APPEAL from the Circuit Court of McHenry County; the Hon.
HENRY L. COWLIN, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 23, 1982.
Defendant, John Ellis, was charged in an amended information filed on November 14, 1979, with three counts of murder, one count of voluntary manslaughter and one count of involuntary manslaughter. After a jury trial, defendant was found guilty of the offense of murder and was subsequently sentenced to 25 years imprisonment. Defendant now appeals and raises the following issues for our review: (1) whether the murder conviction ought to be reversed since the weight of evidence presented at trial established that defendant was acting in self-defense; (2) whether the trial court's refusal to instruct the jury regarding the defense of dwelling was reversible error; (3) whether the giving of an instruction requiring defendant to exhaust every reasonable means of escape before employing force in defense of self constituted reversible error; and (4) whether the admission into evidence of an oral statement by defendant which was not disclosed to the defense was reversible error. The evidence adduced at trial was as follows.
Joyce L. Current, who lived in the apartment downstairs from the defendant, testified that at approximately 2 a.m. on August 10, 1979, she heard arguing and later two loud noises coming from the upstairs apartment; approximately three to five minutes elapsed from the sound of the first noise to the sound of the second noise; and between the two noises she could hear someone saying "I mean it." Current also stated that defendant had previously introduced the decedent, Joseph Miller, to her and she estimated that Miller was over 6 feet tall and weighed 195 to 200 pounds. Current later testified that between the sound of the two loud noises she heard a "scuffle" or a "moving about."
Raymond Wilson Current II, Joyce's husband, next testified that on August 10, 1979, he was awakened by the sound of his doorbell ringing; defendant was at the door; defendant told Current that a man upstairs had been shot and further said "Help me, maybe we can save his life." Mr. Current told defendant that he would take care of it, shut the door, and called the McHenry County Sheriff.
Gary Mlekush of the Island Lake Police Department testified that after receiving a radio call, he proceeded to the scene of the occurrence. When he arrived, defendant called to the officer, "He's upstairs, I didn't mean to shoot him." Mlekush then proceeded to defendant's apartment where he observed a man lying on the floor with what appeared to be a gunshot wound to the head. Mlekush also observed a snub-nosed revolver lying on the kitchen counter. Defendant told Mlekush that the man had lunged at him, and defendant shot him.
Deputy Sheriff Thomas E. Sanders next testified that after arriving on the scene, defendant approached him and stated, "I shot him, please get help, I didn't mean to hurt him." Defendant later told Sanders that 3 or 4 days earlier Joseph Miller had been hitchhiking along Route 12 and defendant had picked him up. Since Miller had no place to stay, defendant told Miller he could stay with him. Defendant stated that he wanted Miller to leave the apartment on that night but he refused so defendant went into the bathroom and obtained a revolver. An argument ensued, and when Miller still refused to leave, defendant fired a shot into the wall. Miller stated that guns did not scare him, made a lunge at defendant, and defendant shot Miller in the head. Sanders later testified as follows in response to the prosecutor's question "Now, what else did you do that evening, if anything?":
"Well, while we were waiting for the rescue squad to arrive, another deputy from the Sheriff's Office, Deputy McKeating arrived at that time and I asked Deputy McKeating if he could watch Mr. Ellis and so he stood there and watched Mr. Ellis and then Mr. Ellis looked at Deputy McKeating and he says,
`I know what you are thinking but it is not that way, I'm not queer — .'"
Counsel for defendant then objected to this testimony and moved for a mistrial which the court denied.
Deputy George Weber was also present at the scene and testified that defendant told him during the ride to the sheriff's office that defendant had asked his friend to move out of his apartment, an argument ensued, defendant went to the bathroom, obtained a gun, and fired a shot into the wall. The victim then lunged at defendant, and while they were wrestling, the gun went off. Defendant also stated to Weber, "I should have let him beat me up, I have been beaten up before. I should have just let him there. I didn't want to shoot him."
Deputy Sheriff George Hendle next testified to the content of his interview with defendant which occurred later in the morning on August 10 at the McHenry County jail. At that time defendant related that he had picked up Joseph Miller who was hitchhiking along Route 12. Miller had no place to stay so defendant told him he could stay at his apartment. Defendant stated that he was going to use Miller to help him in his construction work. Defendant and Miller had been drinking during the day at various locations prior to the shooting. When they arrived back at defendant's apartment, defendant told Miller to get out, but Miller refused. Defendant then fired a shot into a room divider in order to scare Miller. Miller stated he was not scared of any gun and started charging at defendant. Miller's eyes were rolling back in his head and defendant could see only the whites of Miller's eyes. Defendant then shot Miller. Defendant told Hendle that he didn't mean to hurt Miller. Defendant also related to Hendle that the right side of his face hurt but he did not know whether or not Miller had hit him. Defendant's face was then examined by Dr. Paul who recommended that defendant be taken to the hospital for examination.
Yuksal Konacki, an assistant medical examiner at the Cook County Medical Examiners Office, testified that he had performed an autopsy on the body of Joseph Miller on November 13, 1979. Konacki discovered a scar on the right side of the forehead extending diagonally from the eyebrow toward the right temple. An internal examination of the decedent revealed a hole in the skull and a laceration of the brain extending from the front to the rear. When asked if he was familiar with the term "tatooing," Konacki responded that "when someone is shot within relatively close distance there appears tiny black specklings around the entrance wound and this is due to the residue of powder particles implanted in the skin." He did not observe any evidence of tatooing near the wound on Joseph Miller. On cross-examination, Konacki stated that he was not asked to examine the wound for evidence of tatooing and that previous surgery performed on Miller could have removed any tatooing that existed.
Dr. Louis Pupillo, a physician licensed to practice in neurosurgery, testified that on August 10, 1979, he examined Joseph Miller in the emergency room at Victory Memorial Hospital and observed that Miller had an incision at the right frontal region three to four centimeters above the right eyebrow. A neurological examination revealed that Miller had an injury to the right frontal lobe of the brain. Miller was taken to the operating room where Pupillo cleaned the wound and removed "some cutaneous material." Pupillo specifically looked for tatooing but did not observe any around Miller's wound. Pupillo performed surgery on Miller on August 10 and again on September 6. Pupillo described the path of the bullet in Miller's brain as follows:
"The bullet entered the right frontal region, approximately three to four centimeters above the eyebrow, right here and the path had transversed to the left side and had crossed over to the left side and went ...