Appeal from the Circuit Court of Cook County; the Hon. William
Cousins, Jr., Judge, presiding.
PRESIDING JUSTICE QUINLAN DELIVERED THE OPINION OF THE COURT:
The defendant, Barry Flax, was charged by a multicount indictment with the offenses of attempted murder, armed violence and aggravated battery. The defendant claimed at trial that he shot the victims, Roy Reynolds, and Chicago police officers Thomas Bolling and John Ryan in self-defense. The jury found the defendant guilty of attempted murder, armed violence and aggravated battery with respect to the Reynolds and Bolling shootings but acquitted him on all charges relating to the Ryan shooting. The court denied the defendant's motion for a new trial and sentenced the defendant to concurrent terms of 15 years' imprisonment on the two attempted murder counts. This appeal followed.
On appeal, the defendant asserts: (1) he was improperly precluded from introducing state-of-mind evidence which was vital to his defense; (2) he was improperly precluded from testifying that he had no prior criminal record; (3) the prosecutor's humiliating and harassing cross-examination of defendant deprived him of a fair trial; (4) the State failed to preserve material evidence which deprived him of a fair trial; and (5) the court abused its discretion by imposing an excessive sentence.
At approximately 11:30 p.m. on May 2, 1984, Barry Flax entered a tavern, Zip's Place, located on the west side of Chicago. Flax, who testified he was a holder of a black belt in the martial art of jujitsu, had in his possession a spring-loaded metal bar referred to as a "Japanese Baton." Flax also testified that he carried the baton for protection because he had once been robbed. He said that he had brought the baton into Zip's Place on four prior occasions, and each time, he checked the baton with the bartender. On this evening, Flax saw no bartender so he approached the owner, Rozette Adams (Zip), and offered Zip the baton to hold. According to Flax, Zip slapped the baton out of his hand and told him that he would not hold anything like that and to get his "mother fucking black ass out of the tavern." Flax picked up the baton, began to walk out of the tavern, and said, "I'll be back." Flax testified that he then heard what sounded like a gunshot as he headed towards the door. He said he did not see who fired the shot or from what direction it came. No one else who was in the bar at the time and who later testified at the trial heard a gunshot. After hearing what he thought was a gunshot, Flax said he ran to his car and drove home.
Witnesses for the State, however, testified that Zip followed Flax out of the tavern and the two began to talk. Allegedly, the two were later joined by Zip's brother and Thomas Bolling who was an off-duty Chicago police officer. Bolling testified that, when Bolling and Zip's brother appeared outside, Flax said, "This is our conversation." Flax then left, and Zip, Zip's brother and Bolling went back inside the tavern.
Flax testified that he drove home, changed into an outfit worn during his jujitsu exercises, and obtained his 12-gauge shotgun which, at that time, he believed contained seven live shells. He placed another 10 live shells in his pocket, and he proceeded to walk back to the tavern.
Flax arrived at the tavern approximately five to eight minutes after he left the first time and, according to the testimony introduced by the State, there were about 20 people in the bar at that time. However, Flax testified that he only saw Bolling, Reynolds and the barmaid, Gertrude Nelson, upon reentering.
As Flax entered the tavern carrying his shotgun, Nelson shouted, "Look at this fool coming through here with this gun." Nelson testified that she then hid behind a chair while everyone else dropped to the floor. Nelson said that Flax moved the chair and pointed the shotgun directly between her eyes. He held the gun about one inch from the bridge of her nose and told her to move. Flax asked, "Where is that fat ass Zip," and then said, "Zip, I am for real. I don't play."
Meanwhile, Zip hid behind the ice machine located near the bar, and Bolling was crouched behind the bar and was holding his handgun, a .38-special automatic. Bolling testified that he heard a shot. At this point, Bolling said he stood up, took aim at the defendant and pulled the trigger. His gun misfired because there was no bullet in the chamber. Bolling ducked back behind the bar. Flax fired his shotgun towards Bolling which Flax claimed was intended as a warning shot in response to Bolling's attempt to shoot at him.
Bolling then placed a bullet in the chamber, jumped up, fired four or five rounds in rapid succession. Somehow he missed the defendant, and again ducked behind the bar. Flax walked over to the bar, stood on the footrail and shot Bolling as he was lying on the floor. The spray of pellets from the blast struck Bolling in his lower left back and hip. Flax then left the bar.
After Flax left the tavern, Zip got his handgun, a Smith & Wesson nine-millimeter automatic, and kept the weapon with him in case the defendant returned. One of the patrons in the tavern, Roy Reynolds, picked up Bolling's gun and left the tavern pursuing Flax. Reynolds spotted Flax in an alley putting the shotgun into a case and confronted him. Flax told Reynolds to go about his business; the matter did not concern him. The two began to argue and the argument soon escalated into a gunfight. It is disputed as to who shot first and how many shots were fired, but Reynolds fired his weapon at least once, and Flax' first shot struck Reynolds in the face. Flax' second shot struck Reynolds in the back. At this point, Reynolds proceeded to break off the encounter and ran south on St. Louis Street. He reversed direction and began to run north when Flax subsequently blocked his escape by that route. Flax then fired his third shot as Reynolds was running away. This shot struck Reynolds in the lower right arm near the elbow. Reynolds, thereafter, fell to the ground when struck by the fourth shot fired by Flax. The other police officers who had now appeared on the scene subdued Flax before he could fire again. Reynolds sustained wounds to the right side of his face, neck, back, abdomen, both thighs, right buttock, right elbow and forearm. He remained hospitalized for one month and was required to undergo three operations on his elbow and forearm.
John Ryan was one of the policeman dispatched to the scene. Ryan suffered eleven pellet wounds from the blasts which Flax had fired, and, although intended for Reynolds during their encounter, had struck Ryan as Ryan was pursuing Flax.
The police subsequently recovered the shotgun and 10 live shotgun shells from the street where they had subdued Flax. Additionally, the police also recovered three expended shotgun shells, as well as the gun used by Reynolds and Bolling.
From inside the tavern, the police also recovered one live and two expended shotgun shells. In addition, they recovered two pieces of shotgun wadding, and, from behind the bar, the police recovered five expended .38-caliber cartridges. Copper jackets and lead particles from bullets were discovered inside a fuse box on the wall. After the tavern patrons were transported to the police station ...