APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
511 N.E.2d 813, 158 Ill. App. 3d 415, 110 Ill. Dec. 636 1987.IL.1030
Appeal from the Circuit Court of Cook County; the Hon. James Schreier, Judge, presiding.
PRESIDING JUSTICE SCARIANO delivered the opinion of the court. STAMOS and BILANDIC, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO
Defendant-appellant Jeffrey Jarvis (Jarvis) was tried by a jury, found guilty of murder, and sentenced to 24 years in prison. On appeal, Jarvis presents the following issues: (1) whether the trial court committed reversible error by allowing witnesses to testify as to hearsay statements made by the deceased; (2) whether the State proved Jarvis guilty beyond a reasonable doubt; (3) whether the trial court committed reversible error in allowing a police officer to testify to the deceased's hearsay statements despite alleged discovery violations; (4) whether the trial court committed reversible error by refusing to submit a voluntary manslaughter instruction to the jury; and (5) whether the trial court committed reversible error by giving an accountability instruction to the jury while refusing to give defendant's instruction that mere presence at the scene of a crime is insufficient evidence of guilt. We affirm.
A review of the record discloses that at approximately 3:15 a.m. on August 4, 1983, Thomas Petty (Petty) was shot five times in his apartment at 4572 South Lake Park Avenue in Chicago. Two bullets struck his upper right arm, one penetrated his thigh, one went through his abdomen, and the fifth bullet tore through his genitals and lodged in his leg. Petty died two days later.
The testimony at trial revealed that approximately 3 1/2 hours before the shooting, Jarvis argued with Petty outside of the latter's apartment about a $6 bag of marijuana Jarvis had purchased from him which was supposedly "short" on quantity. Petty refused to give Jarvis a refund; a fight ensued, and by all accounts, Petty got the better of the brawl. Patricia Tate (Tate), Petty's girl friend, testified that she heard Petty and Jarvis arguing and observed Jarvis throw a garbage can at Petty. Petty, however, struck Jarvis in the head, opening a gash which caused blood to gush out over Jarvis' face. Jarvis left the premises with two friends, stating, as he was leaving, "I'll be back."
At approximately 3 a.m., Petty and Tate went to bed in the apartment they shared. Their bedroom was located approximately 20 feet from the kitchen, and the kitchen had a wooden and windowless back door, opening into a vestibule (or "hallway," as Tate described it), which in turn led to an outside porch and staircase. There was an exit light in the vestibule which provided enough illumination so that people could be seen there. Tate claimed that the light was always on.
Tate testified that they had been in bed approximately 20 minutes when Petty got up to get a drink of water. Suddenly, she heard the victim calling "Pat, Pat," from the kitchen, and when she ran to him she found Petty slumping over with blood spilling out from the front of his body. Noting bullet holes in the kitchen door, she asked Petty if he was shot by "the same dude" with whom he had been arguing earlier. Petty replied, "Yes." Tate then phoned the police.
Meanwhile, Chicago police officer Milton Hill and his partner were on routine patrol in the area of the shooting when he heard several gunshots. Shortly thereafter, he observed two men, one of whom was Jarvis, running "side by side" away from Petty's apartment building. Officer Hill sped up as close as he could to the two individuals, and when Jarvis slipped and fell, Hill's partner got out of the car and detained him. The spot where Jarvis had fallen was approximately 25 feet from a gangway which was the only way to get to the back entrance of Petty's apartment. The other person running with Jarvis escaped.
Jarvis was searched by the officers, but no weapon was discovered. Hill testified that when he asked Jarvis how he had received the cut over his eye, he claimed that he was just robbed and had been shot at, and he pointed in the direction of Petty's apartment. Jarvis could not describe the robber except to say that he wore a mask and was taller than he was. Jarvis also told Hill that he did not know the person who was running next to him. At that point, Hill did not believe he had any further cause to detain Jarvis, so he filled out a "contact card" and released him.
Shortly after resuming their patrol, the officers received word that a man had been shot at 4572 South Lake Park, and they proceeded immediately to the scene. They were met at the apartment by a police patrol which had also responded to the call. Officer Hill testified that upon entering the kitchen, he observed Petty lying on the floor "doubled" in pain with numerous bullet holes in his body. He bent down and asked Petty, "What happened?" Petty responded, "Jeff burned me, man. Jeff burned me, man. Get him." Petty also told Hill that he was opening the back door and tried to close it but "it was too late."
Hill then suspected that Jarvis was probably the man to whom Petty had referred when he said that Jeff had burned him; consequently, he and his partner left the apartment to search for him while the other police patrol remained at the scene. One of the officers remaining in the apartment was Officer Keating, who testified that he and his partner were the first to arrive at Petty's apartment. Upon arriving there, Keating saw Petty in the kitchen lying in a pool of blood which had apparently emanated from gunshot wounds. Keating testified that he asked Petty, "What happened, who shot you?" and Petty replied, "Jeff got me, Jeff burned me. Get him." Keating further testified that Petty told him that he heard a knock on the door, opened it, and saw Jarvis there with a gun in his hand. When Petty attempted to shut the door a shot rang out, and as he continued trying to shut the door, bullets kept coming through it, striking him. Keating stayed at the scene and recovered three bullets which lab analysis later indicated were fired from a .45-caliber automatic weapon. Keating did not reduce to writing what Petty had told him.
Meanwhile, Hill and his partner quickly located Jarvis as he was walking down the street. They put him in their squad car and drove him to the apartment, where Tate identified him as the man who had argued with Petty earlier. Jarvis was then taken to Area 1, Violent Crimes office, where he was given Miranda warnings and interviewed by Chicago police detective Robert Utter and Assistant State's Attorney Borenstein. Detective Utter testified that Jarvis gave an oral statement admitting that he and Petty were involved in a fight, after which he went to a nearby tavern and drank some beer; that he left the tavern and eventually went to Petty's apartment to purchase some marijuana; that he knocked on the back door and Petty opened it; that at that moment an unknown person reached over his shoulder with a weapon and began firing shots at Petty; that he then fled the scene by the back stairs, and was shortly thereafter apprehended by Officer Hill. Utter further testified that Jarvis averred in his statement that "wouldn't use a .45. If was going to shoot [Petty], would use a nine millimeter, and would kill him." Utter related that no one had ever mentioned to Jarvis that a .45 had been used in the shooting.
At trial, Jarvis testified that he was not angry with Petty after their fight despite the apparent ferocity of the altercation. Jarvis admitted that he said "I'll be back," but claims that he directed the statement at Petty's neighbor who had watched the fight. He admitted that he returned to Petty's apartment at approximately 3 a.m. to purchase marijuana. According to Jarvis, he partially entered the vestibule and knocked on Petty's door when he suddenly heard a voice behind him say, "Wait a minute." As the door opened, the voice behind him shouted, "[stick-up]!" Jarvis then saw the reflection of a gun, heard shots being fired, and fled the scene. Jarvis speculated that the unidentified "stick-up" man had been hiding in the vestibule as he entered it.
On cross-examination, Jarvis was asked how the "stick-up" man could have shot over his shoulder if he had been standing beside him, and Jarvis responded: "Because my shoulder is in the inner door. My whole body is not in the door, just one of my arms, around the corner of the door." Jarvis denied running away from the scene with another man when the police stopped him, ...