APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
On October 3, 1975, at about 2 a.m., Donald Gilmore, a security guard, was shot and killed in front of the nightclub by which he was employed on East 79th Street in Chicago. Defendant Lawrence Draper, a club patron, was charged with and convicted of his murder in a bench trial and sentenced to serve from 14 to 20 years in the penitentiary. He appeals on the grounds that his guilt was not proven beyond a reasonable doubt and that consideration of lesser offenses was refused by the trial court. We affirm for the reasons which follow.
Four witnesses testified for the State. The first was Sandy Gilmore, the victim's wife, who provided the life-death information as to decedent. The next witness was Robert Ware, who testified that on October 3, 1975, he was manager of the nightclub, Purv's House, 914 E. 79th St., a two-level entertainment complex with a lounge and discotheque on the first level, and a showroom on the second level. At about 2 a.m. he was helping to clear the halls on the first floor, standing at and holding open the center door to enable people to leave the building following an altercation between two women. There was a lot of commotion at the doorway. He saw defendant and decedent struggling outside over a gun. He turned to get help when he saw a flash come from the gun, then held by defendant, who was pointing it down at decedent, now lying on the ground a foot or two away. On cross-examination, Ware testified that he was standing inside the building while holding the center exit door open. He did not see defendant or decedent struggling inside or go through the door. He did not remember how long he was standing at the door before he saw them struggling outside. After he turned to seek help, he heard two shots, at which time he turned and saw the flash coming from the gun. He didn't remember if decedent was face up, face down, or on his side at the time of the shooting. Twenty to forty people were in the hallway with him and four or five fights were going on simultaneously.
Anthony Mathews testified for the State that on October 3, 1975, at about 1:30 a.m., he was employed and on duty as a security guard at Purv's House in the second floor showroom. Although not part of the entertainment, defendant went on stage while a fashion show was in progress. Another club employee twice asked him to leave, which he refused to do. An altercation developed between defendant and the employee, which Mathews attempted to stop. When Mathews was about to telephone for more security personnel, defendant descended from the stage and ran toward the stairs. Mathews followed him. Two guards, John Crenshaw and decedent, who was wearing a blue uniform, were coming up the stairs at this time and all three pursued defendant out of the building and down 79th Street where Crenshaw and decedent apprehended him. After one of them told defendant he could re-enter Purv's House if he remained "cool," he did so, as did the two guards.
Mathews went upstairs and tried to stop two women fighting at the top. Their male companion intervened and when decedent rushed upstairs to assist, the man swung at him. Decedent took his revolver from his holster and told him he would take them out of the club. As the decedent was escorting this group downstairs, defendant, who was on the stairs, grabbed decedent's revolver and ran with it. Decedent pursued him, grasped him around the waist, and was dragged to the exit where the door swung open as they hit it. Mathews followed them out the door where he observed the two still struggling. Defendant shot the gun off once in the air and then once behind him. As they continued to struggle, decedent tripped and fell face down onto the ground. Defendant turned from left to right and fired two shots down into decedent. Defendant then ran away still holding the gun. On cross-examination, Mathews testified that he didn't see Robert Ware standing at the center doorway as he went through it, but did see him standing in the doorway when he turned back towards the club after the shooting.
Two stipulations by the parties were read into the record during the State's case-in-chief, one concerning the coroner's report, the other concerning the arresting officer's report. The coroner would testify that on October 3, 1975, an autopsy performed on Donald Gilmore revealed two bullet wounds. One bullet entered the right side of his chest with an overall directional course from right to left, lacerating both lungs, which caused his death. The other bullet entered the right upper hip, adjacent to the buttocks region, four centimeters below the small of the back, and penetrated upwards to his aorta.
The arresting officer, Investigator McGuire, would testify that on October 3, 1975, after preliminary investigation he and his partner went to 6757 South Loomis where they arrested defendant and advised him of his Miranda rights. On the way to the police station defendant stated that he had thrown the gun on top of a garage roof, which they then searched for but were unable to find. After defendant was booked, he was placed in a five-man lineup and was identified by Ware and Mathews, viewing the lineup separately, as the person who did the shooting.
The State then rested. The defense moved for a directed verdict at this point, which the trial court denied.
Phillip Weaver, called by defendant, testified that as he and defendant were going upstairs at Purv's House, he saw some guards breaking up a fight at the top of the stairs between two women. A boyfriend of one of the girls intervened and started fighting the guards, who, in turn, began hitting him while bringing him down the stairs. Defendant asked a guard why he was beating the man that way and Weaver then heard several guards say, "[o]ne of the dudes is talking to the guard. Let's get him," referring to defendant. The guards ran downstairs after defendant and then a uniformed guard, with his gun drawn, jumped on his back. Weaver did not see defendant take the gun away from the guard. Defendant and the guard continued to fight out through the door. He did not see what occurred thereafter. On cross-examination, Weaver testified that he and defendant went upstairs to the fashion show and onto the stage, although they were not part of the show. A guard asked defendant to leave the stage, and arms began to swing, but there was no contact. Several people pulled defendant and the guard apart and the guards escorted them outside. They were then allowed to re-enter Purv's House. After defendant began struggling with a uniformed guard, Weaver did not see a gun but did hear a gunshot while the two were still inside. He did not see any more of the occurrence because he hid inside the club after hearing the shot.
Defendant testified on his own behalf that after he entered Purv's House for the second time on October 3, he headed for the stairs. When he was about half-way up he saw two women fighting and two men trying to break it up. He turned around and started down the stairs, and heard someone say, "let's get him." He began to run and brushed past a security guard. He looked over his shoulder and saw this guard chasing him with a gun in his hand. Before he reached the door, he turned, grabbed the hand of the guard holding the gun, and the guard then grabbed him around the waist. They struggled and went through the door to the outside. The gun was in the guard's hand pointing upward when it went off the first time. As they continued to struggle, the gun, still in the guard's hand, went off a second time, hitting the guard in the side. He grabbed the gun from the guard, who then grabbed his wrist and the gun went off a third time. The guard was still standing when he ran away. He did not intend to shoot the guard, who was not on the ground when he was shot.
Both the State and defendant advised the trial court that Antonio Davis, an eyewitness who had testified at the preliminary hearing, was now unavailable. The defense requested that Davis be considered the court's witness and that his testimony from that hearing be received in evidence, which the trial court allowed. The transcript of his testimony revealed that he was a patron at Purv's House and saw defendant involved in a fight on stage. He saw defendant leave and then re-enter, "snatch" a gun out of a guard's holster and run with it. The guard chased defendant, jumped on his back, struggled with him inside, and continued to struggle as they went outside. While both were still standing, the gun went off once. As they continued their struggle, the guard fell backwards onto the ground. Defendant was trying to get away, but the guard's legs were hanging onto him. As defendant was turning, the gun in his hand was pointed at the guard lying on the ground and fired once or twice. Defendant was looking at the guard as the gun was fired, and was standing over the latter at that time. On cross-examination, he testified that the gun went off as defendant was pulling away from the guard. The guard was lying face up when the gun was fired.
Charles Eady testified for the State on rebuttal that he was now a police officer but was a private citizen on October 3, 1975. At approximately 2 a.m., he drove his automobile to the front of Purv's House and saw two men struggling as they came out the front door, one wearing dark clothing and the other a tan jacket, later identified in court as defendant. When the dark-clothed man fell to the ground, defendant pointed a gun down at him and fired two shots. He demonstrated the position of the two men at the time of the shooting which the prosecutor described for the record: "* * * Officer Eady who is representing the person in the dark clothing is lying on his left side with his right side in an upward position resting himself on his left elbow with his right arm in a 45° angle position, * * * his left leg is opened so that he would be on a 45° angle." The court then said "[r]ight leg in front of his left leg," and the prosecutor said "all right." Eady then assumed the position of defendant and the prosecutor assumed the position of the person in the dark clothing. At the prosecutor's request, the trial judge described Eady's new position for the record, "I see the witness standing with his left foot direct[ly] in front of the left leg between the ankle and the knee of the person on the floor, and he has his right hand outward pointing down towards the person on the ground."
Both sides rested and the court and counsel engaged in the following colloquy:
"THE COURT: I would just like to say this before I recess for deliberation. If I were instructing the court as trier of the facts the same as I would the jury, and as part of the instructions you have a voluntary manslaughter instruction and involuntary manslaughter instruction, perhaps the court might consider. I just say that because if I were instructing the jury, those instructions, I think, might have to go to the jury. The one as to voluntary, since there was some evidence pertaining to flight, and involuntary since there was some evidence as to perhaps recklessness in the conduct, ...