*1 weight sufficiency of the credibility evidence and witnesses is for determination the trier of fact v. (People Akis 733) 347 N.E.2d and that will determination not be reversed improbable unless the evidence is so as to create a reasonable doubt of guilt. Yarbrough 67 Ill. 2d 666; Ill. Stringer presented evidence by this record does not raise reasonable doubt as to defendant’s guilt. reasons,
For the foregoing judgment of the trial court is affirmed. Affirmed.
SULLIVAN, WILSON, J.,P. J., concur. ILLINOIS, THE PEOPLE OF Plaintiff-Appellee, THE STATE OF MILTON, Defendant-Appellant. WILLIE (4th Division) First District No. 76-1148 Opinion May filed *2 LINN, J., dissenting. Echeles, Chicago, appellant. Lucius of for
Julius Carey, Attorney, Chicago (Lee Hettinger, Pamela Bernard State’s T. of counsel), Gray, Attorneys, Ira of for Raphaelson, Louise H. Assistant State’s the People.
Mr. ROMITI delivered opinion of the court: JUSTICE Defendant Willie Milton was indicted on two counts for the murder Johnson, Wilson, Freddie battery two counts for the Johnny and one count attempt for the jury murder of Wilson. After a trial guilty was found voluntary manslaughter charge aggravated battery of Wilson. He was sentenced 6to to years *4,000 and fined voluntary on the manslaughter conviction and *1,000 sentenced to a concurrent years term of to 9 and fined on the aggravated battery appeal conviction. On defendant seeks reversal of his voluntary manslaughter conviction (1) based on four contentions: evidence does not sustain a voluntary manslaughter; (2) conviction for should not have voluntary manslaughter; received instructions on (3) force; properly justifiable (4) was not instructed on use of trial court improperly prevented defendant from a crucial impeaching prosecution witness with prior conflicting statements. The third and fourth contentions urged by are also in seeking reversal of his conviction for aggravated battery.
We reverse defendant’s convictions and trial. remand for a new The issues appeal summary raised on necessitate a relevant testimony. State, Knox, eyewitnesses Three Eugene testified for the Davis, Walter and Johnny Wilson. Knox was the owner of a hardware store at 628 South in Chicago. Pulaski On October Knox was *3 defendant, Wilson, the store after hours with Johnny Johnson, Freddie Davis, and two or They gambling three others. had been with cards and beer, drinking though no 9 p.m., one was drunk. Between and when store, Knox was in the back of his he heard two shots. He went to front Wilson, of the store and saw standing gun with a in his hand. sitting counter, who was on a something said which to defendant Knox said, “Pal, could not you hear. Defendant must want some too” and shot Wilson, who fell over the back side of the counter. Knoxmoved closer to the front door and asked defendant him. As approached not to shoot he he saw Freddie lying police on the floor. At that time a officer Johnson At entered. no time that day weapon possession did Knox see a Wilson or The defendant did not with a come into the store Johnson. day, woman that nor did Knox recall hearing make offensive Johnson remark to a accompanying woman the defendant.
Walter Davis testified he went to the store between 7 and 7:30 the Knox, defendant, evening. Johnson, In the back room were Freddie others, and a number of a including one woman. When Davis arrived dice game started. There was was there. About 8:30or drinking no while he game up broke and broke. because defendant had won the others were Everyone began Johnson, to leave when defendant and Freddie who were three feet apart, argue. started at defendant and swore Johnson if this was asked Defendant on the corner. him not to come back told that he should repeated and at the defendant again threat. swore Johnson his hand stmck that comer. Defendant not come back to Johnson and gunfire point him. At this there swearing at kept and Johnson a gun saw in his hand. He never gun had the Davis saw up ran hand, Knox strike defendant. nor did he see Johnson Johnson’s him. store, to shoot telling defendant not from the rear of the defendant, but when feet from the Wilson had been three or four Wilson, had there who against a counter. From gunfire started he moved hands, again. shoot nothing in his told defendant not Johnson it” and then Davis if wanted “some of Defendant asked Wilson he did not the counter. Davis gunfire. heard Wilson was hit and fell behind money; did losing nor anyone complained if to the defendant about know pockets. anyone put he see their hands had p.m. 7:30 He at the store about Johnny Wilson related he arrived drink there. and had one alcoholic playing pool nearby been with friend Knox, Davis, and some others back He went to the office where Johnson gambling came in. No They talking when defendant present. were joking teasing place was there. Some drinking or took while Wilson then young lady went on who was with defendant. about Johnson have left her if he was afraid for the woman he should told defendant take her to the car. car. did not have to responded Defendant he take going if said he should have he was afraid someone Johnson the office. The began everyone leaving her. This conversation as pulled store defendant part woman left the store. In the main head, leave the pistol put it that he did not have to saying to Johnson’s head and gun away woman He outside. took the Johnson’s Johnson out back play way. pulled told him he should not him as well shoot might told he slapped of his belt Johnson. Johnson him. Defendant going slap pull pistol him if was him and he as might said he responded that did him and not have to shoot Johnson want, you pal” well. Defendant said “If that is and shot what Johnson he himself weapon three times. Wilson never saw with a nor was that. why he had done armed. After the Wilson asked defendant Wilson, too, fell who pal” Defendant said “You want some shot pleading sitting. He heard Knox behind the counter on which he had been testified that police arrived. Wilson to be shot and then the *4 ever ripped and neither he nor defendant’s slacks were not Johnson touched the defendant. that two body determined pathologist who examined Johnson’s front, him, about three other in
bullets struck one behind the ear and the was the cause to the head inches above the belt. The bullet wound death.
Testifying eyewitnesses, Sprawls, for defendant were two Marshall Beverly, Sprawls Alex and the defendant himself. Marshall testified he drawer, placed gun arrived at the he had in p.m. store about He Knox’s rear, people gambling then went to the office the where were with dice. drink, Knox, Sprawls drinking did not but were and and others Johnson 6:20 young Wilsonwere drunk. WillieMilton arrived with a woman about gambling Sprawls and until *500 continued 8:30. won and defendant won kept swearing even than that. Freddie at defendant and more Johnson asking money, game up him for but defendant When broke refused. Sprawls and money. left to collect some When he returned defendant store, part arguing, were in the main and Wilson was Johnson sitting f_.” m_- money, you on the counter. said “Give me Johnson Sprawls him him Then heard Defendant told to leave alone. defendant and say, my pocket.” defendant “Get out of Johnson back, together point; close at this reached behind his where he Johnson gun, jumped got had a and started. Wilson off the counter and Sprawls into “tussle” with defendant and hid behind the Johnson. shots; came counter. He heard a total of three after the third shot Wilson police. Sprawls back over the counter. ran and was detained 4:30, Beverly going Alex at the store between 4 and into arrived Wilson, defendant, and a man. join Johnson, back office to fourth about an Gambling going Beverly participated on and for with dice was argued and about During and a half. this time defendant hour Johnson 5:30and picking up money. Beverly left around kept fact that Johnson money, a ask for returned at about 8:30. He heard defendant Johnson swearing at began refused. and defendant request defendant Johnson counter, Wilson, sitting get each other. who was on the said “Go ahead door, you money.” began some of that to walk to the [sic] him give kill him if left said he would he because he would not Johnson him and swore at any money. Defendant turned from the door Johnson (defendant) again money. demanded Defendant refused and said he lady to respect lady. for He then asked the would have more Johnson’s for premises complied. leave the and she When defendant started leave, you “If kill saying him not to also I don’t the door asked Johnson here, I’m kill Defendant turned back going you on the streets.” him. why threatening asked he was Defendant told Johnson Johnson go ahead money. him his Wilsonthen told give did not have to Johnson saying money. Johnson, swearing get some back, behind his give money, him reached going defendant was and he and Wilson came off the counter pushing jacket aside. During struggle with the defendant. began struggling see shots but did not my pocket.” Beverly heard three yelled “Get out of door, bymet ran where he was happened what because he out the
1047 police. Beverly drinking denied at that he while the store. He also testified never gun saw a in anyone’s night. hand that He,
Defendant testified that he arrived at the store about noon. Johnson, Knox and played some others cards till about 3. Later dice game began. During game argued the dice with defendant about Johnson (Johnson’s)right his money. to hold the playing was not but he Johnson swore defendant and right money. asserted his to hold the At 5:30 left, in returning 40 They about minutes with a woman friend. went into the back office joined game progress. were defendant a dice in Sprawls Defendant and in game quit were the winners and defendant at about 8:30 with *625. began He to walk out but of store Johnson followed, him cursing and demanding money. Defendant refused and told him if he did not him going let have it defendant to Johnson live to get out of the store. Defendant indicated his intention to live and refused, at him swore and money. demanded Defendant Johnson stating he did him any. not owe When defendant refused another demand for money approached to within two feet and reached his under Johnson coat. grabbed hands. ran Wilson over and reached Johnson’s into pants defendant’s left pocket. pocket The pants and seam were tom down to wrestled, defendant’s they knee. As with defendant to trying hold on to his money, gun discharged slumped three times. to Johnson the floor and Wilson fell behind the counter. Defendant had not see a but he had felt one police hand. picked The entered and Johnson’s gun off the floor. Defendant denied having anything night. drink that
Defendant had also testified that he pants wore his their tom condition days for several jail following his arrest. To rebut this testimony the State elicited testimony Triggs OfficerEdward who saw the defendant at police station on the day shooting and noticed nothing unusual about his pants pocket left and seam.
I. Contrary contention, to defendant’s we find that this amply record supports a finding that defendant voluntary manslaughter. committed was instructed on voluntary two alternate theories of manslaughter: killing acting while under a passion sudden and intense resulting provocation (Ill. serious Rev. Stat. ch. 9— par. 2(a)), killing in the unreasonable belief that justify circumstances act. (Ill. Rev. Stat. par. 2(b).) ch. There was evidence 9— presented that defendant and the quarreled deceased had in the earlier day and that just before the an argument began again. The deceased repeatedly and, swore at the defendant according to the testimony Beverly Sprawls, began fighting. the two that Evidence under acting
a defendant who killed individual was a sudden passion person intense caused has been struggle a violent (People support finding voluntary manslaughter. held sufficient to Goolsby 871.) Alternatively, N.E.2d testimony life defendant’s own tended to that he establish believed danger rob attempting and that deceased him. may have this exent believed they may his fears under the have determined were unreasonable killed fact that a circumstances. Where trier of finds necessary deadly another the unreasonable belief force was justified. himself, protect finding voluntary manslaughter Smith It is function not our *6 the on review to substitute our of these matters those of determination for where, case, as the fact as in that is jury trier of this determination v. People McCord supported by (1977), App. 3d the evidence. People Davis 13; 33 N.E.2d (1975), App. 361 N.E.2d Ill. 3d 337 256.
II. both jury asserts it was error instruct the on also to of indicating that defense manslaughter, citing theories of cases a of and intense negates deliberate an inference sudden self-defense 394; Parker (People v. App. 3d passion. Clark 15 N.E.2d But those Ill. Parker only a inapposite. supported cases are In defendant’s evidence self-defense, theory clearly of State’s showed while the evidence support unprovoked by him. court no evidence to attack found passion on and intense proposed defendant’s instruction sudden rejection of it. In Clark the consequently no error in the trial court’s found voluntary murder convicted of charged defendant was theory. The passion manslaughter the and intense under sudden passion, noting that of such reviewing found no evidence court of negate an inference also tended to defendant’s claim of self-defense defendant’s passion. the State had rebutted sudden intense Because self-defense, voluntary manslaughter theory neither claim of jury No instructions defendant’s conviction was reversed. established and a In the case judge. the been before were at issue because cause had tried himself by the defendant bar we that offered have noted evidence that belief finding a that he acted in the unreasonable support tended to himself; two other he had to the other hand defend on that found establish defense witnesses could have been Whether passion. acting a sudden and intense provoked and under resolution depended jury’s on form the crime was committed either instructing jury judge trial did not err Accordingly of the facts. objections to those instructions. despite on both theories People v. People Vega 718; Ill. see Taylor (1967), 36 Ill. 2d 483, 224
III. fully failure to the trial court’s complains However defendant also force. The State submitted justifiable instruct use of following instruction: force when and to the extent person justified
“A is the use of defend necessary is reasonably believes that such conduct unlawful against himself the imminent use of force.
However, is intended person justified in the use of force which only reasonably harm if he likely great bodily or to cause death or or necessary prevent imminent death believes such force is great bodily harm to himself.” person (Illinois
This is the IPI instruction on use of force in defense of Instructions, Criminal, except that it omits Jury (1968)), Pattern No. 24.06 provision deadly may prevent also be used to force felony. commission of a forcible just at trial that had won presented
There was evidence
repeatedly
substantial amount of cash. The deceased
demanded some of
money,
struggle
this
then
in a
joined by
reached for
and was
Wilson
with defendant. During
struggle
Wilson reached into defendant’s
pocket,
may
attempted
money.
while defendant
hold on to
resisting
have
believed that this evidence established that defendant was
robbery
would
deadly
doing
Although
finding
but used
force
so.
this
1975, ch.
*7
(Ill.
law
Stat.
acquittal
have mandated
under Illinois
Rev.
unless
par.
1),
jury
permit
did
such a result
instruction to the
7—
great
in
they
reasonably
also found that defendant was
fear of death or
effect,
bodily
jury,
incorrectly
harm.
in
instructed on the extent
was
People
of the
justifiable
defense of
use of
force. This
reversible error.
v. Wright (1974), 24 Ill. App.
Bailey
52;
15 Ill. App. 3d
substantial and the effect of in Ill. That is met this case test distinct improper of the instruction was to create the where the result despite crimes possibility that defendant was convicted of two Accordingly finding required acquittal. which have his should convictions should be reversed on this basis alone.
IV. supported But and remand this cause is our decision to reverse which independent second basis. That is the court’s exclusion of evidence witness, Knox, testimony. impeached Eugene a State on the heart of 15, 1976, discovery answered the State’s motion on June In furnishing by an oral statement made Knox. transcript them with the alia, said, inter day lit” of the that statement Knox that he was “half on the counsel gun. and he saw the defendant with a Defense never earlier approximately was made three weeks indicated the statement tape and had been recorded attorney defense Gerald Bender’s office had been tape with also indicated that the knowledge of Knox. Bender Voir dire com- reused, destroying recording of Knox’s statement. was furnished to the State day menced the same the statement following day, completed selection was June being On in Bender’s office on cross-examination at trial Knox denied 12, 1976, time. He also denied July or at other June conversation, him recording the questions Bender ever asked while Sherwin generally talking to Bender. Defense counsel denied ever Julius p.m. 1:30 proof that on 12 at about he was then made an offer of June Bender, defendant, At that time Sprawls, with and Knox. Bender’s office Knox also previously his office. having spoken Knox admitted to Bender accurate. transcript in the questions admitted that the and answers recording. Cross- tape Bender indicated that he did not have Bender stating to Sherwin or and Knox denied ever examination resumed gun. with a He not see the defendant that he was “half-lit” or that he did him answers to questions read also denied Sherwin ever that he man. transcript, or ever met either Wilson the State there Following the direct examination of judge. The State attorneys was a the trial and the conference between before, informed them day indicated that defense counsel June 18th they recording did Knox. Later on the afternoon have the Attorney it in chambers. tape played produced the defense over, recording taped Bender stated that he had believed the tapes. The defense it reviewed all of his discovered still existed when he 1975. Bender recording was made then indicated that June before explained that when he said the statement taken three weeks *8 statement, just apparently the referring tape, he was not to the to
1051 from exclude to State moved tape. The transcription of the reference to Knox for Bender between the conversation any mention of evidence complained State the specifically, discovery; comply with failure to and that made recording was the as to the date misled they were began. The trial tape until after actual produce to the defendant failed the they given as prejudiced, was not that the State argued defense the subjecting from precluded trial and were still not transcript prior to the to further reference testing. The court barred scientific tape to the Sprawls Marshall statement, to elicit permit but did At in Bender’s office and Knox were testimony that he June strike motion to the State’s granted court all the evidence the the close of by Knox interrogation of concerning the and answers questions all instructed that: Bender. The was ° * Attorney Bender between an interview all references to are you the record stricken from the Witness Knoxis [sic] to that interview.” disregard all references to comply in fact fail to did question There is some whether trial, informed, part of the prior to as discovery. The State was they were recording had been made discovery, that the answer to in the record refutes transcript.1Nothing at that time with a full furnished recording the as whether genuine claim mistake to defense counsel’s recording still existed the When the defense did discover had been erased. by discovery comply with obligation to they continuing fulfilled their basis of remaining and for the State. producing tape the for the court the date misled as to State was comply failure to the alleged challenge directly State does not tape was made. But tran- between the date of confusion explanation defense counsel’s fully The State was informed scription recording. and the date of recording was the actual trial and when prior contents of the statement when the provided, along with a clarification discovered this too was recording made. uncovering tape diligence in if lack of
But even defense counsel’s were held it made clearly failure indicate when was and the discovery, exclusion of comply with fully a failure to constitute Rule Supreme Under Court remedy. statement would not be the sole are 110A, measures 415(g)),lesssevere 415(g) (Ill. par. Rev. Stat. ch. material, a continuance granting permitted: also full disclosure of (People attorney. at the directing or the sanction any prejudice, cure give does 1261.) N.E.2d The rule App. 55 Ill. 3d 370 Williams involved, but this is the trial exclude the evidence judge discretion to which, may rights indiscriminately, prejudice if used harsh sanction Lane error. and constitute reversible a defendant “substantially transcript agreed At trial State with the trial court that the correct.” 82; Rayford State, cases in which this cited *9 review, approved analogous measure was are not to the facts extreme People 218, Warren (1975), this In 32 Ill. 3d 336 N.E.2d App. of case. 557, at trial what the gave appeal the defendant no indication or on testimony excluded would have been. Under those circumstances the People reviewing court find abuse of discretion. And in could no Douthit 751, 950, reviewing Ill. court (1977), App. 3d 366 N.E.2d the they that little credence in counsel’s expressly placed noted defense trial. explanations respond discovery days of his failure to to until two into may The court found that this have been a tactical maneuver aimed State surprise. advantage possible, In this cause no tactical for the was informed of the of the statement before trial. Nor do we contents in deception by find this record evidence of deliberate trial counsel. noted, expressed willingness
As we have the defense to allow the recording State time to test the when it was furnished. State The has not so, origin tape, assuming contested the of the a wish to do purpose any possible prejudice continuance for that would have cured arising production tape. from the late the The case is similar in this of People respect Jackson although
where the exclusion sanction was held excessive defendant had any reviewing not listed the court that excluded witnesses. noted possible prejudice by allowing permit cured a recess could have been part in on a the State to interview the witnesses. The court also relied witnesses, the presumption knowledge the State had of who prisoners. presumption necessary, In this such as the State had cause no knowledge actual of the entire statement trial. In question before People v. Hahn 39 Ill. App. 3d of a exclusion witness was held be him in despite excessive the failure to list discovery, reviewing noting any surprise the court have been could v. De Leon by granting cured a continuance. And presumed to be aware the State was an unlisted defense witness because of the nature of the his exclusion of Consequently, was on the State’s list of witnesses. cause, In where the testimony was found to be an abuse of discretion. this before trial and provided transcript State was of the excluded evidence the actual any possible prejudice arising discovery where from the late by State time to examine recording allowing could have been cured the it, it reference to test we find that exclusion of evidence was an abuse of discretion.
In Hahn no reversible error was found not because the court could Leon De testimony; determine the exact nature the excluded charge of to a related the evidence because prejudice no court found in this resulting prejudice But the acquitted. the defendant which testimony of evidently did not believe clear. The case is murder in a have resulted would Wilson, the events that version of for have seen claim to Davis did Walter although And conviction. thus was Wilson that of fired, testimony corroborated his shots who witness remaining only jury. disbelieved also apparently Had Knox. hand seen claimed to have prior witness this impeach permitted been placed have might very point, on this statement contradictory The exclusion testimony. in the whole of defendant’s more credence defen- prejudiced manifestly evidence impeaching potentially crucial this cause be reversed that his convictions requires dant and a new trial. for remanded is reversed trial court reasons, judgment foregoing
For this conformity with proceedings for further and the cause remanded opinion. *10 and remanded.
Reversed
JOHNSON, J., concurs. LINN,
Mr. dissenting: JUSTICE I respectfully majority’s dissent from the conclusion that trial error requires overwhelming reversal of this case a In light for new trial. of the guilt, grounds evidence of defendant’s cited as for reversal is neither error a trial. deny of such substantial nature as defendant a fair I disagree alleged justifiable in the the the defect instruction on majority use of force is cause that defendant for reversal. The concedes trial, did at preserve specific objection not to this instruction 1975, Supreme 451(c). (Ill. considers the issue under Rue Rev. Stat. Court 110A, ch. par. 451(c).) object Failure an at trial instruction the court ordinarily operates level as objection appeal. a waiver of such 388, (People (1970), 241.) v. Mallett 45 Ill. 2d 259 Supreme N.E.2d Court 451(c) Rule permits exception by an that substantial providing to the rule by defects are not if interests timely objections waived failure to make the 343, justice require. (See People (1974), App. so v. 21 Ill. 3d Robinson However, 315 N.E.2d make an avoid waiver for failure to objection, defendant must establish that the defect the instruction substantial, a giving and that the instruction resulted a denial of of the fair justice. trial and People (1969), App. v. 116 Ill. 2d Knox 549; N.E.2d v. People (1968), App. Price 96 Ill. 2d case, Under the the present giving circumstances of the the unrebutted deny a fair trial. The question instruction did not argument an evidence indicates that the incident arose from testified that game. a dice The State’s witnesses conclusion of theory Under defendant’s pulled gun during argument. case, in an weapon with the Freddie threatened defendant Johnson theory if had attempt gambling to recover his losses. Even by jury, language justifiable of the use of force been believed alleged by facts as given jury adequately applied instruction to the to the objection defendant and no omission of defendant. As there was no substance, prejudicial given. I find error in the instruction as can no
Although agree impeachment I evidence as the exclusion of case, I justified and not in this discovery sanction is drastic measure prior impeaching statement was believe that the exclusion of Knox’s harmless error. warrants
An undue limitation of
the defendant
cross-examination
and a
only
has been a clear abuse of discretion
reversal
where there
(1973),
v.
showing
prejudice
of manifest
to the defendant.
Gallo
restricting
the cross-
569.) Any
54 Ill. 2d
error
if
only
judgment
of a
constitutes reversible error
examination
witness
credibility of that witness.
upon
of conviction must stand or fall
914;
549, 366
(People Boyce (1977),
51 Ill.
N.E.2d
669.) Improper
Banks
N.E.2d
limitation
App. 2d
testimony merely
buttresses
cross-examination of a witness whose
People Washington
prosecution may be deemed harmless.
991, 19L.
162, 225
390 U.S.
cert. denied
Ed. 2d
In this Davis, eyewitness, saw the prosecution. essential to the Walter Johnny Wilson’s defendant’s hand Freddie was shot. when Knox, however, was in the back account. testimony corroborated Davis’ The record did see shot of the store at that time and who Johnson. theory of on either the ample support contains evidence to conviction without reference voluntary manslaughter or murder for death Johnson’s *11 Wilson, and his shoot testimony. to Knox’s Knox did see defendant Knox’s by Wilson and Davis. testimony on that issue was corroborated was, best, by the other presented cumulative of the evidence prosecution witnesses. harmless and reasons, trial error was these I would hold
For affirm the convictions.