APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
COUSINS, JR., Judge, presiding.
PRESIDING JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
In a bench trial defendant Lawrence Person was found guilty of murder and was sentenced to the penitentiary for a term of 35 years. On appeal defendant contends: (1) the State's refusal to disclose, prior to trial, whether it would seek imposition of the death penalty, coupled with the trial court's allowance of voir dire questions concerning the death penalty coerced defendant into waiving his right to trial by jury and denied him due process of law; (2) defendant's guilt was not established beyond a reasonable doubt; (3) the trial court erred in unduly restricting defendant's cross-examination and impeachment of a State eyewitness; (4) defendant's sentence should be reduced.
At trial the State presented the testimony of Jeanette Brown, who witnessed the events in question. She testified that on October 11, 1978, at about 9 p.m. she drove with the defendant to the Rush Street area of Chicago "to prostitute." They bought a pint of rum and drank it with coke in the car, which defendant had parked on Chestnut near Clark Street. Brown then stationed herself at the northwest corner of Chestnut and Clark to solicit business. At about 11:30 defendant came by to share a drink and then returned to the car. Brown "caught a date," accompanying him to a nearby alley where she committed an act of fellatio for $20. She then returned to the corner. At about 1 a.m. a man subsequently identified as the victim, John Arcus, drove up. They conversed, she got into his car, and he parked it in the same alley she had used earlier.
It was established at trial that at the time of the incident Arcus was a Chicago police officer but was dressed in civilian clothes. According to Brown, Arcus was "kind of high"; his words were "blurry" and his breath smelled of alcohol. She performed an act of fellatio on him, for which he had agreed to pay $20. But he first refused to give her anything and then gave her only $10. They argued about the money and she told him to take her back to the corner. As Arcus was pulling up his clothes the defendant approached the driver's side of the car with a knife in his hand. (At trial Brown twice stated that defendant pulled out the knife when he reached the car, but she corrected herself both times to say that he was holding the knife as he approached.) Defendant asked what was going on and stuck his head and arm through the open window on the driver's side. Arcus pulled a gun out of the glove compartment. Brown warned defendant of the gun, and defendant began to struggle with Arcus, threatening to kill him if he did not relinquish the gun. Arcus did not give it up, and defendant cut him on the forehead with the knife. During this part of the struggle Arcus told defendant he could not give him the gun because he was a police officer.
As the struggle continued the horn sounded. Defendant pulled the car door open, Arcus fell out, and the two men continued to wrestle on the ground while Brown stayed in the car. Brown saw defendant obtain the gun from Arcus and begin to back up. Arcus got up and began walking toward defendant, asking him to return the gun because he was a police officer. Defendant told him not to approach or he would shoot. Arcus had his hands in the air with the palms straight up and open as he approached. Defendant kept telling him not to approach and then fired twice. Arcus grabbed his side and began to fall but then followed defendant, who had begun to run down the alley toward Chestnut. (Brown also testified that at this point Arcus started stumbling and went behind defendant, who then began backing up into the alley.) Brown then heard three more shots. She remained in the car about five minutes and then ran down the alley. She found Arcus lying on the ground in the alley. He asked her to get help and she ran to Chestnut Street where she encountered two police officers and reported the shooting.
On cross-examination Brown admitted that in the past she had used "T's and Blues" (Talwin and Pyribenzamine) but denied ever being addicted to them. She denied having used them the day of the incident or any time in the seven-day period preceding it. She also testified that despite the alcohol she drank that day she was able to observe everything that occurred and her vision was not impaired.
According to police testimony the body of the victim was found about 50 to 60 feet into the alley. No weapons were found underneath or around him. The toxicologist who tested a blood sample from the victim testified that he found an alcohol level of .226 percent. The trial court took judicial notice of the fact that under Illinois law a level of .10 percent by weight alcohol in the blood creates a presumption of intoxication. (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501(c).) The toxicologist also testified that in his opinion the victim was under the influence of alcohol at the time of his death. It was stipulated that if called Dr. Robert Stein, Medical Examiner of Cook County, would testify that his examination of the body revealed a bullet wound to the left elbow and another one to the chest. The cause of death was the bullet wound to the chest, which perforated the heart and aorta.
Chicago Police Officer Fred Stone testified that he arrested the defendant early on the morning of October 12, 1978. A knife with ".007" inscribed in gold letters on the handle was found in defendant's pocket. According to Stone, Jeanette Brown had previously told him that the knife used by the defendant was a large ".007" knife.
Investigator Thomas Kaczka testified that when he questioned defendant at about 5 a.m. the same day he denied any knowledge of the occurrence. However, later that morning, according to the testimony of Assistant State's Attorney Edward Ozog, when defendant was told of the statements of Brown he responded with the following account of the incident. When defendant approached Arcus' car Arcus had a gun in his hand and defendant had a knife. They struggled, and defendant might have cut Arcus in the struggle. Defendant got the gun away from Arcus and went away from the car. Arcus followed, identifying himself as a police officer and asking for the gun. He offered money for it, but defendant responded that if he returned the gun Arcus would shoot him. When Arcus continued to approach defendant shot at him twice. Arcus grabbed his left arm, and defendant then ran south down the alley. When he turned and found Arcus pursuing him he fired two more shots and ran on toward the street. He reached the street, turned, and saw Arcus was coming toward him. Arcus had nothing in his hands. Defendant fired two shots and Arcus fell. Defendant fled, later discarding the gun. Ozog testified that he later returned to the scene with defendant, who retraced his steps. Defendant indicated to Ozog that when he fired the first two shots Arcus was 21 to 22 feet away. When he fired the last two shots Arcus was 30 to 45 feet away.
The State also called John Hunt, who lived in an apartment on the alley where the shooting took place. At about 2 a.m. that day he heard a car pull up in his driveway. He looked out and saw two people in the car, with the motor off. He walked away from the window and subsequently heard a horn blowing loudly. He heard his neighbor, James Yeutter, threaten to call the police if the noise persisted and then heard what sounded like two men scuffling. A woman said "Larry, he's got a gun." A man said "Call the cops." Then he heard a man repeating "Don't hurt me." Hunt called the police, then heard a gunshot. As he again called the police he heard two more shots. He reported the shooting and again heard a shot.
The defendant presented the testimony of Hunt's neighbor, James Yeutter. He testified that his apartment also overlooked the alley. That night he heard the sound of a horn and observed a man leaning into the window of a car. He heard three voices: one female, one high-pitched male, and one low-pitched male. The female voice said "Please, please, don't shoot him." From the lower male voice he could only hear mumbling. After Yeutter threatened to call the police the higher male voice yelled out to please call them.
Defendant testified that Jeanette Brown had asked him to drive her downtown. At her request he bought her a bottle of rum. She told him she had some "T's and Blues" earlier that day and she needed some more. She was drinking to stave off sickness. Defendant denied that he drank anything before the incident. On the way downtown defendant gave Brown his knife. When they reached the Rush Street area he left the car to buy cigarettes. As he returned he heard Brown screaming for help and calling his name. He ran into the alley where he saw Arcus and Brown fighting in the front seat of a car. Defendant opened the door and found that Arcus was holding a gun. Brown was crying and said Arcus had tried to rape her. Arcus told defendant that Brown had cut him with the knife, and told him to get it from her. Defendant did so and gave the knife to Arcus. Defendant then sounded the horn to summon help. A man came out and threatened to call the police; defendant pleaded with him to do so.
At this point Brown grabbed for the gun held by Arcus. Defendant then began grappling with Arcus and wrested the gun from him. Arcus lurched at defendant with the knife. Defendant then ran down the alley, pursued by Arcus. Arcus had the knife and threatened to kill him. Defendant begged Arcus to stay back but he kept coming even after defendant fired several warning shots over and around him. Arcus was about four feet away when these first shots were fired. Defendant then fired several more times and Arcus fell down. Defendant testified that when he fired these shots he was afraid that Arcus might stab him with the knife. Defendant approached Arcus after he fell, asking him if he was all right ...