APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
A. WEXLER, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 9, 1980.
In a jury trial defendant James Patterson was convicted of the murder of Henry Boyd. He was sentenced to a term of 14 to 42 years in the penitentiary. On appeal defendant makes the following contentions: (1) his guilt was not established beyond a reasonable doubt; (2) the trial court erred in failing to grant a new trial based on newly discovered evidence; (3) defendant was deprived of a fair trial when the State improperly cross-examined a defense witness concerning his alleged statement to the police about narcotics and also elicited rebuttal evidence concerning the statement; (4) final arguments by the State which implied that defendant and a defense witness were drug dealers prejudiced defendant.
At trial James Jackson testified for the State that he was a part-time bartender at the Monkey Club in Chicago. On March 20, 1975, Jackson arrived at the tavern at 6:30 p.m. Defendant, whom he knew as Elija, was sitting at the bar. At about 8 p.m. Henry Boyd and Larry Johnson came into the bar. Johnson began talking with Donald Cupcake in the rear of the bar. At this time Jackson was behind the bar, defendant was sitting at the bar close to the front door, and Boyd was standing three to five feet down the bar toward the middle. A fight broke out between Cupcake and Johnson. Cupcake said "Oh, he got a gun. Don't let him shoot, Elija." Boyd, who was about 20 feet from the fight, headed for the door. Defendant jumped up and began firing. Jackson, who had gotten down on the floor, got up and saw Boyd lying on the floor with a hole in the back of his neck. Immediately before the shots were fired he had seen no weapons on the person of Boyd.
Investigator Anthony Bongiorno testified that he arrested the defendant. After being advised of his rights defendant told him that Boyd had been fighting with his friend in the tavern. The friend told defendant Boyd had a gun and defendant pulled out his gun and shot Boyd in the back of his neck.
The pathologist who examined the body of Henry Boyd found a small bullet lodged in the spine. The scar from the bullet was located on the rear of the neck on the upper portion on the left side. Boyd had died on July 12, 1975. It was the doctor's opinion that death was caused by complications arising from the bullet wound to the neck.
Defendant testified in his own behalf and presented three additional eyewitnesses. Donald Cupcake testified that about 8 p.m. that evening he had a conversation with Boyd and Johnson near the front of the tavern. Cupcake asked to see a ring and Johnson pulled out a gun. Cupcake began struggling with him while asking for help and saying that he was being held up. He denied having specifically asked defendant for help. At this time Boyd had placed a cold object, which might have been a pistol or knife, against Cupcake's neck. The defendant came over, Boyd began to go around Cupcake and then Cupcake heard a shot and Boyd was no longer "on" him. He continued struggling with Johnson until defendant forced Johnson at gunpoint to drop his gun. Cupcake left the tavern, discarding the gun recovered from Johnson in the alley.
Jackie Dixon, who had known the defendant for at least 13 years, was also present that night. He testified that Johnson began walking from the middle of the bar to the door where Boyd was located. A struggle began and Dixon saw Boyd with his hand on Cupcake. Boyd reached into his pocket and brought out a shiny object. Johnson was also struggling with Cupcake. Dixon ducked down and heard a shot. Dixon left the tavern at this point. As he did so he saw Boyd lying halfway in the door with some object between his hands.
Defendant testified that he arrived at the tavern about 5 or 5:30 p.m. Cupcake, whom he had known for 10 years, arrived at about 6 p.m. Boyd and Johnson arrived at about 8 p.m. As defendant was sitting at the bar he heard Cupcake say "Help, they got a gun. Don't let them shoot me. Help, help, they're sticking me up." Defendant saw that Cupcake was being held against the wall by Johnson while Boyd held a knife to Cupcake's neck. Defendant moved towards them with his pistol in his hand and ordered them to "freeze." Boyd let Cupcake go and turned toward the defendant. He raised his arm in the air and began to bring the knife down on defendant's head. From a distance of three or four feet defendant crouched and fired his pistol at the victim. Defendant testified that he fired out of fear for his life and that of his friend. After he fired defendant saw that Johnson and Cupcake were still struggling on the floor. At gunpoint he forced Johnson to take a pistol out of his pocket. Cupcake took the pistol and he and the defendant separately left the tavern. As defendant left he saw Boyd on the floor by the door with a knife in his hands. Defendant testified that after his arrest he told police he shot Boyd in self-defense and to save his friend.
Fabian Marshall, who had known defendant for about 15 years and Cupcake for about four years, testified that from his position in the back of the tavern he heard Cupcake shout "he's got a gun." A scuffle had broken out between Cupcake, Johnson, and Boyd. Marshall dived to the floor and crawled behind the bar, where he saw the bartender, Jackson, also on the floor. At this time he heard shots fired but was unable to see who fired them.
We find no merit to defendant's contention that this evidence was insufficient to establish his guilt beyond a reasonable doubt. It was undisputed at trial that defendant shot the victim; the question for the jury was whether this shooting was in self-defense. The jury was presented with two basic versions of what occurred. State witness James Jackson testified that Boyd and Johnson entered the tavern together, a fight broke out in the rear of the tavern between Johnson and Cupcake, and Cupcake called out for help to the defendant, saying that Johnson had a gun. Boyd, who was standing near defendant and 20 feet from the fight, attempted to leave the tavern. Defendant then shot Boyd, who according to Jackson had no weapon in his hand, in the back of the neck.
Defendant's version was that he came to the rescue of Cupcake, who was being robbed by both Boyd and Johnson. Boyd held a knife to Cupcake's neck as defendant approached with a gun. Boyd then turned toward defendant and began to bring the knife down toward his head. At this point according to defendant he shot Boyd in self-defense. As defendant left the tavern he observed the knife still in Boyd's hands as he lay on the floor. This version was largely corroborated by defendant's other witnesses. Cupcake also testified that he struggled with Johnson and Boyd, who held a cold object to his neck. Cupcake called for help, defendant approached, Boyd attempted to go around Cupcake and then after a shot was fired Boyd was no longer "on" Cupcake. Dixon also recalled that Cupcake struggled with Johnson and Boyd. He saw Boyd take a shiny object from his pocket before the shot was fired and afterward saw Boyd on the floor with an object in his hands. Marshall recalled Cupcake struggling with Johnson and Boyd. He also testified that Jackson was on the floor behind the bar when the shots were fired and thus presumably unable to see who fired them.
It was the jury's function to determine the credibility of these witnesses and to sort out the conflicting testimony. (People v. Yarbrough (1977), 67 Ill.2d 222, 367 N.E.2d 666.) Certainly one important factor in their consideration was the physical evidence that the victim was shot in the back of the neck, a fact tending to discredit defendant's claim that the victim was shot as he was attacking defendant. The jury chose to believe the testimony of Jackson, as corroborated by the physical evidence. We find no basis for disturbing their determination.
Defendant also contends that the trial court erred in denying his motion for a new trial based on newly discovered evidence. Defense counsel's affidavits in support of this motion stated that counsel had located Larry Johnson one day after the jury returned its guilty verdict. According to the affidavits Johnson told counsel that he and Boyd were involved in a fight with Cupcake at the tavern. Boyd had a knife during the fight and Johnson saw Boyd strike out at defendant with the knife. Counsel further stated in the affidavits that he attempted to interview the witness on three occasions between October 10, 1975, and May 17, 1977, at the address for Johnson furnished by the State but was unable to locate him there. Johnson told him he had been in Cook County jail under the name of Robert Smith since December 1976 or January 1977. He ...