APPEAL from the Circuit Court of St. Clair County; the Hon.
FRANCIS E. MAXWELL, Judge, presiding.
MR. PRESIDING JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
This is an appeal from the judgment of the Circuit Court of St. Clair County which found the defendant, Tommy Lee Sykes, guilty of the crime of voluntary manslaughter and sentenced him to the penitentiary for a term of not less than two years nor more than six years.
On appeal, the defendant argues: (1) that the trial court erred by giving instructions for voluntary manslaughter over defendant's objection; (2) the evidence introduced was not sufficient to support a verdict of guilty of voluntary manslaughter; (3) the trial court erred by not directing a verdict for the defendant at the close of the State's presentation of the evidence; and (4) the prosecuting attorney made improper closing statements which warrant reversal. None of these arguments merits reversal.
The defendant's defense to the indictment for the murder of Fred Johnson centered upon a theory of an accidental shooting. According to the defendant's testimony of the events surrounding the fatal shooting, subsequent to an argument between the defendant and the deceased, in which blows were landed, the deceased left the defendant's house and returned with a 12-gauge shotgun which belonged to the defendant, but was pawned to the deceased. After a struggle for the shotgun, the defendant gained its possession and pushed the deceased out of the front door. The deceased fell on the porch steps and as he was getting up the shotgun accidentally discharged when the defendant shifted his grip on the weapon. The shot hit the deceased in the lower left back area, just above the hip, causing his death shortly thereafter.
The only other testimony of consequence was that of the defendant's common law wife, Nancy Sherman. Sherman was first interviewed by the police the day after the shooting. She said that while watching television, she heard Sykes and the deceased arguing, the screen door slam, and a shot. Two days after this narrative, she gave a similar statement but added that "Sykes came into the bedroom and picked up the shotgun * * *, then picked up a shell * * * and loaded the shotgun." At trial, Sherman's testimony embraced the substance of her later statements to the police. On cross-examination she was unable to reconcile the disparity between the two statements, but disclosed that prior to making the highly incriminating statement to the police, she had been locked in a cell for 2 1/2 hours. At that time she was nearly six months pregnant, had a history of nervous disorders, and was on probation. Questioning by the public defender revealed that Sherman feared her probation might be revoked, especially after being told she had given a "bad statement." Further testimony revealed that Sherman missed an appointment with police, was wanted for further questioning, and was placed in a cell until the investigator arrived.
If the defendant's testimony was believed, then Johnson's death was purely accidental, thus requiring acquittal. On the other hand, as the defendant argues, if he were not believed, only a murder verdict should have been returned. This "all or nothing" theory rests upon the argument that no evidence was introduced to suggest or sustain a verdict of voluntary manslaughter; hence, it was a serious error to give such instructions.
Even though the defendant was indicted for murder, he may be convicted of any other lesser degree of homicide providing sufficient evidence exists to sustain the conviction. (People v. Miller, 131 Ill. App.2d 697, 700.) Furthermore, if there is evidence in the record which, if believed by the jury, would reduce a charge of murder to manslaughter, an instruction defining the crime should be given. (People v. Johnson, 1 Ill. App.3d 433, 434; People v. Harris, 8 Ill.2d 431, 434.) Whether or not an instruction for manslaughter should be given depends upon the evidence introduced. For this reason, it has been held that in the absence of evidence indicating that a killing was manslaughter voluntary or involuntary it would be error to give instructions on those theories. (People v. Wright, 32 Ill. App.3d 736, 745; People v. Caldwell, 79 Ill. App.2d 273, 280; People v. Wheeler, 57 Ill. App.2d 452, 464.) Conversely, reversible error may be committed upon the court's refusal to give manslaughter instructions when there is sufficient evidence before the jury to justify a conviction for manslaughter. (People v. Peeler, 12 Ill. App.3d 940, 944-45; People v. Bembroy, 4 Ill. App.3d 522, 525-27.) From these holdings the general rule emerges that in all criminal cases the jury, as well as the defendant, should have the benefit of being fully instructed upon any theory which might be found true from the evidence presented.
• 1 Regarding the case at bar, the court's instruction defining voluntary manslaughter was proper if any evidence exists in the record which, if believed by the jury, would reduce the charge of murder to manslaughter. (People v. Vaughn, 26 Ill. App.3d 247, 255.) On review, this court will not weigh the evidence, and to justify the giving of an instruction, all that need be shown is the slightest amount of evidence regarding the underlying theory. (People v. Hall, 25 Ill. App.3d 992, 1001.) After a careful examination of the record, two occurrences appear from which the judge could reasonably believe that voluntary manslaughter was in issue and required an instruction: (1) there was a heated argument between the defendant and the deceased, and (2) blows were exchanged (as established by the defendant's testimony).
• 2 It has frequently been held that mere words can never amount to "provocation" necessary to reduce murder to manslaughter. (People v. Ahlberg, 13 Ill. App.3d 1038, 1040.) Yet, reviewing courts have given more weight to the finding of the trier of fact on this issue because of their superior position in observing the witnesses and hearing all the testimony. (People v. Robles, 30 Ill. App.3d 335, 336-37.) Thus, we are hesitant to say mechanically that a heated verbal exchange constitutes an insufficient basis from which manslaughter instructions could be given by the trial court judge. Even so, the judge's determination need not rest solely upon the evidence of the altercation between the defendant and the deceased. When explaining what happened, the defendant in his testimony said: "[H]e [the deceased] gets angry and hits me, and I hit him back." Mutual combat or the use of physical force has been sufficient to support the finding of serious provocation (a necessary element of voluntary manslaughter). (People v. Applewhite, 25 Ill. App.3d 480; People v. Robbins, 1 Ill. App.3d 651.) Plainly, the exchange of blows forms a sufficient basis from which the judge could reasonably give manslaughter instructions.
• 3 For the foregoing reasons, we hold that there was ample evidence in the record to justify the giving of voluntary manslaughter instructions over the defendant's objection.
Forming the second argument on appeal, the defendant asserts that voluntary manslaughter was not proven beyond a reasonable doubt due to the insufficiency of the evidence. Because no other witnesses actually saw the shooting, the defendant argues his testimony must be given substantial weight. Furthermore, the manslaughter instructions provided an easy alternative for the jury since there was not enough evidence to find the defendant guilty of murder. In other words, the defendant maintains that the voluntary manslaughter verdict represented a compromise verdict demonstrating that the jury did not believe in the defendant's guilt beyond a reasonable doubt.
In cases such as these, the court of review will not reverse where the record discloses facts sufficient to sustain either a murder or a manslaughter conviction unless the conviction is palpably and unreasonably contradictory to the evidence presented. (People v. Dillon, 28 Ill. App.3d 11.) The underlying rationale for this posture is partially based on the reviewing court's hesitancy to disturb or substitute its judgment for that of the jury's; thus, acknowledging the jury's superior position in weighing the evidence. In addition, reviewing courts feel that if enough evidence was presented from which the defendant could have been found guilty of murder, the defendant cannot complain about the verdict of manslaughter. (People v. Young, 11 Ill. App.3d 609, 614.) However, where the evidence establishing the defendant's guilt is so unsatisfactory as to leave grave doubts regarding the defendant's criminal culpability, the reviewing court will reverse. People v. Liddell, 32 Ill. App.3d 828, 832.
• 4 Upon examining the record, we find sufficient underlying facts to sustain the jury's verdict. The testimony of Nancy Sherman establishes that the defendant entered the bedroom, grabbed the shotgun, loaded it, and returned to the living room. The nature of the fatal wound and the distance between the defendant and the decedent at the moment of the shot (six to eight feet), tend to refute the defendant's version and support the jury's conclusion. Finally, the defendant admits struggling and exchanging blows with the decedent; he was present at the time of the shooting; owned the weapon; had the shotgun in his hands, and said it fired while in his hands.
• 5 Regarding the defendant's accidental shooting theory, the central issue is his credibility in the context of the physical facts. When the defendant testifies as to what happened, he must tell a reasonable story or be judged by its improbabilities. (People v. Morehead, 45 Ill.2d 326, 330.) The jury is not required to accept the defense offered and summarily reject the State's evidence just because the defendant was the only witness to the actual shooting. (People v. Ellison, 121 Ill. App.2d 149.) Instead, the jury may consider other facts and circumstances in the record which tend to contradict the defendant's story or raise serious questions regarding its probability and it is the realm of the trier of fact to determine if there was a causal relationship between the defendant's conduct and the decedent's death. (People v. Dillon, 28 Ill. App.3d 11, 18.) We find that the evidence presented ...