APPEAL from the Circuit Court of Cook County; the Hon. ROGER
J. KILEY, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendant Cleotha Cox was found guilty of aggravated battery and armed violence based on the underlying felony of aggravated battery (great bodily harm) and sentenced to concurrent sentences of 7 years for the armed violence conviction and 5 years for the aggravated battery conviction. On appeal, defendant contends that the trial court erred (1) in refusing to allow the defense to perfect impeachment by omission of Barbara Haynes; (2) in denying the defense the introduction of a certified copy of a misdemeanor theft conviction for the purpose of impeaching Barbara Haynes; and (3) in refusing jury instructions tendered by the defense dealing with the theories of self-defense and accident.
Barbara Haynes testified that in the late evening hours of August 23, 1978, she was visiting her mother, Emma Haynes, at 3900 West Roosevelt Road in Chicago, Illinois. At that time, Barbara Haynes saw and spoke to defendant Cleotha Cox outside a pool room located at 3902 West Roosevelt Road. Barbara Haynes had known defendant for 3 or 4 years and had lived with him for 3 years at 4425 North Clifton Street. After their relationship ended in May 1978, defendant moved to 920 South Independence Avenue, where he was living on August 23, 1978.
Upon seeing defendant, Barbara Haynes told him she wanted to be left alone. Defendant told her that she was no good and began to talk about her. Barbara Haynes then "patted her behind" to him. Defendant grabbed her and told her "not to be telling him to kiss my behind." Defendant then pushed her up against some burglar bars and they began to strike each other. During the struggle, Barbara Haynes bit defendant's left hand. Barbara Haynes was knocked down in a vacant lot nearby. While she was lying on the ground in the lot, defendant took a tire iron from his car.
Emma Haynes had witnessed the argument between defendant and her daughter and called the police. The police arrived and told everyone to go home.
At approximately 2 p.m. the next afternoon, Barbara Haynes testified that she and her current boyfriend, Charles Burns, went into the pool room located at 3902 West Roosevelt Road. She and Burns played a game of pool. Defendant then entered the pool room and in a loud voice asked Burns if Barbara Haynes was his lady. Barbara Haynes testified that defendant then brushed up against Burns on his way to the washroom. Barbara Haynes went upstairs to tell her mother of defendant's presence. When she came back to the pool room, defendant and Burns were having an argument. The owner of the pool room, Pierce Johnson, told defendant and Burns to take their argument outside. Burns, Barbara Haynes and defendant then left the pool room.
Barbara Haynes and Burns walked to the corner of Roosevelt Road and Springfield Street, where they saw defendant standing on Springfield Street. Barbara Haynes testified that defendant approached Burns and touched him on the shoulder. The two men began arguing and started to struggle. Defendant then pulled out a pistol from his right pocket. Burns raised his left hand to block the shot. The gun discharged, and Burns was shot in the wrist. After this shot was fired, defendant grabbed Burns around the neck with his left hand. While holding Burns in a headlock, defendant had the gun in his right hand and pointed towards Burns' face and throat. While Burns' hands were at his side, two more shots were fired, striking Burns in the neck. After these shots were fired, Burns was released and fell to the ground. Barbara Haynes further testified that defendant then knelt on one leg and pointed the gun at Burns' head. At this point Barbara Haynes shouted, "Don't shoot him anymore." Defendant then ran across a vacant lot to his car. Defendant was subsequently arrested near the corner of Springfield and Fillmore Streets.
Defense counsel attempted to introduce Barbara Haynes' 1974 conviction for misdemeanor theft. The trial court ruled the evidence inadmissible.
During cross-examination, defense counsel attempted to impeach Barbara Haynes' testimony by asking her if she had told the police about the facts she had just testified to on direct examination. A side bar was had to determine the scope of the foundational questions defense counsel would be permitted to ask in his attempt to impeach the witness. The court stated that while the area defense counsel was attempting to inquire into was somewhat remote to the legal issues before the court, the inquiry would be helpful in determining defendant's state of mind and therefore allowed defense counsel latitude in his attempt to impeach Barbara Haynes.
Defense counsel then asked Barbara Haynes if she told Officer Franklin about defendant brushing up against the victim in the pool room and about defendant touching the victim's shoulder on the street. Barbara Haynes was asked if she told Officer Franklin that defendant knelt down and pointed the gun at Burns' head after defendant had shot Burns. She was also asked whether she told Officer Franklin that defendant held the victim in a headlock. She replied that she did not recall what she told Officer Franklin except for the fact she did tell him about the headlock.
Defense counsel then asked her if she mentioned these facts to any other police officers. She replied that she did not recall whether she told the police about the brushing or touching incidents, but she did recall that she mentioned the headlock incident to Officer Franklin and the kneeling down incident to someone at the police station. Subsequently, the State called Officer Franklin to testify. Defense counsel declined to question him when given the opportunity for cross-examination.
Prior to the defense beginning its case-in-chief, the State made a motion in limine to prevent the defense from calling Officer McElrath for the purpose of perfecting an impeachment of Barbara Haynes' testimony. The State argued that the foundational questions asked of her referred specifically to Officer Franklin. The State also argued that unless defense counsel called all the officers she spoke to it would raise an unfair inference that if she did not say something to McElrath she did not say it at all.
After argument, the court allowed McElrath's testimony to be heard first outside the presence of the jury. Officer McElrath testified that Barbara Haynes told him that defendant brushed up against the victim in the pool room and that the two men argued there. He further testified as follows:
"Q. During the course of your conversation with Barbara Haynes that day, Officer, did she at any time tell you that after the first shot was fired Mr. Cox got Mr. Burns in a headlock and that the other shots were fired after that?
A. No, sir, I don't recall her telling me that.
Q. Officer, did she at any time during the course of your conversation with her tell you that after the shots had been fired Mr. Cox knelt down on one knee and pointed the gun at Mr. Burns and ...