People v. Christen, 79-139

• Citation: 82 Ill.App.3d 192,402 N.E.2d 373
• Decision Date: 17 March 1980
• Docket Number: No. 79-139,79-139
• Parties: , 37 Ill.Dec. 483 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clarence CHRISTEN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 373

402 N.E.2d 373

82 Ill.App.3d 192, 37 Ill.Dec. 483

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clarence CHRISTEN, Defendant-Appellant.

No. 79-139.

Appellate Court of Illinois, Second District.

March 17, 1980.

Mary Robinson, Deputy State Appellate Defender, Marilyn J. Martin, Asst. State Appellate Defender, Elgin, for defendant-appellant.

Gene Armentrout, State's Atty., Geneva, Phyllis J. Perko, Martin P. Moltz, State's Attys. Appellate Service Commission, Elgin, for plaintiff-appellee.

NASH, Justice:

Defendant, Clarence Christen, was tried by jury, found guilty of murder (Ill.Rev.Stat.1977, ch. 38, par. 9-1), and thereafter was sentenced to a fixed term of 20 years imprisonment. On this appeal he has raised several claims of error and we find that his conviction must be reversed and the cause remanded for a new trial because of the erroneous exclusion of evidence of his intent sought to be introduced by defendant.

Christen was employed as an armed security guard for a liquor store and parking lot attached to the Capricorn Lounge in Aurora, Illinois. He had served in this capacity for approximately eight years and his duties included the transfer of money at the end of the shift, traffic control in the parking lot area, and prevention of loitering.

On the night of August 14, 1978, Christen entered the Capricorn Lounge to retrieve cash from the front bar and to inform the customers that it was closing time. Six or seven people were present including the decedent, Phillip Armstrong, who responded by calling Christen an "old m..... f.....". Christen was apparently offended by this comment and shouted back, "(y)ou don't call me old m..... f....."; Armstrong then walked toward Christen, who was standing behind the bar. Shelly Armstrong, wife of the decedent, testified that while approaching the defendant, her husband said, "(w)ell, look like we're just going to have to fight," and began bouncing around in a mock boxing manner hitting the air with his fists. Armstrong proceeded behind the bar and apparently attempted an apology, which Christen rejected. Although Christen testified that he thought Armstrong's conduct was threatening, no other witness noticed anger or any threatening behavior on the part of Armstrong. When Armstrong was within reach, Christen took hold of Armstrong's shirt collar and drew his gun. Armstrong struck no blows but did seek to break free. At about this time, Christen fired three shots: the first went overhead and the second and third bullets struck and killed Armstrong.

At the time of the shooting Christen was 81 years of age and suffered from certain physical disabilities: two amputated fingers, an artificial leg requiring the support of a cane, and damaged eyesight. Armstrong, however, was a relatively young man, approximately 6 feet tall, and weighed 180 pounds.

In criminal cases, where the intention, motive, or belief of accused is material to the issue, the accused is allowed to testify directly to the fact. (People v. Biella (1940), 374 Ill. 87, 28 N.E.2d 111; People v. Pernell (1979), 72 Ill.App.3d 664, 28 Ill.Dec. 886, 391 N.E.2d 85; People v. Graves (1978), 61 Ill.App.3d 732, 18 Ill.Dec. 829, 378 N.E.2d 293; People v. Ortiz (1978), 65 Ill.App.3d 525, 21 Ill.Dec. 939, 382 N.E.2d 303; People v. Perry (1974), 19 Ill.App.3d 254, 311 N.E.2d 341.) As stated by the Illinois supreme court in People v. Biella :

"(t)he circumstances under which the act in question was done usually serve to manifest to a greater degree the intent of the actor and may overcome his declaration as to his intention, but he has the right to testify to his intention and to have the circumstances surrounding the act considered in connection with his testimony." 374 Ill. at 89, 28 N.E.2d at 112.

Where a claim of self-defense rests upon some reasonable basis, exclusion of state-of-mind testimony by a defendant will ordinarily constitute reversible error unless sufficient evidence of his intent is admitted at a subsequent stage of trial. See People v. Smalley (1973), 10 Ill.App.3d 416, 294 N.E.2d 305; see also People v. Biella (1940), 374 Ill. 87, 28 N.E.2d 111; People v. Limas (1977), 45 Ill.App.3d 643, 4 Ill.Dec. 242, 359 N.E.2d 1194; and People v. Johnson (1976), 42 Ill.App.3d 425, 355 N.E.2d 699.

In the present case, the trial court sustained the State's objections to questions propounded to defendant on direct examination relating to his intent or state-of-mind immediately prior to shooting Armstrong, as follows:

"Q. (defense counsel) Would you explain to the Court and ladies and gentlemen why you shot him?

MR. PETERSEN: (State's Attorney) Objection, Judge. That's irrelevant.

THE COURT: Objection sustained.

Q. Could you have fought him?

MR. PETERSEN: Objection, Judge, that's irrelevant.

THE COURT: Objection sustained.

Q. Did you want to kill him, Mr. Christen?

A. (defendant) I wasn't aiming

MR. PETERSEN: Objection.

THE WITNESS: (defendant) (continuing) to kill him, I wanted to scare him

THE COURT: Mr. Christen, the objection has been sustained."

Under the circumstances of this case, we cannot discount the possible affect that testimony by defendant relating to his state-of-mind might have had upon the verdict of the jury. As defendant was precluded from testifying to his state-of-mind, he was arguably prevented from establishing that he did not intend to kill Armstrong or, alternatively, that he reasonably believed that his own life was jeopardized requiring his resort to deadly force. See People v. Ortiz (1978), 65 Ill.App.3d 525, 533, 21 Ill.Dec. 939, 945, 382 N.E.2d 303, 309; People v. Graves (1978), 61 Ill.App.3d 732, 741, 18 Ill.Dec. 829, 836, 378 N.E.2d 293, 300.

The State argues that defendant's state-of-mind was adequately shown during later stages of the trial and that any error in excluding his testimony must be considered harmless. (People v. Wallenberg (1962), 24 Ill.2d 350, 181 N.E.2d 143; People v. Limas (1977), 45 Ill.App.3d 643, 4 Ill.Dec. 242, 359 N.E.2d 1194; People v. Johnson (1976), 42 Ill.App.3d 425, 355 N.E.2d 699.) We do not agree. The People point to direct examination where defendant testified that he could not fight with Armstrong and cross-examination where he stated that Armstrong approached with clenched fists. It is apparent that this evidence does not sufficiently reveal the intentions of defendant at the time he shot Armstrong. It is a mere recitation of the circumstances which confronted him and, although such circumstances could shed light on his state of mind, nevertheless the defendant had the right to directly testify to his intent at the time of the occurrence. People v. Biella (1940), 374 Ill. 87, 28 N.E.2d 111; People v. Graves (1978), 61 Ill.App.3d 732, 18 Ill.Dec. 829, 378 N.E.2d 293; People v. Lemcke (1980), 80 Ill.App.3d 298, 35 Ill.Dec. 611, 399 N.E.2d 677.

The State also suggests that the error was cured by defense counsel's statement, in argument to the jury, that his client did not intend to kill Armstrong. We find no authority to support this contention. This statement of defendant's intent did not reach the jury in the form of testimony nor could it be considered as evidence by the jury.

The State further contends that defendant waived this issue by failing to make an offer of proof when the trial court sustained the objections to examination of defendant. Generally, an offer of proof must be tendered to preserve for review a question of the wrongful exclusion of evidence. (People v. Limas (1977), 45 Ill.App.3d 643, 4 Ill.Dec. 242, 359 N.E.2d 1194; People v. Slaughter (1977), 55 Ill.App.3d 973, 13 Ill.Dec. 731, 371 N.E.2d 666; People v. Nowak (1979), 76 Ill.App.3d 472, 32 Ill.Dec. 81, 395 N.E.2d 28.) The purposes served by an offer of proof are twofold: first, it allows the trial court to initially ascertain the admissibility of the evidence sought to be introduced. Second, it enables the reviewing court to find in the record the nature of the proffered evidence and determine whether there was prejudicial error in excluding it. (People v. Duarte (1979), 79 Ill.App.3d 110, 34 Ill.Dec. 657, 398 N.E.2d 332; People v. Johnson (1977), 47 Ill.App.3d 362, 6 Ill.Dec. 66, 362 N.E.2d 701; People v. Moore (1975), 27 Ill.App.3d 337, 326 N.E.2d 420; People v. Brown (1975), 27 Ill.App.3d 569, 327 N.E.2d 51.) An offer of proof is not required, however, when the evidence sought is obviously material and relevant (People v. Johnson; People v. Moore.) Thus, where the trial court is sufficiently aware of the purpose for which the evidence is offered and the substance of the testimony sought to be elicited, an offer of proof need not be tendered. People v. Moore ; see People v. Slaughter (1977), 55 Ill.App.3d 973, 13 Ill.Dec. 731, 371 N.E.2d 666.

In the case at bar, the trial court was fully aware that defendant would seek to raise an issue of self-defense. During a pre-trial conference defense counsel informed the trial judge that he would utilize any available defense which would tend to justify or mitigate the charges of murder and voluntary manslaughter against Christen. Under the circumstances of this case, we find that the relevance and content of the testimony sought to be given by defendant were adequately demonstrated. (People v. Moore ; see People v. Johnson (1977), 47 Ill.App.3d 362, 6 Ill.Dec. 66, 362 N.E.2d 701; cf., People v. Slaughter (1977), 55 Ill.App.3d 973, 13 Ill.Dec. 731, 371 N.E.2d 666.) While an offer of proof would have been preferable, it was nonetheless unnecessary as the trial judge understood that this testimony was being offered to disclose defendant's state-of-mind at the time of the shooting. People v. Lemcke (1980), 80 Ill.App.3d 298, 35 Ill.Dec. 611, 399 N.E.2d 677.

Parenthetically, we note that the phrasing of these questions made the trial court's rulings upon them to be most difficult. The court may well have sustained the State's objections expecting defense counsel to offer a more correctly...