APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
539 N.E.2d 196, 183 Ill. App. 3d 473, 131 Ill. Dec. 843 1989.IL.545
Appeal from the Circuit Court of Cook County; the Hon. John J. Mannion, Judge, presiding.
Rehearing Denied June 14, 1989.
PRESIDING JUSTICE FREEMAN delivered the opinion of the court. McNAMARA* and RIZZI, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
Defendant, Rochelle Crum, was indicted for murder and armed violence arising out of the shooting death of her husband, Odie Crum. After a bench trial defendant was found guilty of both offenses and sentenced to concurrent sentences of 24 years for murder and six years for armed violence. Defendant appeals and raises the following contentions: (1) the murder conviction should be reversed, or alternatively, reduced to voluntary manslaughter based on self-defense or mutual combat; (2) the trial court erred in ruling that evidence of the victim's prior violent acts was admissible only if it was shown that defendant knew about them; (3) defendant was denied a fair trial by the State's questions and argument regarding insurance policies and property of the victim, where there was no evidence of a financial motive for the shooting; (4) defendant was denied a fair trial by the State's argument that accident and self-defense were mutually exclusive defenses; (5) defendant was denied the effective assistance of counsel where trial counsel failed to make an offer of proof, failed to cross-examine the only occurrence witness, and failed to present a coherent theory of defense; and where substitute counsel failed to order a trial transcript to prepare for post-trial motions; and (6) the conviction for armed violence must be vacated since there was only one physical act which formed the basis for the offenses.
For the reasons stated below, we affirm the conviction and sentence for murder and vacate the conviction and sentence for armed violence.
At trial the State called several witnesses. Anthony Crum testified that at 10:30 p.m. on December 31, 1984, his father, Odie Crum, who was the victim, picked up Anthony and drove to defendant's home. As Anthony and Odie entered the apartment, Anthony said hello to defendant. Odie asked defendant if she made the telephone calls she had to make. Defendant made no response. Anthony and Odie walked into the kitchen, where Odie took off his coat and hung it on a kitchen chair. Odie took off his shoulder holster, which held a gun, and placed the gun in the pocket of the coat hanging on the chair. Defendant then came into the kitchen and asked Anthony if he was staying the night. Anthony responded that he was, and defendant left the room.
Approximately 15 seconds later, defendant returned to the kitchen carrying a gun in her right hand. She pointed the gun at Odie and told him to "get out." Odie told defendant that the gun "won't settle anything," and defendant responded, "Get out." Odie grabbed defendant's right arm with his left hand. Defendant was attempting to keep the gun away from him. Odie unsuccessfully tried to grab defendant's other arm. They began "wrassling" and moved into the dining room, a few feet away from the kitchen. Defendant was swinging her left hand, attempting to hit Odie. Neither defendant nor Odie said anything as they struggled into the dining room.
Anthony remained in the kitchen, since he did not know "whether she was intending on using it [the gun] or not." As he stood in the kitchen, Anthony heard a shot. He started for the dining room, and then stopped and went back to get the gun from his father's coat pocket. As Anthony was going into the dining room, he heard another shot. The second shot came within five to six seconds of the first shot. Anthony did not see who fired the shots. When Anthony entered the dining room, he saw Odie standing over defendant, who "was sort of laying on a slant on the couch." Odie's hands were on defendant's wrists, and the gun was still in defendant's right hand. Anthony pointed the gun he was carrying at defendant, and told her to drop her gun. Defendant then said to Anthony, "Shoot me, shoot me." Odie told Anthony not to shoot her. Anthony then pried the gun from defendant's hand, while Odie's hands remained on defendant's wrists. Anthony stated that he did not see any injuries on his father, but the victim held his chest and told Anthony to call the police. Anthony went into the kitchen to call the police. The victim went into the bedroom. Defendant ran out the back door.
Martin Tully, a Chicago police officer, testified that at 10:16 p.m. on December 31, 1984, he and his partners responded to a call of a man shot at defendant's address. As Tully approached the building, Anthony Crum was coming outside, carrying a plastic bag that held a gun. Tully escorted Anthony back into the apartment, and Tully saw defendant sitting at the feet of the victim between the hallway and bedroom. Defendant stated, "I shot him, I shot Odee [ sic ]." Defendant was arrested and advised of her Miranda rights. After waiving those rights, defendant made a statement to police.
Tully stated that defendant told police that when the victim came home that evening, she asked him to get out. The victim told her he did not have to leave since it was his house. Defendant got a gun from the nightstand in the bedroom and went to the kitchen, where the victim was. She pointed the gun at the victim and again told him to get out. The victim refused to leave and a struggle ensued. The victim grabbed defendant and the two wrestled into the dining room when a shot was fired. Defendant was thrown onto the couch and the victim grabbed her arms. As they were struggling, defendant heard the gun go off a second time.
According to defendant's statement to the police, Anthony then approached defendant with a gun, put the gun to defendant's head, and told her to let go of the gun she was holding. Defendant told Anthony, "[Go] ahead and shoot me, I don't care." The victim took the gun from her and walked into the kitchen with it. The victim said, "Call the police, I'm shot." After seeing that the victim had been shot, defendant went upstairs and called an ambulance. When she returned to the first floor, the victim was lying on the bed. Anthony approached her and held her against a chest of drawers. The police then arrived.
Tully testified that when he entered the apartment, he saw the victim lying on his back on the bed. There was blood "all over" the victim's face and it appeared that two of the victim's teeth were missing. The victim appeared to have a gunshot wound at the upper right side of his mouth. Tully found no pulse on the victim, and called an ambulance. Tully also observed blood on the victim's chest and a cut in the web between the victim's index finger and thumb. The dining room floor had blood spatters on it, and there was a hole in the wall that appeared to be from a gunshot. A trail of blood led from the dining room to the kitchen. A .38 caliber gun covered with blood was on the kitchen table. The gun had been fired at least once and still contained a live round.
George Basile, a Chicago police detective, testified that he went to defendant's apartment some time after 10 p.m. on December 31, 1984. He was present in the apartment when the investigator opened the revolver found on the kitchen table. Two of the five cartridges were expended. The third round was not fired, but the primer was indented. Next to the indented round were two live rounds. Basile also was present at the police station when defendant gave a statement to an assistant State's Attorney, who prepared a written summary of defendant's statements. Defendant's statement of the incident was substantially the same as her statement to Officer Tully. Defendant told Basile that just after the shooting, she went upstairs and told her neighbors that she had a problem with her husband. Defendant stated that she never had any serious difficulty with her husband, although she had been arguing with him and having marital problems. Her husband never struck her. Defendant did not know what caused the problem that evening. Defendant also stated, however, that her husband did not let her go out or have friends over unless she told him first.
Michael McDermott, a Chicago police detective, testified that he arrived at defendant's apartment around 10:30 p.m. on December 31, 1984. At that time, defendant was in the apartment, clothed in a bathrobe. Defendant's clothing was not torn in any way nor did it have any blood stains. McDermott did not see any marks on defendant's person.
The parties stipulated to the testimony of two witnesses. If called to testify, Christine Kokocinski would state that she is a microanalyst for the Chicago police department. She performed microscopic examinations on the victim's shirt, and the tests did not reveal the presence of any gun powder residue. If called to testify, Richard Fournier would state that he is a firearms comparison and identification expert. He performed a test on the .38 caliber gun used by defendant, which test showed that gun powder residue was no longer appreciable at a muzzle-to-object distance of greater than 24 inches.
At the close of the State's case in chief, defendant moved for a directed verdict, which the trial court denied. Defendant then called nine witnesses who testified to defendant's good reputation in the community for honesty and peacefulness. Defense witness Zachary Ramey testified that he saw the victim carrying a gun numerous times and that the victim once pulled a gun on him. Defense counsel attempted to elicit testimony from Ramey that Ramey and others had borrowed money from the victim at high ...