APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
MASSEY, Judge, presiding.
PRESIDING JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:
Defendant, Helen Easter, was charged with two counts of murder and two counts of armed violence. The felonies underlying the charges of armed violence were murder and voluntary manslaughter. Following a jury trial, defendant was convicted of voluntary manslaughter (Ill. Rev. Stat. 1977, ch. 38, par. 9-2) and armed violence (Ill. Rev. Stat. 1977, ch. 38, par. 33A-2) based on the predicate offense of voluntary manslaughter. She received a six-year sentence for armed violence and a three-year sentence for voluntary manslaughter, the sentences to run concurrently. On appeal defendant argues that (1) the indictment was insufficient to adequately charge the offense of armed violence based on the underlying felony of voluntary manslaughter; (2) application of the armed violence statute was unconstitutional; (3) the court erred in denying her pretrial motion to dismiss the indictment for murder due to prosecutorial misconduct during the grand jury proceedings; (4) she was not proved guilty beyond a reasonable doubt; (5) the court erred in failing to rule on her motion for a directed verdict; and (6) the court improperly refused jury instructions propounded by defendant. We affirm in part, reverse in part and remand.
Around 11:30 p.m. on September 8, 1978, defendant drove her Cadillac to the tavern she owned at 702 E. 43rd Street in Chicago, Illinois. Since several people were standing around outside her tavern, and since defendant previously had problems with people sitting on her car, she parked her car across the street from her tavern by a public park. Around 2 a.m., defendant noticed that people were sitting on her car, She told her daughter, Peggy, to move the car, and she gave Peggy the car keys. While going to move the car, Peggy became involved in an argument with the victim, Billy Colbert, a man with whom she had formerly had a relationship. The victim was standing on the passenger side of defendant's car, the side closest to the public park. When Peggy entered the car, the victim kicked the car on the passenger side. Peggy then exited the car and went to get her mother.
Meanwhile, defendant had been watching the scene from inside her tavern. According to defendant, she grabbed a purse containing a .38 revolver which she kept in a drawer by her cash register and rushed outside. Defendant and the victim started cursing each other and calling each other names. According to defendant, the victim threatened to "kick my ass and Peggy's ass." Defendant entered her car, and the victim again kicked the car on the passenger side. Realizing that she did not have her car keys, defendant recrossed the street to retrieve her keys from Peggy. Defendant then re-entered the car and started the motor. Defendant stated that at this point the victim said, "I am going to get you bitch, and I am going to get you now." He then began pulling on the passenger door of the car, which was locked. Defendant then exited her car on the driver's side with the gun in her hand.
There is conflicting testimony as to what occurred next. According to defendant, the victim walked to the back of the car and threatened her again. He had a bottle in one hand and had the other drawn back in a fist. When the victim rushed at her, she closed her eyes and started shooting. Upon opening her eyes, she saw the victim running. Defendant was unsure how many times she fired. She dropped the gun and returned to the tavern.
There was testimony that the victim's arms were raised and his hands were empty at the time he was shot. He took a few steps backward and then turned and ran. Defendant fired twice, paused, and fired three more times. There was also testimony that defendant was urged by her daughter to kill the victim.
A pathologist testified that an examination of the victim revealed a high level of alcohol as well as two entry and two exit projectile wounds. He explained that one bullet entered the left armpit and exited in the back area. The second bullet entered the victim's back and exited in front. This bullet passed through several vital organs, and it caused the victim's death.
Defendant first argues that her conviction for armed violence based on the predicate felony of voluntary manslaughter should be reversed because the indictment did not adequately charge this offense. We agree.
Defendant was charged in four counts. In counts I and II, she was charged with murder. In count III, she was charged with armed violence based on the predicate offense of murder, and in count IV, she was charged with armed violence based on the predicate offense of voluntary manslaughter. Count IV specifically charged that defendant "committed the offense of armed violence in that she, while armed with a dangerous weapon, to wit: a gun, committed a felony defined by Illinois Law, to wit: voluntary manslaughter, in violation of Chapter 38, Section 33A-2, of the Illinois Revised Statutes 1977, as amended." Defendant unsuccessfully challenged this charge in her motion in arrest of judgment where she claimed that count IV of the indictment failed to state a cause of action.
• 1 Both the Federal and the State constitutions provide that an accused has the right to be informed of the nature and cause of the accusation against him. (U.S. Const., amend VI; Ill. Const. 1970, art. I, § 8.) Section 111-3 of the Code of Criminal Procedure of 1963 implements this right by requiring, among other things, that a charge be in writing, and that it state the name of the offense, the statutory provision alleged to have been violated, and the nature and elements of the offense charged. (Ill. Rev. Stat. 1977, ch. 38, par. 111-3(a)(1) through (3).) Moreover, where the crime of armed violence is charged, the nature and elements of the underlying offense must also be charged. (People v. Van Winkle (1980), 86 Ill. App.3d 289, 293, 408 N.E.2d 29, 32; see People v. Goodman (1973), 12 Ill. App.3d 400, 401-02, 298 N.E.2d 1, 2.) When review of the sufficiency of a charging instrument challenged in a motion in arrest of judgment (Ill. Rev. Stat. 1977, ch. 38, par. 116-2) is sought, the reviewing court must determine whether the indictment comports with the requirements of section 111-3. (People v. Tuczynski (1978), 62 Ill. App.3d 644, 648, 378 N.E.2d 1200, 1203.) Compliance with these requirements is mandatory, not directory. People v. Deal (1979), 69 Ill. App.3d 74, 76, 387 N.E.2d 21, 23; see People v. Hahn (1980), 82 Ill. App.3d 173, 176, 402 N.E.2d 895, 898.
• 2 It is clear that in the case before us the count charging defendant with armed violence based on the underlying offense of voluntary manslaughter is inadequate. The indictment makes no reference to either of the alternative statutory provisions regarding voluntary manslaughter (Ill. Rev. Stat. 1977, ch. 38, pars. 9-2(a), 9-2(b)), and it fails to set forth the nature and elements of such an offense.
In People v. Miles (1981), 96 Ill. App.3d 721, 422 N.E.2d 5, the defendant was charged with the same offenses as those involved here. The charge in Miles concerning armed violence based on the underlying offense of voluntary manslaughter was worded similarly to the charge in this case, except that it also included a reference to the voluntary manslaughter statute, section 9-2(b). In determining that the information was not sufficient, the court stated that the reference in the information to section 9-2(b) did not incorporate that statute or its elements. According to the court, absent specification of the elements of one of the alternate forms of voluntary manslaughter (Ill. Rev. Stat. 1979, ch. 38, par. 9-2(a) or 9-2(b)), the defendant was not made aware from the face of the information of the exact nature of the offense with which he was charged. The court recognized that an information charging murder is sufficient to charge any underlying offense, including voluntary manslaughter. The court declined, however, to extend this rule to the situation before it where voluntary manslaughter was the underlying offense for the commission of armed violence and the information included a count stating the elements of murder but not of voluntary manslaughter. The court concluded that under these circumstances, an information or indictment must contain the elements of voluntary manslaughter, whether these elements are stated in the armed violence count or in a separate count.
The Miles decision clearly governs the present case. Here, the indictment charging defendant with armed violence based on the predicate offense of voluntary manslaughter is even more deficient than the one involved in Miles since it contains neither a statutory reference to one of the alternative forms of voluntary manslaughter nor the nature and elements of one of those alternatives. (See People v. Lutz (1978), 73 Ill.2d 204, 211, 383 N.E.2d 171, 173-74; People v. Caliendo (1980), 84 Ill. App.3d 987, 993-94, 405 N.E.2d 1133, 1138-39.) Since the indictment failed to charge defendant with the specificity mandated by the Federal and State constitutions and did not comply with the requirements of section 111-3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 111-3), defendant's conviction for armed violence must be reversed. In view of this determination, we need not address the constitutional arguments raised by defendant in regard to the armed violence statute.
Defendant next argues that the court erred in denying her pretrial motion to dismiss the indictment due to the prosecutor's misconduct during the grand jury proceedings. Specifically, defendant contends that the prosecutor did not call Amos Rico Bowers, the disk jockey at defendant's tavern, to appear before the grand jury even though Bowers gave exculpatory testimony at the preliminary hearing. In addition, defendant asserts that some of the grand jurors expressed an interest in Bowers after one of the ...