People v. Townsend

• Decision Date: 30 August 1985
• Docket Number: No. 83-3027,83-3027
• Citation: 136 Ill.App.3d 385,91 Ill.Dec. 58,483 N.E.2d 340
• Parties: , 91 Ill.Dec. 58 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnny W. TOWNSEND, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 340

483 N.E.2d 340

136 Ill.App.3d 385, 91 Ill.Dec. 58

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnny W. TOWNSEND, Defendant-Appellant.

No. 83-3027.

Appellate Court of Illinois,

First District, Fifth Division.

Aug. 30, 1985.

[136 Ill.App.3d 386] [91 Ill.Dec. 60] James J. Doherty, Public Defender of Cook County (Georgeen M. Carson, Asst. [136 Ill.App.3d 387] Public Defender, of counsel), for defendant-appellant.

Richard M. Daley, State's Atty. of Cook County (Michael E. Shabat, Karen C. Wirth, Peter D. Zaper, Asst. State's Attys., of counsel,) for plaintiff-appellee.

SULLIVAN, Justice:

Following a jury trial, defendant was convicted of attempted murder, aggravated battery and armed violence. The trial court vacated the convictions for aggravated battery and armed violence and sentenced him to a term of 8 years on the attempted murder conviction. On appeal, defendant contends (1) the jury was improperly instructed and (2) he was denied a fair trial by certain prosecutorial comments made in closing argument.

The charges arose from the shooting of Tamara Clark (Clark) by defendant on June 1, 1983. At trial, Clark testified that on the day of the incident her brother and her friend, Audrey Wesley (Wesley), were living with her and her three children in her apartment in Harvey. Defendant, her boyfriend of about six weeks, also stayed there several nights each week, including the previous night. Shortly after defendant's cousin, Robert "Eddie" Johnson (Johnson), arrived, at about 6 or 7 p.m., he, defendant and Wesley went out to purchase some rum and wine, and after finishing the first bottle of wine, they left again, at about 8 p.m., to buy more. When they returned, she put her children to bed, mixed a glass of rum and cola and shared a marijuana cigarette with Wesley. Sometime later, after repeated accusations by defendant that she did not love him, she took a butcher knife from the kitchen, held it to her chest and asked him in a sarcastic but joking manner whether he wanted her to kill herself to prove her love. When he laughed, she became very upset, asked him to leave and then informed him that she was going for a walk and would return shortly. Defendant followed her, grabbed her by the arm and ordered her not to leave, but she repeated that she wanted to take a walk, and when she slammed the door, causing the glass to break, she heard defendant say, "I'll kill that independent bitch." As she reached the bottom of the stairway, defendant pinned her against the wall, whereupon she suggested they return to the apartment instead of arguing outside. Once inside, she asked Johnson to tell defendant to leave and then went into her bedroom. Seeing that she was upset and crying, Wesley followed her, and while they were talking, defendant knocked and beat on the door, hollering for her to come out. She got up from the bed and, as she walked toward the door, picked up two knives-- one being the knife she held to her chest earlier and the other, a knife she used while eating in her bedroom. Placing both knives in her right hand, she opened the door with her left hand, and upon exiting the room, holding the knives at her side, she saw defendant and Johnson "tussling" in the bathroom, which was directly across the hallway from where she stood. Defendant was holding a gun he normally carried strapped to his leg, and after raising himself out of the bathtub--into which On cross-examination, Clark stated that she had only one drink and two marijuana cigarettes throughout the entire day and that although she and defendant had been "horsing around" and wrestling earlier that evening, it was not until he returned from his second trip to purchase liquor and accused her of not loving him that they began to argue. She denied jumping on or punching defendant prior to leaving the apartment or taking two knives from the kitchen when she returned. Although she was afraid when she heard him screaming and kicking her bedroom door, she decided, against Wesley's advice, to go out to tell him to leave. She did not raise the knives in a threatening manner or say anything to defendant before he shot her.

[91 Ill.Dec. 61] he apparently had fallen during the fight--he pointed it at her and fired two shots, striking her in the chest and left shoulder. As she fell backward and slumped against the wall, defendant walked out of the bathroom, bent over, placed the gun a few inches from her face and fired it twice more, one bullet penetrating her nostril and mouth and lodging in her neck and the other striking her in her right hand, which she had raised in an attempt to cover her face and push the gun away. Defendant then ran out of the apartment, after which Johnson and Wesley drove her to the hospital.

Wesley testified to essentially the same version of events, adding that after Clark refused defendant's proposal of marriage, his mood changed and their previously good-natured wrestling became "a little rough." Wesley also testified that when she and Clark exited the bedroom, Clark took only one step out into the hallway, holding the knives at her side, before she (Wesley) heard two gunshots and saw Clark fall back against the wall and then slump to the floor. At that point, defendant--who had been out of her range of vision--came out of the bathroom holding the gun in both hands with his arms extended and fired two more shots at Clark from a distance of 3 or 4 inches. On cross-examination, Wesley could not recall whether she told the investigating officer that defendant had pounded on the bedroom door or that Clark exited the room carrying two knives, but she acknowledged that Clark was angry and upset when she first went into the bedroom.

Officer Newton testified that when he spoke to Wesley at the hospital, she appeared sober. Later that morning, defendant surrendered himself to the police and was advised of his Miranda rights, after which he said that he, Clark and others had been drinking at Clark's house the previous evening; that after an argument with him, Clark went into her bedroom with Wesley; that as he approached the bedroom door, she came out holding one knife at her side in her left hand and another in her right hand elevated to about ear-level; that he immediately fired the .25 caliber semi-automatic gun he was holding 2 or 3 times; and that he then ran out of the apartment and threw the weapon away. Defendant also stated that he thought that Clark was already "going down" as he fired the last two shots and that although he had learned how to disarm a person in martial arts training classes, he was not sure he could do so. On cross-examination, Newton acknowledged that defendant also told him that Clark came out of the bedroom cursing and threatening to kill him, which he believed she would do, and that he shot her to protect himself.

Dr. John E. Driscoll, the surgeon who was called in to treat Clark after she was transferred from the emergency room to the intensive care unit of Ingalls Hospital, testified that she sustained two gunshot wounds in her chest--the bullets internally lodging 3 or 4 inches below the location of their entrance, a wound through the joint of her right index finger and wounds through both her palate and tongue resulting from a bullet fired from close range and found lodged in her neck. He characterized the injuries as life-threatening and described her condition at the time of his first examination of her as critical.

On defense, Johnson testified that when he first arrived at Clark's apartment, she Defendant testified that Clark and Wesley smoked at least 3 or 4 marijuana cigarettes during the afternoon, "a couple more" in the evening and that each drank about 3 glasses of rum and cola. When he refused to sit next to Clark while she smoked the marijuana, she became very upset, jumped on him and hit him several times. She then left the apartment, slamming the door so hard that the glass broke, but he did not follow her. Sometime later, she returned to the apartment, took two knives from the kitchen and came into the living room, cursing at him. Wesley led her into the bedroom where she continued hollering and cursing at him. He waited in the hallway outside Clark's bedroom while Johnson used the bathroom, and at Johnson's suggestion, knocked on the door--at first lightly and then a little harder--requesting to speak to her. A few seconds later, Clark swung the door open and came out, brandishing a butcher knife in each hand. When he asked her what was wrong, she screamed that she was tired of him telling her what to do and that she was going to kill him. As she came toward him with the knives, he backed into the bathroom and then, believing that she was crazy and would kill him, pulled his gun from his pocket and fired it at her from a distance of about 6 feet, falling into the tub as or just before the last shot discharged. When he got up, Clark was on the floor against the wall and Johnson was attending to her. After asking Johnson to take her to the hospital, he ran out of the apartment and went to Johnson's house, where he remained until the next morning when he surrendered to the police.

[91 Ill.Dec. 62] was "buzzing," as though she had been drinking. She thereafter consumed at least 2 or 3 rum and colas and smoked 4 or 5 marijuana cigarettes prior to the argument with defendant, which began because, disliking the smell of marijuana, he refused to sit next to her on the couch while she smoked it. When defendant got up to adjust the radio, Clark jumped on his back, cursing and screaming, and hit him 2 or 3 times. After he pulled Clark off of defendant, she went into the kitchen and then came back into the living room carrying two knives, but Wesley intervened and led her into the bedroom where she continued hollering and cursing. When he asked permission to use the bathroom, defendant directed him to it and then waited for him in the hallway outside Clark's...