APPEAL from the Circuit Court of Ogle County; the Hon. JOHN
MOORE, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
On August 30, 1980, defendant, Raul Vega, shot Rudy Najera five times with a .45-caliber pistol, causing his death. Both men had earlier been drinking in the Saenz Cafe in Rochelle, Illinois, where an altercation had arisen between them. The cafe's proprietor had asked the defendant to leave, and defendant had done so. Najera left the cafe a few minutes later. Shortly thereafter, defendant and Najera were observed facing each other over the trunk of a parked car. A short conversation took place, and then defendant fired.
The defendant was found guilty after a jury trial of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1)) and sentenced to 20 years' imprisonment. On appeal, he contends that he was impaired in his ability to present his theory of self-defense to the jury by rulings of the trial court which excluded evidence that the victim had a history of arrests for offenses involving violence. Defendant also contends that the trial court erred in refusing defendant's tendered issues instructions for the offense of murder.
Defendant testified on his own behalf that he had known Najera since 1974. During that time, Najera had beaten him on four occasions, the first of which required his hospitalization. Najera had threatened defendant practically on a daily basis between 1974 and 1976, and on approximately 100 occasions thereafter. Najera would also bump into defendant's car with his vehicle. Defendant responded in the affirmative when he was asked if he knew of Najera's ever having problems with the police for any type of crime, and stated he knew that Najera had cracked the skull of one man and broken the nose of another. Defendant's brother testified that his life had also been threatened by Najera.
Defendant testified that he was in the Saenz Cafe on August 30, when Najera called him over and said some ugly things about his mother. Defendant responded by slapping Najera, but afterwards became apprehensive that the other man would retaliate. The defendant saw Najera approach an individual named Osman, who defendant knew to have a gun, and thought that Osman gave Najera a weapon. Defendant left the cafe when he was asked to leave by the proprietor. As defendant walked away, Najera approached him, claimed to have a gun, and said that he would kill the defendant. Najera's right hand was concealed in his pants pocket, and defendant, who believed that Najera was armed, shot him five times.
• 1 Defendant contends that the trial court denied him a fair trial as to his claim of self-defense by refusing to allow evidence concerning Najera's arrest record. The evidence sought to be adduced was testimony from Detective Dennis Leifheit of the Rochelle Police Department that Najera was also known by the name of Armando Arrendondo, and that Najera had a record of several arrests under that alias. These arrests, none of which had resulted in convictions, were for the offenses of criminal damage to property over $150, burglary, fighting, reckless driving, unlawful possession of cannabis and battery. In addition, Najera had been arrested for aggravated battery in 1974 and for two other counts of aggravated battery in 1979. Defendant argues that such evidence should have been admissible as tending to establish the reputation or character of the victim for turbulence and violence in a case where the issue of self-defense has been raised.
"It is well established that where a claim of self-defense is made, and at the time of the incident the accused knew of the victim's reputation for violence or knew of specific violent acts by the victim, proof of such reputation or acts together with the accused's knowledge thereof is relevant and admissible to establish the reasonableness of the accused's apprehension of danger." People v. Wolski (1980), 83 Ill. App.3d 17, 29, cert. denied (1981), 450 U.S. 915, 67 L.Ed.2d 339, 101 S.Ct. 1356.
This evidence is admissible as tending to show the defendant's state of mind, and thus the character trait of the victim which is sought to be elicited must be one of which the defendant was aware. "Thus the law in Illinois still requires the exclusion of evidence of a victim's propensity for aggression unless the accused knew the victim had that trait." (83 Ill. App.3d 17, 30.) Here, the defendant testified that he was aware that Najera had trouble with the police but did not claim an awareness of the other man's arrest record. Under the rule in Wolski (83 Ill. App.3d 17), the testimony in question was properly excluded.
• 2 Even were we to determine that the evidence here in question was erroneously excluded, we would find the error to be harmless beyond a reasonable doubt in light of the fact that the trial court admitted substantial evidence concerning the victim's violent acts. (See People v. Buchanan (1980), 91 Ill. App.3d 13.) This evidence included testimony that Najera had engaged in a pattern of threats and violence toward defendant over many years, and that Najera had inflicted serious injuries upon others. In view of the amount and the detail of this testimony, evidence concerning Najera's arrest record would have been merely cumulative.
Defendant also contends that the trial court erred in refusing his tendered issues instructions for the offense of murder. The jury in this case was given an issues instruction on murder which listed the following as the essential propositions required to sustain the charge of murder:
"FIRST: That the defendant performed the acts which caused the death of Rudolfo Najera;
SECOND: That when the defendant did so, he intended to kill or do great bodily harm to Rudolfo Najera; and
THIRD: That the defendant was not justified in using the force he used."
At the conference on instructions, defendant tendered and the trial court refused to give two alternative issues instructions which added an additional proposition: that the defendant did not believe that circumstances existed which justified the use of the force which he used. The jury was also instructed as to the offense of voluntary manslaughter (defendant's instructions Nos. 13 and 14), in accordance with Illinois Pattern Jury Instructions, Criminal, Nos. 7.05 and 7.06 (2d ed. 1981) (hereinafter cited as IPI Criminal). These instructions informed the jury that voluntary manslaughter is committed when, at the time of the killing, the defendant believes that circumstances exist which would justify the killing, ...