Appeal from the Circuit Court of Cook County; the Hon. Anthony
J. Scotillo, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Defendant Joseph C. Rollins — who admittedly killed James Johnson on April 2, 1979 — was convicted of armed violence (based on the underlying felony of voluntary manslaughter), and was sentenced to 14 years imprisonment, after a jury found beyond a reasonable doubt that he was not justified in shooting Johnson. (See sections 9-2 and 33A-1 through 33A-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 9-2 and 33A-1 through 33A-3).) He appeals, contending that his conviction should be reversed for the following reasons:
(1) The trial court erred when it ordered the jury to continue deliberating on the charges of murder and armed violence after the court accepted a verdict on the charge of voluntary manslaughter.
(2) The trial court erroneously refused to give a "subject to suspicion" cautionary instruction to guide the jury in its evaluation of the credibility of a prosecution witness who was a drug addict.
(3) The trial court erroneously precluded the defense from attempting to impeach the credibility of a prosecution witness by questioning her about whether "she would lie to obtain a prescription" for the drugs she was addicted to.
(4) The trial court erroneously precluded the defense from impeaching a prosecution witness with evidence that she had been convicted of armed robbery within the prior 10 years.
(5) The trial court erroneously permitted the prosecution to present evidence of collateral crimes.
(6) The trial court erroneously denied a defense motion to exclude evidence that was derived from an unlawful police search.
(7) The evidence was not sufficient to justify giving instructions on voluntary manslaughter or to prove guilt beyond a reasonable doubt.
(8) The armed violence statute is unconstitutional as applied to defendant.
In addition to these defense arguments, the prosecution contends that we should remand to the trial court with directions to enter judgment, and impose sentence, for the offense of voluntary manslaughter.
The following facts are material to our decision.
Defendant shot and killed James Johnson — his wife's former boyfriend — on April 2, 1979, following a quarrel in the living room of defendant's apartment. According to defendant, he killed Johnson while acting in self-defense and in defense of his pregnant wife. Both defendant and his wife admitted that they initially lied to the police about defendant's involvement in the killing, and that they gave the police a phony story, fabricated by defendant, about Johnson having been shot by an unknown assailant. At trial, however, they testified that Johnson was attacking them with a liquor bottle when defendant shot him with a rifle. But, despite the importance of Johnson's alleged weapon to the claim of self-defense, defendant's wife claimed that she threw the bottle away when cleaning up after the shooting.
In contrast with this version of the killing, Belinda Hunt, a drug addict and prostitute who admitted that before trial she flip-flopped several times on whether she saw the killing, testified that Johnson was completely unarmed, and was 12 feet from defendant and his wife, when defendant shot him with a rifle. (According to an offer of proof, defendant pointed the rifle at Johnson and, before shooting, repeatedly demanded, "Why did you tell my wife I was in jail?" Before trial, however, the court ruled that the prosecution would not be permitted to impeach defendant with evidence of his prior convictions, and the court refused to permit Hunt to testify about defendant's statement to Johnson on the grounds that the reference to defendant's past imprisonment would have subverted the ruling which excluded evidence of defendant's criminal history.)
Additional evidence is included below where pertinent.
The jury received instructions on the offenses of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1), "intense passion" voluntary manslaughter (Ill. Rev. Stat. 1979, ch. 38, par. 9-2(a)), "unreasonable belief" voluntary manslaughter (Ill. Rev. Stat. 1979, ch. 38, par. 9-2(b)), and armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2). Three sets of verdict forms were provided: guilty and not guilty forms for murder, voluntary manslaughter, and armed violence. The jury deliberated on these charges, and returned a verdict finding defendant guilty of voluntary manslaughter.
The trial court accepted this partial verdict, and sent the jury back for further deliberations on the other charges. The jury then returned with verdicts finding defendant guilty of armed violence and not guilty of murder.
Defendant now argues that the jury's initial silence on the charge of armed violence constitutes an acquittal on that charge, and that the subsequent finding of guilty was coerced.
We disagree with both contentions.
• 1, 2 Defendant's first argument is based on the line of cases which state that when a jury returns a verdict of guilty on one or more counts, the jury's silence on other counts constitutes an acquittal on those other charges. (See, e.g., People v. Potts (1949), 403 Ill. 398, 404, 86 N.E.2d 345, 348.) This is an accurate, although incomplete, statement of the applicable rule. The complete statement of the rule is that "where a jury, although convicting as to some, are silent as to other counts in an indictment, and are discharged without the consent of the accused * * * the effect of such discharge is `equivalent to acquittal.'" (Emphasis added.) Selvester v. United States (1898), 170 U.S. 262, 269, 42 L.Ed. 1029, 1032, 18 S.Ct. 580, 582.
When a verdict of guilty is accepted by the court and the jury is discharged, the jury's silence on other counts is treated as an acquittal because it would violate the prohibition against double jeopardy to re-try the defendant on those other charges. (United States v. Barash (2d Cir. 1969), 412 F.2d 26, 32.) But a defendant is not "twice put in jeopardy" when the trial court accepts a verdict of guilty on one count, and then sends the jury back for further deliberations concerning counts on which the jury was initially silent. Barash.
The Illinois Code of Criminal Procedure of 1963 requires juries to return verdicts on each offense charged (Ill. Rev. Stat. 1979, ch. 38, par. 115-4(j)), and it was proper for the trial court to order the jury to return verdicts for the charges on which they had initially been silent. See 2 Wright, Federal Practice and Procedure sec. 513, at 368 (1969).
It may be that a jury which returns a partial verdict intends to acquit on the remaining charges, but it is equally likely that the jury simply did not reach a unanimous decision one way or another on the remaining charges. So, when a jury returns a partial verdict but the jury is not discharged, there is no ...