APPEAL from the Circuit Court of Cook County; the Hon. FRANK
B. MACHALA, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendant, Kenneth Earl Slaughter, was charged by information with the murder of James Sanderson in violation of sections 9-1(a) and 9-1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, pars. 9-1(a), 9-1(a)(2)). Following a jury trial, defendant was found guilty of murder and sentenced to not less than 18 years nor more than 25 years in the Illinois Department of Corrections.
On appeal, defendant contends that (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court erred in refusing to give his jury instruction on "provocation" voluntary manslaughter; (3) the evidence supports reduction of his conviction to voluntary manslaughter; (4) the trial court erred in giving Illinois Pattern Instructions, Criminal, Nos. 24.09 and 24.11 (1968) (hereinafter IPI); (5) the State's closing argument was prejudicial; and (6) the trial court erred by refusing the jury's request to review defendant's testimony.
Johnnie Mae Sanderson testified that she was James Sanderson's aunt. On December 8, 1977, her nephew lived with Ella Comer. That day, at about 6:30 p.m., Sanderson went to her nephew's birthday party at Comer's apartment. Sanderson saw defendant conversing with Comer. At about 8:30 p.m., James Sanderson and Comer told everyone that they wanted to be alone and the party was over. When defendant refused to leave, James Sanderson caught him by the sleeve, asked him to leave and escorted him to the door. Defendant took a long, thin knife from his pocket and pointed it towards James. When the witness told defendant there was no need for this and requested that he leave, defendant left.
On cross-examination, Sanderson testified that James had been drinking but did not appear drunk. She did not know if defendant had been drinking and he appeared sober. Before the guests were asked to leave, a teenage boy fell onto the kitchen table and cracked it. Sanderson testified that her nephew did not choke defendant.
Ella Comer testified that she lived with James Sanderson on December 8, 1977, and that they were engaged. Comer had known defendant about six or seven weeks prior to Sanderson's birthday party. She saw defendant on December 8 at about 12:30 p.m. at her apartment. Defendant stated that Sanderson was fat and ugly and asked her why she wished to marry someone like him. When he told her that Sanderson was not going to marry her, she asked defendant to leave.
At the party, at about 8:30 p.m., Comer's brother Anthony became intoxicated and fell on the kitchen table, breaking it. Sanderson then asked everyone to leave. When defendant remained, Sanderson again asked him to leave, grabbed him by the sleeve and led him toward the door. Comer heard Johnnie Mae Sanderson tell defendant to put the knife away. Defendant left the apartment.
Comer further testified that about 15 or 20 minutes later defendant returned and stood in the doorway. He asked Comer if she would come out on the ramp because he wanted to talk. She declined, but he kept repeating this request. Comer stated that defendant asked Sanderson if she could come out on the ramp and talk. Sanderson said that she was not going anywhere. Sanderson and her brother Reginald then went to the door. Because her back was to the door, Comer did not see what happened. A moment later Sanderson shouted, "Stop that, nigger." He was bleeding profusely from the left side of his chest. Comer and other family members took Sanderson to the hospital, where he was pronounced dead on arrival. Comer testified that Sanderson was unarmed and that she did not see him do any physical harm to defendant.
On cross-examination, Comer testified that Sanderson, defendant and she were drinking at the party. Comer believed defendant had been flirting with her the day of the incident and during the weeks preceding it. She told decedent's mother she felt responsible for his death.
Reginald Cross, Comer's 14-year-old brother, substantially corroborated his sister's testimony. When defendant refused to leave the party, Sanderson grabbed him by the sleeve and pushed him toward the door. Defendant pulled out a knife, but left when Johnnie Mae Sanderson intervened.
Cross further testified that when defendant returned and attempted to talk to Comer, Sanderson went to the door. Sanderson did not threaten defendant before he walked towards him, nor did he beat defendant anytime that night. Sanderson never touched defendant before he was stabbed, but held his arms out, with the palms of his hands extended toward defendant. However, Cross also testified that Sanderson walked up to defendant first, pushed him, and defendant stabbed him.
Officer Rokosik testified that he arrested defendant and advised him of his Miranda rights. Rokosik asked defendant if he was Kenny and if he had been to Comer's apartment. Defendant responded, "Yeah, I am the one that did it and I'm glad I did it." As defendant was being handcuffed, he was asked if he had any weapons. He took a knife from his right-hand pocket and said, "This is the knife I used here." Defendant also said the reason he had stabbed the victim was because Sanderson grabbed him by the tie. Defendant said, "You don't grab no nigger that is wearing a tie by the tie." On the way to the station, defendant kept repeating, "I hope he dies; I hope he dies; I'm glad I did it." Defendant wanted the police to take him to the hospital so he could stab Sanderson again. Officer Rokosik subsequently learned that Sanderson had been pronounced dead upon arrival at the hospital.
James Newton, a Cook County Assistant State's Attorney, testified that he interviewed defendant at about 11:30 p.m. on December 8, 1977. Defendant said that while he was at the party Sanderson grabbed him by the collar and started choking him. Defendant told Newton that he returned to his apartment and realized that his mama didn't raise no fool, didn't teach him to back down to anybody. Defendant further stated that he changed his clothes, went back to Sanderson's apartment and that this time when James grabbed him again, he didn't give him a chance to choke him. Defendant said that he just saw the victim's big stomach sticking out at him and he just stabbed him.
Investigator Francis Kehoe testified that he interviewed defendant after his arrest. Defendant stated that at the party Sanderson grabbed him by the collar, choked him and threw him out of the apartment for no reason. Defendant further stated that he went upstairs to his apartment and changed into shoes more suitable for fighting. He returned to Comer to determine why Sanderson had jumped on him. Defendant stated that Sanderson again attempted to grab him and this time he stabbed Sanderson. Defendant thought Sanderson was going to choke him again. Finally, defendant said that he wished he could have stabbed Sanderson nine more times, but fled because someone in the apartment might have had a gun.
Defendant testified in his own behalf that on the afternoon of December 8, 1977, he talked to Ella Comer in her apartment. He told Comer that Sanderson cared for another woman and was calling her that day. Defendant denied telling her that he would do everything he could to prevent her from marrying Sanderson or that she should not marry Sanderson because he was fat and ugly. At the party that night, defendant was "high." At about 8:30 p.m. he heard a noise from the kitchen. Sanderson got up and started screaming at defendant. When defendant asked what did he do, Sanderson continued screaming and cursing and said, "You know, you know." Sanderson grabbed defendant in the chest and threw him against the wall and then grabbed defendant's throat and started choking him. When Sanderson eased up, defendant moved toward the door and pulled his knife from his pocket. Defendant told Sanderson, "Don't come to me, don't grab me no more," and eased out the door. Defendant testified that Sanderson appeared intoxicated and angry during the altercation.
Defendant went upstairs to his sister's apartment. He removed his jacket and tie and changed shoes because a heel was broken. He continued to wear the same pants with his knife in the back pocket. About 20 minutes later, defendant returned to Comer's apartment because he wanted to find out why Sanderson had jumped him. Standing outside the screen door, defendant called Comer two or three times. He then saw Sanderson coming toward him with his hands outstretched. Sanderson grabbed him, placing one hand on his shirt and jacket and the other hand on his throat. Defendant stated that he was afraid Sanderson was going to beat him up pretty badly or kill him. He moved to get away from Sanderson, who was bigger and stronger than he. When Sanderson was choking defendant and he could not get away, defendant became frightened and stabbed Sanderson to get him off. Defendant returned to his sister's apartment. A few minutes later, Sanderson's brother came to the apartment and cursed defendant. Defendant explained that the only reason he stabbed Sanderson was to get him off. When Sanderson's brother resumed cursing and swung a knife at defendant, he ducked and closed the door on him.
When the police arrived, defendant told them he stabbed Sanderson and gave them the knife. He denied telling them that he hoped Sanderson would die and denied asking to go to the hospital to stab him again. Defendant also denied telling Investigator Kehoe that he changed into clothes more suitable for fighting or that he wanted to stab Sanderson nine more times.
Terry Lynn Flowers, defendant's sister, testified that she was present at the party at Comer's apartment. When she left the party, defendant was still there. Defendant subsequently returned to her apartment, took off his jacket and changed into another pair of dress shoes because a heel was broken. Defendant told her that he was going to talk with Comer to find out why Sanderson had grabbed him by the collar and put him out. Sometime after defendant returned, the police arrived. They asked for defendant and he gave them his knife. Flowers testified that her brother did not tell the police that he hoped Sanderson dies.
Defendant argues that he was not proved guilty of murder beyond a reasonable doubt because the State failed to prove he was not acting in self-defense. Section 7-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 7-1), on the use of force in defense of person, provides:
"A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he 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 or another, * * *."
Where the affirmative defense of self-defense is raised, the State must prove the defendant guilty beyond a reasonable doubt as to that issue, together with all other elements of the offense. (Ill. Rev. Stat. 1977, ch. 38, par. 3-2(b).) The State met this burden.
The defendant's argument presents only his testimony and ignores the State's case. Defendant testified that when he was at Sanderson's party, Sanderson grabbed him, threw him against the wall and choked him. However, the State's witnesses indicated that Sanderson asked defendant to leave the party and when he refused, took defendant's sleeve and walked him to the door.
Defendant also relies on his testimony that the victim grabbed him and choked him immediately before he stabbed the victim. He then asserts that his testimony was corroborated by Reginald Cross, a State witness. The record fails to support this assertion. Rather, Cross testified on direct and cross-examination that Sanderson approached defendant with his arms extended but never touched defendant when he was stabbed. Indeed, when the attorneys disagreed as to how to characterize Cross' reenactment of the scene, the court interjected: "I think the record should show the palms of his [Sanderson's] hands were extended towards him [defendant]."
Where the evidence is conflicting, it is the province of the jury to ascertain the truth. (People v. Manion (1977), 67 Ill.2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L.Ed.2d 533, 98 S.Ct. 1513.) A court of review will not substitute its judgment for that of the trier of fact as to witness credibility. (Manion.) Moreover, whether the use of deadly force was justified is a fact question for the jury, and their determination will not be disturbed on appeal unless the evidence is so unreasonable, improbable or unsatisfactory as to cause a reasonable doubt. People v. Acevedo (1976), 40 Ill. App.3d 105, 351 N.E.2d 359.
We will not reverse the verdict or judgment simply because the jury chose to believe the State's testimony. (People v. Novotny (1968), 41 Ill.2d 401, 244 N.E.2d 182.) The jury apparently believed that defendant stabbed an unarmed man who ...