APPEAL from the Circuit Court of Champaign County; the Hon.
ROGER H. LITTLE, Judge, presiding.
MR. PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Defendant Ethel Mae Hollins, a/k/a Thelma Hollins, appeals her conviction, following trial by jury in the circuit court of Champaign County, of voluntary manslaughter and her sentence of 3 to 9 years' imprisonment. Her contentions on appeal are that the trial court erred in (a) refusing to give her tendered involuntary manslaughter instruction and (b) admitting into evidence certain photographs and (c) that she should have been permitted to make the election as to sentencing authorized by Ill. Rev. Stat. 1977 Supp., ch. 38, par. 1008-2-4(b).
Defendant's conviction arose out of the May 16, 1977, shooting of Kenneth Jasper at Pittypat's Tavern, a/k/a The Goldenrod, in Champaign. Michael Harvey and Henry Boykins testified at trial as occurrence witnesses.
Harvey testified to being at Pittypat's at about 10:30 the night of the shooting and to overhearing a conversation just outside of the tavern between defendant and Jasper in which defendant told Jasper that she was going to kill him and his friends. Harvey stated that shortly thereafter, defendant raised a gun to Jasper's face, Jasper reached for it, and the gun discharged. According to the witness, defendant continued to shoot at Jasper who then fell to the sidewalk. Defendant shot Jasper twice more, stated that she had told him she would kill him, and then departed. Harvey admitted on cross-examination that a transcript of his previous testimony before the grand jury did not contain statements by him as to defendant threatening Jasper or stating, after the shooting, that she had told him she would kill him.
The testimony of Boykins substantially corroborated that of Harvey. Boykins stated that defendant had the pistol in her hand during her conversation with Jasper prior to the shooting and that, although he, Boykins, had not seen the first two shots which were fired, he did observe defendant shoot Jasper while he was on the sidewalk. Boykins stated that he did not hear defendant threaten Jasper or say, following the shooting, that she had told him she would kill him.
Gary Smith, a State's witness, testified to observing a gun in defendant's hand on the night in question as he left Pittypat's. Other evidence established that the shooting took place shortly thereafter. Smith stated that he had not noticed the gun upon his arrival at the tavern but that he had not been paying attention to defendant's hands then. Smith did not witness the shooting.
Demeitre Winston, also an occurrence witness, testified to being inside Pittypat's at the time of the shooting and to observing defendant aim and shoot at Jasper while he lay on the ground. Winston further testified to being at the Blue Island Tavern during the afternoon of the day of the shooting and to having heard defendant state that she was going to kill Jasper there. This was contrary to her previous statement before the grand jury that such a statement was not made by defendant and to the testimony of Martha Elizabeth Shaw who testified to being with defendant at the Blue Island. Shaw stated that defendant had been cut and beaten by Jasper that day but that defendant had not stated that she was going to do anything to Jasper.
Samuel Jasper, the victim's uncle, testified to seeing a revolver in defendant's purse while at the Blue Island with defendant's father during the afternoon of May 16, 1977.
Lucille Abdulah also gave testimony at trial as to the shooting, stating that defendant had repeatedly shot at Jasper during the incident.
Testimony was presented on defendant's behalf that Jasper had been instructed in karate and could cause another bodily harm and that Jasper had beaten defendant repeatedly in the past.
David Charles Kelly, an occurrence witness testifying on defendant's behalf, stated that he had observed the shooting, that defendant had nothing in her hands at its commencement, that Jasper had grabbed defendant around the middle just prior to the first shot, that Jasper continued to grasp at defendant while three more shots were fired and that upon Jasper's falling to the ground, defendant shot him twice more. Kelly had not heard defendant threaten Jasper. The witness had seen the gun in defendant's hand during the final two shots but had only observed defendant's empty left hand during the first shots.
Defendant testified at trial, stating that Jasper had cut her hand during the afternoon of May 16, 1977, and denying that she threatened to kill Jasper while at the Blue Island Tavern. Defendant further denied having either a gun or a purse while at the tavern that afternoon.
Defendant's testimony as to the shooting was as follows: That evening, near Pittypat's, Jasper had struck her repeatedly in the eye and the jaw. Later, in front of Pittypat's, Jasper hit her again, told her that she was going with him, and then drew a pistol. Defendant grabbed the gun, Jasper attempted to grab it back, and the gun fired. Thereafter, Jasper came at her and she, with the gun, "kept on shooting him," pulling the trigger. Defendant admitted to shooting at Jasper including twice after he ...