APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 19, 1978.
Defendant, John Lee Tiller, appeals from a judgment of the Circuit Court of St. Clair County entered upon a jury verdict finding him guilty of the offenses of murder and attempt murder. The charges arose out of a shooting incident occurring in the early morning hours of Sunday, May 25, 1975, in East St. Louis, Illinois, during which a police officer was fatally wounded. The defendant was subsequently sentenced to serve from 100 to 200 years for the murder conviction. He was not sentenced on the attempt murder conviction.
At 8:08 a.m. on Sunday, May 25, 1975, the East St. Louis police department received a call reporting a domestic disturbance involving a weapon at Apartment 28-C in the John DeShields housing project. Two officers, Harvey and Haire, were dispatched to the scene where they knocked on the back door of the apartment and asked that the occupant come out to talk. A voice from within the apartment responded that he had not called the police and that he had no time to talk. The officers then proceeded to the front of the building where they encountered the defendant's wife, who had placed the call, defendant's sister-in-law and several children. While the officers spoke with the complainant in the front of the building, a voice from within the apartment stated, "Nobody move."
The officers radioed for assistance and Officer Clark Wren responded. When Wren arrived he positioned himself at the corner of a nearby building. As he peered around the side of the building, his police hat was shot from his head. The defendant was observed with a rifle situated in an upstairs window. Several police cars were then dispatched to the scene. Among them was "Edward 20" carrying three officers, Sands, Waggaman and Farmer. The driver, Manuel Farmer III, obtained permission to remove a carbine from the trunk of the squad car. After doing so, Farmer positioned himself behind the automobile and was in the process of loading the carbine when a shot was fired from Apartment 28-C. Farmer slumped into Waggaman's arms and stated that he had been shot. As Sands reached into the police car to radio for an ambulance, another shot was fired that hit the center of the windshield. He was immediately transported to St. Mary's Hospital in an ambulance where he was pronounced dead on arrival.
Dr. Roman Patrick performed an autopsy on Officer Farmer and testified at trial that the cause of death was a bullet which entered deceased's body at the left collarbone, struck the pulmonary artery and lodged in the back of the body on the right side just below the ninth rib. Dr. Patrick further stated that judging from its path through the body, the bullet came from an upward position. Ballistics tests proved that the fatal shot was fired from defendant's rifle.
The State produced six police officers who had witnessed the major portion of the shooting that morning. These witnesses confirmed that subsequent to Officer Farmer's injury the police officers present opened fire on the apartment building. It was estimated that at least 100 shots and several tear gas shells were fired into the premises. Meanwhile, several requests were made for the defendant to surrender. Finally, defendant threw his rifle on the front lawn and asked to see his wife and son. Mrs. Tiller and the child appeared at the front of the building and after a few minutes Mrs. Tiller entered the apartment. A short time later defendant emerged from the building holding his wife in front of him as a shield. The defendant was placed under arrest at 9:50 a.m., approximately one hour and 15 minutes after officer Farmer had been shot. While en route to the St. Clair County jail, defendant commenced talking about the incident. The driver, Officer Conrad Williams, then asked the defendant why he had shot Farmer. Defendant responded that he could have shot several policemen, that in fact, he had Williams in his sight on two separate occasions.
The defense consisted of testimony by defendant, defendant's wife, and defendant's sister-in-law. Defendant testified that the previous evening he had been threatened by an off-duty East St. Louis policeman, Alonzo Payne, at a tavern. Defendant complained to the police about the incident but received no satisfaction. He later phoned St. Clair County Sheriff's office, but nothing became of the complaint. Payne, on the other hand, denied he had ever threatened defendant or exposed a gun to intimidate defendant. When Tiller arrived home at approximately 6 a.m., he and his wife became engaged in a fight. After defendant tore the phone from the wall and struck his wife several times, Mrs. Tiller ran to Barbara Tiller's apartment at 30-C John DeShields. The defendant followed her to get his rifle which he had previously placed behind a water heater. The two quarreled over the gun and a shot was fired. Defendant returned home with the gun at which time Mrs. Tiller phoned the police. Defendant stated that he was taking a bath when the police arrived. He further testified that the police refused to answer when he asked why they were kicking at his door. He stated that about that time he heard a loud shot or explosion, that there ensued a lot of shooting and that finally, he intentionally shot at Wren's hat in order to scare him. Defendant asserted that the police never requested him to surrender and that he felt they wanted to kill him. On direct examination defendant recalled that he fired several shots; however, on cross-examination the defendant stated that he did not remember shooting at the deceased.
Mary Tiller, the defendant's wife, testified that she never heard anyone in the apartment yell, "Don't move." She believed the first shot came from farther down the street. Mrs. Tiller recounted how twice in the previous two years the defendant had been harassed by the police and that while inside the apartment with him during this incident the defendant told her he was afraid the police wanted to kill him.
Barbara Tiller, the defendant's sister-in-law, testified that the defendant said, "get back," rather than "nobody move." The witness also stated that after the shooting started defendant hollered, "Leave me alone. You want to kill me because I am a killer." Both Mary and Barbara Tiller were impeached by their statements made at the police station on May 25, 1975 at which time each had acknowledged that the defendant had stated, "don't move."
The defendant assigns as error the refusal of the trial court to give his tendered instructions on voluntary manslaughter, involuntary manslaughter and aggravated assault, the latter as an included offense to the charge of attempt murder; the failure of the trial court to incorporate into a single issues instruction for the offenses of murder and attempt murder the issue of defendant's justifiable use of force; the refusal of the court to admit a videotape depicting the extensive damage to defendant's apartment caused by the police gunfire; and the sentence of 100 to 200 which is alleged to be excessive.
During the instructions conference, defense counsel tendered Illinois Pattern Jury Instructions on justifiable use of force, voluntary and involuntary manslaughter and aggravated assault. The court refused all but the instructions on self-defense. Prior to the court's acceptance of the self-defense instruction, defense counsel had tendered IPI Criminal Nos. 7.05 and 7.06 corresponding to the statutory definition of voluntary manslaughter codified in section 9-2(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 9-2(b)) and the issues instruction thereon. The court refused these instructions on the basis that defendant had no recollection of shooting at the deceased. Defendant first contends that the court erred in refusing these instructions.
1, 2 The courts> of our State have often declared that to justify the giving of an instruction all that need be shown is a slight amount of evidence in support of the underlying theory of defense. (People v. Sykes, 45 Ill. App.3d 674, 359 N.E.2d 897 (5th Dist. 1977).) Furthermore, a defendant is entitled to have submitted to the jury an instruction on a lesser included offense where there is any evidence in the record which, if believed, would so reduce the crime. (People v. Joyner, 50 Ill.2d 302, 278 N.E.2d 756 (1972); People v. Jenkins, 30 Ill. App.3d 1034, 333 N.E.2d 497 (4th Dist. 1975).) In addition, it has been stated that "[t]he accused is entitled to the benefit of any defense based on the evidence even though such defense is inconsistent with his own testimony" (People v. Thompson, 35 Ill. App.3d 773, 776, 342 N.E.2d 445, 448 (2d Dist. 1976)); however, there must be some evidence to support the lesser included offense or it is error to instruct thereon. People v. Handley, 51 Ill.2d 229, 282 N.E.2d 131 (1972).
Section 9-2(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 9-2(b)) defines voluntary manslaughter as follows:
"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 his belief is unreasonable."
It is clear that nothing in the State's evidence would support the giving of any of the instructions tendered by the defense. All the State's evidence tended to prove that the defendant, unprovoked by any conduct on the part of the police, fired at Officer Wren and fired the shot that killed Officer Farmer. The defense of justifiable use of force is an affirmative defense under sections 3-2 and 7-14 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, pars. 3-2, 7-14), and were it not for defendant's testimony that he fired in self-defense because the officers were trying to kill him, there would have been no evidence justifying the giving of the self-defense instruction.
On direct examination, the defendant testified that when the police arrived at his apartment, he assumed it was in response to his wife's phone call after their initial argument at their home and subsequent argument concerning the rifle at his sister-in-law's house. He did not respond. Later, while taking a bath he heard a "loud boom," which he later described as a shot. He went to the window and asked what the police wanted. They said nothing, according to his testimony, and "the next thing I know there was a lot of shooting going on." Some two to five minutes after the shooting started, he testified he fired the shot that went through Officer Wren's hat after asking and being refused permission to come out of his apartment building. He testified he saw the person later determined to be Officer Farmer with a rifle. On direct examination, he testified he remembered firing the shot that killed Farmer after tear gas and shots had been fired into the apartment; however, this was only a concession that a shot from his rifle did in fact strike Farmer as he denied any recollection of firing at Farmer at the time of the incident. The shooting lasted about 40 minutes and as many as 500 rounds were fired into the building. In response to a question on cross-examination, defendant testified that he did not remember shooting at Officer Farmer. On re-cross-examination he again stated he had no recollection of shooting at Farmer.
3 A fair reading of defendant's entire testimony sustains the court's refusal to give the tendered instructions on voluntary manslaughter. It is not proper for the defendant to isolate selected words or phrases from his testimony, some of which are ambiguous at best, and elevate this testimony to a theory of defense to justify the giving of instructions on contradictory, inconsistent theories. As the supreme court stated in People v. Bratcher, 63 Ill.2d 534, 349 N.E.2d 31 (1976), in holding defendant's tendered instruction on self-defense properly refused, "[t]o hold otherwise would permit a defendant to demand unlimited instructions, which are wholly unrelated to the case but are based upon the merest factual reference or witness's comment." (63 Ill.2d 534, 540-41, 349 N.E.2d 31, 34.) The defendant is not entitled to a charge on a lesser offense simply in the hope that the jury will exercise compassion and convict on the lesser offense.
The trial court refused defendant's tendered instruction on voluntary manslaughter because defendant denied that he intentionally fired at Officer Farmer or had any recollection of shooting at him. Section 9-2(b) of the Code (Ill. Rev. Stat. 1975, ch. 38, par. 9-2(b)) applies to one who intentionally or knowingly kills another under an unreasonable belief that the killing is necessary in order to defend himself. Section ...