Appeal from the Circuit Court of Marion County; the Hon.
William R. Todd, Judge, presiding.
JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Defendant, Larry Lee Hughes, was charged by information with the murder of Kevin Queen. Defendant was initially tried in September 1980, but a mistrial was declared due to the jury's failure to reach a verdict. At a second trial, held in late October 1980, the jury found defendant guilty of the offense of murder and he was sentenced to 24 years' imprisonment. On appeal defendant raises the following issues: (1) whether the trial court erred by not instructing the jury sua sponte regarding voluntary manslaughter and self-defense; and (2) whether this cause must be remanded for resentencing because the trial court considered, as an aggravating factor in imposing sentence, that defendant's conduct caused or threatened serious bodily harm to the deceased.
The State called Richard Simer of the Centralia police department as a witness for the purpose of identifying photographs of the deceased and Jim's Tavern, which is located on McCord Street in Centralia, Illinois.
Rance Ryan testified that while he was tending bar at Jim's Tavern during the early morning hours of May 31, 1980, four young, black males came in. One of the four black youths approached the bar and ordered a six-pack of beer. Mr. Ryan identified this individual as the defendant and said that he was wearing a black vest, a large brimmed hat and a gold earring in his left ear. Mr. Ryan stated that he had never seen defendant before but recognized the other three black males whom he identified as Daniel Franklin, William Glenn, and Bert Cunningham. Mr. Ryan testified that Mr. Glenn wore a red jacket with his name on the back and that Mr. Franklin wore a light tan jacket and a black beret. Mr. Ryan could not recall Mr. Cunningham's apparel.
Mr. Ryan asked defendant for identification because he believed him to be underage. Defendant produced an outdated driver's permit and Mr. Ryan refused to serve him liquor. Defendant became perturbed and persisted in his request for beer. Mr. Ryan refused to discuss the matter further and he turned his back on defendant.
Subsequently, Mr. Ryan heard some noise at the back of the tavern and he turned and saw a large number of people running out the back door. Mr. Ryan went to the back door to investigate and as he stepped outside, he observed defendant across the alley with a gun in his hand. Defendant was about 12 to 14 feet away and the area was illuminated by a street lamp and three lights on the exterior of the tavern. Defendant fired two shots in the direction of Mr. Ryan and Greg Campbell, a patron of the tavern who was standing near Mr. Ryan. Mr. Ryan saw Mr. Franklin and Mr. Cunningham behind defendant but did not see Mr. Glenn. After firing the shots, defendant ran around the corner out of Mr. Ryan's view. Almost immediately, Mr. Ryan heard two more gun shots. He ran around the corner and saw Kevin Queen lying on the sidewalk. Mr. Ryan turned Mr. Queen over and noticed a hole in his shirt with blood around it.
Greg Campbell testified that he was in the tavern when the four young, black males came in. He said that defendant wore a gold earring in his left ear, dark clothes, and a black felt hat with a brim. After the bartender refused to serve the four youths, they became angry. As they were leaving, Mr. Campbell's mother walked in. Defendant, at the time, was "cussing pretty bad" and Mr. Campbell's mother told him to watch his language. In response, defendant swore at the woman. Kevin Queen and others ran out after defendant. Greg Campbell stated that outside the tavern in the illumination of the street lamp and tavern lights he observed defendant running along the alley about 15 to 20 feet away. Defendant turned and fired two shots at Mr. Campbell and Mr. Ryan. Defendant kept running and a moment later Greg Campbell heard two more shots. When Greg Campbell reached the sidewalk, he saw Mr. Queen lying on the ground.
On cross-examination, Greg Campbell testified that of the four young blacks he knew only William Glenn prior to the incident. He said that Mr. Glenn wore a red jacket and possibly a dark hat. Greg Campbell denied that it was Mr. Glenn who shot at him and Mr. Ryan.
Rick Campbell, Greg's brother, testified that he, his wife Lisa, and his father were outside Jim's Tavern when the four young blacks arrived. Sometime later, he heard a shot and saw defendant, who was wearing dark clothes, a black hat with a brim, and an earring in his left ear, running with Mr. Queen close behind him. Defendant fired a second shot and then ran around the corner followed by Mr. Queen. Rick Campbell ran to the corner and saw defendant turn around and shoot Mr. Queen, who was four or five feet from defendant at the time. Defendant turned back around and then ran away. Rick Campbell said he had a clear view of the shooting, that there was sufficient street lighting to enable him to see defendant, and that he saw defendant's face in the flash of the gun. He estimated that at the time the shooting occurred, he was approximately 20 feet from the defendant. Rick Campbell said he never saw a black man with a red jacket in the area of the shooting and that he had mistakenly told police that the gunman's name was Daniel Franklin.
James Roberts, a forensic scientist, testified that he had examined the shirt and pants worn by Mr. Queen and concluded that because there was no gunpowder residue on them, the gun was probably not fired from extremely close range.
Lisa Campbell testified that she saw three black males enter the tavern. She heard some commotion and saw some people running. She heard a gunshot and saw flames from a second discharge of the gun. She caught a glimpse of the gunman, who was standing in the alley pointing his weapon toward the rear door of the tavern. She could not positively identify the man she observed but remembered that he was wearing dark clothing. Mrs. Campbell said that she knew both Mr. Glenn and Mr. Franklin and neither of these individuals was the gunman.
Karl Wilson testified that he was in the tavern when the four black youths entered. He recalled that defendant was wearing a black shirt, dark pants, a black wide-billed hat and an earring in his left ear and that defendant presented identification to Mr. Ryan. As the four youths were departing, Rick Campbell's mother told them not to use profanity. When one of the black youths responded by calling Mrs. Campbell a name, Mr. Wilson and others jumped up and pursued the four black youths out the back door. As soon as he got outside, Mr. Wilson heard shots. Mr. Wilson said he ran toward the corner of the alley and McCord Street and while doing so heard one or two more shots. When he rounded the corner, he saw Mr. Queen lying on the ground.
Bert Cunningham testified that he, Mr. Glenn, Mr. Franklin and defendant were leaving through the back door of Jim's Tavern after defendant was unable to get served when Mr. Glenn began arguing with a woman. When they got outside, some white people came out of the tavern and started chasing them. Mr. Cunningham and Mr. Franklin headed toward the corner of the alley. Mr. Cunningham heard defendant tell someone to "get back" and then heard some shots. Both Mr. Cunningham and Mr. Franklin got down on the ground until the shooting stopped. When Mr. Cunningham got up he saw a man lying on the sidewalk. Some white people came from the alley and accused Mr. Cunningham and Mr. Franklin of the shooting so they ran away. Mr. Cunningham stated that he could not say where Mr. Glenn was at the time of the shooting.
Daniel Franklin testified that as he and the other black youths were leaving Jim's Tavern, Mr. Glenn called a woman a bitch and four or five white men jumped over the tables and began chasing them. Mr. Franklin heard a shot and when he got outside, he saw defendant being chased by some white men. Defendant shot into the air and a number of white men retreated, but Mr. Queen continued to pursue defendant. Defendant fired two shots and Mr. Queen fell to the ground. After Mr. Franklin saw Mr. Queen fall, he and Mr. Cunningham ran away. Mr. Franklin said that Mr. Glenn wore a red sweatjacket with his name on the back and, perhaps, a baseball cap. He said defendant wore black clothing and a round derby hat.
Cletus Feig, a Centralia police officer, testified that he was called to the vicinity of Jim's Tavern the morning of May 31 and found Mr. Queen lying on the sidewalk on McCord Street. Mr. Queen did not speak but appeared to be conscious.
Dr. Gordon Johnson, a medical doctor and pathologist, testified that he performed an autopsy on Mr. Queen's body. He said that the cause of death was loss of blood caused by a gunshot wound in Mr. Queen's chest. He also testified that there was a bullet wound in Mr. Queen's right thigh.
Roger Campbell, one of the ambulance personnel, testified on behalf of defendant. He said Mr. Queen was conscious when he was placed in the ambulance and complained of pain a number of times. According to Mr. Campbell, while in the emergency room at St. Mary's Hospital, Mr. Queen said that it was Mr. Glenn who had shot him and that Mr. Glenn was wearing a red shirt.
Jim Brown, an emergency medical technician, also testified for the defense. He accompanied Roger Campbell in the ambulance and corroborated his testimony. According to Mr. Brown, at the hospital Mr. Queen stated that "the young Glenn boy in the red shirt" was the person who shot him.
In rebuttal, Dr. Pedro T. Durian, the emergency room physician who treated Mr. Queen at St. Mary's Hospital, testified that when Mr. Queen arrived he was semi-comatose, had virtually no blood pressure, and was in a state of "profound shock." Dr. Durian said that a person ...