Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Coles County,
the Hon. Thomas M. Burke, Judge, presiding.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 1, 1982.
On September 18, 1980, defendant, Ronald Huckstead, was convicted of murder following a jury trial in the circuit court of Coles County, and sentenced to a term of 25 years' imprisonment. A divided appellate court affirmed. 98 Ill. App.3d 1206 (Rule 23 order).
The issues presented are: (1) Did the trial court's failure to give Illinois Pattern Jury Instruction (IPI), Criminal, No. 25.05 (1968) constitute plain error? (2) Did the trial court commit reversible error by giving IPI Criminal No. 3.04 to the jury?
On the evening of March 28, 1980, defendant was in the Corner Lounge Tavern in Mattoon. Although the testimony was somewhat conflicting, it appears that at approximately 10:30 p.m. he became involved in an argument between Ronald Blagg and Murray Dixon, the victim. When the argument was over, the victim left the two men but subsequently became involved in a dispute with the defendant outside the tavern, where an altercation occurred. Although the testimony again differed with respect to the exact nature of the altercation, it appears that at some point the victim pulled a folding knife and inflicted a cut on defendant above his waistline. Defendant testified that he ran to his home, located about one mile from the tavern. However, a police officer at the scene, Maurice Sparr, testified that after the incident defendant and the victim reentered the tavern, then came out, at which time defendant told Sparr he had been cut and that he didn't need any help. Sparr testified that, when he told both persons to go back inside or go home, defendant stated he would go home to obtain a gun. Instead, the defendant and the victim returned to the tavern. Several other witnesses also testified that after the altercation the victim and defendant returned to the bar and that defendant made a phone call before leaving. At approximately 11:15 p.m., Officer Sparr observed the defendant run from the tavern and, subsequently, he saw the victim walk outside and enter a van.
The following witnesses also testified for the State. Charles Dyer stated that immediately after the stabbing incident he heard defendant tell Ronald Blagg that "he would get the [victim] before the night's over."
Linda Bloxom testified that the victim, upon reentering the tavern after the altercation, repeatedly told defendant, "Forget it, Huckstead" and "We've been friends for too long." She stated that defendant then made a phone call and left the tavern. Bloxom related that later, when she exited the Corner Lounge, she saw the defendant alone in an automobile. She testified that the defendant asked her if the victim was still inside and she responded, "Yeah, just forget it. I thought you guys had * * * settled it." Bloxom testified that the defendant's reply was, "I'm going to shoot that [expletive deleted]."
Sue Reardon testified that upon leaving the Corner Lounge she observed the victim walk to an auto in which defendant was seated. She stated that she heard the victim say to defendant, "Just forget it; it was over." While being driven away, she heard three shots, turned, and saw the victim fall and the defendant drive away.
Dean Young testified that while driving by the Corner Lounge he noticed the victim through the window of the bar and stopped to go in. On his way in, he encountered the victim outside the lounge. Young stated that he started to talk to the victim when he heard someone in a parked car yell something like "Murray, I'm going to shoot your [expletive deleted]." According to Young, the victim was staggering as he walked toward the car and the car's motor was running. Young observed something that looked like a gun protruding about a foot from the car window. Young stated that the man inside the car yelled something like, "You cut me." The victim yelled "Shoot me if you're going to shoot me" and "I'm close enough you can't miss." Young stated that he then turned to seek assistance, at which time he heard a shot, then several more shots. Young testified that he turned, saw the victim fall to the ground, and observed the car speed away.
As earlier noted, defendant claimed that he ran home after being cut. He further testified that, after he reached home, he retrieved a rifle from the trunk of his car, placed it on the front seat, and drove back to the tavern. Defendant stated that when he saw the victim leave the bar he decided to speak to him in an attempt to resolve their differences. Defendant called to the victim. As the victim approached the car, they got into an argument. Defendant related that the victim said, "You have a gun, so use it" and "Go ahead and shoot me." He said that he told the victim he was not going to use the gun and to "stay back so we can talk." Defendant stated that the victim moved toward him, while swearing and reaching toward his right side. Defendant testified that he thought the victim was reaching for a weapon, that he (defendant) panicked and repeatedly squeezed the trigger of the rifle and then drove off. Defendant claimed he did not intend to shoot the victim when he returned to the tavern, but believed it was necessary to do so in order to protect his own life. He also stated that he believed the victim had a reputation for violence when drinking, and that he himself had drunk 16 beers that day. He related that he did not recall speaking to Officer Sparr, that he did not recall reentering the lounge, and that he did not recall using the telephone at the lounge on the night in question.
In addition to the defendant, the following witnesses testified on his behalf. Gary Sanders stated that he left the Corner Lounge at approximately 11:30 p.m. and observed Murray Dixon standing beside defendant's car door with his right hand on the roof and his left hand on the door of the auto. The two men were arguing loudly. Sanders saw the victim rapidly drop his right hand and heard several shots fired, whereupon the victim fell to the ground and the automobile drove away.
William Prather testified he observed the victim speaking loudly with someone in a car. According to this witness, the victim had both his hands on the car roof. Prather testified that the victim dropped his right hand "real fast" and four shots were fired in rapid succession, whereupon the vehicle sped away.
Paul Logan testified that he heard the victim shouting while standing next to defendant's car. He stated that it appeared that the defendant tried to put his car in gear but that the victim reached through the window to prevent it. He said that the victim then returned his right hand to the roof of the car. Logan declared that at this point he turned to walk toward his car and, as he was walking away, heard four or five shots fired rapidly.
Marvin Craig testified that he left the tavern with Linda Bloxom that evening and that he did not see defendant's car or hear anyone say he would shoot the victim.
On rebuttal for the State, Linda Bloxom and another witness, Teri Brackney, testified that Bloxom left the lounge alone, and Sue Reardon testified that Craig ...