APPEAL from the Circuit Court of Kane County; the Hon. JOHN A.
KRAUSE, Judge, presiding.
MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
Defendant, Clarence Christen, was tried by jury, found guilty of murder (Ill. Rev. Stat. 1977, ch. 38, par. 9-1), and thereafter was sentenced to a fixed term of 20 years' imprisonment. On this appeal he has raised several claims of error, and we find that his conviction must be reversed and the cause remanded for a new trial because of the erroneous exclusion of evidence of his intent sought to be introduced by defendant.
Christen was employed as an armed security guard for a liquor store and parking lot attached to the Capricorn Lounge in Aurora, Illinois. He had served in this capacity for approximately eight years, and his duties included the transfer of money at the end of the shift, traffic control in the parking lot area, and prevention of loitering.
On the night of August 14, 1978, Christen entered the Capricorn Lounge to retrieve cash from the front bar and to inform the customers that it was closing time. Six or seven people were present including the decedent, Phillip Armstrong, who responded by calling Christen an "old m____ f____". Christen was apparently offended by this comment and shouted back, "[y]ou don't call me old m____ f____". Armstrong then walked toward Christen, who was standing behind the bar. Shelly Armstrong, wife of the decedent, testified that while approaching the defendant, her husband said, "[w]ell, look like we're just going to have to fight," and began bouncing around in a mock boxing manner hitting the air with his fists. Armstrong proceeded behind the bar and apparently attempted an apology, which Christen rejected. Although Christen testified that he thought Armstrong's conduct was threatening, no other witness noticed anger or any threatening behavior on the part of Armstrong. When Armstrong was within reach, Christen took hold of Armstrong's shirt collar and drew his gun. Armstrong struck no blows but did seek to break free. At about this time, Christen fired three shots: the first went overhead and the second and third bullets struck and killed Armstrong.
At the time of the shooting Christen was 81 years of age and suffered from certain physical disabilities: two amputated fingers, an artificial leg requiring the support of a cane, and damaged eyesight. Armstrong, however, was a relatively young man, approximately 6 feet tall, and weighed 180 pounds.
1 In criminal cases, where the intention, motive, or belief of accused is material to the issue, the accused is allowed to testify directly to the fact. (People v. Biella (1940), 374 Ill. 87, 28 N.E.2d 111; People v. Pernell (1979), 72 Ill. App.3d 664, 391 N.E.2d 85; People v. Graves (1978), 61 Ill. App.3d 732, 378 N.E.2d 293; People v. Ortiz (1978), 65 Ill. App.3d 525, 382 N.E.2d 303; People v. Perry (1974), 19 Ill. App.3d 254, 311 N.E.2d 341.) As stated by the Illinois Supreme Court in People v. Biella:
"The circumstances under which the act in question was done usually serve to manifest to a great degree the intent of the actor and may overcome his declaration as to his intention, but he has the right to testify to his intention and to have the circumstances surrounding the act considered in connection with his testimony." 374 Ill. 87, 89, 28 N.E.2d 111, 112.
2 Where a claim of self-defense rests upon some reasonable basis, exclusion of state-of-mind testimony by a defendant will ordinarily constitute reversible error unless sufficient evidence of his intent is admitted at a subsequent stage of trial. See People v. Smalley (1973), 10 Ill. App.3d 416, 294 N.E.2d 305; see also People v. Biella (1940), 374 Ill. 87, 28 N.E.2d 111; People v. Limas (1977), 45 Ill. App.3d 643, 359 N.E.2d 1194; and People v. Johnson (1976), 42 Ill. App.3d 425, 355 N.E.2d 699.
3 In the present case, the trial court sustained the State's objections to questions propounded to defendant on direct examination relating to his intent or state of mind immediately prior to shooting Armstrong, as follows:
"Q [defense counsel]: Would you explain to the Court and ladies and gentlemen why you shot him?
MR. PETERSEN [State's Attorney]: Objection, Judge. That's irrelevant.
THE COURT: Objection sustained.
Q. Could you have fought him?
MR. PETERSEN: Objection, Judge, that's ...