APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
522 N.E.2d 749, 168 Ill. App. 3d 349, 119 Ill. Dec. 87 1988.IL.429
Appeal from the Circuit Court of Cook County; the Hon. Lawrence I. Genesen, Judge, presiding.
PRESIDING JUSTICE LORENZ delivered the opinion of the court. SULLIVAN and MURRAY, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
In a jury trial defendant Thomas Healy was convicted of murder and received a 25-year prison term. On appeal he contends: (1) his indictment was based on perjured testimony and was obtained in derogation of his right to a preliminary hearing; (2) the trial court erroneously refused to instruct the jury on voluntary manslaughter; (3) the trial court erred when it limited defense cross-examination of a pathologist and barred the defense from introducing the exculpatory out-of-court statement of an unavailable witness; (4) the prosecution was erroneously permitted to present extensive and detailed testimony concerning defendant's flight from prosecution; (5) the prejudicial effect of certain life-and-death testimony and photographs of the deceased outweighed the probative value of that evidence and thus required its exclusion; (6) the prosecution improperly commented on defendant's failure to testify and his failure to produce a witness; (7) the trial court erred when, in response to a note from the jury, it paraphrased certain instructions for them.
We reverse defendant's conviction and remand for a new trial, finding that the jury should have been instructed on voluntary manslaughter.
The pertinent trial evidence was as follows. Three eyewitnesses testified concerning the confrontation between defendant and the deceased, James Barry, which occurred at about 8 p.m. on March 27, 1981 in Orland Park. None of these witnesses saw the start of this confrontation. As they drove into the parking lot of the Charley Horse Restaurant, all three witnesses saw the two men struggling with each other near the entrance to that establishment.
Daniel Ryskamp described what he saw as a "fight" between two men, subsequently identified by other witnesses as the defendant and the deceased, James Barry. According to Ryskamp the defendant was about 6 feet 1 inch or 6 feet 2 inches in height and weighed 190 pounds. Barry was about 5 feet 9 inches in height and weighed 160 pounds. After "a little bit of a struggle," defendant punched Barry in the head. Barry fell to all fours. Defendant looked at a third person, who was off to the side, then reached into his coat and pulled his hand back out. Barry struggled back to his feet. The two men grabbed each other by their coats and were struggling. Ryskamp lost sight of the men for a few seconds while the car in which he was riding circled the parking lot. He then saw the men by the parking lot entrance. They were still struggling "like in a hockey fight." He then saw Barry slump to the ground and heard a sigh. Defendant looked at the third man, smiled, and walked away with that man. Barry remained on the ground, unconscious and bleeding.
Ken Friedman testified that he saw the two men fighting and a third man observing. He stated that the two men were pushing and shoving each other. After he parked the car he saw Barry on the ground and the defendant and the third man walking away.
Curtis Surber described what he saw as a "scuffle." The two men were holding on to each other, but defendant was pushing Barry and seemed to have control of him. As the car approached the men, defendant pulled Barry back. They then "started back up." After the car was parked Surber saw defendant standing over Barry, with the third man behind him. The two men then turned and walked away.
Ken Friedman followed the defendant to the vicinity of a nearby department store, where he lost sight of him. After briefly searching inside the store he came out and saw the defendant. He halted a squad car and pointed out the defendant as one of those who had been fighting. When the police officer observed that defendant's right hand was covered with blood he arrested him. Several hours later the police found a knife about 30 feet from where defendant was arrested.
At the Orland Park police station defendant was found to have sustained a cut on his right hand. The officer who observed this also testified that defendant appeared to be partially intoxicated. Paramedics were summoned to treat the cut and they recommended having a stitch put in if the bleeding persisted. Defendant was then transported to the hospital for treatment of the cut. The nurse who treated him there testified that he told her he had cut himself on a knife.
James Barry was pronounced dead at the hospital that evening. The examining pathologist testified that he had three contusions on his upper lip, two stab wounds to his chest, and one stab wound to his abdomen. The multiple stab wounds caused his death. The pathologist also testified that the knife recovered by the police was consistent with an instrument that ...