APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE WILLIAM J. HIBBLER, JUDGE PRESIDING
The opinion of the court was delivered by: Gordon
JUSTICE GORDON delivered the opinion of the court:
Following a jury trial in the circuit court of Cook County, defendant, Chris Ciavirelli, was convicted of second degree murder. Defendant appeals his conviction and his sentence of thirteen years in the Illinois Department of Corrections.
At approximately 12:30 a.m. on September 24, 1988, a group of eight to twelve young men (hereinafter "the group") left a party on Cicero Avenue near Milwaukee Avenue in Chicago. The group included some members or former members of a gang known as the Simon City Royals (Royals), some members of the Avers Boys Organization (ABO), a gang friendly to the Royals, and some young men who were not members of any gang. The group walked together down Milwaukee Avenue toward the home of one of the men, William O'Dell, who lived east of Pulaski Avenue. The area west of Pulaski, where the party was located, is reputed to be the "territory" of the Gaylords gang, rivals of the Royals. Because some of the men carried open beer cans, the group left Milwaukee Avenue and walked eastward down side streets through what was considered Gaylord territory. Several of the witnesses testified that as they walked the group was split into two smaller sub-units of approximately equal size, separated by a space of 25 to 50 feet.
Defendant and a tall blond haired man were on the front porch of a home at 4040 W. Roscoe, on the northeast corner of Roscoe and Karlov, as the group approached on the opposite side of the street. Apparently, all of the first sub-unit and some of the second sub-unit crossed to the side of the street where defendant was. The others remained on the opposite side of the street. At trial, four of the men in the group testified to the events which followed.
Bruce Williams, formerly a Royal, testified that as he and other members of the group neared the house, he heard cursing and the exchange of gang words between two men on a porch and certain men in the group which he did not name. One of the men on the porch was approximately 5'9" tall, dark haired, weighing about 160 pounds (identified as defendant) and the other man was about 6'3" tall with long blond hair. The men on the porch yelled something about the Gaylords. Some of the men in the group, including Taek Su Chi, stood on the sidewalk in front of the porch, at which time Taek Su Chi threw a half empty beer can which hit defendant in the face. Defendant then started shooting "randomly at anyone" in the group, firing about six shots altogether. The group scattered and defendant went inside the house. Williams and John Morris fled together down the alley.
John Morris, also a former Royal, testified that as he and the others approached, he heard "gang slogans being said back and forth," the men on the porch yelling "Gaylords" and "Royal Killers." His view was partially blocked by bushes. He saw defendant and another man standing on the porch, defendant with a jacket over his wrist. Defendant "drew the right arm to the jacket and then brought it straight out and just started firing at random into the crowd." He did not see a beer can thrown.
William O'Dell and Taek Su Chi both testified that, as they approached Roscoe and Karlov, the defendant and a blond man yelled "almighty Gaylords" while they were standing on the porch. Defendant had a jacket draped over one arm. O'Dell stated that defendant "started reaching for something under his jacket and then he started shooting when someone threw something at him." O'Dell said he thought the object thrown was a beer can which hit defendant. Defendant then stumbled back as he pulled the gun, extended his hands in a shooting position, and shot four or more times, pointing the gun first in one direction, then at O'Dell. A bullet went through O'Dell's jacket, although O'Dell was not injured.
Taek Su Chi, an ABO member at the time of the shooting, testified he was in the front sub-unit. As he walked to the sidewalk in front of the porch, he saw defendant reach under a white jacket which was draped over his arm. He then threw a beer can at defendant. Defendant then stepped back and started shooting, pointing the gun at Chi and then "into the crowd", firing "around four, five shots."
All of the foregoing witnesses testified that no one in the group carried a weapon that night. They each ran to O'Dell's house when the shooting started. There, O'Dell called the police for an ambulance on behalf of one of their companions, Oscar Martinez, who had been shot.
All four men made in-court identifications of defendant as the dark haired man on the porch who shot the gun. The tall blond man on the porch was never identified in the record.
Officer Rutherford of the Chicago police department testified that as he and his partner drove to the 4000 block of Roscoe to answer a radio call of a man shot, their car was flagged down one-half block from the scene of the shooting. There the officers found Michael Piazza, with a gunshot wound in his back from which he later died.
Manuel Nieves, who lived nearby, was the only witness for the defense. He stated that as he and his sister-in-law arrived home at approximately 1:00 a.m., they saw five or six young men running east on Roscoe toward Pulaski. He saw no weapons among this group. As Nieves and his sister-in-law crossed the street to enter their house, they saw three men come out of an alley, one a blond in a green jacket with a gun in his right hand. Nieves called the police who then came and took him to 4040 W. Roscoe where defendant was. Nieves testified that the defendant was not the man he saw coming out of the alley with a gun.
Chicago police department detective Allen Jaglewski testified during rebuttal that he questioned Manuel Nieves that night and that Nieves then identified defendant as the man who came out of the alley with a gun. Detective Jaglewski also testified that Nieves never told him the man with the gun had blond hair.
Defendant was arrested that night and was identified in a lineup later in the day by Taek Su Chi and Bruce Williams. Defendant was charged with first degree murder and armed violence in the death of Michael Piazza and with attempted first degree murder, armed violence, and aggravated battery in the shooting of Oscar Martinez. All counts were nolle prossed except for the first degree murder charge arising from the death of Michael Piazza. After a jury trial defendant was found guilty of second degree murder and was sentenced to a term of imprisonment of thirteen years.
On appeal, defendant asks that his conviction be reversed and the cause remanded for a new trial based on his contention that the trial court committed reversible error by (1) refusing to admit evidence of prior violent acts by any of the men in the group; (2) refusing to instruct the jury on the offense of involuntary manslaughter; (3) prohibiting cross-examination of William O'Dell regarding possible pending violations of probation; and (4) refusing to admit a transcript of the 911 police tape recorded the night of the shooting. In the alternative, defendant contends that his sentence was excessive and asks this court to reduce the sentence or remand the cause for a new sentencing hearing.
Defendant first contends that the trial court erred in granting the State's motion in limine precluding the admission of evidence of prior violent acts by members of the group against members of the Gaylords, a gang to which defendant apparently belonged. The written motion is not contained in the record. However, it is apparent from the record of the oral argument on the motion that the State sought to preclude defense counsel from eliciting any evidence, either by cross-examination of State's witnesses or by direct testimony of defense witnesses, to establish commission of violent acts against Gaylord members by certain prospective State's witnesses.
It is also clear from the colloquy that none of the alleged prior incidents directly involved the defendant or, for that matter, the victim, Michael Piazza. Moreover, defendant did not dispute the State's contention that none of the incidents were known to defendant at the time of this occurrence on September 24, 1988.
In opposing the motion in limine, defendant argued that he had subpoenaed three Gaylord members who would testify to an incident in November, 1987, in which Bruce Williams, who testified for the State, and Scott Van Fleet who, with Williams, was present at the shooting on September 24, 1988, along with other Royals allegedly entered the High Ho Restaurant with baseball bats and other weapons and smashed the finger of a Gaylord gang member, James Wood. Defense counsel stated that this incident was documented in a police report which was filed, but that he was not certain whether any arrests were made or any convictions were obtained ...