APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Early on the morning of November 10, 1973, John Lofthouse, defendant, fired shots which killed Manuel Ramirez and injured Edson Montanez while they were seated in a car with Miguel Mendez and Josea Lopez. Defendant was charged with the murder of Ramirez, aggravated battery as to Montanez, and attempt to commit murder as to Mendez and Lopez. Following a bench trial defendant was convicted of voluntary manslaughter and aggravated battery and for those respective crimes was sentenced to concurrent terms of six to 18 years and three to 10 years. On appeal defendant contends: (1) the State did not prove beyond a reasonable doubt that he did not act in self-defense; (2) the trial judge incorrectly stated and applied the law of voluntary manslaughter; (3) the trial judge erred in not granting a mistrial following an improper question asked of the defendant by the State; (4) defendant's sentence for voluntary manslaughter should be reduced.
We affirm defendant's convictions and sentences.
Montanez, Mendez and Lopez testified for the State, giving the following account of the incident: On November 10, 1973, at about 1:30 a.m. they were seated in a car at a housing project parking lot at 25th and Washtenaw in Chicago. They had driven there in order to visit Edwin Galetti, who lived in the area. Montanez was in the driver's seat, Ramirez was next to him, and Mendez and Lopez were in the back seat. Minutes after they arrived, defendant approached the passenger side, opened the door, and pointed a sawed-off shotgun at them. He asked them what they were doing there, saying that they did not belong in Latin Count territory. In additional references to youth gangs, defendant asked them whom they represented and accused them of being members of the Latin Kings. When defendant was told that they belonged to no gangs and had come to visit Galetti, he began to talk about how Galetti had taken his girlfriend from him and had "given her a baby." The occupants of the car sought to calm him, but defendant fired his gun into the air and then, according to Mendez, said it would be that easy to kill them. Ron Tatro was with the defendant and attempted to get him to leave, but to no avail. Mendez asked defendant if they could leave and come back later. Defendant responded by stating he would see them later but then fired three times into the car. The first shot just missed Mendez' head, blowing his hat off; the second shot struck Ramirez in the head, and the third shot struck Montanez in the elbow. Defendant then ran from the car. The three witnesses testified that they had no guns in the car, had not shot at the defendant earlier that day and had not been in the lot earlier that day. They denied being members of the Latin Kings, admitting only having been members of the Counts which they said was not a gang and was not related to the Latin Kings.
Investigator John Dahlberg testified that after defendant was arrested he gave an oral statement concerning the shooting. In that statement defendant said that earlier in the evening a car in which Ramirez was a passenger came to the project complex. Defendant asked the occupants if they were looking for trouble. About an hour later the car returned. Defendant got a shotgun, walked to the passenger side of the car, and opened the door. Ramirez, who was seated on the passenger side, opened his coat and showed defendant a handgun concealed in his waistband. Defendant then fired three shots into the car and fled. Dahlberg further testified that defendant did not tell him that he had been threatened earlier by the occupants of the car, nor did he say that Ramirez ever took the gun out of his waistband.
Defendant testified that at about 11:30 or 12 that evening he left a party in one of the project apartments. As he began to cross a basketball court he saw Ramirez, Montanez, Mendez and Lopez. Montanez and Ramirez approached Edwin Galetti's door and began to bang on it. At that point someone threw a bottle and defendant turned to see who threw it. Ramirez then yelled something and fired two shots in the air in defendant's direction. Defendant took cover along with two girls who were there, Debbie Osinger and Carolyn Hills. Defendant next heard a car drive off and noticed that the four were gone. Defendant returned to the party but later at about 1 a.m. again left with Debbie Osinger to get a beer. On their way back to the party defendant saw Montanez' car again. He walked up to the car and as he did so Ron Tatro, who had also been at the party, walked up behind him and handed him a shotgun. Defendant opened the door of the car and asked the occupants (the same four as established by the State's evidence) why they were shooting at him. He also asked them whether a girl named Wendy had been raped by one of their friends. When they laughed at this question he told them to shut up and fired the gun into the air. Defendant told them he could shoot them but he wanted to talk. Ramirez pulled out a revolver and started pointing it at the defendant, who then shot him. When Montanez picked up the revolver defendant shot him too. Lopez grabbed the defendant's gun and when defendant pulled it back it fired. Defendant fled, noticing as he did that David Worth was also at the scene.
Defendant presented several witnesses in an effort to establish that the occupants of the car were armed. Patricia Osinger testified that during the afternoon after the shooting, at about 5 p.m., Mendez and Lopez came to the parking lot and picked up an object from a vent. Delores Murphy saw Mendez and Lopez there at the same time but said they were with three others. One of those five picked up a gun. Carolyn Hills said she witnessed the shooting and afterward saw Mendez and Lopez hide something by a vent located there. Later at about 5 p.m. they returned and retrieved two guns from the area. David Worth said that after the shots were fired he approached the car and saw a gun on the back seat between Lopez and Mendez. Lopez and Mendez in their testimony admitted they returned to the area that afternoon, but only to look for Mendez' keys.
Four other witnesses testified that they were present at the time of the shooting. David Worth testified that at about 1 a.m. he was walking home through the parking lot when he saw defendant talking to the occupants of a car, including Mendez and Lopez. He saw defendant shoot in the air and then heard four more shots but did not see who fired them. Ron Tatro said defendant walked out of the party with the shotgun and he followed. He saw defendant approach the car, open the door and talk to the occupants. Defendant fired a shot into the air and Tatro tried to convince him to give up the gun. As Tatro left he heard one or more other shots but he did not identify who fired them. Tatro denied seeing a gun in the car or telling anyone he did so. Worth and Tatro were called as defense witnesses but Tatro was declared a court's witness during his testimony. As an impeachment witness the defense called Cary Polikoff, the brother of one of the defense attorneys. Polikoff testified that he was present when Tatro was interviewed by his brother and at that time Tatro said he could see a gun in the trousers of the person in the right front seat of the car. A third witness called for the defense, Carolyn Hills, recalled that at about 12:30 that night at the parking lot a car pulled up with Mendez, Lopez, Ramirez and Montanez in it. They yelled "King Love" and defendant yelled back "Count Love." Those in the car then began shooting at defendant. Defendant left and returned in a few minutes with a gun and began firing back from about 25 feet away from the car. She said defendant never had a conversation with the occupants of the car and never came closer to it than 25 feet. Debbie Osinger, called as a court's witness, testified she was defendant's girlfriend at the time of the incident although not at the time of trial. At 11:30 that night she was standing with defendant in the area of the parking lot when shots were fired. She did not see who fired the shots. She took cover, observing as she did so that Ron Tatro handed defendant a gun. She then heard three shots fired but did not see who fired them.
In making its findings the court stated:
"Based upon all testimony the Court might just relate to you that it did believe that the most honest witness it saw on the stand was Delores Murphy, I believe her name was and I thought she was very sincere and honest in her statements and told the truth as she saw it. And I think that much of this might have been substantiated by some of the other witnesses, Patty Osinger, 14-year-old girl who the Court also thought was very sincere and honest in her testimony and although Carolyn Hills may have stretched a lot of her testimony, I think that generally speaking what she said was substantiated by the other witnesses, Patty Osinger, as well as Delores Murphy in that there was a gun that was located and found based upon finding this gun, it would lead one to suspect that there were shots as testified to that were fired previous to the time of the incident where the defendant shot and killed the victim in this case. His apprehension of perhaps taking the matter into his own hands was unreasonable and I believe that our law has repeatedly held that where a person while acting under an unreasonable belief that deadly force is necessary to protect himself from imminent death or great bodily harm, that that would constitute voluntary manslaughter. And I believe in this case that when he thought that these shots may have been fired at him and, of course, Debbie Osinger said that the shots were coming in that direction that she heard, she thought that they were coming in that direction that this defendant thought that they were being fired upon him and instead of perhaps seeking help from the police or going to the local authorities, he decided to take the matter into his own hands and that was an unreasonable belief an unreasonable belief under the law does not or would constitute voluntary manslaughter and not murder."
The Illinois statute on voluntary manslaughter provides in pertinent part:
"A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but ...