APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. PETRARCA, Judge, presiding.
MR. PRESIDING JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
Benny Earl Phillips brings this appeal after a jury trial where he was convicted of one count of attempt murder (Ill. Rev. Stat. 1977, ch. 38, par. 8-4), four counts of aggravated battery (Ill. Rev. Stat. 1977, ch. 38, pars. 12-4(a), (b)(1)), and one count of armed violence based on the underlying offense of aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 33A-2). He urges the following issues on appeal: (1) whether the State proved beyond a reasonable doubt that he was not acting in defense of another when he shot the complaining witness; (2) whether his sixth amendment right to confrontation and fifth amendment right to due process were violated by the trial court's restriction of the complaining witness' cross-examination; (3) whether the defendant was denied his fifth amendment right to remain silent and his fifth amendment right to due process where the State cross-examined him and later commented during closing argument that he failed to notify anyone prior to his arrest that he had shot the complaining witness in defense of another; (4) whether the defendant was convicted of multiple offenses arising out of the same single act; and (5) whether the defendant's sentences should be reduced because the trial court failed to duly consider the factors in mitigation.
We reverse and remand for a new trial.
The defendant's convictions arose out of a shooting incident which took place on May 17, 1978, whereby Chicago Police Officer Jerry Stanley was seriously injured. Prior to trial the State filed two motions in limine. The first motion sought to preclude the defense from presenting any evidence of Stanley's blood alcohol content at the time of the shooting and the effect such alcohol content had on Stanley. This motion was denied. The second motion sought to preclude the defense from using information from Stanley's Chicago Police Department Internal Affairs Department file which revealed that from October of 1968 to the incident Stanley had been suspended 15 times including two instances, one in October 1968 and the other in February 1974, where Stanley improperly displayed his weapon and then filed a false report. Defense counsel argued that this evidence was admissible because it showed the complaining witness' prior bad acts. The trial court granted the motion in limine ruling that the matters contained in the file were collateral.
At the trial the State presented three witnesses in its case in chief. Officer Stanley testified that on May 17, 1978, he was on his annual furlough. He testified that on that afternoon he ate something about 12:30 p.m. and then proceeded to the Catesia Lounge where he played pinball and drank Old Fitzgerald bourbon with his cousin and brother-in-law. He stated that from approximately 1 p.m. to 4 p.m. he had four drinks. At about 4 p.m. he took his brother-in-law home, stopped by his mother's house, and then dropped his cousin back at the lounge. He then proceeded home by way of South May Street. On May Street, which is a one-way southbound street, he encountered a car blocking the street. He testified that he waited five or six minutes in his car and then asked a man, later identified as James Phillips, to move the car. He stated that he needed to enter the alley because he lived nearby. The man responded, "m____ f____, if you want to get by you either back out the street or drive through your car." Stanley testified that at this point he told James that he would get the car towed. He walked to a house across the street where three people were seated outside and asked them to phone the police but they refused. As he exited through the front gate of this house, he noticed that the car blocking his way had not been moved and that James was advancing towards him with a tire iron held over his head. Stanley pulled his concealed gun and ordered the man to drop the tire iron. The man complied and Stanley began walking towards him with his gun still pointed at the man. The man retreated as Stanley approached him. When Stanley was within five to 10 feet of the man and still holding the gun on him, he was shot for the first time. The shot came from behind and struck him in the right eye. Stanley first identified himself as a police officer after he fell. After he made this disclosure, Stanley stated that he heard someone say, "He is a copper, kill him" and that this was when he was shot a second time. This shot struck him in the right front shoulder. According to Stanley's testimony, there was approximately a 10- to 15- second interval between the first shot and the second shot. After this shot he heard at least two and maybe three additional shots but he was not hit again.
Police Officer Maurice McCaster testified that on May 17, 1978, he responded to a call concerning a man being shot on South May Street and when he arrived at the scene discovered that the victim was a police officer. He found Officer Stanley lying on the ground in the middle of the street and a car with its motor running parked in the middle of the street which was later determined to be Stanley's car. McCaster recovered Stanley's weapon and found that there were no spent cartridges.
The State also called Kevin Tacker as a witness. Tacker testified that on May 17, 1978, he and his neighbor James Phillips were attempting to recharge his car battery by using jumper cables with James' car. While they were working on his car, Tacker stated that a man pulled up behind James' car which was double parked next to his so they could run the jumper cables between the cars. The man asked James whether he could move his car because it was blocking his way. Tacker identified this man as the complaining witness, Jerry Stanley. Tacker stated that James asked Stanley to wait a minute because they were trying to get the car started. Stanley waited for an unspecified period of time and then again asked if the car could be moved. At this point, according to Tacker, the two men exchanged words and curses. Shortly afterwards, James' car was moved from the middle of the street. Tacker next noticed Stanley on the other side of the street. He then heard someone say, "Well, he's got a gun." He looked up and observed Stanley at his car waving his pistol at James who was standing beside Tacker's car holding a tire iron. According to Tacker, as Stanley approached James he dropped the tire iron. James began backing up to avoid being struck by Stanley's gun. At this point Benny Phillips approached Stanley from behind and fired two consecutive shots at him.
After Tacker's testimony, there was a stipulation as to the extent of Stanley's eye injury. According to stipulation, Stanley lost at least partial use of his eye and suffered at least some permanent damage. At this point the State rested.
The defense called James Phillips to the stand. He testified that he owned a home at 8621 South May and had been employed by International Paper Company for eight years. He testified that on May 17, 1978, after he returned home from work he helped Kevin Tacker try to start his car. While he was attaching starter cables to his and Tacker's car, Stanley drove up behind his car and said he wanted to get by. James testified that he asked Stanley to wait a few minutes because they were just about done but Stanley said "m____ f____, do you want me to have this car towed?" At this point James was unaware that Stanley was a police officer. After this conversation, Stanley walked to the east side of May Street and James removed the jumper cables from his car and had his brother Benny Earl Phillips, the defendant herein, move the car so that it would be out of the way. Shortly thereafter, Stanley returned from the other side of the street and continued to threaten to have James' car towed. At this time James was standing at the front of Tacker's car. Stanley returned to his car and James picked up his tools and laid them on top of Tacker's car. According to James, while Stanley was at his car he pulled his gun and began waving it in James' direction. He then came over to where James was standing and began hitting him with the pistol and telling him that he was going to whip him. James stated that he backed away from Stanley and then turned and ran. At this point he heard two shots. No shots were fired after these shots. He did not see who fired these two shots, although he did see his brother walking down the street after the shooting. James further testified that after the shooting he approached Stanley lying on the ground and only then did Stanley identify himself as a police officer. James stated that in his opinion Stanley must have been intoxicated because he was not walking right and was speaking loudly and using foul language.
Two additional defense occurrence witnesses who testified were Robert Lee and Curtis Johnson, who were on Lee's front porch watching the work progress on Tacker's car on the afternoon of May 17, 1978. Both observed Stanley drive up and a conversation ensue between him and James Phillips who was helping Tacker with his car. Both saw Stanley cross the street to talk with someone and then return to his car. Additionally, both testified that by the time Stanley returned to his car James' car had been moved down the street. Despite this fact, both men saw Stanley produce a gun from his car and start toward James saying that he was going to kick his m____ f____ a____. Both men heard shots fired but neither saw who had fired them because when they observed Stanley's drawn gun they gathered several children into Lee's house. Both stated they heard only two shots and that they were consecutive. Lee stated that Stanley staggered and that in his opinion he was under the influence of alcohol.
Certain of Johnson's testimony was attacked as inconsistent with a statement made to an Assistant State's Attorney on the day of the shooting. In the statement Johnson had said that he was in the house when the second shot was fired and that the shots were not simultaneous. Johnson did not recall making the earlier inconsistent statement.
Also testifying for the defense was Zella Ross who lived directly across the street from Mr. Lee. She was on her back porch on May 17, 1978, at approximately 4 p.m. when she heard what she thought were two firecrackers exploding. The sequence of the sounds was bang-bang. She later heard about the shooting.
Benny Phillips took the stand in his own defense. His testimony closely parallelled that of the other defense witnesses. On May 17, 1978, he had been sitting watching his brother and Tacker try to get Tacker's car started. He observed the argument that ensued between his brother and Stanley after Stanley pulled up behind his brother's double parked car and walked down to Lee's house to see what the argument was about. He testified that he moved his brother's car out of the middle of the street after Tacker's battery was recharged. When he returned from moving the car he observed Stanley walk over to his car, pull a gun on his brother and then threaten to kick his m____ f____ a____. At this point he ran home to get a gun. His home was three houses south of the Lee home on the east side of the street. He got the gun because he was afraid that Stanley was going to shoot his brother.
When he returned to the scene, he saw Stanley pistol whipping or waving his gun at his brother. James had nothing in his hands at this time and was trying to back away from Stanley. The defendant testified that he fired two consecutive shots at Stanley with a .38 revolver because he thought Stanley was going to shoot his brother. He further testified that it was only after the second shot that Stanley identified himself as a police officer. The defendant stated that he left the scene after finding out that the man he had shot was a police officer, but watched the police come from the end ...