APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
532 N.E.2d 511, 177 Ill. App. 3d 544, 126 Ill. Dec. 826 1988.IL.1849
Appeal from the Circuit Court of Cook County; the Hon. Themis N. Karnezis, Judge, presiding.
PRESIDING JUSTICE WHITE delivered the opinion of the court. McNAMARA and RIZZI, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE
Following a jury trial, defendant, Willie B. Cunningham, was found guilty of voluntary manslaughter and sentenced to a prison term of seven years. On appeal, defendant contends that: (1) the State did not prove him guilty beyond a reasonable doubt; (2) he was deprived of a fair trial because the trial court, sua sponte, gave Illinois Pattern Jury Instructions, Criminal, No. 2.04 (2d ed. 1981) (hereinafter IPI Criminal 2d No. 2.04) to the jury; (3) he was deprived of a fair trial because of prejudicial and inflammatory statements made by the State's Attorneys; and (4) he received an excessive sentence because the trial court believed that he should have been charged with murder instead of voluntary manslaughter. We affirm.
Following is a summary of the evidence adduced at trial.
James Baskin testified that, on December 16, 1985, he was employed as a bartender at Baby O's Lounge (the Lounge). The Lounge is located at 1348 East 47th Street, Chicago, Illinois. At approximately 11:45 p.m., Mr. Baskin was standing in the center of the bar, waiting on patrons. He observed decedent, Danny Price, walking in the direction of the washroom, with defendant approximately 20 feet behind. A few seconds later, he heard a shot from the direction of the washroom. He looked toward the washroom and observed defendant walking from the direction of the washroom. Mr. Baskin testified that he first saw defendant when defendant was about 10 feet from the washroom. The washroom is 20 feet or more from the end of the bar. Three of four patrons were standing by the end of the bar. However, no other patron was in the area of the washroom. Defendant walked through the Lounge, exited the premises, and drove off in a grey Buick.
Mr. Baskin testified that there were about 25 to 30 patrons in the Lounge. He did not see whether decedent or defendant entered the washroom first. He also did not see whether defendant entered the grey Buick on the driver's side or on the passenger's side.
On cross-examination, Mr. Baskin testified that the washroom was only big enough to accommodate one person comfortably. At the time of the incident, he was engaged in a conversation with a patron at the bar. The tables and bar were full and there were patrons in all parts of the Lounge. Mr. Baskin also testified that he had never seen defendant argue with, or strike, anyone before.
On redirect examination, Mr. Baskin recalled testifying at a preliminary hearing on January 10, 1986, that decedent went into the washroom and defendant followed approximately 10 seconds later. However, he could not remember testifying at the hearing that decedent went into the washroom first and that both decedent and defendant entered the washroom. He also could not remember telling detective Leo Wolkosz that defendant entered the Buick by the passenger door and that a third person actually drove the car.
Betty Coleman testified that she was a very close friend of decedent. She was talking with decedent in the Lounge on December 16, 1985. At approximately 11:40 p.m., decedent told her that he was going to the washroom. Decedent walked toward the washroom, and she walked toward the front of the Lounge. She then heard a noise like a firecracker. Someone called decedent's name. She turned and walked toward the washroom. She saw defendant coming from the opposite direction. Defendant walked past her very fast and, as he did so, he removed his right hand from the left side of his jacket.
Michael Gerber, an assistant State's Attorney, testified that he interviewed defendant on December 18, 1985. He advised defendant of his constitutional rights and asked him if he understood his rights. Defendant indicated that he did. Defendant then made an oral statement and signed a statement recorded by a court reporter.
Mr. Gerber was allowed to publish the statement recorded by the court reporter. In the statement, defendant said that he first saw decedent a week before the shooting. At that time, he had an argument with decedent outside the Lounge. Decedent approached him with a knife in hand and told him that "he was going to fuck [him] up." Defendant stepped away from decedent. Defendant did not hit decedent nor was he hit by decedent. Defendant stated that he had a second argument with decedent the Friday before the shooting. During the argument, decedent described to defendant what he was going to do to him. Decedent told defendant that he was not afraid of him. Defendant replied that he was not scared of decedent. Defendant then apologized to decedent and said that he was "through with it." Defendant stated that on the night of the shooting, he arrived at the Lounge between 5:30 p.m., and 6 p.m. He was talking with J.C. and watching a card game in the front of the Lounge when decedent approached them. Decedent told J.C. about the argument between decedent and defendant. Defendant told J.C. that he was through with the argument and he did not have anything against decedent. Decedent explained to J.C. what he was going to do to defendant. J.C. told decedent not to do anything to defendant and told defendant not to do anything to decedent. Decedent then walked away. Defendant stated that, later in the evening, he was using the urinal when decedent entered the washroom. Defendant was "kind of frightened." Decedent had his hand inside his pocket. He said to defendant that he was going to "fuck him up." Defendant whirled around, removed a .38 caliber revolver from the right side of his waistband, pointed the revolver at decedent, who was standing approximately one foot from defendant's left side, and shot decedent in the face. Defendant explained that decedent did not try to hit him or touch him. Defendant said that after the shooting, he was nervous and ran out of the Lounge.
Police officer Thomas Code testified that on December 16, 1985, at approximately 11:44 p.m., he responded to an assignment that a man had been shot in the Lounge. He arrived at the Lounge two to three minutes later. He was directed to the rear of the Lounge, where he observed a man lying on his left side on the floor, with his head facing the Lounge, and his feet inside the washroom. Officer Code protected the scene until the crime lab detectives and the coroner's office arrived.
On cross-examination, Officer Code testified that there were approximately 25 to 30 patrons in the Lounge. The washroom is about 10 to 15 feet from the back of the bar. There were stools at the back of the bar and tables to the right side of the end of the bar.
Dr. Joanne Richmond testified that she is employed by the Cook County medical examiner. She is a licensed physician and forensic pathologist. On December 17, 1985, she performed an autopsy on decedent. Her external examination of decedent revealed a bullet entry wound in the inner corner of decedent's right eye. Her internal examination revealed multiple fractures in the top and back of the skull. She observed a gunshot wound tract extending from the right side into the back of the left side of the brain. She recovered a deformed bullet and a smaller metallic fragment from the left side of the brain. In her opinion, decedent died of a gunshot wound to the head.
Dr. Richmond further testified that she performed certain tests to determine whether gunpowder was present on decedent's skin and the distance from which the bullet was fired. She found gunpowder and soot on decedent's skin. As a result of the tests, she concluded that the gun was one-quarter of an inch from the skin, if not in contact with the skin, when the bullet was fired.
On cross-examination, Dr. Richmond testified that she sent blood, urine and bile samples from the decedent to the lab for toxicological analysis. All three samples were positive for alcohol. Dr. Richmond also testified that the ...