APPEAL from the Circuit Court of Cook County; the Hon. FRANK
W. BARBARO, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendant, Thomas Panzer, together with his brother Gregory Panzer, was charged by information with the murder of Joseph A. Mendrik. (Ill. Rev. Stat. 1975, ch. 38, par. 9-1(a)(1).) In addition, defendant was also charged with unlawful use of weapons. (Ill. Rev. Stat. 1975, ch. 38, par. 24-1(a)(7).) Prior to trial, Gregory Panzer pleaded guilty to involuntary manslaughter on the theory of accountability and was sentenced to 5 years probation. Gregory Panzer is not involved in this appeal. After a jury trial, defendant was found guilty of voluntary manslaughter and of unlawful use of weapons and, after his written motion for a new trial was denied, was sentenced to concurrent terms of 6 to 18 years for voluntary manslaughter and 3 to 9 years for unlawful use of weapons. Defendant appeals only from the conviction and sentence for voluntary manslaughter.
Defendant contends that (1) the trial court committed reversible error in (a) refusing to instruct the jury as to involuntary manslaughter, (b) allowing photographs of the deceased to go to the jury, (c) refusing to allow defendant's written confession to go to the jury, and (2) his sentence was excessive.
Frank Agnoli testified that at approximately 10:45 p.m. on November 8, 1975, he was sitting eating hamburgers with Peter Raney on the front steps of the field house of Independence Park, at the intersection of Irving Park and Springfield, when two men approached them, yelling names at them. After the two men "disappeared," defendant, who had been a friend of Agnoli for two years, drove up to the field house and got out of his car. The two men who had been yelling at them earlier reappeared, coming down Springfield from Irving Park, still yelling names at them. At defendant's suggestion, Agnoli and Raney got in defendant's car and accompanied him to the rear of defendant's house, about a half mile from the field house. Defendant told Agnoli and Raney to wait in the car and went through the gangway. Agnoli and Raney, however, left the car and walked north on Springfield back towards the park and the field house on the side of the street opposite the park. They saw walking toward them the deceased, Joseph Mendrik, and his companion Vincent Palmisano. They were the two men who had been yelling at them earlier.
At that time defendant and his brother Gregory Panzer caught up with Agnoli and Raney and passed them. Defendant and his brother, the deceased and Palmisano met at the southwest corner of Springfield and Dakin. Defendant and the deceased called each other names and cursed at each other. Agnoli at that time was behind Raney, on the right side of defendant. Defendant and deceased were a little over an arm's distance apart, arguing with each other, when deceased slapped defendant in the face with his open hand. Deceased did not have anything in his other hand. Defendant had his hands at his side. At that point Agnoli turned away for a minute, heard a shot, turned back and saw defendant holding a sawed-off shotgun in his hand. His three-quarter length green coat was open. When Agnoli saw deceased fall into the street, he, Raney, defendant and his brother started running, Agnoli and Raney running to Agnoli's house. Later that night they told the police they that knew nothing. Agnoli testified that he lied to police because he was scared.
On cross-examination, Agnoli stated that as he turned away he heard a shot. He didn't hear any conversation or words spoken between the slap and the shot. The first time he had even seen deceased and Palmisano was that night when they started calling him names. He did not remember stating at a preliminary hearing that when he turned back after hearing the shot he saw defendant "who was shocked, holding the gun."
Vincent Palmisano testified that at approximately 10:45 p.m. on November 8, 1975, he was in Independence Park having a few beers with his friend, Joseph Mendrik, the deceased. They had been there drinking beer from about 7:30 p.m. At 10:45 p.m., as they were walking to a bar on Springfield and Irving to get some more beer, they walked past the field house. Deceased said something to the people there. After getting some beer, they returned to the corner of Springfield and Irving. Words were exchanged between the deceased and the people they had seen previously. Palmisano and Mendrik then walked back to the park. At about 11:30 p.m. they started walking down Springfield towards Irving and saw the same people coming toward them. Mendrik and Palmisano started shouting and swearing at those people.
As they reached the corner of Springfield and Dakin, they confronted defendant and his brother and Agnoli and Raney. Palmisano did not know any of them prior to that evening. Defendant and deceased exchanged words in a medium voice tone about someone named John. At that time Palmisano had an AM-FM radio in his hand, but neither he nor anyone else had anything else in their hands. Defendant's hands were down at his side. After more exchange of words, deceased slapped defendant in the face. Defendant said, "You ain't going to hit me again" or "Don't hit me." Defendant, who was wearing a green trench coat that came down below his knees, drew back and pulled out a sawed-off shotgun. Deceased said, "Go ahead and shoot me." After a lapse of about 10 to 15 seconds, defendant, who was four feet from the deceased, shot him. At that time Palmisano was standing about three feet from deceased. Defendant, his brother, Agnoli and Raney all started to run. Deceased fell back and asked Palmisano to get help. Palmisano threw his radio into the bushes and ran to the tavern on Irving Park, where he asked the people there to call the police. The police found the radio 25-30 feet from Mendrik's body. Later that night Palmisano picked defendant out of a lineup as the person who had shot deceased.
On cross-examination, Palmisano testified that he had not seen either defendant or his brother prior to the incident. He did not recall stating at the preliminary hearing that he had seen them "a couple of weeks ago." Palmisano did not see defendant open his coat. He said that defendant, whose arms were down, "picked up and backed off and shot him." Palmisano guessed defendant had the gun in his arm all the time, because he never moved his arms; he kept them down.
Peter Raney testified that at 10:45 p.m. on November 8, 1975, he was sitting with Agnoli on the front steps of the field house, eating hamburgers, when deceased and Palmisano, who were a half a block away, shouted something at them. Defendant, whom Raney had known for three years, drove up in his car. Deceased and Palmisano returned, shouting at them. Defendant told Raney and Agnoli to get in his car. They did and drove half a mile to the back of defendant's house, parking behind the garage. Defendant told them to wait, but after he went into the gangway Raney and Agnoli started walking north on Springfield back to the park. While walking they saw the deceased and Palmisano. At that point defendant and his brother passed them from behind and approached deceased and Palmisano, defendant and deceased shouting at each other. The six met at the southwest corner of Springfield and Dakin. Deceased and defendant exchanged a few words in an angry tone of voice. Deceased slapped defendant with his open hand. Defendant stepped back, brought a sawed-off shotgun up from his hip and shot the deceased in the chest. Raney did not recall words being exchanged between the slap and the shot. After the shooting, Raney and Agnoli ran to Agnoli's house. Defendant and his brother also ran. Raney later told the police that he did not see anything; he did that because he was scared.
On cross-examination, Raney stated that during the argument between defendant and deceased defendant's hands were at his sides. Raney did not see the shotgun prior to the time defendant raised it. Raney further testified that when defendant took him and Agnoli to defendant's home, defendant did not say he was going to get a shotgun to shoot someone.
Investigator Richard A. Schak of the Chicago Police Department testified that the next evening he arrested defendant in his home and informed him of his rights. Defendant signed a consent to search form. Investigator Schak recovered a sawed-off bolt action shotgun from between cushions on a couch in the garage at defendant's home.
Edward Ozog, an assistant State's Attorney, testified that on November 10, 1975, after advising defendant of his rights, he took a question and answer statement from defendant. The statement was read to the jury.
In the statement defendant, in response to questions, said that he was 18 years old and had finished the second year of high school. About 11 p.m. on November 8 he drove to Independence Park, where he met Frank Agnoli and Peter Raney. He also saw deceased and Vincent Palmisano, who pointed at him and started running towards him. Defendant had not seen Palmisano before, but had previously seen deceased a month or six weeks earlier. One of these two had his hand in his pocket and the other had a quart of beer. Defendant drove Agnoli and Raney to defendant's house, where he went to his garage and put the gun under his jacket. Defendant met his brother as defendant was coming ...