APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
J. MAHON, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Following a bench trial on April 6, 1979, defendant, Michael Lewis, was found guilty of voluntary manslaughter and sentenced to the Department of Corrections for a term of six years. The sole issue presented is whether the trial court's sentencing was so excessive as to warrant modification on appeal. Because of the limited scope of this appeal, only those facts pertinent to the sentencing are related.
Defendant was indicted and tried on two counts of homicide. The evidence elicited at trial, both from State and defense witnesses, tended to establish with only minor discrepancies the following facts. In the late evening of October 27, 1977, defendant was standing at the bar in the Lime Room lounge in Chicago. Another customer, later identified as Eugene Sperman, approached defendant and demanded that defendant buy a drink for him. Sperman then kicked defendant under the bar. Defendant first asked Sperman to leave him alone. When Sperman persisted, however, defendant left the lounge. As Sperman followed defendant out of the lounge, defendant once again asked to be left alone, explaining that he had just been released from the hospital where he was treated for a heart condition. Sperman, despite the pleas, kicked defendant behind the neck and in the lower part of the back with karate-like blows. As defendant tried to move away, Sperman kicked him again, grabbed his hat, and threw it into the street. Defendant sought assistance from a passing police car. Defendant testified, however, that the police laughed and "told me to get my ____ out of the street before I got killed." When the police car left, Sperman attacked defendant still another time, at one point knocking him to the ground in front of a passing car and bus. Sperman then shouted at defendant, calling out that he would kill him. Defendant fled.
Eyewitnesses to the attack testified that at no time did defendant strike Sperman. Instead, up to this point, Sperman was the aggressor. The time of the incident was set at between 11:30 p.m. and midnight. Defendant's testimony related his emotional state as he left Sperman: "I became so infuriated I didn't even recognize the pain, I was just so furious." Defendant stated that he did not attempt to strike Sperman but hurried the short distance to his apartment (variously described by the witnesses as three blocks or 50 to 60 yards), secured his loaded gun, and returned to the scene. He went into the Lime Room lounge, but seeing no one there, proceeded to the nearby E&L lounge.
The bartender at the E&L testified that he sold Sperman a "couple of beers and couple of shots." At approximately 12:15 a.m., the bartender heard two shots from the area where Sperman was standing and saw defendant holding a gun. Other patrons of the bar testified that they did not see Sperman move away from the bar prior to the shooting, and that they saw defendant fire the second shot.
Defendant stated that he went into the E&L lounge and saw Sperman standing at the bar; Sperman reached over the bar, turned around, and took two or three steps toward him. Defendant testified: "When he came towards me, I had fear that he would naturally jump on me again, and my only thought was to defend myself." Defendant drew his pistol and fired shots, resulting in Sperman's death. Defendant laid the gun and his hat on the bar, and admitted to the police that he had fired the shots. Defendant further testified that he did not begin to think rationally until two days later.
The trial court found defendant guilty of voluntary manslaughter, commenting that the facts were insufficient for self-defense but that the evidence showed sufficient provocation to reduce the murder charges. At the sentencing hearing, defendant produced character witnesses to testify to factors in mitigation. Each indicated a willingness to work with defendant or to find him employment. The witnesses testified to defendant's potential and good character. Defendant testified stating he was remorseful about Sperman's death and that, if given probation, he would rehabilitate himself.
The court commented that it had read the investigative report and would take it into consideration. The State then presented a prior conviction for grand larceny and the nature of the instant offense as factors in aggravation. Following all of the evidence, the court stated that it would deny defendant probation. It then recited the salient details of the crime and stated:
"[P]eople just cannot take the law into their own hands and do what you did.
Ironically speaking, the things that you have raised now for probation, are the things that perhaps got you a guilty of voluntary manslaughter rather than murder.
I understand that you were infuriated and embarrassed and so forth, at the Lime Room * * *. And there was no reason for this Mr. Sperman to attack you the way he did. I'm sure of that, but you had sufficient time in my opinion to at least cool off to some extent.
[T]he Court taking all the things into consideration that have been suggested here, and in aggravation and mitigation, as well as the probation prepared [sic], pre-sentence investigation report, the Court is going to impose sentence of the Illinois Department of Corrections for six years, to be given credit for time served in the County Jail."
Defendant contends that where the trial court is presented with the mitigating factors of character references and employment prospects as well as the provoked nature of the crime, a sentence of 6 years for voluntary manslaughter is excessive. He requests that this court reduce his sentence to probation and maintains that the proper standard of appellate review is that contained in section 5-5-4.1 of the Unified Code of Corrections as applied in the recent cases of People v. Choate (1979), 71 ...