APPEAL from the Circuit Court of Cook County; the Hon. JAMES
E. STRUNK, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 21, 1980.
Following a jury trial, defendant was found guilty of murder (Ill. Rev. Stat. 1973, ch. 38, par. 9-1) and was sentenced to a term of 30 to 60 years. On appeal, he contends that: (1) hearsay evidence was improperly admitted at trial; (2) the trial court erred in refusing to instruct the jury on either self-defense, voluntary manslaughter or involuntary manslaughter; (3) he was denied his right to present a defense because the trial court erroneously ruled that evidence of a prior conviction was admissible at trial if defendant testified, and because evidence relevant to his defense was excluded at trial; and (4) the trial court erroneously refused to clarify the law after a request by the jury. The pertinent facts follow.
Defendant made a motion in limine to bar the use for impeachment of two prior convictions for forgery and delivery of narcotics. After argument the motion was denied. Defendant also made a pretrial motion to exclude evidence of a phone conversation between decedent and Freida Goldberg as inadmissible hearsay. After a voir dire examination of Ms. Goldberg, the motion was denied. The following pertinent evidence was adduced at trial.
Patricia Ann Gorski, the decedent's sister, testified that on April 26, 1976, the day of the shooting, her brother, Wayne Tews, was 42 years old, 5'11" tall and weighed about 200 pounds. He walked with a slight limp since he dislocated his hip as a child. He was employed as a security guard at a club at 1221 North Dearborn. When she last saw him on Easter of that year, he was in good physical condition. She next saw him on April 27, 1976, at a funeral home at which time he was dead.
Freida Goldberg testified. In April 1976 she was the resident manager of the apartment complex located at 1221 North Dearborn. At that time a discotheque called The Rhinocerous Club was located on the first floor of the building. The club was open for about six months but was closed in April 1976 because of nonpayment of rent. She was involved with the lease negotiations for the club with defendant and several others. She saw him occasionally thereafter standing at the entrance to the club and would say hello to him. Later, she showed him an apartment in the building.
Ms. Goldberg testified that Wayne Tews was the security guard at her building for about one year, and she had never had any complaints about him. At about 1 a.m. on April 26, 1976, she had been asleep for about 20 minutes when she received a telephone call. Wayne Tews identified himself and told Ms. Goldberg that the manager of The Rhinocerous Club wanted to get into the club. Tews then said, "He's got a gun" in a strange and nervous voice. She heard another voice, which she recognized as defendant's, saying "Tell the m____ f____ manager to come down now, now, now." She told Tews to stall and not to worry. She hung up and called the police.
On cross-examination Ms. Goldberg testified that she spoke with 10 to 15 persons daily in relation to her job.
Robert Reinschreiber testified that on the night of April 26, 1976, he had spent about 2 1/2 to 3 hours at a lounge around the corner from 1221 North Dearborn. While there, he had several drinks. He left at about 1 a.m. with Richard Frenzel, Terry Moss and Ron Majcek and walked north on Dearborn Street to their car. As the group started to cross the street, he saw two men coming out of an apartment building struggling for a gun. One was wearing a security guard's uniform and the other wore a leather jacket. Defendant held the gun by the handle and the other man held it by the barrel. The two struggled and the witness heard a shot. The security guard backed off and coughed. A stream of blood came out of his mouth. The struggle continued near a bannister until the guard "lost all his ability to fight back." Defendant pushed the guard over the bannister and the guard fell into bushes about six feet below. Defendant leaned over the bannister and yelled "Die, m____ f____, die" about five or six times at the guard.
The witness stated that he saw the incident from the middle of the street and had no difficulty seeing or hearing what transpired. He described defendant as looking "spaced out" as he came down the stairs without the gun after the shooting. A policeman arrived shortly thereafter and the witness informed him of what happened.
On cross-examination Reinschreiber stated that he did not see any blows struck between the two men and did not notice whether defendant's mouth was bleeding or his nose was cut.
Richard Frenzel, who accompanied Reinschreiber that night, witnessed the shooting and corroborated Reinschreiber's testimony. He stated that the struggle on the balcony lasted between 30 and 45 seconds. He did not see any blood coming from defendant's face or mouth.
Terry Moss, who was with Frenzel and Reinschreiber, corroborated their testimony. She noticed that the guard was taller and larger than the other man. She could not remember if the guard struck defendant nor did she notice whether defendant's mouth or nose was bleeding.
Mitchell Shacter, a Chicago police sergeant, testified. On April 26, 1976, at about 1 a.m., he was on duty in a marked squad car. After a conversation with several people, he went to the scene of the shooting and saw defendant walking toward him. He arrested defendant. After the arrest several people pointed at defendant and told Shacter that "He did it." Defendant was unarmed at the time of his arrest. A police wagon transported defendant to a police station and Shacter stayed at the scene. He found a .22-caliber automatic pistol about 18 inches from the decedent's body.
On cross-examination Shacter stated that at the time of arrest defendant's lower lip was cut.
Chicago police officer Ruback testified. He and his partner arrived at the scene shortly after the shooting. He searched the decedent's body for identification and found a .22-caliber gas pistol in his right pants pocket.
On cross-examination Ruback testified that when he saw defendant at the scene he saw blood coming from his mouth.
Dr. Tae An, a pathologist, testified. He performed an autopsy on the body of Wayne Tews on April 26, 1976. His external examination of the body revealed a bullet wound in the right front chest, two scalp lacerations in the back of the head, and a laceration on the right hand. The body was 5' 11" in height and weighed 200 pounds. His internal examination revealed that the bullet had lacerated the right lung and the heart causing Tews' death.
On cross-examination Dr. An testified that he noticed a discoloration around the chest wound due to powder residue which indicated that the gun had been fired at very close range.
Chicago police officer Pribek, an evidence technician, testified that he recovered a discharged cartridge case, a weapon, and blood samples from the area of the shooting.
Chicago police sergeant Celovsky, a firearms expert, testified. He received two firearms, a discharged cartridge case, and a fired bullet in connection with this case. He test-fired the .22-caliber automatic pistol. Based on the tests he concluded that the discharged cartridge had been fired from the .22 automatic pistol. However, mutilation and damage to the bullet recovered by the pathologist made it unsuitable for identification. He also ...