APPEAL from the Circuit Court of Montgomery County; the Hon.
PAUL M. HICKMAN, Judge, presiding.
MR. JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
Defendant, David Bost, was charged by indictment with four counts of murder and was found guilty by jury of one count of voluntary manslaughter. He was sentenced to 6 to 18 years' imprisonment. On appeal he contends: (1) that the State did not prove beyond a reasonable doubt that his belief that the killing of Robert Lancaster was justified was unreasonable; (2) that the trial court erred in refusing to submit to the jury a non-IPI instruction; (3) that he was denied a fair and impartial trial due to numerous acts of prosecutorial misconduct; and (4) that the sentence he received was excessive.
The trial of this cause lasted six days. Twenty-eight witnesses testified for the State, while nine gave testimony for the defense. Three other witnesses testified in chambers out of the presence of the jury. The transcript of these trial proceedings exceeds 1000 pages, with the entire record encompassing 14 volumes. Therefore, we recite only those matters necessary for a clear understanding of this case.
A four-count information was issued against defendant as a result of the shooting death of Robert Lancaster in Farmersville, Illinois, on December 21, 1976. On December 30, 1976, a four-count murder indictment was issued against defendant. From March 7 through March 14, 1977, a jury trial was held in Montgomery County circuit court. However, the jury was deadlocked and a mistrial was declared. Pursuant to his motion for a change of venue, defendant was retried in the circuit court of Fayette County from May 2 through May 7, 1977.
The evidence showed that the defendant was hired to work at the Virden Crown 2 Mine in Farmersville as a repairman beginning on December 6, 1976. He rented an apartment there while his family remained in Belleville. Defendant had first met the victim, Robert Lancaster, at their physical examination for their new jobs during the last week of November. Other than a few minutes of conversation, they did not see each other again until December 11, 1976.
Defendant encountered Lancaster at the Uptown Tavern in Farmersville on December 11. When defendant pulled some money from his pocket to buy a round of beer for Lancaster and some of his friends, a .38-caliber wadcutter fell from his pocket. A wadcutter, as shown at trial, is a bullet with a flat, rather than protruding, rounded projectile which is used mainly for target shooting. At that time, Lancaster apparently initiated a discussion as to what effect he thought the wadcutter would have when it was fired into a one-gallon milk jug filled with water. Lancaster hypothesized that it would make a clean hole, while defendant opined that it would blow the back of the jug out because of the flat projectile. Finally, a $20 bet was made regarding the dispute, which bet was written down by a woman in the bar, Sue Ellen Morgan, and signed by defendant.
Several discussions followed as to how and when to settle the bet. The following night, December 12, Lancaster took defendant to Lancaster's truck where he had two milk jugs. Lancaster told defendant that he had won the bet, because it had taken "his .357 to do what I said the .38 would do." Defendant told Lancaster that since the .38 wadcutter had not been fired, the bet was still not settled. Defendant testified that Lancaster then said "that I would pay him or I would find out what that other bullet would do but it wouldn't be on any jug." They agreed to settle the bet the following morning.
That night while working, defendant injured himself. Therefore, defendant did not meet Lancaster the next morning as planned. According to defendant, when the two next encountered each other at work on Wednesday, December 15, Lancaster walked toward him "like he wanted to say something." However, Lancaster's friend, Ray Stansbury, "told Robert to come on, that that wasn't the time or place," and no further discussion occurred. While the argument subsided for the moment, defendant claims that the next morning, Thursday, December 16, Lancaster threatened him with a hammer.
After work on Thursday, defendant went to Belleville to see his family. Defendant testified that on Thursday evening he went to Sir Arthur's Tavern where his wife had worked for approximately three weeks prior to his getting the job in Farmersville. There he spoke about purchasing a gun with a man who referred him to another man from whom he purchased a .22-caliber revolver. Defendant said he purchased it because he had "never once been threatened * * * and when somebody threatens my life I consider it, well, a danger to me." He also testified that he was afraid of Lancaster at the time he bought the gun. Defendant did not know the full name of the man who sold him the gun and that person did not testify at trial.
After working the midnight shift on Tuesday morning, December 21, defendant said he drove to Zalar's Tavern, arriving at approximately 8:45 a.m. He ordered a beer and one shot of brandy. About 20 minutes later, according to defendant, Lancaster and Stansbury came into the bar. Defendant bought them both a beer. Defendant testified that Stansbury left about one-half hour later, but no witnesses ever saw Stansbury at the bar. In fact, Stansbury testified that he did not go to the tavern at all that morning, but arrived only after he learned of the shooting.
About 11 a.m. Lancaster went outside and brought in the two milk jugs, claiming to have won the bet. The argument went on for a while, but died down. The argument commenced once more and continued for approximately one-half hour. About this time Lancaster took defendant to the other end of the bar to discuss the bet with Illinois State Trooper Charles E. Traylor, an acquaintance of Lancaster's who was off duty and in the tavern. Traylor was with another off-duty State trooper, Ronald Wilton. Defendant claimed that Traylor was not introduced to him as a police officer, although "it might have been said but I didn't hear it." However, Traylor testified that he was introduced as a State trooper. Nonetheless, Traylor said he could not settle the bet for them.
Defendant further testified that in order to show Lancaster he was not trying to back down, he tried to raise the bet to $100. He took out a $100 bill and slapped it on the bar in front of Lancaster who picked it up and asked Frank Zalar, the owner of the bar, to change it, give him his $20 and return the balance to defendant. Zalar testified that he did not want to have anything to do with bets and refused to change it. At this time Lancaster threw the bill back to defendant telling him not to "let him see me again until I was ready to settle the bet."
Defendant then testified: "Well, I was wanting out of the tavern. I was pretty scared. I was wanting out of the tavern so I left." He said he got into his car but it would not start, claiming that he had also had trouble starting it earlier that morning. Two State's witnesses, however, Loren Guthals and Robert Gorman, were outside the tavern while defendant was at his car and testified that he did not get in behind the wheel but only opened the driver's door. But neither could really tell what defendant was doing at the car. Defendant testified that he remembers leaving his cigarettes and lighter in the bar and returning to get them as well as to ask Guthals, whom he had seen inside earlier, to give him a jump start. However, he said he was afraid of Lancaster, and therefore, took the .22 pistol from the floor of his car and put it in his pocket.
Defendant's version of the story continued as follows. He went back in the tavern and went straight to the bar. He did not see Lancaster when he first arrived, but then Lancaster came up beside him and started to drink his beer. According to defendant, Lancaster "asked me if I was back for some crap or if I came back to settle the bet." Defendant replied that he had only come back for the lighter and while they continued to argue, he started walking toward the door to leave. He had taken a few steps when he turned to Lancaster and said he was not trying to back down from a "[obscenity] thing," claiming that the obscenity was not directed personally at Lancaster. While continuing toward the door, defendant heard chairs rattling or crashing and someone say "oh, no, or oh, my God, no." Upon turning around he saw Lancaster coming toward him "at a good clip." Lancaster's jacket was open and his arms were at his side, but he could not see his hands. Lancaster appeared angry and defendant said he was scared so he reached in his pocket and pulled his gun. Defendant told Lancaster to "hold it right there" and said a profanity. All this time defendant claimed to be backing up toward the door.
About the time defendant said he issued his warning, he heard someone say, "he's got a gun." At the same time he heard this, the defendant testified that Lancaster's hand started coming out from behind his coat when they were within a few feet of each other. He further testified:
"When someone said `he's got a gun' my first thought was 357 because that is what he had been talking about that morning several times. He had mentioned his 357 and what it would do, you know, and in a threatening manner. When I thought a 357, I thought of that milk jug. When I thought of the milk jug it was frightening."
At this time defendant fired one shot at Lancaster. Since Lancaster kept coming at him, defendant closed his eyes and fired two more shots. Defendant said that while his eyes were still closed, the gun was knocked from his hand and hit him in the nose, thereafter landing on the floor. Presumably, it was Lancaster who jarred the gun loose. Defendant bent over, picked the gun up and intended to go out the door but Lancaster was blocking it. Defendant ran to the far end of the bar looking for a back door. Finding none, he ran back the way he had come. Lancaster, according to defendant, was away from the door but still standing when he ran out of the tavern.
This is a remarkably different story from the one rendered by the over one dozen State's witnesses who were present in the bar at the time of the shooting. Most agreed that at times, the voices of defendant and Lancaster rose above the other noise in the tavern, but none felt that this was extraordinary at the time. Yet, most agreed that defendant's voice was louder than Lancaster's. Ray Emerson, a part-time city policeman in Farmersville, said that Lancaster appeared to be calm and laughing "like it was a joke." And Rick Brockmeyer, a witness who was in the bar, said that after defendant came back into the bar from outside, Lancaster "wasn't saying a word," while defendant continued the argument.
Also, while defendant testified he did not see Lancaster when he returned to the bar from outside, the consensus was that Lancaster was on the telephone at the time defendant returned. At least one witness, Steve Rigney, who was closest to the telephone, testified that defendant, while "mouthing a little bit," walked up to Lancaster when he was on the phone, but Lancaster ignored him. When Lancaster returned to the bar, six witnesses agreed that defendant inveighed Lancaster with one or more profanities they preferred not to repeat in the courtroom. This was contrary to defendant's testimony that the profanity was not directed at Lancaster. Subsequent to this, some witnesses heard Lancaster say to defendant, "What do you want, a piece of my ass," or something to that effect.
After defendant's invective, Lancaster began to approach him. No one other than defendant heard anyone say, "oh, no, or oh, my God, no." Only one of the State's witnesses, Bob Gorman, testified that Lancaster was walking at other than a normal pace toward defendant. He said Lancaster advanced toward defendant "a little bit faster than normal walk but not much." The witnesses generally agreed at trial that Lancaster's hands were by his side when he went toward defendant, although defense counsel tried to impeach one of the witnesses with a prior inconsistent statement he had given to a defense investigator. And while Emerson said that Lancaster approached defendant with his arms "out like that," he further stated that Lancaster's arms were at his side when he was shot. While not all the witnesses could see Lancaster's hands as he advanced toward defendant, the substance of the testimony was either that Lancaster had nothing in his hands or that no one saw him reach under his jacket and draw his hand out as stated by defendant. None of the State's witnesses heard defendant warn Lancaster to "hold it right there" prior to firing the first shot, or heard someone say "he's got a gun" as testified to by defendant. Also, the witnesses for the State agreed that Lancaster had not threatened defendant prior to the shooting. Numerous witnesses saw a chrome-plated revolver in defendant's hand immediately prior or subsequent to the shots being fired. Finally, all of the witnesses' testimony had Ray Emerson along with Frank Zalar helping Lancaster to the floor before defendant ran through the front door.
State Trooper Steven Huggins, who was called to the scene, testified that he checked the outer pockets of Lancaster's coat and shirt, and patted the outside of his pants pockets but found no gun on or near the body. Officers Traylor and Wilton, who had left prior to the shooting but who apprehended defendant approximately one-quarter to one-half mile from the scene, testified in accordance with Huggins that Lancaster showed no signs of life at the time they investigated the scene, approximately one-half hour after the shooting. In fact, the witnesses testified that Lancaster died three to four minutes after the shooting. This was corroborative of the testimony of Dr. William K. Drake, the pathologist from the Montgomery County coroner's office, who testified that one of the three bullets pierced the right atrium of Lancaster's heart, causing him to bleed to death.
The jury returned a verdict of guilty of voluntary manslaughter. Defendant filed a post-trial motion but it was denied on June 7, 1977. On June 13, 1977, defendant was ordered committed to the Joliet Correctional Center for presentence examination. On September 6, 1977, the sentencing hearing was held. Defendant had submitted a motion for probation while the State had filed a motion for an extended term sentence.
Six men testified on behalf of defendant that he was a good candidate for probation. Defendant's wife testified that she had found her husband a job in California as a brick mason and that he should be released on probation "because he has a family and because we miss him." Defendant testified:
"I know for a fact that a prison sentence can in no way help, help me or help the Lancaster family or help anyone involved. It can't change or correct in any manner what has happened. I'm certainly sorry that this happened, extremely sorry."
He felt that further imprisonment was not needed to protect the public because "an incident like what has happened would never happen again. I'll never place myself in a situation such as this." Continued imprisonment, said the defendant, could benefit no one and only be a "financial problem and extreme hardship for my wife."
Ethel Lancaster, the victim's wife, testified for the State. She said that she had to move from her house because her two boys were afraid of it and afraid defendant or his family would come there and kill them. She felt probation would deprecate the seriousness of the offense and felt defendant should be punished the rest of his life, even to the point of his life being taken. Trooper Huggins also testified that defendant, as well as every individual convicted of voluntary manslaughter, should receive at least five years' imprisonment or else the seriousness of the offense would be minimized.
The evidence at the sentencing hearing showed that this was defendant's first offense. Psychological and psychiatric evaluations in the presentence report concluded that this offense was situational rather than premeditated. Defendant argued that from all the evidence adduced at the hearing it was clear he had good rehabilitative potential. However, the trial court denied both defendant's motion for probation and the State's motion for an extended term sentence, stating the following in issuing its sentence:
"Now the Court has considered all the evidence in this case, of course, considered the Pre-sentence Report and the two supplements in connection therewith, considered the information that has been elicited here in open court both on behalf of the State and on behalf of the Defendant and either in aggravation or mitigation and allowed the defendant to speak in his own behalf and heard the arguments of counsel and has also considered the report of the examinations in the Correctional Center at Joliet and has taken all of these matters into consideration. This is a very serious offense in the mind of the Court and it's the judgment of the court that the defendant be sentenced to an indeterminate number of years with the Department of Corrections, Adult Division, State of Illinois for a minimum period of not less than six years and a maximum period of not more than eighteen years. Judgment will be entered for costs. In view of the defendant's unemployment for the past period of time I see no reason for imposing a fine. I don't see how it would be possible for him to be able to pay a fine."
From this judgment a notice of appeal was filed on September 8, 1978. For the following reasons, we affirm the judgment of the trial court.
Appellant first contends that the State did not prove beyond a reasonable doubt that his belief of justification was unreasonable. In other words, he argues that he was not proved guilty of voluntary manslaughter beyond a reasonable doubt. The basis of this position is that because the victim was four inches taller and 85 pounds heavier than he was and was advancing toward him, he was justified in using self-defense. We need not embark on an extended recitation of the law of self-defense, other than to note that justification thereunder has always been a question for the trier of fact. (People v. Jordan (1960), 18 Ill.2d 489, 492, 165 N.E.2d 296; People v. Reeves (1977), 47 Ill. App.3d 406, 409, 362 N.E.2d 9.) The resolution by the trier of fact will not be set aside unless the evidence is so unsatisfactory as to raise a reasonable doubt as to defendant's guilt. People v. Dawson (1961), 22 Ill.2d 260, 264, 174 N.E.2d 817; People v. Watkins (1970), 46 Ill.2d 273, 263 N.E.2d 115.
1, 2 Appellant's effort to persuade us as to the reasonableness of his beliefs is nothing more than an attempt to recite the evidence most favorable to his defense and urge us to adopt the position rejected by the jury. As set forth above, while the evidence against appellant was overwhelming, there was some conflicting testimony as to the nature and extent of the argument prior to and at the time of the shooting and the manner in which the victim approached appellant immediately prior to the shots being fired. These conflicts are minor and affect only the witnesses' credibility rather than establish a reasonable doubt of guilt. (People v. Lewis (1979), 75 Ill. App.3d 259, 281, 393 N.E.2d 1098.) These evidentiary discords are properly resolved by the jury and will not be set aside where, as here, there was more than enough evidence to sustain the verdict which was returned.
Appellant next argues that the trial court erred in refusing to tender to the jury a non-IPI instruction regarding self-defense. Defendant's instruction No. 2 read as follows:
"[T]hat if one who is not the first assailant is in a place where 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 the taking of his assailant's life."
The State objected to the instruction and the trial court refused to tender it.
3, 4 Appellant correctly cites Supreme Court Rule 451(a) (Ill. Rev. Stat. 1977, ch. 110A, par. 451(a)) in this regard. That rule reads as follows:
"Whenever Illinois Pattern Instructions in Criminal Cases (IPI-Criminal) contains an instruction applicable in a criminal case, giving due consideration to the facts and governing law, and the court determines that the jury should be instructed on the subject, the IPI Criminal instruction shall be used, unless the court determines that it does not accurately state the law. Whenever IPI-Criminal does not contain an instruction on a subject on which the court determines that the ...