Appeal from the Circuit Court of Cook County; the Hon.
Lawrence I. Genesen, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was convicted of one count each of attempted murder and armed violence. *fn1 On appeal, he contends (1) that the trial court erred in (a) refusing a defense instruction on justifiable use of force, (b) permitting complainant to display his wounds to the jury, (c) admitting certain hearsay testimony, and (d) considering improper evidence at the sentencing hearing; and (2) that he was prejudiced by comments made in the State's closing argument.
There is no contention that guilt was not established beyond a reasonable doubt and, accordingly, the facts presented will be those relevant to the issues raised.
Complainant, Shawn Marshall, testified that pursuant to a telephone call from defendant, he went with his four-year-old son, DeShawn Brown, to defendant's house in Chicago, where defendant pointed a gun at him and asked that he relate what happened to defendant's brother Warren; that although they had discussed what happened three years before, defendant said he wanted to hear it again; that later, at defendant's request, he also told defendant's brother Walter what happened to Warren, and after discussing the subject with them for about an hour his son said he wanted to leave; that while he was putting on his son's coat and hat, defendant shot him in the right side; that he then wrestled with defendant and Walter for defendant's gun, but he was thrown to the floor and his hands were tied behind his back; that he was able to work his hands loose and, when he grabbed his son and made a break for the door, defendant shot him again in the left arm; that defendant and Walter retied his hands behind his back and put him in the trunk of a car; that after about an hour, the car stopped and the trunk was opened; that he heard defendant say, "He should be dead by now," and they then threw him into a river; and that he was able to swim across the river to a house on the opposite bank, where he asked for help and was ultimately taken to a hospital. Over defense objection, he was permitted to open his shirt and lift up his undershirt to show his wounds to the jury.
Police Inspector Cornfield testified that after arresting Walter, he went to the Chatman residence where he observed a bullet hole in a door leading to the basement, a shell casing, and what appeared to be blood spatterings on a support beam; that Walter told him and other investigators where Marshall's son had been dropped off and directed them to some bushes in the vicinity of 47th and Lake Shore Drive, where he found the boy the next day lying in the weeds and leaves. Over objection, Cornfield testified that as he carried the boy out of the bushes, he started crying and told them that "his father had been killed by some man named Michael."
Dr. Peterson testified that the wound in Marshall's left arm was through and through, but involved only tissue; that in the right chest region there was an entrance wound from a penetrating missile but with no exit point; that he performed exploratory surgery which required a mid-line incision to the abdominal cavity and that 10 days later his associate made a small incision in Michael's back to remove a bullet from a muscle.
The defense called Officer Long of the Kankakee County sheriff's police, who stated that in response to a telephone call from a woman, he went to her home in St. Anne, Illinois, which was next to the Kankakee River, where he found Shawn Marshall wrapped in blankets and that Marshall told him that Michael Chatman had shot him.
Brenda Chatman testified that she was in her bedroom when she heard a loud crash and went down to the basement where she saw Shawn Marshall kneeling underneath the table; that defendant told her to go back to her room, and that on her way back upstairs she heard someone say that all he wanted to do was to leave with his little boy.
Walter Chatman testified that when he went downstairs to the basement of their home, defendant, Marshall, and DeShawn Brown were there; that the two men were discussing what happened to his brother Warren; that they started to argue and wrestle, and he then heard a gunshot and saw Marshall and a gun fall to the floor but he did not see who had the gun; that he went upstairs to answer the door for a friend of defendant's who went downstairs while he remained upstairs; that later he gave defendant the keys to his car, following which he went to the basement and found DeShawn; that defendant and his friend returned about two hours later, and he drove them and the boy to the vicinity of 47th and Lake Shore Drive, where defendant and the boy got out of the car and defendant returned about five minutes later without the boy; and that, after his arrest the next day, he directed the police to where DeShawn had been left by defendant the evening before.
We turn first to defendant's contention that the trial court erred in refusing his tendered instruction on justifiable use of force. While it is recognized that "slight evidence" will justify an instruction on a given defense (People v. Lockett (1980), 82 Ill.2d 546, 413 N.E.2d 378), it is not error for the court to refuse an instruction where there is no evidence to support a particular defense (People v. Miller (1974), 21 Ill. App.3d 762, 316 N.E.2d 269). Self-defense concerns the use of force which a person reasonably believes is necessary to protect himself, and the instruction is appropriate where there is evidence that a defendant knowingly and intentionally used force against another but not where a shooting was accidental. People v. Joyner (1972), 50 Ill.2d 302, 278 N.E.2d 756; People v. Purrazzo (1981), 95 Ill. App.3d 886, 420 N.E.2d 461, cert. denied (1982), 455 U.S. 948, 71 L.Ed.2d 661, 102 S.Ct. 1448; People v. Dzambazovic (1978), 61 Ill. App.3d 703, 377 N.E.2d 1077.
In the instant case, only complainant, defendant's brother, and his sister gave testimony concerning the shooting. Complainant testified that when he arrived at defendant's home with his son, defendant pointed a gun at him on his way to the basement; that he discussed with defendant and Walter what had happened to their brother for about an hour; that while he was putting on his son's coat and hat, defendant shot him; that when he wrestled with defendant and Walter for defendant's gun, they threw him to the floor and tied his hands behind his back; that he worked loose and, when he tried to leave with his son, he was again shot by defendant. On cross-examination, defense counsel brought out that at the preliminary hearing complainant testified that he was struggling with defendant, who had the gun in his hand, when he (complainant) was shot in the arm and side.
Brenda Chatman testified that she went to the basement after hearing a loud noise and, as she was going back upstairs at the request of defendant, she heard someone say that all he wanted to do was to leave with his little boy. Walter testified that defendant and complainant were discussing what had happened to Warren, and after they started arguing and wrestling, he heard a gunshot and saw complainant and a gun fall to the floor, but he had not seen who had the gun.
• 1 In effect, it was complainant's testimony that defendant shot him twice while he was attempting to leave and defendant presented no evidence to the contrary or of any actions of aggression on complainant's part. While Walter stated that complainant was shot during a quarrel and complainant, at the preliminary hearing testified that he was shot during a struggle for defendant's gun, there is nothing in the record to indicate that defendant could reasonably have believed that the use of deadly force was necessary to prevent great bodily harm to himself. Further, if any inference can be made from the testimony concerning the discharge of the gun during the struggle, it is that the shooting was accidental, and an instruction on ...