APPEAL from the Circuit Court of Madison County; the Hon.
HAROLD CLARK, Judge, presiding.
MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 12, 1979.
This is an appeal by the defendant, Timothy Wickenhauser, from a judgment of conviction of aggravated battery entered February 28, 1978, after a jury trial in the Circuit Court of Madison County. Defendant raises the following issues: (1) whether the evidence was sufficient to support the verdict of guilty; (2) whether the trial court erred in allowing the State to use, for impeachment purposes, a statement obtained from the defendant by police shortly after his arrest; (3) whether Rule 415(a) of the Illinois Supreme Court Rules was violated by the State in that one of the State's witnesses was advised by the police not to talk to anyone before trial; (4) whether the trial court erred in granting the State's motion in limine preventing defense counsel from questioning a State's witness regarding a statement made by the defendant shortly after the shooting incident; and (5) whether the trial court erred in denying the defendant probation. We conclude that the judgment of the trial court should be affirmed.
The facts of the case are as follows: Upon leaving Roe's Tavern at approximately 11 p.m. on August 11, 1977, the defendant discovered that his friend, Steve Williams, was engaged in an altercation with the victim, Jack Leamon, outside the tavern. The defendant attempted to intercede, but was told by Leamon that the quarrel was "none of his business." The defendant then obtained a revolver from his car, pointed it at Leamon, and again requested that Leamon leave Williams alone. Leamon then turned his attention from Williams to the defendant and began shoving the defendant backwards. The defendant testified that he then told Leamon that the gun was only a "bluff." However, Leamon continued to push the defendant backward and struck the defendant in the face. The defendant then shot Leamon, wounding him severely.
The defendant argued at trial that the gun went off by accident when he was struck by Leamon, or, in the alternative, that the shooting was justifiable. The four occurrence witnesses disagreed as to whether the defendant was falling back from Leamon's blow when the gun went off or whether the defendant regained his balance, aimed and fired. There was some evidence that the defendant suffered a broken nose from Leamon's blow.
We recognize that the use of a weapon may be a justifiable response to a physical attack. People v. Reeves (1977), 47 Ill. App.3d 406, 362 N.E.2d 9; People v. Baker (1975), 31 Ill. App.3d 51, 334 N.E.2d 249; People v. Schwartz (1973), 11 Ill. App.3d 959, 297 N.E.2d 671, cited by defendant, each construe the provisions of section 7-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 7-1) governing the use of force in defense of oneself or another; and in each of these cases, the force used was held to be justifiable. These cases are clearly distinguishable from the case at bar in that the victim in each was the aggressor and the force used against the defendant was substantially greater than that to which the defendant was subjected in the instant case. In Baker, the defendant was attacked by two assailants, both of whom were far superior in physical strength to the defendant. In Schwartz, the defendant suffered fractured teeth, multiple scratches and contusions, and was severely injured before retaliating against the victim aggressor with a weapon. Similarly, in Reeves, the defendant was attacked and repeatedly struck by her husband, who had beaten her severely on several prior occasions, before responding with deadly force.
1 Thus, the defendant's reliance on these cases is misplaced. Here, the defendant was the aggressor since he accosted Leamon with the revolver before the use of armed force was necessary to prevent imminent death or great bodily harm to Williams. In addition, the evidence adduced by the defendant that he had "withdrawn from the fracus," so as to lose the status of the first aggressor, was rejected by the jury. In any event, it is impossible to conclude as a matter of law that the defendant's use of a .45-caliber revolver was a justifiable response to the degree of physical force used by Leamon against Williams or defendant.
2 The defendant also contends that the State should not have been permitted to impeach his testimony with a statement obtained by the police while he was in custody shortly after the arrest. We conclude that this use of the statement was proper under Harris v. New York (1971), 401 U.S. 222, 28 L.Ed.2d 1, 91 S.Ct. 643.
Upon arrest, the defendant was provided with Miranda warnings, and he then requested to consult with an attorney. The attorney arrived at police headquarters at approximately 12:30 a.m., advised the defendant to remain silent and then left the station house. At approximately 1:40 a.m. an officer, unaware that defendant had invoked his Miranda rights to counsel and had chosen to cease interrogation, began to question the defendant. The defendant responded to one of the officer's questions and then refused to answer any others. The statement taken by the officer was suppressed in the State's case in chief since the defendant did not waive his Miranda rights.
In Harris, the court held that a statement inadmissible against the accused in the prosecution's case in chief by reason of Miranda may be used for the limited purpose of impeachment. It is not a significant distinction from Harris that in the instant case the defendant's statement came after he invoked his right to counsel and his right to remain silent as opposed to his Miranda right to be given warnings. In Harris the court stated there is hardly justification for letting a defendant affirmatively resort to perjurious testimony in reliance on the prosecution's disability to challenge his credibility because of the exclusionary rule. The court went on to say:
"* * * The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." (401 U.S. 222, 226, 28 L.Ed.2d 1, 5, 91 S.Ct. 643, 646.)
Therefore, the trial court did not err in allowing the State to impeach the defendant with the statement in question. See People v. Sturgis (1974), 58 Ill.2d 211, 317 N.E.2d 545.
The defendant also argues that the prosecution violated Supreme Court Rule 415(a) (Ill. Rev. Stat. 1977, ch. 110A, par. 415(a)) because one of the State's witnesses was advised by the police not to talk with anyone concerning the case prior to trial. Rule 415(a) prevents counsel or their "personnel" from advising witnesses to refrain from discussing the case with opposing counsel. The defendant's argument assumes that the police, who were acting of their own accord in this case, are "personnel" of the prosecutor. However, it is unnecessary to pass on this question since the defendant failed to request the application of one of the available sanctions for this alleged violation in the trial court.
3 Rule 415(g) of the Illinois Supreme Court Rules (Ill. Rev. Stat. 1977, ch. 110A, par. 415(g)) enumerates the sanctions which may be imposed for violations of the discovery process. Among the possible alternatives is an order for compliance, the grant of a continuance, or the exclusion of such evidence. It is evident that the application of any of these sanctions in the instant case would have obviated any harm to the defense that may have flowed from the inability to interview the witness before trial. By failing to give the court an opportunity to redress the alleged prejudice at the trial level, the defendant cannot now be heard ...