Appeal from the Circuit Court of Cook County; the Hon. Romie
J. Palmer, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Defendant George Timmons, Jr. (Timmons), was charged with two counts of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1) and two counts of armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A-1). Prior to trial in the circuit court of Cook County, the State nol-prossed the two counts of armed violence. At defendant's request, the jury also received verdict forms for voluntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, par. 9-2). Thereupon, Timmons was found guilty of two counts of voluntary manslaughter. On March 30, 1983, Timmons was sentenced to two consecutive 25-year extended terms.
Timmons appeals, presenting the following issues for review: (1) whether the trial court erred in granting the State's motion in limine to exclude the nonverbal statements of one of the victims; (2) whether the jury was properly instructed with regard to the use of defendant's prior conviction; (3) whether the trial court erred in imposing extended and consecutive term sentences; and (4) whether the State's use of peremptory challenges deprived defendant of a fair trial.
For the reasons hereinafter set forth, we affirm defendant's convictions for voluntary manslaughter and modify the sentences imposed by the trial court.
At pretrial proceedings, the State filed a motion in limine to exclude from evidence nonverbal statements allegedly made by a victim, John Brooks. At the hearing on this motion, Terry Brooks, the victim's brother, testified that he and his mother visited John in intensive care at St. Anne's Hospital in Chicago on January 10, 1982, at approximately 9 p.m., some 19 hours after the shooting. During this visit, Terry asked his brother if his shooting was "accidental." John responded by "nodd[ing] his head up and down indicating yes." When Terry asked him if the shooting was "intentional," John "shook his head no." John was on a respirator, had tubing in his throat to assist him in breathing and appeared to be "drugged." John went into a coma on the morning of January 11, and so remained until his death on January 16.
Dr. Reginaldo Picache, a surgeon, testified: On January 10, 1982, at approximately 4 a.m., he performed surgery on John Brooks at St. Anne's Hospital. He observed that the patient's carotid artery and jugular vein were severed beyond repair, and he "ligated" both of these "vessels" to prevent continual bleeding. There was also a hole in the trachea which rendered John Brooks unable to speak. It was Picache's medical opinion that Brooks' "mental faculties were impaired from the time of the shooting to the time of death." Dr. Picache at no time indicated to Brooks his physical condition because "[Brooks] was not alert enough to understand." Following surgery, Dr. Picache monitored Brooks by communicating with nurses in attendance, and he based his opinion of John Brooks' condition on the nurses' "telephonic communications." Brooks was examined by a neurosurgeon on January 11, who found Brooks to be "unresponsive" because of swelling of his brain.
Patricia King, a critical care nurse at St. Anne's Hospital, testified that she "treated" John Brooks in the intensive care unit on January 10 and 11 following his surgery. Brooks, according to nurse King, was able to squeeze her hand with his right hand and to move his right leg, but his left side was paralyzed. Although King stated that Brooks responded to "certain commands by gesture," "he had a tube down his throat" and "was unable to talk." At some time on January 11, Brooks "became unresponsive to any kind of verbal, tactile, painful stimuli."
Luretha Brooks, mother of John and Terry Brooks, testified that on January 10, at approximately 9:30 p.m., she and her son, Terry, visited John in the intensive care room at St. Anne's Hospital. When Terry asked John if the shooting was accidental, he "nodded" his head yes; when Terry asked his brother if the shooting was intentional, "he shook his head no." The parties then stipulated that Luretha's testimony would be the same as that of her son Terry.
Defendant's counsel argued that John Brooks' nonverbal responses were dying declarations and therefore admissible as an exception to hearsay evidence.
The trial court granted the State's motion in limine to exclude John Brooks' nonverbal responses, finding that "John Brooks did make a nonverbal response, assertion to his brother * * *"; that "there was a mortal wound inflicted on him"; and that "the nonverbal assertion does not fit within any of the recognized exceptions to the hearsay rule and is not admissible as a dying declaration * * *" because the nonverbal responses made by Brooks were "conclusionary."
At trial, Janeen Smith, a friend of Timmons, testified to the following: On January 9, at approximately 8:30 p.m., she arrived at the home of Desmona Timmons, defendant's sister, located at 4749 West Adams, Chicago, where a surprise birthday party was being held for Timmons. Desmona and Etheral Green were already present. Later that evening, Timmons arrived with John Brooks, Barbara Watson and Diane Perry. At approximately 2 a.m. on January 10, Janeen heard Timmons and Victor Rainey "arguing." She saw George Timmons (defendant's father), John Brooks and Etheral Green "trying to stop George Jr. from going downstairs." Defendant, Brooks and Green, however, went down the stairs. Several minutes later Janeen "heard a shot" and she ran down the stairs. Timmons was standing on the steps, approximately five or six feet "above" Green, holding a gun in his hand. Janeen heard Green tell Timmons "to calm down and don't go upstairs after Victor." Timmons told Green "to get out of the way." Green then told Timmons, "If you want to shoot somebody so bad, Man, shoot me." Timmons thereupon shot Green in the head. Janeen ran to the first floor apartment to get towels and attempted to revive Green, but "he was dead." At this time, Diane Perry ran down the stairs to Janeen and said, "Oh, my God, [John Brooks has] been shot too." Janeen saw John Brooks lying on the steps leading up to the second floor. "Everybody had been drinking" at the party and "everybody was a little high."
Robert Doss, who also attended Timmons' surprise party, testified to the following: On January 10, shortly before 2 a.m., he heard "Victor [Rainey] call Timmons a punk." Despite the fact that "all the men were trying to stop him [Timmons] from leaving the apartment," Timmons left. John Brooks and Green "went after him." Desmona and Janeen also left the apartment. Doss "heard some screaming, some shooting and after that [Timmons] came up into the apartment," holding a gun, and said "I have a couple of bullets left." Timmons went into the "back" area of the apartment and shortly thereafter left the apartment.
Arthur Hajek, a Chicago police officer, testified: On January 10, at approximately 4:30 a.m., he was assigned to investigate a shooting at 4749 West Adams. Hajek searched inside the hallway for weapons, expended cartridge cases, expended bullets and bullet holes but found none. Hajek performed no search outside the building.
Dr. Uetil Choi, Cook County assistant medical examiner, testified: He performed autopsies on John Brooks and Etheral Green. Dr. Choi removed a bullet from Green's body and stated that Green was shot from a distance of at least two feet. Dr. Choi did not retrieve a bullet from Brooks' body.
Ralph Vucko, a Chicago police detective, testified: On January 10, at approximately 3:55 a.m., he was assigned "To investigate two people shot at 4749 West on Adams." In his investigation, he apparently discovered no evidence except that he found blood "around the area of Etheral Green on the midlanding between the first and second floor." On January 10, at about 7 a.m., when Timmons surrendered himself at the Fourth Area police station, Vucko placed him under arrest.
Timmons testified in his own behalf: He resided with John Brooks in the basement apartment of the building located at 4749 West Adams in Chicago. Victor Rainey and his mother lived in the apartment on the first floor; Timmons' sister and father also lived in the building. On January 9, prior to the party, Timmons and John Brooks consumed several pints of gin and beer. At approximately 9 p.m., Timmons arrived at his surprise party, where he consumed more gin, "Canadian Mist," and "a couple cans of beer." Timmons went to the back room of the apartment where Victor Rainey and John Brooks were "having words" about money that Victor had given to Brooks. Shortly thereafter, Timmons went downstairs to his apartment and changed clothes. Timmons then went outside to the front yard of the building. Brooks was standing in the doorway. "A car proceeded to come by the front of the house" and Timmons heard a shot. He thought the shot came from the "dark colored car." "After" he heard the shot, he "ducked" and himself fired a shot. He heard John Brooks say, "I'm hit," and Timmons helped him into the hallway and "placed him by the first stairs going up the stairway." Timmons ran up the stairs leading to the second floor, heard Green call him and "turned around." At that moment, "the gun [Timmons] had went off." He did not aim the gun. Timmons went down the stairs and left the apartment. He went to a service station and talked with the manager. Later that morning, Timmons surrendered himself at the Fourth Area police station. Timmons stated that his gun did not need to be "cocked" to fire.
Richard Hall, a biochemist, testified with regard to the effect of alcohol on the body. In Hall's opinion, a person who drank as much alcohol as Timmons allegedly consumed on January 9 would be intoxicated but would be able to walk, to speak ...