APPEAL from the Circuit Court of Cook County; the Hon. WARREN
D. WOLFSON, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, Cletus Eller and Willard Spaulding were each found guilty of aggravated battery. (Ill. Rev. Stat. 1975, ch. 38, par. 12-4.) Spaulding was also found guilty of murder. (Ill. Rev. Stat. 1975, ch. 38, par. 9-1.) Eller was sentenced to serve one year to one year and a day while Spaulding was sentenced to serve one year to two years for aggravated battery and 14 to 18 years for murder. On appeal, they contend that they were not proven guilty beyond a reasonable doubt and that they were denied a fair trial where the trial court: (1) admitted evidence regarding a gun which was not suitable for commission of the offense charged; (2) allowed impeachment of a defense witness by means of inadmissible and highly prejudicial evidence; (3) admitted hearsay testimony; (4) allowed improper and argumentative cross-examination of defense witnesses; and (5) failed to instruct the jury on the defense theory of the case.
The following evidence is pertinent to a disposition of this appeal.
On December 13, 1974, he and Pete Najera parked Najera's car at 83rd and Commercial and rode the train to downtown Chicago where they shopped and had dinner. After they had "three or four beers" they returned by train to 83rd and Commercial and went to Woody's Tavern, arriving at about 9:15 p.m. They sat at the bar and were each served a beer. Warsa left his seat to make a phone call from a public telephone. As he was making the call Pete approached him and spoke to him, so he immediately hung up the phone and returned to his seat at the bar. A minute later two men whom he had never seen before approached them. He identified these men as defendants Spaulding and Rick Schmidt. Spaulding, holding what "looked like a .38 revolver" under Pete's chin, said "you ain't so f____ tough." Schmidt placed a knife against his neck and "told me to sit down, stay." The bartender approached Spaulding and said, "I don't want no shit in here." Pete told Spaulding, "You got the pistol, you're the best." Schmidt said "Let's take these Mexican bastards out of here and kill them." Schmidt held a knife to his back, while Spaulding had a gun to Pete's back. Schmidt and Spaulding then took them outside where Schmidt took some money from each of them, and Spaulding hit Pete on the forehead with the pistol. Spaulding and Schmidt then told them to "Get the hell out of here."
Pete started walking to the car. Warsa did not go with Pete. Instead, he crossed 83rd Street and was walking south on Commercial when he heard footsteps, turned around and saw Schmidt, "coming at me." Schmidt started swinging at him, and they fell to the ground wrestling. When he regained his feet he observed Spaulding about four or five feet away pointing the same gun which he had seen earlier. Spaulding told Schmidt, "Let me get a shot at him." He attempted to protect himself by holding Schmidt "in the line of fire" and heard someone who sounded like Pete say "Leave him alone." Pete had just come from a nearby alley and had a shotgun in his hand. He did not see from where Pete got the gun. He then heard a loud noise that sounded "like a shotgun" and saw Spaulding and Pete struggling over the shotgun. When Pete told him to leave, Warsa walked north and as he looked back he observed a police car arriving.
Warsa then walked about two blocks to the home of Frank Tavitas. He and Tavitas then drove in Tavitas' car to the home of Benito Najera. He, Benito and Tavitas went to the police station where they found Pete in jail and gave him some money. They then drove to Woody's Tavern, arriving at 12:45 a.m., and asked the bartender if he would tell the truth as to what happened earlier. Spaulding, Schmidt and another man whom he identified as defendant Cletus Eller then entered the tavern. Schmidt approached him, "mumbled" something and hit him in the jaw. He and Schmidt "started to wrestle, fell on the ground" and went "into headlocks." Tavitas pulled Schmidt off of him. Benito Najera was standing about six feet away, near the bar. Spaulding "had a gun on Benito." He heard Eller say, "Kill him, kill him, kill him, kill them Mexican bastards." As Tavitas started to move toward Benito, Spaulding fired one shot which struck Benito. When Benito fell to the floor, Spaulding began kicking him as Schmidt and Eller yelled, "Kill' em, Kill' em." Tavitas tried to assist Benito but was pulled back by Eller. Spaulding beat Tavitas on the head with his pistol while Schmidt again began to fight with Warsa, kicking him in the ribs, legs and head. Spaulding also struck him "quite a few times" with the pistol. The last thing he remembered was someone saying the police were coming.
When he regained consciousness he was either in a police car or the hospital. At the hospital he was shown "quite a few" photographs by the police and selected the photographs of Spaulding and Schmidt. He identified People's Exhibit 2 as being similar to the gun with which Spaulding shot Benito.
On cross-examination Warsa admitted that on January 23, 1972, he was sentenced to two to four years in prison for armed robbery. He did not recall an individual named Tom Pantaliono being involved in the shotgun incident outside of Woody's Tavern. When he went to visit Pete at the jail, he did not tell the police that he had been attacked or robbed at knife point, but he did register a complaint the next day. Although he was originally upset that Spaulding and Schmidt were not arrested following the first incident, he had "cooled off" by the time he saw them in Woody's the second time.
Peter James Najera (Pete)
He was the nephew of Benito Najera. He corroborated Warsa's testimony concerning the shopping trip and the first visit to Woody's Tavern. Warsa got up to make a phone call while he ordered two beers. Schmidt approached him and said, "What are you doing here?" He tried to ignore Schmidt because "hassles I don't want." When he tried to get up to tell Warsa they ought to leave, Schmidt told him, "you ain't so mother-f____ tough." Warsa returned to his seat and they decided to finish their beers. Spaulding then put a gun under his chin and asked him if he thought he was "tough." He replied that "as long as he had his gun there he was the best man. He was the greatest." Schmidt also had what appeared to be a pistol under Warsa's chin. When the bartender said he did not want any trouble, Spaulding told him there was not going to be "any shit in the place" and to get back to the bar.
Spaulding then said, "Let's take them outside and kill these Mexican bastards." Spaulding hit him on the head with the pistol and "prodded" him out the door with the gun. Schmidt also forced Warsa outside. Spaulding then took $8 or $9 from him and said that "if he seen us Mexicans around here anymore he was going to kill us."
Spaulding again hit him with the pistol. He then left and went to his car. Realizing Warsa was not with him, he circled around in his car and found Warsa and Schmidt struggling. Spaulding who was also present, held a pistol. Schmidt yelled something like "shoot him." He took a shotgun, which he had used while hunting earlier in the day, from the trunk of his car and fired a shot in the air "to scare them off Mr. Warsa." He and Spaulding were struggling over the shotgun when the police arrived. Spaulding then ran upstairs "to see if the blast had woke up the kids," and a Mr. Pantaliono who he had not seen earlier came downstairs. Although he told the police that he had been robbed, he was placed under arrest and taken to the police station. At the station Spaulding told him that "if he would have had the shotgun I would have been dead."
On cross-examination he admitted that in 1964 he was convicted of robbery. He also admitted that he pled guilty to a charge of assault upon Thomas Pantaliono even though he was not in fact guilty. He feared a longer sentence if he did not plead guilty and believed he was pleading guilty only to discharging a firearm within the city limits. He denied telling anyone that he was sorry he missed Spaulding when he fired the shotgun, adding that, "if I had wanted to hit him with the shotgun, I would have hit him."
Benito Najera was his stepfather, and Pete Najera is his cousin. After 10 p.m. on December 13, 1974, James Warsa arrived at his home. After conversing with Warsa, he called the police station, received certain information, and then drove with Warsa to Benito Najera's home. He, Warsa and Benito proceeded to the police station where they gave Pete Najera bond money and food. He then left with Benito and Warsa to pick up Pete's car. Before getting the car they entered Woody's Tavern to talk to the bartender about "a prior incident that happened there." They sat at the bar and ordered beers.
As they were talking to the bartender, three guys who he identified in court as Eller, Spaulding and Schmidt walked into the tavern. Schmidt struck Warsa on the head. Then Eller struck Tavitas knocking him to the floor. He began fighting with Eller while Warsa and Schmidt "were rolling around wrestling on the ground next to us." Benito remained at the bar. Warsa put his hands in Eller's mouth "to stretch it out." When Eller said he had had enough, "I let him go." and forced Schmidt off of Warsa. He observed Spaulding pointing "a revolver, short barrel" at Benito. Benito had his hands up and was telling Spaulding, "You don't need a gun. Put the gun away." Eller then screamed, "Kill them Mexican bastards, all of them," several times. Tavitas took two or three steps toward Spaulding who turned and pointed the gun at him. Benito then went toward Spaulding and Spaulding "pushed him back and fired at him." Benito fell to the floor. He tried to pick Benito up, but Eller pulled him away and Spaulding "began to pistol whip me" on the head. Spaulding hit him on the head a dozen or more times and Eller said, "Kill him." Spaulding and Eller began pistol whipping and kicking Warsa and kicking Benito. When someone said the police were coming, defendants ran away.
As a result of the beating he received a cerebral concussion and lacerations on the head and hands. While in the hospital he identified photographs of Spaulding and Schmidt.
At trial he identified People's Exhibit 2 as being a weapon "very similar" to that which Spaulding used to beat him.
John Roberts, Chicago Police Officer
He was approaching the intersection of 83rd and Commercial at approximately 1 a.m. on December 14, 1974, when he observed "a male white run from a bar known as Woody's Tap" to the rear of a building across the street. He immediately obtained the assistance of Officers Springer and Delapaz who were nearby. As they approached the tavern he observed two more male whites, one of whom he recognized as Spaulding, run from the tavern to the rear of the same building. When the officers called for Spaulding to come out of the building, he stuck his head out a second floor window, mentioned he had been sleeping, and asked what the officers wanted. Schmidt also appeared at the window. He told Spaulding "to stop fooling around * * * or we were going to come up and get him." When Spaulding and Schmidt exited the building he placed them under arrest. He then went upstairs to search for the third man. Although he did not find anyone in the apartment, he did recover a fully loaded .38-caliber revolver and three boxes of .38-caliber ammunition. On cross-examination he stated that Warsa did not make a statement to him.
Joseph Delapaz, Chicago Police Officer
He substantially corroborated Roberts' testimony concerning their arrival on the scene outside of Woody's. He added that while he was "covering" the building across from Woody's Tavern, he heard someone yell, "Somebody been shot [sic]." He ran into the tavern where he observed Benito Najera, Tavitas and Warsa on the floor. Benito's "face was full of blood" and "a little swollen," he did not respond to questions and gave no sign of a pulse. Tavitas' face was covered with blood, he had lacerations on his head, and his hands were "limp swollen." Warsa was incoherent and semi-conscious.
Bruce Perisho, Hammond (Indiana) Police Officer
He and his partner were parked in a police vehicle outside the Hammond Police Station at approximately 3:10 a.m. on December 14, 1974, when they were approached by defendant Eller. After Eller made a statement to them, he took Eller into the police station and called the Chicago Police Department. About an hour later two Chicago police officers arrived. Eller then led him and the Chicago police officers to a manhole cover and said, "This is where I dropped the gun." A two-inch Colt revolver containing one spent cartridge was recovered from the manhole. He identified People's Exhibit 2 as this revolver.
Dr. Choi, Pathologist, Cook County Coroner's Office
The parties stipulated that if called to testify he would state that he examined the body of Benito Najera on December 14, 1974. Benito's death was caused by "a bullet wound of the chest."
Ernest Werner, Chicago Police Department Firearms Expert
The parties stipulated that if called to testify he would state that on December 16, 1974, he examined the bullet removed from the body of Benito Najera and determined that this bullet was ...