Appeal from the Circuit Court of Winnebago County; the Hon.
Robert C. Gill, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 4, 1983.
Defendant Ricky McGee was convicted, after trial by jury in Winnebago County, of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1)). The information filed alleged that defendant had, with the intent to kill or do bodily harm, killed Thomas L. Barnes without lawful justification by shooting him with a gun. After the jury's verdict was returned defendant was sentenced to 35 years with the Department of Corrections.
Defendant raises three issues on appeal. His first contention is that he should have been allowed to give the jury a self-defense instruction. He contends there was sufficient evidence of self-defense adduced at trial to warrant such an instruction. His second contention also challenges the jury instructions, alleging it is error to not give an instruction which would have required the State to prove that defendant was not acting under sudden and intense passion resulting from serious provocation by the victim. Defendant's final contention is that he was denied a fair trial because the prosecutor made an improper closing argument.
On August 25, 1980, Thomas L. Barnes was shot and killed behind the West End Tap in Rockford. The State presented three witnesses that had been at the scene of the crime. All were patrons of the bar. The State's principal witness, James Finch, was an eyewitness to the murder. Two women who testified had been in the West End Tap at the time of the shooting. Additionally, there was testimony from the doctor who performed the autopsy on the victim. Certain police officers testified that they had reported to the scene of the crime.
The defense presented the testimony of a patron of the bar, William Allen, and the testimony of an investigating police officer.
Testimony of the State's key witness, James Finch, was as follows: Finch had been living with Barnes and had spent the afternoon with him after Barnes got off work. He testified that Barnes, the victim, was his brother-in-law. After he and Barnes went to look at a car that Barnes wanted to purchase, they went to the West End Tap. While sitting at the bar Finch borrowed some money from Barnes and bought a pack of Salem 100's. He opened them, took one, and set them on the bar next to where he was sitting. Later, when he looked for them they were gone. Both Finch and one of the women patrons at the bar who testified indicated that the defendant had come into the bar and had been standing next to Finch. When Finch realized the cigarettes were missing he and Barnes went to the front of the bar where defendant was and asked him for the cigarettes. Although Finch saw a pack of Salem's in defendant's pocket, defendant denied having Finch's cigarettes.
Defendant, Barnes and Finch then went out the front door and Finch again asked defendant for his cigarettes. Finch testified that Barnes told defendant to "give up the cigarettes." Defendant took a package of Salem's from his pocket, stating, "Here, brother, here goes your cigarettes." Finch responded by saying, "That's not a brother, taking my cigarettes."
After this confrontation Finch and Barnes went back inside the tavern and ordered another beer. Three or four minutes later defendant came back in the bar with a .25-caliber automatic in his hand, approached Barnes and Finch and told them to "come outside." First, the three or four people who had entered the bar with defendant went out, then the defendant and then Finch. Finch told defendant that if he "wanted to take my life over a package of cigarettes, go ahead." Defendant did not respond to Finch's statement. At this point Barnes walked to the back door and defendant addressed him, saying, "Nigger, you is the one who shoved me." Defendant fired the gun over Finch's left shoulder and Barnes was hit. Barnes staggered, went back in the tavern and made his way out the front door. Barnes was bleeding from the nose and mouth and Finch laid him on the sidewalk. Barnes later died from the gunshot wound.
On cross-examination Finch reiterated his testimony that he saw defendant re-enter the tavern with a gun in his hand. Defense counsel then read from the record of the preliminary hearing where Finch was asked: "When was the first time that you saw that gun in his hand?" Finch answered: "Out back."
Finch then stated that when he said "Out back" he was referring to the back door.
Finch's version of what occurred at the West End Tap is similar to that of two other patrons of the tavern who testified, Marilyn Fields and Linda Malone. Both women had been sitting with Barnes in the tavern prior to the shooting, and Barnes had purchased a beer for them. Fields saw defendant enter the tavern and stand near Barnes at the bar. After about five minutes defendant left; Finch and Barnes followed him out the front door. After a minute or two, she stated, Finch and Barnes came back into the tavern. Two or three minutes passed and defendant re-entered, this time with five men accompanying him. Defendant walked to the back where Fields and the others were sitting and said that he wasn't going to take nobody pushing him. Fields testified that defendant had a gun in his right hand when he entered the tavern.
Both Fields and Malone testified that Barnes, Finch, the defendant and the men that had come into the tavern with defendant all went out the back door. Fields went to the back door and could hear the men arguing. She saw defendant waving his gun in the air. Barnes started to come back into the tavern, then went back to the door. Fields then heard a "pop" that sounded like a pistol. Barnes came running into the bar bleeding from the mouth. He ran through the tavern and collapsed on the sidewalk in front.
The doctor who performed the autopsy on Barnes, and a police officer who recovered a shell casing from the alley, also testified.
For the defense, Detective Roger Anderson testified and indicated that he had inventoried two pocket knives and a ruler from Barnes' clothing.
The final witness for the defense was William Allen. His testimony varied widely from that described above. Allen's testimony is discussed below, together with defendant's first contention on appeal.
In rebuttal, the State sought to call two Rockford detectives to testify about a statement defendant gave the morning after the murder. The defendant objected and the State, as an offer of proof, summarized their testimony. The detectives had received a call that the defendant was at the police safety building on the morning after the crime. They went to the building and arrested ...