APPEAL from the Circuit Court of Vermilion County; the Hon.
JAMES K. ROBINSON, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
On November 29, 1974, after a trial by jury in the Circuit Court of Vermilion County, defendant Michael Barnett was convicted of the August 1974 murder of Bruce Leach. Defendant was then sentenced to 30 to 60 years imprisonment. He appeals, contending that the court erred in refusing his tendered self-defense instruction and in giving the State's tendered instruction IPI Criminal No. 3.14 concerning jury consideration of defendant's prior criminal conduct. Defendant also maintains that he was denied a fair trial because of improper remarks made by the prosecutor in his opening statement and closing argument.
Defendant was a bartender. On the evening of August 3, 1974, while at work, he purchased a pistol and some ammunition from Michael Nixon. Later, when defendant left work he loaded the pistol and placed it under the seat in his car. After driving a lady friend home, defendant drove to another tavern where he stayed for awhile. Defendant apparently left that tavern at the same time as the victim, Bruce Leach, Alvin Nelson and several other people. Defendant drove his own car, Leach drove another car with Nelson as a passenger and the others were in two other cars. What happened next is disputed. In any event, after the four cars had driven around for some time, Leach's car collided with the rear of defendant's car. Defendant then got out of his car, went up to Leach's car and shot Leach, who soon died from the wound.
Prosecution witnesses testified that after the collision, defendant ran up to Leach's car, opened the front left door, cursed Leach, hit him and then shot him. Nelson, a prosecution witness, testified that shortly prior to the collision, defendant's car and two other cars were lined abreast, stopped at a stoplight and the car with Leach and Nelson in it stopped behind defendant's car. When defendant did not move forward immediately when the light turned green, Leach hollered to defendant to ask why. Defendant answered that he and the other two cars were racing. Nelson testified that Leach then told him that he, Leach, had seen that defendant had a gun.
Defendant's version was that Leach and Nelson had been tailgating him, bumping him continually. He slowed down several times to let their car pass but that car remained behind him. After defendant stopped and the Leach car ran into him, defendant put the pistol in his back pocket, got out of his car and walked to the driver's side of the other car. Defendant testified that at this time he was "kind of scared." He positioned himself by the driver's door of the other car and asked Leach, "What are you trying to do anyway, kill me or what?" Leach responded with an obscenity and both Leach and Nelson were "acting crazy." Both slurred their words and were both mumbling and yelling. Nelson leaned over to Leach and said, "Let's take him." Defendant felt that Leach and Nelson were likely to severely injure or kill him. Leach opened the door pushing defendant back a step. Defendant then pushed the door back, kicked Leach and pushed the door shut. As Nelson started to get out on his side, Leach also tried to open his door. Defendant then pulled the pistol from his pocket and shot Leach. Defendant testified that he shot Leach because he did not think that he could defend himself against both Nelson and Leach if both got out of the car.
Defendant's theory of defense is that he was entitled to use deadly force against Leach because he reasonably believed that the use of such force was necessary to prevent the unlawful use of such force against himself by Leach and Nelson. To instruct the jury on this issue defendant tendered and the court gave IPI Criminal No. 24.06 which stated:
"A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.
However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself."
The People tendered and the court also gave IPI Criminal No. 24.09 which stated:
"A person who initially provokes the use of force against himself, is justified in the use of force only if the force is [sic] used against him is so great that he reasonably believes he is in imminent danger of death or great bodily harm, and he has exhausted every reasonable means to escape the danger other than the use of force which is likely to cause death or great bodily harm to the other person."
Defendant maintains, however, that the court erred when it refused his tendered instruction No. 8. That instruction also concerned the issue of justification by self-defense but was not from IPI Criminal. It stated:
"The Court instructs the jury that if one is not the first assailant is [sic] in a place he has a lawful right to be and is put in apparent danger of his life or of suffering great bodily harm, he need not attempt to escape but may lawfully stand his ground and meet force with force, even to taking of his assailant's life."
An integral part of defendant's theory of defense was his contention that he was not the aggressor and thus need not have exhausted possible means of escape before using deadly force if otherwise justified in doing so. He does not dispute that the two instructions which were given fully set forth the law on the subject of justification as applied to this case. He concedes that IPI Criminal No. 24.09 operates as a limitation upon IPI Criminal No. 24.06 by setting forth the only situation in which one defending against an unlawful use of deadly force must exhaust means to escape before being justified in the use of deadly force. Defendant contends, however, that since IPI Criminal No. 24.09 stated that an aggressor must exhaust means of escape, he was entitled to an instruction stating directly that one not an aggressor need not exhaust means of escape.
• 1 In support of his contention defendant relies upon the rule that a defendant is entitled to have the jury instructed upon his theory of the case. (People v. Johnson (1968), 100 Ill. App.2d 13, 241 N.E.2d 584.) In elaborating upon that rule in People v. Robinson (1973), ...