APPEAL from the Circuit Court of Cook County; the Hon.
THEODORE M. SWAIN, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Defendant, Donald J. Suerth, was charged in a four-count information: counts one and two, murder (Ill. Rev. Stat. 1977, ch. 38, pars. 9-1(a)(1), 9-1(a)(2)); count three, armed violence, alleging the underlying offense of murder (Ill. Rev. Stat. 1977, ch. 38, par. 33A-2); and count four, armed violence, alleging that he committed the underlying offense of voluntary manslaughter (Ill. Rev. Stat. 1977, ch. 38, pars. 33A-2, 9-2(a)(1)). The trial court directed a finding of not guilty as to count four and the jury acquitted defendant of the offenses of murder but found him guilty of the lesser included offense of involuntary manslaughter and the offense of armed violence. Defendant was sentenced to a period of 6 years on the offense of armed violence and to 2 years on the offense of involuntary manslaughter, the sentences to run concurrently. On appeal, the defendant presents the following issues for review: (1) whether the evidence is sufficient to support a conviction; (2) whether the convictions for involuntary manslaughter and armed violence are invalid because the jury was not properly instructed that an element of the offense of involuntary manslaughter is whether defendant was acting with lawful justification; (3) whether count three can support a conviction founded upon defendant committing involuntary manslaughter while armed; (4) whether the jury was improperly instructed on defendant's right to use deadly force to prevent a forcible felony; (5) whether the court erroneously excluded evidence of facts relevant to the jurors' determination of whether defendant acted reasonably when, after hearing strange noises outside his apartment at 5 a.m., he proceeded downstairs, armed; (6) whether the defendant was denied his constitutional right of confrontation when the trial court prevented him from impeaching the State's occurrence witness with a prior inconsistent statement; (7) whether defendant was denied his constitutional right to a fair trial where the prosecutor displayed a weapon not used in the offense; (8) whether defendant was denied a fair trial where the court prevented him from presenting evidence that immediately after the shooting he called the police and reported that he shot a burglar; and (9) whether the conviction for armed violence must be vacated and whether any sentence can be imposed thereon because the offenses of involuntary manslaughter and armed violence arose from the same act.
Lawrence Stumbaugh testified that he had met Michael Burke, the victim, the summer of 1978 and did not see him again until January 25, 1979. The witness had spent the night "bar-hopping," consuming about 19 beers and smoking one or two marijuana cigarettes. He then went to the Golden Nugget restaurant on the corner of Clark Street at Devon, in Chicago, to drink coffee and eat. Around 4:30 a.m., Burke staggered into the restaurant, drunk, and sat down with Stumbaugh. They were together drinking coffee for about 20 minutes. He asked Burke whether he wanted to smoke some marijuana; Burke answered affirmatively.
The witness stated that when they left the restaurant he was sober "because he had eaten and consumed coffee," but Burke was still intoxicated. He led Burke to an apartment building entrance that was in the same building as the Joker's Pub. (The witness identified defendant and indicated that he had seen him on numerous occasions at the Joker's Pub.) The vestibule of the building was frequented by many people to smoke marijuana. The witness explained that the vestibule is 5 feet square with four stairs leading to a landing which has a second door. Part of the stairwell to the apartments can be seen from the second door. Due to the illumination from the street lights, the vestibule was well lit. According to the witness, he tried to open the second door but it was locked. Then he proceeded to roll a marijuana cigarette. When he finished, the second door opened and defendant walked toward them. Burke moved to the right of the door to let defendant pass. As defendant was coming toward the door, Stumbaugh was looking for a match. Defendant did not make any statements or sudden movements. When defendant approached Burke, Stumbaugh looked up and saw defendant pull the trigger on his gun, shooting Burke in the face. Defendant held the gun in his left hand. The witness was shocked and stood still. Defendant mumbled something, turned around, and proceeded to walk back up the stairs.
Further testifying, Stumbaugh said he waited until defendant was almost up the stairwell before he left the vestibule area seeking help. He attempted to aid Burke but there was no response. He then ran to the restaurant and requested the waitress to call the police. When the police arrived, he indicated to them where the shooting occurred and explained to them what had happened. He took the police to the building where they saw Burke lying on the floor of the vestibule. Defendant was on the landing inside the first door. The police pulled out their revolvers, told defendant to come out, and placed him under arrest.
Officer Philip Dienethal testified that when he arrived Stumbaugh was standing in the street and waving his hands, indicating where the incident occurred. The officer and his partner followed Stumbaugh to 1555 Devon. They saw the victim lying on the vestibule floor with a large wound on the left side of his face. Then Stumbaugh yelled, "That's the guy that shot him." The officer looked up and observed defendant standing inside near the door. The witness stated he ordered defendant to come out. Thereafter, he searched defendant and his partner handcuffed him.
While his partner stayed with defendant in the squad car, Dienethal stated he went to defendant's apartment. He observed a revolver lying on the table, inspected it, and identified it as a blue steel .44-caliber Charter. It contained four live shells and one expended shell. He also recovered a shotgun from the apartment. The witness identified the gun in court but was prevented by a defense objection from identifying a shotgun held by the prosecutor. On cross-examination, Dienethal testified that defendant gave him permission to enter his apartment.
The defense moved for a mistrial on the grounds that the prosecution permitted the shotgun to remain in the view of the jury. The court denied defendant's motion and ordered that the shotgun be removed from the courtroom.
Officer Richard Thompson, a police evidence technician, testified that he found an expended bullet at the base of the stairs in the vestibule. It was stipulated that the bullets matched test bullets fired from defendant's gun. It was further stipulated that Burke died of a gunshot wound through the head and that gun powder stipplings found on the body indicated the gun was 6 to 18 inches from the victim's face when it was fired.
The trial court granted the State's motion in limine to exclude, as hearsay, testimony relating to the telephone conversation defendant had with the police telling him he had shot a burglar.
Defendant testified that he lived at 1555 West Devon, in Chicago. He is the owner of the building which contains four apartments over a tavern occupying the ground floor. Defendant worked at the tavern until 4 a.m. on January 25, 1979. According to the witness, at 3:30 a.m. he interrupted a fight in the tavern and threw out four customers, one of whom said to him that he would "blow my head off anytime he wanted to." Defendant closed the tavern a few minutes before 4 a.m. and went to his apartment.
Further testifying, defendant said he heard noises in the hallway around 5 a.m. He grabbed his pistol and walked downstairs to investigate. As he went to the stairway, he saw two people standing, facing each other, with a paper bag on the floor between them. Since the door had large glass panels, he could see they were near the first door going out to the vestibule. He opened the door, they made a sudden move, the gun went off, and Burke fell down the stairs. Defendant went upstairs, called the police, and returned to the vestibule to find officers waiting for him. Defendant denied that he intended to shoot Burke or that he intentionally pulled the trigger of the gun.
On cross-examination, defendant testified that he did not recognize Stumbaugh or the deceased when he saw them in the vestibule. He did not think they were burglars but they could have been arsonists. He stated that he opened the door slightly, the two men turned around, and the gun, which was cocked, fired.
Investigator John Gusweiller testified that Lawrence Stumbaugh did not have a reputation for being a law-abiding citizen. The prosecution objected to the investigator's anticipatory testimony that 2 months after the shooting Stumbaugh told him the "Mr. Suerth didn't do anything wrong in that hallway." The trial court sustained the objection and excluded the testimony because defense counsel had failed to lay a foundation for impeachment by confronting Stumbaugh with the statement.
Following the close of evidence, the court granted defendant's motion for a directed verdict on count four (voluntary manslaughter) of the information, since there was no evidence that defendant had acted under the influence of intense passion.
Defendant contends the evidence at trial is insufficient to support a conviction of involuntary manslaughter because there is no ...