Appeal from the Circuit Court of Cook County; the Hon. Thomas
J. Maloney, Judge, presiding.
JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant Clarence Coleman was convicted of murder and sentenced to serve 30 years in the Illinois Department of Corrections.
On appeal, defendant contends that the trial court committed reversible error by: (1) limiting defense counsel's cross-examination of a prosecution witness for the purpose of impeachment concerning her prior omission of a material fact from a police report; (2) refusing to give the jury manslaughter instructions based on provocation; and (3) denying defense counsel the right to question jurors during voir dire regarding their attitudes on self-defense.
Three witnesses to the murder testified for the State at trial: Dee Hinton, Mary Weeks and Ernest Walker. All three witnesses knew both defendant and the victim, James Fluker.
Dee Hinton testified that at 7:30 p.m. on August 28, 1981, she was watching television in her apartment. When she looked out the window during a commercial break, she noticed two men standing by the side of the street. They were about a foot apart and were talking to one another. She did not see a gun in either man's hand. Although her view of the two men was unobstructed, she observed them for a split second. After she turned back to watch television, she heard a shot. She looked up and saw one man lying on the ground and the other walking away.
Mary Weeks testified that at the time of the shooting, she was sitting by her bedroom window which overlooks a church located on the east side of Justine Street in Chicago. At the time, she had known Fluker for eight years and defendant for four years. She noticed Fluker and defendant walking along opposite sides of Justine. When defendant reached Weeks' window, he crossed the street and stood directly in front of Fluker. She further testified that defendant held a nickel-plated gun in his right hand as he crossed the street. She was also able to see that Fluker did not have a gun in either hand. Weeks stated that when she looked away, she heard a shot. She quickly turned back to look outside and saw sparks in the church window in back of defendant. She pulled her shade down and waited a few minutes. When she raised the shade, she saw Fluker lying on the sidewalk. Later that evening, Weeks was interviewed by police officers at her apartment. On cross-examination, Weeks testified that she told the police that she saw defendant with a silver gun in his hand. She could not remember the name of the officer who took her statement.
The third witness for the State was Ernest Walker. Walker testified that on the evening of the shooting, he was standing on the west side of Justine Street about 20 feet north of defendant. He testified that defendant was holding a chrome-plated gun in his hand when he walked up to Fluker. He further testified that he saw defendant shoot Fluker in the chest. On cross-examination, Walker stated that Fluker did not have a gun when he was shot.
Defendant testified that on August 28, 1981, he and Fluker had a fight over a debt. Police broke up the fight, but neither he nor Fluker wished to file a complaint. About 20 minutes later, defendant left his home with a gun in his belt. He approached Fluker and suggested that they "try to iron this problem out." Defendant denied having a gun in his hand when he approached Fluker. He further testified that he pulled out his gun and shot Fluker after Fluker reached for his gun.
During cross-examination, defendant estimated that 40 minutes passed between the time defendant was attacked by Fluker and the time defendant shot Fluker. He also admitted that he was not angry when he shot Fluker.
The jury found defendant guilty of murder. This appeal followed.
First defendant contends that the trial court erred in not permitting defense counsel to impeach Mary Weeks through an alleged prior omission of a material fact. The alleged omission arises from a police report prepared by Detective Rankin, the officer who interviewed Weeks after the shooting. The report did not include Weeks' statement that she saw defendant cross the street with a nickel-plated gun in his right hand. It did, however, include the statement which Weeks allegedly made to Detective Rankin that she saw defendant shoot Fluker.
During a side-bar conference, defense counsel sought the court's permission to question Detective Rankin regarding whether Weeks told him that she saw a gun in defendant's hand when he crossed the street. The trial judge would not permit defense counsel to question Rankin about the omission of this fact from the police report. However, the trial judge would permit defense counsel to question him regarding whether Weeks told him that she saw defendant shoot Fluker because she had testified to the contrary at trial.
• 1, 2 A proper foundation must be laid before a witness may be impeached by prior inconsistent statements. (People v. Smith (1980), 78 Ill.2d 298, 399 N.E.2d 1289; People v. Almo (1984), 123 Ill. App.3d 406.) To establish a proper foundation the witnesses must be asked about the time, place and circumstances of the statement. (People v. Henry (1970), 47 Ill.2d 312, 265 N.E.2d 876.) The purpose of a proper foundation is to alert the witness to any prior inconsistent statement or omission in order ...