedlacko. Defendant was unshaven, had long hair, and wore only cowboy boots and a pair of shorts. When defendant pointed the gun at him he "became afraid," and he and Baker, "retreated backwards, out to the outside corridor, to seek cover." He was acting out of fear for his life. As he backed the three or four steps out to the corridor, he never lost sight of defendant. Defendant continued to face him and Baker with the gun "pointed at my partner and myself."
When he and Baker reached the corridor they announced, "Police." Although he told him to drop the gun, defendant continued to point it "towards us." Baker next told him to drop the gun. Defendant still did not drop it, but continued to face them with the gun pointed "toward us." After he told him a third time to drop the gun, defendant "hesitated, and then, lowered his arm," and released the automatic pistol. He and Baker then re-entered the apartment and placed defendant under arrest.
On cross-examination he stated that he had his service revolver drawn as he entered the apartment because, after speaking with the Chalices and observing the bullet hole, he believed someone might have been shot in the apartment. He admitted that his retreat from the apartment was rapid and that he was frightened at the time. He sought cover behind the outside wall, and the retreat was instinctive. At the time he believed defendant could have shot him. Defendant pointed the gun at him and Baker for a period of about four to five seconds after being told to drop the gun. Although he had his service revolver in his hand he did not raise the gun until he reached the outside corridor.
His opinion as to how long defendant continued to point the gun at him was only an estimate since he did not time the incident.
Keith Baker, a Chicago Police Officer and Officer Fowler's partner
In addition to substantially corroborating Fowler's testimony, Baker testified that the Chalices initially observed two men arguing on the fifth floor balcony of a building across the street. Later they again heard the arguing and saw the men fighting. One man went inside the apartment while the other remained on the balcony. When a woman closed the door to the balcony the man outside "appeared to be afraid" and started banging on the window as if he wanted to get back in the apartment. As the Chalices continued to observe this incident, they heard a "cracking noise" which they thought to be shots or perhaps firecrackers. After the Chalices heard this cracking noise "they noticed a man slumped and fall onto the balcony." They then decided to call the police.
When the Chalices pointed out the balcony, he was able to observe the man "slumped" on the balcony floor. He and Fowler immediately proceeded to the fifth floor of the building across the street and approached the apartment which they assumed would contain the "balcony [on] which the man was lying." They knocked on the door and said they were police officers. Observing what appeared to be a bullet hole in the door, they drew their guns and held them at their sides. After a woman opened the door, she ran to a bedroom "real quick," as if she were afraid of something. He testified that when defendant "swung around" with a gun in his hand, "we kind of retreated, you know, we were afraid we were going to get shot."
He testified that the lighting conditions were good and "I guess you [could] see everybody and see the interior of the apartment very well." He described defendant as having worn cowboy boots and shorts with no shirt. Defendant had long hair and "looked kind of wild" with glassy eyes and a two- or three-day-old beard. He examined the gun after defendant ...