APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
523 N.E.2d 150, 168 Ill. App. 3d 1020, 119 Ill. Dec. 682 1988.IL.543
Appeal from the Circuit Court of Cook County; the Hon. Themis Karnezis, Judge, presiding.
JUSTICE LORENZ delivered the opinion of the court. PINCHAM and MURRAY, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
Following a jury trial defendant Antonio McCarroll was convicted of murder and received a 25-year prison sentence. On appeal defendant contends: (1) the trial court erred when it refused to instruct the jury on involuntary manslaughter; (2) defendant was deprived of a fair trial when the prosecutor told the jury that accident was not a defense to murder; (3) other prosecutorial comments were also improper and prejudicial; (4) the prosecutor's cross-examination of the defendant improperly suggested that defendant was a drug addict; and (5) the prosecution improperly adduced evidence about the family of the deceased which was calculated to arouse the sympathies of the jury.
We reverse and remand for a new trial.
The pertinent trial evidence was as follows. Marvin Pittman testified that on April 8, 1984, he was working at a gas station in Chicago with the deceased, David Brown. At about 8:45 p.m. the defendant came into the station. Pittman had seen defendant at the station before but did not know his name or where he lived. Defendant asked Pittman for a pack of cigarettes, displaying a $20 bill. Pittman told him to wait for Brown, who had gone to the washroom. Instead defendant walked toward the washroom, meeting Brown on the way. Defendant apparently startled Brown and according to Pittman Brown was angry about this. Pittman stated that several hours earlier Brown had been drinking a small amount of whiskey. Brown sold defendant the cigarettes and gave him his change from the $20 bill before going outside to wait on a customer.
According to Pittman defendant walked up to a television set on the counter and asked Pittman if he wanted to buy another one. Pittman said no. Defendant took a few steps back, pulled out a gun, and threatened to kill Pittman if he moved. Defendant then took from under a counter a gun which, according to Pittman, Brown customarily kept there. Defendant asked Pittman if there was anything else in the gas station. Pittman said there was not. At this moment Brown rushed in and defendant turned the gun toward him. Brown grabbed defendant in a bear hug and Pittman heard a shot fired. When the two men fell against a soft drink machine, Pittman took Brown's gun from defendant's pocket. With Brown still holding him in a bear hug defendant fired a second shot. Brown fell and defendant ran for the door. Pittman shot at him six times as he fled. On cross-examination Pittman stated that earlier in the evening, while drinking, Brown had kept the gun in his belt.
The examining pathologist testified that the cause of Brown's death was a bullet wound to the chest, fired at close range. The decedent's blood-alcohol content indicated that he had consumed the equivalent of three to four shots of whiskey.
Testifying in his own behalf, defendant admitted that he walked to the gas station with a loaded .9 millimeter automatic pistol in his waistband. He stated that he had been jumped and stabbed the week before and the gun was for his protection. He went to the station, which he had visited 30 or 40 times before, to buy cigarettes. Defendant gave Brown $20 for the cigarettes but Brown refused to give him change, claiming to have only received $1. Brown swore at defendant and repeatedly told defendant to leave, but he refused to do so. Brown then walked toward where Pittman was sitting. In a window reflection defendant could see Brown reaching for a gun in his waistband. Defendant rushed Brown and grabbed him from behind, causing Brown's gun to fall to the floor. Brown broke defendant's grip, turned around, and grabbed defendant in a bear hug. Defendant then felt Brown lifting defendant's gun from his waistband. Defendant grabbed for the gun and they both struggled with it. They both had a hand on it when two shots went off in rapid succession. Brown fell to the floor.
Defendant testified that he went out the door about 10 feet. He was standing there, with the gun still in his hand, when Pittman came out and began shooting at him, striking him twice. Defendant fled, dropping his gun in an alley. Defendant stated he did not report this incident to the police because he was frightened. He admitted that he lied to a health worker at a clinic when he sought medical attention, telling her that he received his injuries by falling and cutting himself. He also admitted that when arrested he lied to the police, telling them that he had no gun and that it was Pittman who shot Brown when defendant was struggling with Brown.
Defendant also testified that the police saw a puncture wound which he had received in the earlier knife attack on him. However, in rebuttal two police detectives testified that they had not seen such a wound.
Defendant had been charged with two counts of intentional murder and two counts of felony murder. The latter two counts arose from charges of armed robbery, based on defendant allegedly taking Brown's gun from the counter at gunpoint, and attempted armed robbery, based on defendant then asking Pittman, at gunpoint, if there was anything else in the gas station. However, because defendant was acquitted of armed robbery and attempted ...