People v. Graves

• Decision Date: 16 June 1978
• Docket Number: Nos. 77-120,77-1044,s. 77-120
• Citation: 18 Ill.Dec. 829,378 N.E.2d 293,61 Ill.App.3d 732
• Parties: , 18 Ill.Dec. 829 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jacob D. GRAVES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 293

378 N.E.2d 293

61 Ill.App.3d 732, 18 Ill.Dec. 829

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jacob D. GRAVES, Defendant-Appellant.

Nos. 77-120, 77-1044.

Appellate Court of Illinois, First District, Fifth Division.

June 16, 1978.

[18 Ill.Dec. 831] Ralph Ruebner, Deputy State Appellate Defender, Chicago (Patricia Unsinn, Asst. State Appellate Defender, Chicago, of counsel), for defendant-appellant.

Bernard Carey, State's Atty. of Cook County, Chicago (Lee T. Hettinger, Renee Goldfarb and Richard D. Heytow, Asst. State's Attys., of counsel), for plaintiff-appellee.

MEJDA, Justice.

Defendant, Jacob Graves, was indicted for the offenses of attempt murder and aggravated battery for the shooting of Alex Barber. A jury found defendant guilty on the aggravated battery charge, but not guilty of attempt murder, and he was sentenced to a term of two to six years. On appeal defendant contends that: (1) he was denied an opportunity to fully present his defense by the trial court's failure to admit certain evidence and testimony; (2) the trial court erred in failing to instruct the jury, sua sponte, regarding the justifiable use of force; (3) he was denied a fair trial by the prosecutor's inquiry as to whether defendant told the police his exculpatory story following his arrest; (4) the State improperly examined the defense character witnesses regarding their knowledge of the events of the alleged offense; (5) the State improperly examined defendant regarding the credibility of other witnesses, and by posing questions that assumed facts not in evidence; and (6) he was not proved guilty beyond a reasonable doubt.

We reverse and remand for a new trial. The pertinent facts follow.

Alex Barber, the victim, testified that on April 2, 1976, he went to Riddle's Lounge in Dixmoor, Illinois, at approximately 6:30 p. m. There were two coin-operated pool tables in the lounge and when Barber arrived he saw defendant playing pool with Alex Smoot. Barber had known both men for over three years, so he sat on a bar stool to watch the game. Smoot won the game, but defendant accused him of "fouling" so they played a second game, which Smoot also won. Defendant then started arguing with Smoot again over the first game, at which point Barber offered to shoot a game of pool with Smoot and put a quarter in the table to release the balls.

Barber racked the balls to prepare for the game, but defendant took the cue ball from the table and told Smoot, "you won't play with this cue ball." Smoot then obtained another cue ball from behind the bar, and defendant started to push the rest of the balls into the pockets on the pool table. Barber then grabbed defendant's wrist and told him not to do that. Defendant responded that he would go get the key to open the table and retrieve the balls. He went into the back room of the lounge, approximately 15 feet away from the pool table, but while he was gone the barmaid opened the table with the key and let the balls down.

While Barber was again racking the balls he heard a commotion like someone had kicked over a bar stool. When he turned toward the noise, which had come from the rear of the lounge, he heard a shot and felt something strike him in the chest. He saw defendant standing approximately 15 feet away holding a gun with both hands and aiming it at his head. Defendant then fired a second shot which hit Barber in the right side of the face. The victim ran out of the lounge and looked back to see the defendant chasing him with the gun still in his hand. Barber ran into an alley where he collapsed, and someone called the police and an ambulance. Barber was taken to the hospital where he remained for three weeks. Surgery was performed on his chest and stomach, and the bullet which struck him in the face knocked out four teeth and left a scar where it exited below his ear.

Barber stated that he did not say anything to the defendant immediately before he was shot, and that he was not armed and did not threaten the defendant in any way.

Alex Smoot testified that he arrived at Riddle's Lounge on the day in question at about 5 p. m. Present when he arrived were defendant, the barmaid, and a man named Cecil. Defendant was shooting pool with Cecil but they started arguing and Cecil went to the bar. Smoot then offered to play defendant.

During their game defendant told Smoot he had fouled, so they played another game. Smoot won the second game, and when defendant started arguing again over the first game, Barber offered to play pool with Smoot. Defendant then grabbed the cue ball and raked the other balls into the pockets, and Barber grabbed his wrists. Defendant said he would get the key and went to the room in back of the bar, and the barmaid then came over and unlocked the table and released the balls.

The next thing Smoot knew he heard a shot like a firecracker and saw defendant standing next to the bar, holding a gun in his right hand over his left wrist and aiming it at Barber. When Smoot first heard the noise he saw Barber grab his side. He heard another sound like a firecracker and saw light flash from the gun. Barber then ran out of the door and defendant ran after him. Smoot heard another shot from outside the building.

Smoot stated that the only words exchanged between Barber and defendant occurred when the latter was pushing the balls into the pockets. Barber did not say or yell anything to defendant after the defendant moved toward the back room to get the key. In the back room there was a door leading outside and a stairway leading to the living quarters above the lounge.

The court reporter's notes for the testimony of December 3, 1976, were lost. However, the parties stipulated to a summary of this testimony, which was filed as a supplemental record in this court. Three witnesses testified that day: Dr. Felix Davila and Sergeant Robert Vinson for the State; and Cecil Smith for the defense.

Dr. Davila testified that he examined Barber on April 2, 1976, and the victim had a wound in the upper lip, loose teeth, and an abdominal wound. He explored the abdomen but did not remove the bullet. After sewing up the incision an infection developed which was still being treated at the time of the trial.

Sergeant Vinson of the Dixmoor Police Department testified that at 6:30 p. m. on April 2, 1976, he was assigned to investigate a shooting. He found Barber sitting in a chair behind a barber shop at 14206 South Wood Street, bleeding from the mouth and stomach. The victim told Vinson that, "Jake shot me." After an ambulance came, Vinson went to the lounge and spoke with the owner, Mr. Riddle. Vinson found a .38 caliber bullet in the lounge.

The officer then proceeded to the hospital but returned to the lounge about 20 minutes later and spoke to Alex Smoot. While he was there Riddle received a telephone call. Vinson then went to Art's Roller Rink where he arrested the defendant. When Vinson arrived at the rink defendant was crying and shaking, and he told the officer that he had thrown the gun away and that he was temporarily living upstairs at Riddle's Lounge. Defendant inquired about Barber's condition and Vinson told him he was holding his own.

Cecil Smith testified for the defense that on the day of the incident he arrived at Riddle's Lounge between 5 and 6 p. m. He watched the defendant and Smoot play pool. Defendant's right hand was bandaged around the hand and fingers, but he was still able to play pool. During the game there was some discussion that Smoot had fouled the defendant; however, the latter said that they would let it go until after the game was over.

In the meantime Alex Barber came in and put a quarter in the slot and started to play a game of pool. At that point defendant took one of the balls and put it in the pocket and scattered the others. Barber told defendant that he better give him a quarter because those were his balls. Defendant said he did not have a quarter and Barber told him, "Better get the keys or I'll cut your head off." Defendant said, "I'll get the key," and went into the back for three minutes. The barmaid got the key in the meantime and racked up a new set of balls. As defendant returned, Smith went in the back room by a washroom and watched from there. Defendant knocked over a heavy metal chair, calling attention to himself and the fact that he was carrying a gun. Defendant said something like, "Let me get out of here." As he passed by Barber, Barber swung at him with a cue stick and defendant fell to his knees, and as he did so he raised his arm and shot several times. Then he picked up his coat and hat and continued out.

Smith also stated that he had known defendant for three or four years, and he knew of no altercations between Barber and the defendant. Barber struck the defendant in the jaw when he spoke to him before demanding he get the key. When defendant returned he had the gun behind his back and to the side. Barber pulled his cue stick and reached in his pocket. Smith ran into the washroom after the first shot was fired. He only heard the other two or three shots. Smith did not remember how defendant had fired the gun. He never went to the police with his version of the incident.

Defendant testified in his own behalf that on April 2, 1976, he was living above Riddle's Lounge, and he had known Barber for two or three years. When the defendant was asked whether the victim had ever threatened him in the past, the State objected and a sidebar conference was held out of the presence of the jury.

In the course of that sidebar conference the trial judge noted that evidence of Barber's reputation would only be important if some evidence of self-defense was presented, which had not yet been done.

The defendant then presented an offer of proof. In that offer of proof the defendant testified to having several altercations with Barber prior to the day of the shooting, including one or two days before the shooting...