APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
J. MAHON, Judge, presiding.
MISS PRESIDING JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Chester Hawkins and Ralph Watts, the defendants, were charged by indictment with attempt murder, aggravated battery and armed robbery. *fn1 Following a jury trial, they were convicted of aggravated battery and each defendant was sentenced to serve three years, four months to 10 years in the penitentiary.
The defendants raise four issues on appeal: (1) whether the trial court erred in refusing the defendants' request for a self-defense jury instruction; (2) whether the prosecutors made improper comments during closing argument that denied the defendants their right to a fair trial; (3) whether the trial court erred in denying Watts' motion to suppress a gun seized during a warrantless arrest; and (4) whether the trial court erred in refusing to strike the testimony of a witness whom the State sought to qualify as an expert.
Tony Hunter testified that on January 10, 1977, he was visiting Alonzo Shephard at the latter's one-room apartment. One gained access to the apartment by going through a barred door separating the common hallway from the stairwell exit and a wooden door between the apartment and hallway. Hunter stated that he and Shephard were watching television when they heard a knock on the stairwell door. Hunter answered the knock and found two men, identified in court as the defendants, holding a bag. They asked Hunter whether he wanted to buy some pants and he told them that he did not want to purchase any pants.
Approximately 10 seconds later, there was another knock on the door. Hunter recognized Joyce Bradford, an acquaintance. As he admitted her into the corridor, the two defendants appeared. Joyce asked Shephard to buy her some pants. Hunter testified that when Shephard refused the defendants pulled out guns and Watts said, "This is a stick-up. Go into the room." Watts then ordered Hunter to lie on the bed, which he did. Joyce Bradford also was lying on the bed. Hawkins ordered Shephard to lie on the floor face down. Watts asked Hunter for money; and when he replied he didn't have any, Watts took his wallet from his back pocket, checked it for money, and handed it back to Hunter telling him to wipe off the fingerprints. Hunter stated Watts was holding a large automatic weapon.
Hunter testified that Hawkins asked Alonzo Shephard for money; and after Shephard reached into his pocket for money, Hawkins shot him with a small revolver. Hawkins demanded more money and told Shephard, "You're dead anyway." Shephard crawled over to a closet to retrieve more money and give it to Hawkins. At this point, Shephard and Hunter were tied, hands behind their backs, with neckties. As the defendants discussed killing Shephard and Hunter, they heard a knock on the door. One of the defendants opened the door and Ray Price entered. Watts directed Hunter to move to the floor and ordered Price to lie on the bed. The defendants again discussed killing the three men. As Watts and Hawkins were leaving the room, Hunter heard a small sound, like a shot, then a louder noise, like a second shot, and then a yell from Price.
Alonzo Shephard's testimony corroborated the facts related by Hunter. He confirmed that he had been shot by Hawkins in the back while lying on the floor after giving him $16 from his pocket. Shephard also testified that after he heard two shots, Price, who was lying on the bed, said, "I'm shot; he shot me for nothing."
Ray Price was called to testify. The State attempted to qualify Price as a firearms expert to the extent that he could distinguish retort sounds produced by guns of different caliber. Thereafter, Price identified the two defendants in court and stated that when he entered Shephard's apartment, Watts was holding a .45-caliber revolver and Hawkins held what looked like a .22-caliber gun. He said he was told to lie on the bed and his hands were tied behind his back. Price testified that he glanced to his right to see a ".45 coming down" and identified Watts as the person holding the gun. He said he heard one shot and felt his leg jerk up off the bed and then heard another shot which sounded like it came from the hall. The State introduced a .45-caliber automatic weapon into evidence and Price identified it as the one Watts held over him the night of January 10, 1977.
The State produced additional witnesses at trial. Since their testimony is not relevant to the issues presented on appeal, it will not be discussed.
As part of the defendants' case-in-chief, Chester Hawkins testified that Joyce Bradford and Ralph Watts were visiting his apartment when they decided to go to Alonzo Shephard's apartment to shoot dice. Watts and Hawkins dropped Joyce off at Shephard's apartment and went to a nearby tavern. The defendants returned to Shephard's apartment about an hour later, knocked three times on the door, as Joyce had instructed them to do, and Joyce opened the door for them. Upon entering the apartment, Hawkins said he observed Shephard, Price and Hunter snorting heroin. About 10 or 15 minutes later, Joyce made the introductions and Watts urged the parties to begin playing dice.
Hawkins testified that he and Watts were winning because they were using loaded dice. He stated that during the game, Hunter grabbed the dice and accused them of cheating. At this point, Hawkins said he noticed that Shephard had a pistol behind his back in his belt and he struggled with Shephard to get the gun. Hawkins testified that during the fight, he pushed Shephard's hand up and the pistol went off and then fell to the floor as they continued to struggle. While he and Shephard were struggling over the gun, Hawkins said he heard a shot in another part of the room but did not know what was happening there. When Hawkins stood up from the floor with the gun he obtained from Shephard, he saw Watts snatch a pistol from Joyce Bradford. Watts also picked up and pocketed ammunition which had fallen from Joyce's purse. Hawkins, Watts and Bradford departed; and Hawkins tossed Shephard's pistol into a park across the street.
Watts' testimony corroborated the facts alleged by Hawkins. Watts also stated that when Hunter discovered the dice were loaded, he grabbed Watts by the arm and a struggle ensued. At that time, Watts saw Hawkins "put the arm on Alonzo Shephard" and heard one shot fired. Breaking free from Hunter, Watts heard another shot fired and turned and saw Joyce Bradford with a .45-caliber gun. As he grabbed the gun from her, her purse fell open and bullets dropped from it. Watts said he picked up the bullets and put them and the gun into his pocket. Watts testified that he, Hawkins and Bradford left Shephard's apartment together. He stated he deposited the gun and bullets in a closet in his own apartment.
• 1 The first issue on appeal is whether the trial court erred in refusing the request for a self-defense instruction. *fn2 It has been held that "`[a] defendant in a criminal case is entitled to have the jury instructed on any legally recognized defense theory which has some foundation in the evidence, however tenuous.'" (People v. Cruz (1978), 66 Ill. App.3d 760, 764, 384 N.E.2d 137, citing People v. Looney (1977), 46 Ill. App.3d 404, 410, 361 N.E.2d 18; see also People v. Bratcher (1976), 63 Ill.2d 534, 349 N.E.2d 31.) The defense of self-defense presupposes that the accused committed the act and ...