APPEAL from the Circuit Court of Peoria County; the Hon.
CHARLES M. WILSON, Judge, presiding.
MR. PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 25, 1972.
The Grand Jury of Peoria County returned three indictments against Martin Ureste which indictments were consolidated for trial. In the first indictment relating to the death of Virgil Powell defendant was charged in two counts with the offenses of murder and in the third count with voluntary manslaughter (unreasonable use of self defense). The second indictment in two counts charged attempted murder and aggravated battery of Ivy Whitt and the third indictment charged the same two offenses against Shirley Norton. The jury found defendant guilty of voluntary manslaughter with respect to the death of Virgil Powell and also found defendant guilty of the attempted murder of Ivy Whitt and Shirley Norton. No verdicts were returned on the other counts. The Circuit Court of Peoria County sentenced defendant to terms of from 10 to 20 years in the penitentiary on each of the offenses, the sentences to run concurrently.
On June 7, 1969, defendant was in the Birdland nightclub in Peoria and had been in the club for about three hours before the events giving rise to the criminal charges took place. He started pestering a woman at the bar. He kept bumping into her trying to get her attention until it was so obvious that the bartender interceded. When the bartender asked the woman what the problem was she complained that "this guy" (referring to defendant) was molesting her. The bartender told Ureste to quit it. Later defendant again began to bother the woman at the bar. The bartender told defendant to quit it or get out. The defendant left the club. About twenty minutes later Ureste returned, went up to the bar where the woman was that he had molested earlier and shot her in the cheek. He moved down the bar and shot Ivy Whitt who was standing at the bar and shot Shirley Norton as she was trying to get into the ladies' room. The bartender and other employees started to shoot at Ureste so he ran to the rear of the club and hid behind a post. The bartender testified that he was so mad at the defendant that he wanted to kill him. In the exchange of shots defendant was wounded and ran to the front of the club onto the bandstand where he hid behind a drum. Defendant reloaded his gun, the exchange of shots continued and shortly before the police arrived the defendant shot Virgil Powell in the back as Powell was lying on top of a patron trying to shield her from the gun fire. When the police arrived Ureste surrendered without resistance and was taken to the hospital.
Indictments against Ureste were returned in July, 1969. After a psychiatric examination defendant was found to be incompetent to stand trial and offer effective assistance to his attorney. He was committed to the Illinois Security Hospital and confined there until September, 1970. At this time he was found to be competent to stand trial and his trial commenced in the latter part of December, and was concluded in the early part of January with the jury finding him guilty of the three offenses described above.
On this appeal defendant argues the jury was improperly impanelled, the evidence was insufficient to support the jury's verdict that he was guilty of involuntary manslaughter, the evidence was insufficient to justify the jury's conclusion that he was sane and that erroneous instructions were given the jury.
With respect to defendant's claim the jury was improperly panelled it appears that the jury panel from which the jury was selected to hear this case had already served for two weeks the usual period for which jurors are summoned as provided by statute. This trial commenced on the first day of the third week and it is this fact which defendant now claims invalidates his trial.
• 1 It would be sufficient to say that defendant offered no challenge to the array and accepted the jurors without objection. However the statute itself, Sec. 8, Ch. 78, Ill. Rev. Stat. 1969, provides that the jurors serve for two weeks "unless the court shall otherwise order." Nor does defendant in support of his argument indicate how the jury's service beyond the two week period resulted in any prejudice either actual or apparent.
Arguing that defendant was either guilty of the murder of Virgil Powell or was guilty of no offense respecting Virgil Powell defendant claims that the evidence is insufficient to justify his conviction for voluntary manslaughter. As previously indicated defendant was found guilty of voluntary manslaughter in violation of Sec. 9-2(b), Ch. 38, Ill. Rev. Stat. 1969, which offense involves the unreasonable use of self defense. According to defendant since he was found guilty of attempted murder of Ivy Whitt and Shirley Norton any offense which he could have committed against Virgil Powell should likewise have been murder.
In our opinion defendant's argument is not supported by the evidence and the facts disclosed above if believed by the jury demonstrate that different mental states may have accompanied defendant's conduct with respect to the different victims.
• 2 As applied to the facts of this case the gist of the manslaughter is whether there is any evidence from which it may be inferred that Martin Ureste believed he could resort to deadly force for self defense at the time he shot Virgil Powell. From the evidence the questions arise as to whether or not defendant had abandoned the affray, whether or not he had retreated after he was shot, whether or not he believed he was going to be killed after he hid behind the drum and finally whether the defendant believed that he had the right to defend himself. (People v. Canada, 26 Ill.2d 491, 187 N.E.2d 243, and People v. Jones, 131 Ill. App.2d 647, 264 N.E.2d 299.) Even if defendant may have been originally an aggressor if he abandoned the combat, disengaged from the affray and sought retreat the consequences of his later conduct may be different than the consequences of his original aggression.
• 3 Believing as we do that there is evidence from which it may be concluded that defendant although unreasonably, thought he had the right to act in self defense it follows that the jury was properly instructed on the offense of voluntary manslaughter (People v. Harris, 8 Ill.2d 431, 134 N.E.2d 315), and there is no reason for disturbing the jury's verdict.
In asserting the evidence is insufficient to prove defendant was sane at the time of the occurrence defendant has directed our attention primarily to the contrasting medical opinions and the "irrationality" of defendant's shooting spree. As we have previously indicated defendant was committed to the Illinois Security Hospital as incompetent to stand trial. This determination was based primarily on the testimony of Doctor Ward a psychiatrist at the Zeller Zone Clinic in Peoria who examined defendant at the request of the State pursuant to an order of court. Dr. Ward first examined defendant shortly after the occurrence.
During the trial Dr. Ward was called as a witness in behalf of the defendant. He testified concerning various symptoms and conditions either related to him by the defendant or which he observed and concluded that at the time of the occurrence defendant was mentally ill and unable to appreciate the quality of his conduct. Dr. Ward did not have any prior acquaintance and did not believe that ...