APPEAL from the Circuit Court of Cook County; the Hon. FRANK
W. BARBARO, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 30, 1980.
Following a jury trial, defendant was found guilty on one count of attempt murder (Ill. Rev. Stat. 1975, ch. 38, par. 8-4), two counts of aggravated battery (Ill. Rev. Stat. 1975, ch. 38, par. 12-4), and one count of possession of a controlled substance (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1402(b)), and not guilty of one count of attempt murder. The trial court merged one guilty verdict for aggravated battery into the guilty verdict for attempt murder and sentenced defendant to concurrent prison terms of 22 years for attempt murder, five years for aggravated battery, and three years for possession of a controlled substance. On appeal defendant raises the following issues (1) the trial court improperly prevented defendant from testifying as to his state of mind at the time of the shooting; (2) the trial court improperly prevented defendant from impeaching the testimony of two State witnesses; (3) the trial court's rulings improperly precluded defendant from presenting the theory of his case; (4) the trial court erred in refusing to instruct the jury on the use of deadly force to prevent a forcible felony, or defense of a dwelling; and (5) the jury instructions on attempt murder and aggravated battery failed to state the State's burden of proof on the issue of self-defense.
On July 10, 1976, seven Chicago police officers, dressed in plain clothes, attempted to execute a search warrant at 7143 S. Princeton. They left Area Three Headquarters in two unmarked cars and arrived on the 7200 block of Princeton, where they parked the cars, at 10 p.m. Sergeant Miller gave the men their final instructions before they approached the target address. Officers Travis, Foster and Pharr went to the front of the home while the remaining officers, including Sergeant Miller, surrounded the sides and rear of the building.
Inside the building at 7143 S. Princeton were defendant, his brother Joseph Currie, Anthony Brent and Mary Carter. Defendant arrived there at approximately 9 p.m. and had in his possession a .32-caliber revolver, money and heroin. He sold the heroin to one of the others present, and then everyone used it. Defendant remained there to act as a "doorman"; he was to greet prospective drug purchasers at the front door to facilitate any transactions. At 10 p.m. defendant left the kitchen to meet someone at the front door.
Outside on the front porch, Officers Travis and Foster had approached the front entrance to the home. There was an outer storm door and an inner wooden door. According to their testimony, neither man had drawn their weapons. Foster held open the storm door while Travis knocked on the inside door. A voice from inside asked: "Who is it?" Travis replied: "Police Officers." The inside door opened a space of 10 to 12 inches, and defendant stood in the opening. Holding his police badge in his left hand, Travis announced that he was a police officer and had a search warrant. At that point, Travis placed his left hand with the badge through the opening and simultaneously pushed the door in with his right hand. As Travis stepped into the opening, he noticed defendant had moved away from the door and was holding a gun. Defendant fired a single shot in the direction of Travis. Moving backwards, defendant fired two more shots into the opening. One of the bullets struck Travis in the left arm another struck Foster across the left eyelid. Travis drew his weapon and fired five shots as defendant fled down the hallway. Foster, who had fallen onto the porch because of his wound, shouted: "I've been hit." Upon hearing the gun shots, Officer Pharr came to the front door, took Travis and Foster to the squad car, and then drove them to the hospital.
The remaining police officers entered the house and placed the defendant, whom they found in the attic, under arrest. A .32-caliber revolver was found in the living room at the house. The gun contained three live and three spent shells. In the kitchen and in an upstairs room, several small packets of heroin were found.
Defendant was taken to Area Three Headquarters where he was questioned by an assistant state's attorney. After waiving his right to remain silent and to assistance of counsel, defendant gave a statement concerning the shooting. In this statement, he admitted acting as a doorman and firing his gun at the people at the door. He stated, however, that when he answered the door, the individual identified himself as "Frank." In addition, when he began to open the inner door, "the man came in on me." Defendant then fired his gun.
At trial defendant testified that he carried a gun because he was in fear for his life. When he answered the door that evening, the person outside twice identified himself as "Frank." No one identified himself as police. As he opened the inner door to look out, the door was pushed knocking him backwards. Moving back away from the door, he fired his gun without aiming. In answering why he fired, he stated: "Because I thought it was someone who had come to kill me."
1 Defendant's first argument is that the trial court erred when it sustained the State's objection to questions of defendant designed to elicit defendant's state of mind at the time of the occurrence. Where the issue of self-defense has been raised, defendant's state of mind at the time of the occurrence is relevant and material. (People v. Harris (1956), 8 Ill.2d 431, 134 N.E.2d 315.) Evidence of the violent temper and disposition of the victim and prior threats made by the victim to the defendant are admissible to show the circumstances confronting the defendant, the extent of the apparent danger, and the motive by which defendant was influenced. (People v. Stombaugh (1972), 52 Ill.2d 130, 284 N.E.2d 640.) Thus, the trial court committed error when it precluded defendant from testifying as to his state of mind at the time of the occurrence. We note, however, that the trial court's rulings to exclude evidence of threats to defendant made by unknown parties was proper.
2 The error committed by the trial court in this case does not necessitate reversal of defendant's conviction. After the trial judge's initial exclusion of this evidence, defense counsel later returned to this subject and the following exchange took place:
"DEFENSE COUNSEL: Mr. Currie, when that door hit you, did you know who was on the ...