APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Defendant, Phillip Kline, was charged with two counts of murder and one count of attempt murder. A jury found him guilty of all three charges, and the court sentenced him to concurrent terms of 50 to 100 years for each murder charge and 10 to 30 years for attempt murder. Defendant contends on appeal that he was not proved guilty beyond a reasonable doubt; that, despite the fact he relied on self-defense, he was not permitted to testify as to his state of mind; that essential defense evidence was erroneously excluded as hearsay; that the prosecutor's improper closing argument deprived him of a fair trial; that the trial court abused its discretion in denying him a short continuance to produce a key witness; that the use of defendant's involuntary statement mandates a new trial; that the trial court improperly denied his request to waive a jury trial; and finally that the jury verdict was the result of coercion.
On December 21, 1976, defendant killed Eugene "Bo" Washington and Rodney Morrison, and shot Ulysses Washington. Defendant admitted these acts and relied solely on a claim of self-defense.
Officer Thomas McCue of the Chicago Police Department testified for the defense that he arrested defendant in October 1976 for possession of cocaine and marijuana. McCue offered defendant an option of becoming an informant or of taking his chances in court. Defendant was to aid the police by providing information leading to three drug arrests. After giving some information, defendant was told by McCue that he had to come up with more arrests. Defendant told McCue about Bo Washington, who was not under surveillance by the police. McCue testified to instructions that he gave defendant to aid in the arrest of Bo. As opposed to making a controlled buy transaction from Bo, McCue wished defendant to get inside the suspected dealer's home and to positively identify anyone who resided in the home who controlled narcotics. With this information provided by defendant, McCue then planned to obtain a search warrant to enter the home to effect the arrest himself. McCue stated that he cautioned defendant to be careful because it was dangerous work. The trial court permitted McCue to testify as to what he had said to defendant regarding the agreement, but repeatedly sustained the State's objections on the basis of hearsay when the defense attempted to have McCue testify as to defendant's statements.
David Quinlan, a friend of defendant's, testified for defendant that it was he who led defendant to Bo for the narcotics transaction. Quinlan arranged for defendant to purchase heroin from Bo and warned defendant to be careful because he had seen Bo and his friends with guns. Quinlan had seen Bo and Morrison with revolvers and had seen a shotgun in the basement of Bo's home.
Defendant's wife testified that she heard Officer McCue bargain with defendant to aid in making a large narcotics arrest. She offered to help, but was warned not to get involved because it was too dangerous. When defendant's wife attempted to testify as to the substance of statements which she heard but did not herself make regarding the agreement between defendant and McCue, the trial court sustained the State's objections.
Defendant testified that he agreed to act as an informant to keep from going to jail. Defendant stated that McCue had been pressuring him to supply more information for another narcotics arrest. Defendant requested help from Quinlan who led him to Bo as a possible narcotics source. During December 1976, Quinlan arranged for defendant to meet with Bo to effect a narcotics purchase. Defendant was allowed to testify as to his statements, but the trial court sustained objections on hearsay grounds as to any statements not made by defendant. During December defendant met twice with Bo and the others, purchased a small quantity of heroin and arranged for a future purchase of heroin. When defendant made the small purchase of heroin, he stated that he asked McCue if this would suffice for his end of the bargain. The trial court sustained the State's hearsay objection to the question as to McCue's response. Defendant testified that on the day of the shooting, he entered Bo's residence pursuant to an arrangement to purchase a larger quantity of heroin. Defendant armed himself with an automatic pistol before going. Upon his arrival defendant was taken to a T.V. room, where he was introduced to Morrison and Ulysses Washington. Defendant noticed a shotgun leaning upright against the wall. The men went to the dining room where defendant asked to see the heroin. Ulysses leaned over and threatened defendant's life if anything went wrong. After defendant assured the men he would make no trouble, Morrison and Ulysses returned to the T.V. room. Defendant tested the heroin and told Bo that he did not have all the money at that time. He suggested that Bo hold on to the heroin until he returned in two hours. Defendant stated that Bo became angry and came at him "crazy like."
Defendant testified that Bo was yelling loudly and he was afraid. Defendant stood up trying to assure Bo that he could be trusted. Defendant drew his gun and told Bo to freeze, but Bo advanced, and crouched low, repeating, "get him, kill him." Defendant fired a shot and ran to the T.V. room thinking of the shotgun. He told the two men to freeze but Morrison grabbed the shotgun and swung it towards defendant. When Morrison pointed the gun at him, defendant shot. Ulysses arose from the couch and advanced toward defendant ignoring his warning, and defendant fired again. Defendant fled to a motel with a bag of heroin. After several unsuccessful attempts to contact Officer McCue by telephone, defendant injected heroin and blacked out. He was arrested and made a statement. Defendant does not remember anything about the statement because he was hallucinating. When asked by defense counsel why he brought the gun, why he pulled the trigger, and about his knowledge of the number of persons he was about to encounter at Bo's home, the trial court sustained the State's objections.
Ulysses Washington testified for the State that on the evening of the shooting he had been residing at his brother Bo's home. He saw defendant enter with Bo while Morrison and he were in the T.V. room. From that room he heard footsteps, a shot, and then saw Bo stumble and fall into the T.V. room. Defendant was right behind Bo. Ulysses testified that defendant then shot Morrison, and next fired at him. When the shooting began, Ulysses was holding his child on his lap but had put him down. Ulysses did not have a weapon, nor did he see a weapon in Morrison's possession. There was no shotgun in the home. Ulysses also testified that no one threatened or provoked defendant. To his knowledge, no drugs were in the home. No weapons were found; nor were any narcotics recovered from the home.
We reject defendant's initial contention that the evidence adduced by the State was so incredible that he was not proved guilty beyond a reasonable doubt. The evidence presented was ample to support the conviction.
We next consider defendant's contention that the trial court improperly excluded essential defense evidence on the erroneous grounds that it was inadmissible hearsay.
The trial court excluded as inadmissible hearsay those conversations comprising defendant's agreement to work as an informant for the police in apprehending Bo, and the agreement between defendant and Bo as to the proposed narcotics transaction. The court limited each witness to testify as to his or her part of the various conversations.
• 1 It is fundamental that not all out-of-court statements are hearsay; only those offered to prove the truth of the matter asserted constitute inadmissible hearsay. (People v. Carpenter (1963), 28 Ill.2d 116, 190 N.E.2d 738; People v. Campbell (1975), 28 Ill. App.3d 480, 328 N.E.2d 608.) If the out-of-court statements are offered to prove the resultant effect of those words on the listener's state of mind, then the speaking of the words is independently relevant regardless of the truth of their content and the statements are admissible as non-hearsay. (People v. Carpenter; People v. Ortiz (1978), 65 Ill. App.3d 525, 382 N.E.2d 303.) In Cleary and Graham, Handbook of Illinois Evidence § 801.5, at 401 (3d ed. 1979), it is stated:
"Hearsay does not encompass all extra-judicial statements but only those offered for the purpose of proving the truth of matters asserted in the statement. [Citation.] Therefore, when the mere making of the ...