APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
J. MALONEY, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Following a jury trial defendant was convicted of involuntary manslaughter and armed violence (Ill. Rev. Stat. 1979, ch. 38, pars. 9-3 and 33A-2). He was sentenced to concurrent terms of 5 years and 12 years respectively. On appeal, in his initial brief it is argued that: (1) defendant was denied a fair trial by the State's improper prejudicial statements in closing arguments; (2) the trial court improperly limited defense counsel's cross-examination of defendant's wife; (3) defendant was improperly sentenced for both involuntary manslaughter and armed violence based upon the conviction of the former offense because both convictions arose from the same physical act; and (4) defendant's 12-year sentence for armed violence based on involuntary manslaughter was an abuse of discretion. In a supplemental argument defendant contends that the armed violence conviction based on involuntary manslaughter is not proper because of the insufficiency of the indictment.
It is undisputed that about 10:30 p.m. on July 11, 1979, the deceased, Sharon Hobbs, was at a lounge in the near north side of Chicago. She was intoxicated. The defendant entered the lounge with a loaded revolver in the waistband of his pants. Thereafter, she was fatally shot in the head by that gun. The bullet entered the left rear side of the deceased's head. The examining pathologist indicated that the upward trajectory of the bullet was slightly forward to the right. The bullet lodged in the right portion of her brain near the ear.
The State's evidence consisted of the testimony of two women who were in the tavern at the time of the shooting. Both were seated near the deceased, although neither heard any disturbance nor was looking at deceased prior to the deceased being shot. Both witnesses indicated that the defendant entered the tavern and apparently bumped one of the women. He apologized and then went over to where the deceased was seated on a bar stool only several feet from the witnesses. Several minutes later both witnesses heard two explosions. One of the women then saw that the deceased remained seated at the bar for a moment before falling to the floor. Defendant at this time was holding a gun pointed up toward the ceiling. After the shooting the defendant fled. The other witness indicated that she saw the defendant with a gun in his hand standing by the entrance to the men's washroom. The gun was held and pointed toward the ceiling.
Defendant's wife testified for the State that at approximately 11 p.m., she was in an apartment visiting some friends when the defendant arrived and said that he had just killed someone. The defendant gave her the gun before leaving the apartment. She took the gun and put it on their dresser upon arriving at their apartment. Several minutes later defendant called, and at his direction she took clothes to Katherine Anderson's apartment, where defendant changed from the clothing he had been wearing at the time of the shooting. The following day this witness spoke to her father, and she took the gun to his place of work, where the weapon was given to the police. Defendant's wife indicated that on the day of the shooting he had been drinking but was not intoxicated. When she saw him at approximately 11 p.m., defendant appeared to be crying and upset. She indicated that she did not remember defendant telling her at the time he gave her the gun that it had accidentally discharged.
Katherine Anderson's husband was in the apartment sleeping when defendant arrived there after the shooting. As Anderson's wife answered the door, he heard defendant exclaim to her that he had just killed "the bitch." Defendant then asked this witness to go to the tavern to determine what was occurring. When Anderson found out that the victim had been killed, he notified the police, who went back to his apartment and arrested the defendant.
The record also shows that when arrested defendant was wearing the clothing brought to him by his wife. Bloodstained clothing that he had been wearing was found in the Anderson apartment. Several sections of the clothing had been cut out because the garments apparently contained bloodstains. It was noted that at the time of his arrest defendant had a strong smell of alcohol about him. There was a stipulation that the .38-caliber revolver, which defendant gave to his wife, had one expended shell case in it when it was recovered by the police; no other bullets or expended shells were in the weapon. At trial the jury observed the demonstration of how the weapon was fired. The trigger could be pulled back, which would force the hammer into a cocked position and then result in the hammer moving forward, or the hammer itself could be pulled back by the shooter and then activated by simply pulling the trigger. A ballistics expert indicated that the bullet taken from the deceased was a hand-cast cartridge which was not sold by a general ammunition manufacturer. The hand cast bullet was flat-nosed and would do more damage upon impact.
Defendant testified on his own behalf concerning the events which transpired on the day of the shooting. Defendant claimed that for about 10 hours prior to the shooting he had been drinking a variety of alcoholic beverages at different places. Finally, defendant and his brother-in-law returned to defendant's apartment, where they continued to drink. They then went to the tavern in question after defendant had taken a gun and placed it in his waistband. While the defendant ordered drinks at the tavern, his brother-in-law went to play the juke box. According to the defendant, deceased was seated nearby, and she appeared to be fairly intoxicated because she had trouble sitting on the bar stool. While the defendant was putting his change away from purchasing the drinks, the gun was apparently visible in his waistband, and the deceased asked to look at it. Defendant dropped the gun, and both he and deceased then tried to pick it up. Defendant, however, retrieved the gun first and snatched it back toward him in order to keep the deceased from getting it. At this point the gun, which was pointed at the deceased, discharged. Defendant claimed that he then ran from the tavern after his brother-in-law told him to leave and then went to see his wife to tell her that he had shot the deceased.
In rebuttal, Katherine Anderson testified that she was awakened by the defendant who told her that he has just killed "a bitch." Defendant also told her that he had been drinking when deceased asked for part of the drink. He refused and she slapped him. This caused him to hit her on the head with the gun. She later overheard a telephone conversation between defendant and his wife wherein the defendant asked his wife if she had left any bullets in the gun, and defendant's wife responded that she had not.
Defendant initially contends that two prosecution comments made during closing argument constituted reversible error. Defendant points to the statements that if defendant were acquitted "he will be back but the cost will be in blood," and the State's reference to members of deceased's family who were seated in the court room during the trial. A defense objection to the former was denied; an objection to the latter sustained, although a request for a mistrial was denied. Defense counsel also expressly argued the propriety of the latter comment at a hearing on defendant's post-trial motion.
We believe that the comments of our supreme court in People v. Smothers (1973), 55 Ill.2d 172, 176, 302 N.E.2d 324, are appropriate in this instance.
"The character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial judge has performed his duty and properly exercised the discretion vested in him. [Citation.] The general atmosphere of the trial is observed by the trial court, and cannot be reproduced in the record on appeal. The trial court is, therefore, in a better position than a reviewing court to determine the prejudicial effect, if any, of a remark made during argument, and unless clearly an abuse of discretion, its ruling should be upheld."
In this case we do not believe that either comment proves a basis for reversal of defendant's conviction.
• 1 While we do not comment that defendant's acquittal would be at the cost of blood, we cannot conclude that this reference contributed to his conviction. There is substantial evidence that defendant fired two shots in the bar and one fatally wounded the victim in the back of the head. Defendant then sought to remove the bloodstains from his clothes and leave only one expended cartridge casing in the weapon in an obvious attempt to support his assertion that the shooting was accidental. *fn1 The entry wound to deceased clearly negated defendant's assertion that the gun accidentally discharged as deceased tried to grab it. For the same ...