APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN S. GHENT, Judge, presiding.
MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 1, 1981.
Defendant, Jesse Goodman, was charged on January 2, 1980, with two counts of murder, and one count of armed robbery. (Ill. Rev. Stat. 1979, ch. 38, pars. 18-2, 9-1 and 9-1(a)(3).) Following a jury trial in the Circuit Court of Winnebago County, defendant was found guilty of both charges and sentenced to natural life for murder and six years for armed robbery. Defendant appeals.
At trial, the following evidence was introduced. Charles McGavran, who had known the decedent, Dale Helgeson, for several years, testified that on the evening of July 20, 1979, he was at the Tenstopet Tavern in Rockford, Illinois, and observed the defendant playing pool. He did not recall seeing the defendant much later than 8 p.m., but in an hour or so prior to that time he observed defendant and another man buying drinks back and forth. At about 10 p.m., McGavran found the decedent on the floor in the bathroom of the tavern. He later identified the defendant from a group of photographs provided by the Rockford police.
Dr. Richard Novack testified that an autopsy he performed on Dale Helgeson revealed ten stab wounds over the body as well as facial lacerations. The cause of death was determined to be a stab wound which penetrated the heart. The doctor noted that a toxology performed on the decedent indicated sufficient blood alcohol to show a substantial degree of intoxication. Helegeson was also found to be clutching fragments of long black hair.
The wife of the decedent, Arlene Helgeson, testified that her husband was paid by his employer every Friday, and that he usually had a savings bond taken out of his check on the last Friday of each month and given to him. She stated that because she and her husband had been on vacation the first two weeks in July, he had not picked up the bond from June. She also testified that her husband would sometimes leave money on the bar and then stick it in his shirt pocket when he left. However, she admitted that she was not with him on the night in question.
The State's key witness was Mary Stromblad. She testified that at the time of the incident she was defendant's girlfriend, and lived with him, her 10-year-old son, and defendant's brother, Andrew Goodman, in a trailer. On the day of the incident she stated that Jesse and Andrew Goodman left the trailer and returned about midnight. They then went into the bathroom for approximately 20 minutes, from which she heard sounds of running water and whispering. When they came out, Andrew Goodman suggested that the three of them go for a ride. Mrs. Stromblad testified that when the defendant came out of the bathroom he was wearing different clothes than the t-shirt he had come in with. While driving to Rockton later that night, she stated that the three of them heard a report on the radio about a murder at the Tenstopet Tavern. She testified that upon hearing the report, defendant told her that it was he who had committed the murder, and that he hadn't meant to do it but did so because the deceased had a hold of his hair and wouldn't let go. She further testified that the defendant told her that he took a wallet from the decedent containing a couple of hundred dollars and some bonds.
Mary Stromblad identified a dark-colored knife as the weapon that the defendant told her was used to kill the decedent. She testified that the day after the incident the defendant could not wear his boots because he had broken his toes. Near the close of her testimony on direct examination, Mrs. Stromblad specifically related what the defendant had told her concerning the incident. She stated that he said:
"* * * that he went to the Tenstopet Tavern and he went inside the bathroom and he was fighting with Dale Helgeson and he had a hold of Jesse's hair and he wouldn't let go and they were fighting in there and he stole his wallet and he stabbed him a lot of times."
At the conclusion of her testimony on direct examination, she said that the reason the defendant went into the bathroom was to rob Dale Helgeson and that he had broken his toes while fighting with Dale Helgeson.
Just before the defense began its case the trial judge held a conference with counsel concerning jury instructions. At this conference, defense counsel indicated his desire to submit a manslaughter instruction. The court informed defense counsel that he would not accept any instructions concerning the offense of manslaughter, but urged counsel to submit the instruction for the record if he so desired. Defendant now argues that the trial court's refusal to accept manslaughter instructions constitutes reversible error.
• 1, 2 As a preliminary matter, the State contends that the question is waived. First, defendant failed to include this claim in his written post-trial motion. The failure to raise an issue in the post-trial motion generally waives appellate consideration of such issue. (People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856.) Secondly, the State argues that defendant waived the error by failing to tender any instructions on voluntary manslaughter. Both Supreme Court Rule and recent case law make it quite clear that where a defendant fails to tender an instruction he may not complain on appeal of the failure of the trial court to give that instruction. (Ill. Rev. Stat. 1979, ch. 110A, par. 366(b)(2)(i); People v. Roberts (1979), 75 Ill.2d 1, 387 N.E.2d 331; People v. Wolski (1980), 83 Ill. App.3d 17, 403 N.E.2d 528.) Although it is true that the court indicated in advance that it would refuse a manslaughter instruction, the court specifically asked defense counsel to submit such instruction for the record. Defense counsel agreed, but later failed to do so.
• 3, 4 Nevertheless, in criminal cases the waiver rule will not prevent review of plain error affecting substantial rights where the interests of justice so require. (People v. Underwood (1978), 72 Ill.2d 124, 378 N.E.2d 513.) Our supreme court has held that in homicide cases, if there is evidence in the record which, if believed by the jury, would reduce the crime to manslaughter, an instruction defining that crime should be given if requested. (People v. Joyner (1972), 50 Ill.2d 302, 278 N.E.2d 756.) Even where the trial court properly refuses erroneous instructions, it must instruct sua sponte. (50 Ill.2d 302, 306, 278 N.E.2d 756, 759.) Furthermore, an instruction should be given even though the theory of defense at trial, as here, is inconsistent with the defendant's culpability for the lesser offense. People v. Jenkins (1975), 30 Ill. App.3d 1034, 333 N.E.2d 497.
Even if the error was not waived, the State maintains that the evidence was insufficient to require an instruction on the lesser offense of manslaughter.
Defendant contends that there was sufficient evidence to support an instruction under either of the two branches of voluntary ...