APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Defendant Glenn Raymond Fischer was charged by information with two counts of murder (Ill. Rev. Stat. 1979, ch. 38, pars. 9-1(a)(1), 9-1(a)(2)), and two counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2). Following a bench trial, he was acquitted of all murder and armed violence counts, but convicted of voluntary manslaughter (Ill. Rev. Stat. 1979, ch. 38, par. 9-2) and sentenced to seven years' imprisonment. On appeal to this court defendant asserts: 1) that the trial judge erred by refusing to admit into evidence testimony by a defense witness describing two prior acts of the deceased which allegedly showed his violent, aggressive character; 2) that the trial judge improperly relied upon a prior void conviction in sentencing the defendant; and 3) that defendant is entitled to two years and 11 months credit on the seven-year sentence because of time spent in the penitentiary on a conviction based on a statute subsequently declared unconstitutional and void.
The defendant's charges were based on a shooting incident which occurred at 2 a.m. on December 1, 1978, in a Chicago tavern called the "Last Drop Inn." Both the defendant and the deceased, Thomas King, had been in the tavern since the previous evening. In the opinion of the bartender, Rene Peralta, King had drunk about 12 beers and the defendant "about eight shots and beers," but neither was intoxicated at the time of the shooting. Defendant had been observed at about 9:30 p.m. pointing a pistol at another patron in the bar. When asked by the bartender to leave, defendant complied but returned after a short period and commenced drinking. For approximately four hours defendant and deceased remained drinking at opposite ends of the bar. Shortly before 2 a.m. defendant walked to the men's room located at the rear of the bar. Upon leaving the washroom defendant walked by King who was seated with some other patrons. At this point defendant had some words with King, who challenged him to pull out his "popgun" or "beanie." Defendant responded by pulling out his revolver and pointing it at King's head saying, "I'll blow you away" or "I ought to blow your head off." When King attempted to grab the gun or push it out of defendant's hand the gun discharged. A struggle then ensued between the two men, and a second shot was heard when the two fell to the floor. Following this shot King lay dead on the floor, and the defendant got up and exited the tavern. According to the testimony of the State's witnesses, no weapon or objects of any kind were observed in the deceased's hands prior to or during the struggle with the defendant. Moreover, no bottles, weapons or glass were found in the area surrounding the body after the incident.
The police arrived at the lounge shortly after the shooting and were directed to the defendant's apartment by State's witness Robert Cook. Upon arriving at the defendant's apartment building the police went up the back stairs and observed defendant and another man bending over the kitchen sink washing blood from defendant's head. The witnesses also overheard defendant say to the other man, who was later identified as John McDonough, a family friend, "The son of a bitch hit me in the head with a bottle. What did you expect me to do?" When the officers entered the apartment, a gun was retrieved and defendant was placed under arrest. Following his arrest, defendant informed the police officers that the deceased had struck him in the head with a bottle. The officers then returned to the tavern to search for broken bottles or other debris but found none. The bartender testified that he had cleaned the bar in the interim as was his normal routine before leaving work, but stated that he had recovered no bottles from the area of the bar where the deceased was shot.
Following a denial of the State's motion for a directed finding, the defense opened its case. In support of a plea of self-defense, the defense sought to introduce testimony of Sebastian Cannata relating to two prior specific acts of violence by deceased. After an offer of proof the trial court refused to admit the evidence. However, Cannata was allowed to testify that the victim's reputation in the community was very bad and that the victim was a violent person.
Defendant testified on his own behalf. He stated that on the night of the shooting, King had called him a name as he was walking toward the washroom at about 8 or 9 p.m. At that time defendant stated to the deceased that he did not want any trouble and returned to his seat at the other end of the bar. Defendant testified that upon another trip to the washroom between 1:30 and 2 a.m., King called him some more names. When the defendant came out of the washroom, King said to him, "Hey, punk, pull your beanie out." At this point King was rising from his barstool with a beer bottle in his hand. Defendant stated that he then pulled out his gun and said to King, "If you don't leave me alone, I will blow you away." Once defendant saw King return to his seat and drop the bottle, he turned to walk away but was struck on the back of the head with a bottle. According to the defendant, he then turned, pulled the gun and fired a shot away from King. When the two began to struggle, the gun accidentally discharged a second time, killing King. Although the defendant admitted that the gun was in his hand when King was shot, he has no recollection as to whether his finger was on the trigger at the time. Defendant stated that when he stood up his head was bleeding and he immediately left the bar and went home. Defendant testified at trial that he had inquired prior to the incident about the victim's reputation in the community and that the victim was said to be a troublemaker.
The defense also called John McDonough, who testified that when the defendant arrived at the apartment during the early morning hours of December 1, 1978, defendant's face was puffed up and he was bleeding from the head. McDonough further stated that when he asked defendant what had happened, defendant replied, "Some son of a bitch hit me over the head with a bottle." McDonough stated that when the gun was taken from the defendant, defendant stated, "I think I have shot somebody."
The State on rebuttal presented a certified copy of defendant's 1970 conviction for "possession of a narcotic drug" for which defendant had been sentenced to five years' probation. The manslaughter conviction and seven-year sentence followed.
Defendant's first contention on appeal is that the trial court erred in refusing to admit into evidence the testimony of Sebastian Cannata as to two prior violent acts of the deceased. The State contends that this evidence is inadmissible as the acts were directed at someone other than the defendant and that the defendant had no knowledge of the acts at the time the shooting occurred.
In Illinois, evidence of specific acts of violence, if known to the defendant, are admissible to show the reasonableness of defendant's apprehension of danger and therefore are admissible to establish self-defense. (People v. Gall (1979), 79 Ill. App.3d 823, 398 N.E.2d 1118.) The purpose behind permitting the introduction of such evidence is to show the circumstances confronting the defendant, the extent of his apparent danger, and the motive by which he was influenced, as such factors show the defendant's state of mind at the time of the occurrence. People v. Stombaugh (1972), 52 Ill.2d 130, 284 N.E.2d 640; People v. Gall (1979), 79 Ill. App.3d 823; People v. Peeler (1973), 12 Ill. App.3d 940, 299 N.E.2d 382.
• 1 In the instant case, however, it is apparent that what the defendant is attempting to show is not the fearful or apprehensive state of mind of the defendant, but rather the propensity of the deceased for violence, in order to corroborate defendant's testimony that the deceased was the aggressor on this particular occasion. Where evidence of the specific acts is sought for such purpose, it would serve no purpose to require defendant to have knowledge of the prior acts. People v. Baer (1976), 35 Ill. App.3d 391, 342 N.E.2d 177, supports this conclusion. As in the case at bar, the defendant in Baer sought to introduce evidence of specific violent acts to establish a character trait of the deceased, not his reputation. The court stated the general rule that where the plea is self-defense and the defendant attempts to show that the victim was the aggressor, evidence of the propensity of the victim for violent aggression is generally permitted. However, in Baer the tendered evidence was held to be insufficient to prove the victim had a violent nature. Thus, the court ruled there was no error in excluding it. For the same reasons we find no error in the exclusion of Mr. Cannata's testimony. Cannata's testimony as set forth in the offer of proof was that on one occasion, while he was working as a bartender at a tavern in Chicago, he told deceased that it was against the rules for patrons to exit through the back door of the bar. King disregarded Cannata's instruction and left by that exit. Further, Cannata stated that on another occasion approximately one year later, King became "rowdy" in the bar after having been refused a drink, and that he began pounding the bar and name calling. After a while, King challenged Cannata to come outside. King then walked out of the bar and peered through the window at Cannata for about five minutes before leaving.
• 2 In our opinion, these acts described by Cannata were insufficient to establish that King was violent in nature. Many individuals become loud and somewhat less orderly after a few hours of drinking in their local tavern. This does not make them violent persons. We do not believe that this evidence has any probative value in determining whether in the fight with King defendant was the aggressor or acting in self-defense. Accordingly, we find that the trial judge properly excluded this evidence.
Defendant next asserts that the trial judge relied on an improper factor in sentencing him to a seven-year imprisonment for voluntary manslaughter (Ill. Rev. Stat. 1979, ch. 38, par. 9-2). In the hearing on aggravation and mitigation, it was brought out that in 1965 defendant had been sentenced to the penitentiary for possession of marijuana, but that the statute under which defendant was convicted was later declared unconstitutional in People v. McCabe (1971), 49 Ill.2d 338, 275 N.E.2d 407. Defense counsel argued before the trial court that it would be improper to consider defendant's prior penitentiary sentence in aggravation because the statute under which he had been convicted had been declared unconstitutional. The following colloquy occurred:
"The Court: This defendant is not new to the Criminal Justice System. He's been in the penitentiary. He is an appropriate candidate for the penitentiary, of course. Miss Clerk, I will sentence Mr. Fischer to the custody of the Illinois State Penitentiary for a period of seven years. Judgment is entered on the finding and sentence. * * *
Mr. Xinos: It seems to me that the court is considering, when you say the defendant has been in the penitentiary before, I have pointed out that that was the narcotics was marijuana, and —
The Court: I understand, Mr. Xinos. If the statute involving any offense is done away with by the Legislature this year, that doesn't ...