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, Robert C. Daily, was found guilty by a jury of attempt murder, aggravated battery and unlawful use of weapons. The trial court merged the aggravated battery conviction into the attempt murder conviction and imposed concurrent sentences of from 20 to 35 years for attempt murder and from 3 to 9 years for unlawful use of weapons. Defendant appeals.
Police Officer Lloyd Taylor, the complaining witness, testified that on September 27, 1976, at approximately 6:55 p.m., he and his partner, Officer Ocie High, were instructed by radio to go to an apartment building located at 3334 West Maypole, Chicago, where a man reportedly was carrying a shotgun. Officer Taylor stated that he and Officer High were working in plain clothes at this time. When they arrived, they went inside to an apartment on the second floor and spoke there with an individual who told them there was a man with a shotgun in apartment 303. At this time, Officer Taylor testified, they were joined by Investigators Steve Steele and John Schaefer, who also were working in plain clothes; they told Steele and Schaefer about the man with the shotgun.
Officer High corroborated Taylor's testimony and further stated that the person they talked with at the second floor apartment told them the man with the shotgun had caused a disturbance the day before and had tried to rape a woman.
After Investigators Steele and Schaefer had joined them, Officer Taylor testified, he began to walk up the stairs from the second floor to the third floor. He was holding his gun in his hand, with the barrel pointing up, not pointing at anyone. As he approached the landing midway between the second and third floors, he noticed a man, whom he identified as defendant, standing on the third floor landing, pointing a shotgun at him. He immediately backed down the stairs to the second floor, informed the other officers that he had seen a man with a shotgun and told Steele and Schaefer to go around and cover the back of the building.
Officer High and Investigators Steele and Schaefer testified that they were following behind Taylor as he was climbing the stairs and corroborated the fact that Taylor told them he had seen a man with a shotgun.
Officer Taylor further testified that after telling Steele and Schaefer to cover the back of the apartment building, he yelled "police" up to the third floor. Officer High and Investigator Schaefer corroborated Taylor's testimony that he shouted "police" at this time. Taylor stated that he next looked up the stairs, was unable to see defendant, and then, with gun in hand, climbed the stairs to the landing between the second and third floors. At the landing, he still was unable to see defendant and he continued climbing the stairs to the third floor. The stairwell from the second to the third floor and the third floor landing, Officer Taylor testified, were well lighted. Officer High and Investigator Steele corroborated Taylor's testimony that the stairs were well lighted.
When he reached the top of the stairs and was crossing the threshold from the third floor landing into the hallway, Officer Taylor testified, he turned his head to the left and saw defendant standing about two feet away, aiming the shotgun at him. Defendant then fired the shotgun at Taylor and the blast hit him on the neck and shoulder and the left side of his face and lifted him up and pushed him against the wall. Up until then, Officer Taylor stated, he had not fired his gun, but at this time he fired two shots towards the ceiling to let Officer High know he was alive, and then he crawled back to the second floor landing. Officer High testified that he saw Taylor go up to the third floor, heard a shotgun blast, after which Taylor fell and fired two shots into the ceiling.
Officer Taylor also testified that he had seen defendant several times before the day defendant shot him. On June 12, 1975, he had had a conversation with defendant for three to five minutes. He had not informed defendant during this conversation that he was a police officer. He had had another conversation with defendant on June 14, 1975, for two or three hours, during which he had informed defendant he was a policeman. He also had talked with defendant for one and a half hours on July 14, 1975, and for 15 to 20 minutes on July 21, 1975.
Officer Patrick Darcy, who arrested defendant, testified that when he arrived at the apartment building he heard two or three shots and was told that an officer had been wounded. He then went to cover the back of the building, where he saw defendant jump over a fence and run across the yard next door. Officer Darcy testified that subsequently he searched the porch of the building next door, found defendant there and took him into custody.
Officer Michael McGuire testified that on the evening of the shooting he went to apartment 303, looked in the refrigerator and there found the shotgun, which he identified as an exhibit.
Annie White, a tenant in the apartment building, testified that at approximately 5:45 p.m. on September 27, 1976, she saw defendant on the second floor carrying a sawed-off shotgun, which she identified as an exhibit. She further stated that defendant on this occasion pointed the shotgun in her face. Annie White also admitted she was a friend of Milton Givan.
Clarence Thomas, who lived with Annie White, testified that he spoke with her at about 6 p.m. on September 27, 1976, and then called the police. When the police arrived, he told them there was a man with a shotgun on the third floor and that they should be careful. Soon afterwards, Thomas testified, he heard a shotgun blast and then two shots from a pistol. He next saw Officer Taylor falling down the stairs.
Corinne Barr, another tenant in the apartment building, testified that on September 26, 1976, Milton Givan, who lived on the second floor, had accused defendant of raping a friend of Givan. On September 27, Ms. Barr testified, she and the defendant's sister, Linda Daily, went to talk to Givan. Givan told them he did not want to meet with defendant. She and Linda then returned to defendant's apartment and told defendant that Givan refused to come up to talk with him about settling their differences. Subsequently, Ms. Barr testified, she heard people coming up the stairs and saw defendant leave the apartment carrying a sawed-off shotgun. She did not hear anyone yell out "police." Shortly afterwards, she heard a shotgun blast, followed by two other shots. Defendant then came back into the apartment and said that it was not Milton, but a policeman.
Defendant testified that he and Milton Givan were co-workers and that he had known Givan for about a year. On September 27, 1976, he learned that Givan and some of Givan's friends had come to the place where he was employed and had accused defendant of raping Givan's girlfriend. Later, at about two o'clock that afternoon, he spoke to Givan on the telephone. Defendant testified that Givan ...