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11/17/89 the People of the State of v. Erwin Daniel

November 17, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ERWIN DANIEL, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION

548 N.E.2d 354, 191 Ill. App. 3d 837, 138 Ill. Dec. 941 1989.IL.1796

Appeal from the Circuit Court of Cook County; the Hon. James M. Bailey, Judge, presiding.

APPELLATE Judges:

JUSTICE LaPORTA delivered the opinion of the court. McNAMARA AND QUINLAN,* JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LAPORTA

The defendant was arrested and was tried for the murder of Roger Tate and the attempted murder and aggravated battery of Darren Cooper. A mistrial was declared in defendant's prior trial. On retrial, the jury found defendant guilty of the murder of Roger Tate, the attempted murder of Darren Cooper and aggravated battery of Darren Cooper. The trial Judge imposed a sentence of natural life. After his motion for a new trial was denied, defendant appealed.

The defendant raises the following issues on appeal: (1) whether defendant was proven guilty of murder, attempted murder and aggravated battery beyond a reasonable doubt where he offered evidence to show he acted in self-defense; or (2) in the alternative, if the jury found he did not act in self-defense, whether defendant should have been found guilty of voluntary manslaughter, because at the time of the shootings, he believed the occupants of the car were armed and that his life was in danger and therefore he believed his actions were justified; (3) whether the trial Judge failed to properly instruct the jury that when defendant raised as his defense his fear of great harm from the victims and his resultant belief that his actions were justified, the burden of proof shifted to the State to prove that his belief in justification was meritless; (4) whether the court erred in refusing to permit investigating police officers to testify to defendant's statements made while in custody that the passenger in the back seat reached under the seat and pointed something black out the window at defendant; (5) whether the sentence of natural life imposed by the trial court without consideration of factors in mitigation violates the fourth, eighth and fourteenth amendments of the Federal Constitution; and (6) whether defendant was sentenced under the mandatory natural life statute.

Defendant and Calloway were arrested on charges of murder, attempted murder and aggravated battery. Defendant and Calloway made and signed sworn statements to an assistant State's Attorney while in police custody. Calloway was tried in a bench trial and acquitted. Defendant first was tried by a jury which was unable to reach a verdict. The court declared a mistrial.

These convictions result from the jury's finding the defendant guilty of the murder of Roger Tate and the attempted murder and aggravated battery of Darren Cooper in the defendant's second trial.

The relevant facts are as follows. On the evening of June 13, 1985, just prior to the shooting, Phillip Potter was driving his car west on 90th Street in the vicinity of Bishop and Laflin Streets in Chicago, Illinois. Darren Cooper rode in the rear seat, and Roger Tate was in the front passenger seat with his head leaning out of the window looking back at people on the street corner.

At the same time, defendant Erwin Daniel, Ricky Calloway and Andre Mosley were standing on the sidewalk on 90th Street at the alley between Bishop and Laflin Streets as Potter's car drove up. Defendant asked Tate "What . . . are you looking at?" Although testimony conflicts as to what precisely was said in response, the testimony is uncontroverted that defendant pulled a gun from his pocket and shot Cooper and Tate. Potter drove immediately to Little Company of Mary Hospital, where Cooper was treated for a gunshot wound to his elbow and Tate was pronounced dead from a gunshot wound to the back. Both defendant and Calloway were arrested the next day. While in custody they were given Miranda warnings and both gave signed statements to the assistant State's Attorney.

We first address the issue raised by defendant that the testimony of police officers Danzl and Baker regarding the defendant's statements to them after his arrest was improperly excluded and should have been permitted at trial. The trial court rejected defendant's offer of proof as to his statement to these police officers that the man in the back seat of the car reached under the front seat and then pointed something black out the window. The court noted on the record that the officers had been permitted to testify in the first trial to establish no recent fabrication in defendant's testimony at trial because the defendant had testified. The defendant did not testify at the second trial.

Police reports and similar material are generally held to be inadmissible hearsay when offered to prove the truth of matters asserted. (Williamson v. City of Springfield (1984), 125 Ill. App. 3d 361, 366, 465 N.E.2d 1035, 1039; Kyowski v. Burns (1979), 70 Ill. App. 3d 1009, 1014, 388 N.E.2d 770, 774; Walls v. Jul (1969), 118 Ill. App. 2d 242, 249, 254 N.E.2d 173, 176; Redding v. Schroeder (1964), 54 Ill. App. 2d 306, 314, 203 N.E.2d 616, 620.) Police officers may be allowed to testify about otherwise hearsay material upon which they have based further actions and investigation. (People v. Hunter (1984), 124 Ill. App. 3d 516, 529, 464 N.E.2d 659, 671; People v. Bryant (1984), 123 Ill. App. 3d 266, 275, 462 N.E.2d 780, 786.) Here the testimony of Officers Danzl and Baker was offered by defendant as a substitute for defendant's failure to testify at trial. There was no evidence that the officers based any investigation upon the defendant's statement.

The defendant argues that even if the testimony is hearsay, it should be admitted as either a state-of-mind exception or to prove that the statement was made. While a third party may testify that a certain conversation took place, the third party may not testify as to the contents of that conversation. People v. Jackson (1979), 72 Ill. App. 3d 231, 237, 390 N.E.2d 47, 52; People v. Finley (1978), 63 Ill. App. 3d 95, 100, 379 N.E.2d 645, 648.

Under certain circumstances, hearsay evidence may be admitted to inform the jury of the defendant's state of mind at the time the acts with which he is charged occurred, but it may not be used as evidence of the contents of any statements made. In People v. Britz (1986), 112 Ill. 2d 314, 493 N.E.2d 575, cited by the defendant, tape recordings of conversations the defendant had with a witness were offered to show the voluntariness of his confession, but not for the contents of that confession. (Britz, 112 Ill. 2d at 320, 493 N.E.2d at 577.) Here the defendant attempts to offer the hearsay testimony to show his state of mind at the time of the shooting.

In People v. Kline (1980), 90 Ill. App. 3d 1006, 414 N.E.2d 141, the court noted that "defendant's state of mind at the time of the occurrence is a material issue and is a proper subject of examination." (Kline, 90 Ill. App. 3d at 1014, 414 N.E.2d at 146, citing People v. Harris (1956), 8 Ill. 2d 431, 436, 134 N.E.2d 315, 318, and People v. Pernell (1979), 72 Ill. App. 3d 664, 668, 391 N.E.2d 85, 88.) The court in Kline held that the defendant should have been able to testify as to his state of mind at the time he acted. There the defendant was a police informant, was aware that he was placing himself in a dangerous situation (Kline, 90 Ill. App. 3d at 1009-10, 414 N.E.2d at 143), and shot only after the assailants continued to attack despite warnings, when a shotgun was pointed at the defendant. (Kline, 90 Ill. App. 3d at 1011, 414 N.E.2d at 144.) Because the defendant here did not testify, the Kline case does not apply.

We find no error in the trial court's refusal to permit the investigating police officers to testify at the second trial since the only basis for offering their testimony was to disprove recent fabrication by defendant at trial. In the absence of any trial testimony from defendant, their testimony was inadmissible.

The defendant next argues that he should not have been found guilty because he acted in self-defense.

"A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another . . .." Ill. Rev. Stat. 1985, ch. 38, par. 7-1.

Inasmuch as self-defense is an affirmative defense, defendant is required to offer sufficient proof to show that force is threatened against the defendant, that the defendant when threatened was not the aggressor; that the danger of harm to defendant is imminent; that the force threatened is unlawful; that the defendant when threatened must actually believe that a danger exists; that his use of force is necessary to avert the danger; that the kind and amount of force which he uses is necessary and that these beliefs are reasonable. Where the defendant uses deadly force he must believe that the threatened force will cause him death or great bodily harm, or that the force threatened is a forcible felony. People v. Carter (1985), 135 Ill. App. 3d 403, 409, 481 N.E.2d 1012, 1017, citing People v. Williams (1965), 56 Ill. App. 2d 159, 165-66, 205 N.E.2d 749, 752.

At trial, the State's witnesses Cooper and Potter testified that no one in the car spoke any gang slogans, but that when defendant shot into the car he shouted "Insane Vice Lords." Both Cooper and Potter denied that any of the men in the car had a gun. Calloway testified at trial that, earlier on the day of the shooting, defendant met Calloway and Andre Mosley and at defendant's request Calloway gave defendant a .25 automatic pistol. After the shooting, the police, based on Calloway's instructions, recovered the gun from Calloway's home, where he testified he had hidden it at defendant's request. He also testified that at the time of the occurrence he saw no gun or other weapon in the victim's car, that the defendant told him the person in the back seat of the car looked "like he was pulling up a gun," so defendant shot into the car.

Calloway's sworn statement to the assistant State's Attorney was read into the record. In his statement Calloway stated that defendant "and one of the guys in the car said something about GD, meaning Gangster Disciples and Erwin reached for his gun, pulled it out and fired two shots." Calloway also stated that "I never saw [a] gun or other weapon in the car where the guys were shot.

At trial, the defense offered evidence to show that defendant was defending himself from what he believed was a gun. While defendant did not testify at trial, his signed statement made to the assistant State's Attorney at the time of his arrest was read into the record without objection. In his signed statement defendant stated that somebody in the car had said "GD," which meant Gangster Disciples, a rival gang to the Vice Lords, before the defendant fired the gun into the car. The defendant claimed that Cooper said he was a member of a rival gang, and may have pointed something at defendant, at which point defendant shot into the car while calling out the name of his street gang. The statement in defendant's own words was "I thought because [Cooper] was a Gangster Disciple, he would have a gun. I never saw a gun, though."

Here the testimony of those present at the time of the shooting established that the defendant was not in a clearly dangerous ...


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