APPEAL from the Circuit Court of Cook County; the Hon. R.
EUGENE PINCHAM, Judge, presiding.
MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
This is an appeal from the circuit court of Cook County wherein the defendant, Jesse Benniefield, was found guilty of the crime of murder. After a jury trial the defendant was sentenced to not more than 14 years nor less than 18 years in the State penitentiary.
The issues presented for review are: (1) whether a defendant who testifies on his own behalf may be impeached by prior statements made during plea negotiations; (2) whether the trial court erred in refusing to issue defendant's tendered jury instruction on voluntary manslaughter; (3) whether the trial court erred in denying a request of the jury during its deliberations; and (4) whether the defendant waived the issue of impeachment.
At trial, the State presented, among other things, six eyewitnesses to the occurrence. These witnesses revealed that on the date in question the defendant and the decedent, Johnny Waits, were two of many players in a dice game. During the game the defendant bet against Johnny Waits and lost. Johnny Waits picked up the defendant's money. The defendant then complained to Johnny Waits that he had taken the defendant's money, after which the defendant walked away from the game. About 30 minutes later the defendant returned with a gun and said to Johnny Waits, "Johnny, drop my money." Although Johnny Waits then tried to give the defendant some money, the defendant shot him and ran away. The defendant's gun was the only gun seen by the witnesses during the incident.
The defendant testified on his own behalf. On the date in question he had been in a dice game with Johnny Waits. After playing for some time, the defendant had won most of the money and was on his knees counting it when Willie Logan picked up the dice and said the defendant had been shooting loaded dice. Defendant testified that Johnny Waits then kicked him in the chest. When the defendant got up he pushed Waits and ran out to the street, being chased by three of the dice players. Later, the defendant was walking down an alley when he heard someone call his name. The defendant turned around and saw Johnny Waits and six other men. Defendant testified that Johnny Waits had a gun and told the defendant to drop the money. Defendant testified further that Johnny Waits then fired at him twice, striking him once in the left arm. The defendant said he then started to run and fired one shot back.
The assistant state's attorney, on cross-examination, asked the defendant if he remembered a prior hearing before the trial judge on August 1, 1978. He said he remembered and was then asked if he recalled a question of the court: "Tell me what happened." He stated that he remembered and was then asked about certain omissions in his answer to that question. He stated that he never told the trial judge during the earlier hearing that Logan, Jackson and Waits had chased him.
The prosecutor continued cross-examination with questions concerning the circumstances when the defendant headed back toward the dice players, and Johnny Waits, Albert Jackson, Curtis Jackson, Ned Waits and Willie Logan approached him from behind. It was Johnny Waits who had called him and who was standing at the head of the group. The defendant said that Johnny Waits told him to drop the money. Again in reference to the prior hearing, the defendant was asked if he told the trial judge the same thing, and answered that he was never asked.
On redirect, defendant said that he had testified before the trial judge at the prior hearing for only two to three minutes.
After both sides rested, the defendant tendered an instruction on voluntary manslaughter. The court refused the defendant's request for such an instruction.
During deliberations, the jury sent a note to the court asking what was the cause of the defendant's wound and whether there were hospital records to support it. The court instructed the jury that it must decide the case on the evidence and instructions submitted. After deliberating further, the jury found the defendant guilty.
After a sentencing hearing the defendant was sentenced to 14 to 18 years in the State penitentiary. The defendant now appeals from said conviction.
The defendant contends his conviction must be reversed because the State introduced evidence of his testimony given at a plea bargaining session, in violation of Illinois Supreme Court Rule 402(f), which provides, in pertinent part, as follows:
"In hearings on pleas of guilty, there must be substantial compliance with the following:
(f) If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the ...