APPEAL from the Circuit Court of Union County; the Hon. JIM
WILLIAMSON, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
A jury found the defendant, Larry Camden, guilty of the offense of involuntary manslaughter, a charge which arose out of the shooting death of a 19-year-old woman. After hearing considerable testimony from several witnesses, the grand jury had indicted defendant for the offense stating that he, "acting in a reckless manner, performed an act likely to cause death or great bodily harm to Susan Coats, in that he discharged a firearm [sic] in the presence of Susan Coats, causing a projectile from the firearm to strike Susan Coats, thereby causing the death of Susan Coats." Defendant was sentenced to imprisonment for three years and six months. From the judgment and sentence he appeals questioning the sufficiency of the evidence and numerous rulings of the trial court.
During the grand jury proceedings the defendant in the presence of his counsel chose not to testify, asserting his right under the fifth amendment to remain silent. At trial defendant presented no evidence. Over the course of two days, August 21 and 22, 1979, 19 witnesses testified for the State. According to an affidavit of the court reporter who was responsible for "[s]ome of the pre-trial motion hearings, arraignment proceedings, and the trial proceedings," "On November 17, 1979, a sack containing two stenographic notebooks and two tapes were taken from my car, apparently by a thief, and, as of this date [November 27, 1979], have not been recovered. Those notes and tapes contained a substantial part of the record in the above entitled cause." Pursuant to Supreme Court Rule 323(c) (Ill. Rev. Stat. 1979, ch. 110A, par. 323), which provides for a procedure to be followed if no verbatim transcript of the evidence of proceedings is obtainable, appellant submitted to the trial court a proposed report of proceedings. The trial court conducted hearings during which counsel for both parties agreed to the substance of the testimony of any witness at trial whose recorded testimony was unobtainable as a consequence of the alleged theft of the tapes and notebooks. The record on appeal indicates that all testimony heard by the trial jury was among the material lost. However, matters taken up by counsel in chambers are in verbatim form in the transcript of proceedings, as is the in-chambers testimony of one of the witnesses who testified before the jury, Gordon Hoppe. This witness had taken from the defendant a handwritten statement during the morning of the day on which the incident occurred and, beginning shortly after noon of the same day, had taken a tape recorded statement from him. The witness testified in chambers for the purpose of enabling the court to determine the admissibility into evidence of the tape recording. Defendant's entire tape-recorded statement, which was admitted into evidence by the trial court and later played to the jury, was played in chambers prior to the trial court's ruling as to its admissibility and is therefore preserved verbatim in the transcript. Closing arguments, which were heard on August 23, 1979, are also preserved verbatim in the transcript. No issue is raised on appeal by either party with respect to the procedure used for setting forth in the record the substance of the testimony, the verbatim records of which are unobtainable, or to the accuracy of counsel's reconstruction thereof.
In his tape recorded statement the 35-year-old defendant said that about 2:30 or 3 in the afternoon on Saturday, February 17, 1979, the day before the incident occurred, he had gone to a bar called the Four Seasons. Later he went from that bar to another, the Tip Top, where he stayed until "after twelve" talking to Susan Coats' mother, to his cousin, Doris Camden, and to a man named Ralph Stroehlein. He said that "[r]ight after midnight" he left the Tip Top, taking with him a "fifth of Jack Daniels," and went to the "shelter care home" where Susan Coats was working. He said that he and "Susie sat over there and I had three or four drinks and maybe more, I don't know, and she was drinking wine," which, he said, she had provided. According to defendant, she also had "pot." He said that he and Susan Coats left the "nursing home" and went back to his apartment "[s]ometime after 5:00" in the morning. Asked by Gordon Hoppe, "And what did you guys do when you got to the apartment?" the defendant responded,
"Run around, drinking, we was just running around, drinking, what the hell, you know, we were at the apartment there, we were running around drinking there, both shitting around, playing cowboys and indians. I told Susie not to mess with the bullets and not to load the gun there and blah blah this and blah blah that. I went in to get a beer, that's when I heard the shot, went back in there and Susie was trying to talk and that's when I called the ambulance."
Defendant said that the shooting occurred "[b]etween five and six o'clock." He said that he was uncertain of the time but that Susan Coats was relieved of duty at the nursing home "sometime between five and a little after there." He said that he had no watch. He explained that Susan Coats had the weapon at the time because "[w]e was playing with the pistol." He stated that he had two pistols and that one was in the "left-hand upper drawer and one was in the middle drawer" of a bureau in the bedroom. He stated, "I don't know who got what, you know, we was playing around with it." Asked whether defendant and Susan Coats each had a gun, defendant answered, "Yeah. I laid mine down. I had the one with the 4" barrel. I went in there to get a beer and that's when it happened." He said that they had been "wrestling around" in the bedroom and that the pistol with the two-inch barrel "just switched back and forth. We was playing with them guns, the shotgun there." He referred, he said, to a shotgun leaning against the wall of the bedroom. Asked, "So, you have no idea of how she loaded the gun?", he answered,
"I didn't even know she even knew how to load one. I didn't. Now, she had been out to my house several times, and I was always fooling around with guns over there, but me and her has been out shooting the one gun and I let her shoot that. I showed her how to load that. I doubt if she knew. I don't know how in the hell she knew."
He stated that the gun he had shown her how to load was the one with the four-inch barrel. It cannot be determined from defendant's tape recorded statement whether the two guns required the same procedure for loading. Asked further, "Where do you think she got the shells?" he answered, "They was laying all over, there." By way of explanation he said,
"It is probably, you know, see, I don't know for sure, it is, you know, like I had them in about four different drawers, the shells, and you know, where I got the small gun out and there was shells up there, shells in the middle drawer, and over the dresser, and should be shells in the right or left hand drawer."
Asked, "Was she laying [sic] down when you left her or was she sitting on the bed?" defendant answered that she was lying on the bed. He stated, "I left the Jack Daniels out in the truck, there, and I went to the icebox to get a beer and you know, I was going to start back in the bedroom" when the shooting occurred. He said, "The last thing, the last thing she said to me was, I am going to shoot you, you son of a bitch." He said he "laughed it off, you know, and I went in there and got a beer and, ____." He explained that she had made the remark to him because "[s]he was all the time joking around, she was always saying that." At the time of the shooting the victim was wearing a winter coat completely buttoned. With regard to that fact defendant stated, "She said she had to go back and check on something with her mom," who, he said, "was supposed to have been the one to relieve her" of duty at the nursing home. He added, "I never did see her [Susan Coats' mother], but she was."
Defendant stated that he had known Susan Coats for five years and that he knew her well. During the taking of the tape recorded statement, Gordon Hoppe said in an attempt to explain to defendant, who worked on a riverboat, why he was inquiring into the nature of defendant's relationship with Susan Coats, "[W]e're trying to figure out why, you know, you haven't seen her for two and a half months and all of a sudden, you go down, you know. You were close friends, right?" To that statement defendant responded, "I am close friends with her mom, I am close friends with her uncle, I am close friends with her brother. I work on the boat with her uncle and brother." He said that he had stayed all night with Susan Coats when he first returned on February 6, 1979, 12 days before the incident occurred, and had seen her "[a]bout three days in a row" at that time. He stated that he had fired the smaller of the two guns the day before the incident "maybe three times."
Testifying for the State, Ellen Light stated that she had arrived at the nursing home to relieve Susan Coats at 5:50 a.m. She said that at that time Susan Coats left in a pickup truck in the company of a man later identified as defendant. Shortly after 6 a.m. defendant's neighbor saw him and Susan Coats arrive in a pickup truck and go up to defendant's apartment. Shortly after 7 a.m. two telephone operators each received a call for an ambulance from an agitated male caller. At 7:20 a.m. an employee of a local ambulance service received a similar call. The two medical technicians dispatched to the scene said that they did not disturb it in any way except to unbutton the victim's coat in order to check the victim's vital signs, which were absent. The young woman was lying on her back with an apparent gunshot wound of the head. Her arms were at her side with her palms down. A weapon later described as a Charter Arms .38-caliber revolver with a two-inch barrel was lying to the left of the victim. The medical technicians, as did other witnesses who were at the scene, noted the warmth of the small apartment.
James Ray, a Union County deputy sheriff, described the dead girl as lying across the bed in the bedroom on her back with the palms down and an apparent bullet wound to the area of the face. He testified that there was bleeding from the mouth and around the nose. In photographs admitted into evidence and included in the record on appeal we note that the body is lying with the face straight up and the legs hanging over the side of the bed. The arms are lying parallel with the body and close to it. The palms are down. There appears to be bleeding from the center of the face at the mouth and nose. The victim is wearing a winter coat which appears to be bulky. The witness testified that a short-barreled revolver was lying on the bed approximately two feet to the left of the body at approximately the level of the victim's chin. He said that he had been present when Gordon Hoppe took defendant's statement in which defendant stated that he was right-handed. The witness was later recalled and qualified as an expert in weapons whereupon he demonstrated to the jury the method of loading five shells into the chambers of the ...