APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
COUSINS, JR., Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 31, 1980.
Defendant, Willie Earl Foster, was convicted of murder in a jury trial and was sentenced to 15 to 20 years in the penitentiary. On appeal he contends he was denied a fair trial on the following grounds: (1) the trial court refused to give a jury instruction on self-defense; (2) the court barred defense testimony concerning the victim's reputation for violence; (3) the court erroneously instructed the jury that defendant had confessed; and (4) the prosecution commented on defendant's post-arrest silence in an improper manner.
We reverse and remand for a new trial.
Although defendant does not directly challenge the sufficiency of the evidence we will summarize that evidence as an aid in evaluating his contentions of prejudicial error. This case arose out of the stabbing death of Tom Stanford. Samella Morris, who had lived with Stanford and who had borne a child by him, testified for the State that the stabbing occurred in her apartment on the evening of September 5, 1977. She and Stanford had separated and moved out of that apartment seven months earlier. She had given the defendant a key to the apartment so he could watch it for her. On September 5, 1977, at about 11 p.m. Morris, Stanford, and a friend of Stanford returned to the apartment. The friend was asleep on a living room couch and Stanford and Morris were in the bedroom when defendant and his girlfriend entered the apartment. Defendant had a large knife in his hand. When asked about it by Morris defendant stated that he had been beaten by three men and intended to kill them if he could find them that night. Morris informed him that she and Stanford were reunited and asked him to give Stanford the apartment key. Defendant refused to give it to Stanford but did relinquish it to her. Stanford attempted to dissuade defendant from looking for the men who had beaten him. Morris recalled that Stanford, who had been drinking earlier, and defendant began drinking. Another couple came to the apartment, spoke briefly to defendant, and then left. Defendant then left to take his girlfriend home, returning in about 20 minutes with the knife still in his hand.
Stanford again told defendant not to go out looking for the men, but defendant replied that he was grown and did not need to be told anything. Morris asked defendant to leave, but he refused to do so without his coat, which Morris could not find. Morris went into her bedroom, leaving defendant with Stanford, who had indicated that he wished to remain and talk with the defendant. Morris denied that defendant and Stanford were arguing at this time. Ten to fifteen minutes later Morris heard Stanford say "Get back, man, get back off me, don't come no further." She came out to find Stanford on the floor and defendant, with a knife in his hand, saying "I stabbed him." Defendant then ran out. Morris awakened the man on the couch and ran next door for help.
On cross-examination Morris testified that Stanford was in the habit of carrying a knife but she did not know if he had one that evening.
James Foster, defendant's brother, testified that on that evening defendant came to his apartment and said that he should call somebody, that he had killed Tom.
Defendant was taken into custody the same evening outside the apartment building by Chicago Housing Authority security officers Glass and Cross. He was still carrying a knife in his hand when they arrested him. Later that evening defendant spoke to the two officers in the police interrogation room. Officer Glass testified that defendant just kept asking whether "he" was dead. Cross recalled defendant also asking "Did I really do it" and explaining that he was carrying a weapon because some men had attacked him.
Officer Kenneth Ross of the Chicago Police Department testified that after he informed defendant of his Miranda rights at the police station defendant said "Did I really kill him, is he going to be all right." Defendant also mentioned having been beaten up several days earlier.
Chicago police investigator Morris L. Sykes testified that no weapons were recovered from the scene of the stabbing. Later that evening he took two oral statements from the defendant, after informing him of his rights, and listened to defendant make a third statement which was transcribed by a court reporter. Sykes read that third statement at trial. The first part of the statement was similar to Morris' account with the following pertinent differences and additions. Morris did not see the knife which defendant brought. Defendant's girlfriend left with the couple that came in after they did, Michael Ester and Ester's girlfriend. Stanford asked defendant for the key and told him to leave. Defendant said he would leave but first wanted to get a few possessions. As defendant began to leave Stanford "came up" to him. Defendant stabbed him with a knife he had been carrying in his waistband for several days. Samella Morris ran out of the bedroom saying that defendant had killed Stanford. Defendant did not know if Stanford had anything in his hands or whether Stanford struck him before being stabbed. Frightened, defendant ran to his mother's apartment where he found his brother and told him he had stabbed somebody. In the statement defendant also made the following comments:
"I got no reason to lie. You ask me any questions you want, I tell you. All I know is that the man is known for cutting up people, and stabbing people, and I was not going to be taking no chances, period. I am going to be point blank. No more behind. I know what he is capable of, what he is capable of doing. Simple as that. My response was too, the first thing was to get him before he got me. That was my first response. Simple as that. What happened, I don't really know."
Sykes testified that in defendant's first statement to him defendant stated that Stanford walked toward him just before he stabbed him. Defendant explained that he carried a knife because he had been the victim of a battery, but that Stanford was not one of his attackers. Defendant also stated that he and Stanford had not been arguing and Stanford did not strike him before the stabbing. He also said that he was afraid of Stanford.
According to Sykes the second statement made by defendant to him was very similar to the first one. The only additional statement he recalled was that Stanford did not have a weapon in his hand when he walked toward the defendant.
It was stipulated that the pathologist who examined Stanford's body would testify that the cause of death was a stab wound to the chest which perforated the heart. It was also stipulated that the alcohol level in Stanford's blood was at a level which subsequent testimony by toxicologist Michael Shaffer ...