Appeal from the Circuit Court of Madison County; the Hon.
Philip Rarick, Judge, presiding.
JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:
Defendant Stanley Wells was charged in the circuit court of Madison County with murder, voluntary manslaughter and armed violence, all three charges being based upon the fatal stabbing of Edward Stern in Madison, Illinois, on August 8, 1980. In the defendant's trial, the jury was instructed to consider those three offenses as well as the offense of involuntary manslaughter. The jury returned verdicts of not guilty of murder and voluntary manslaughter and guilty of involuntary manslaughter and armed violence. The court sentenced the defendant to 10 years' imprisonment on the armed violence count only. The defendant appeals and argues that the court failed to instruct the jury, sua sponte, that the State must disprove that the defendant's acts were unjustified in order to convict him of involuntary manslaughter and armed violence. He also contends that the evidence introduced at trial does not support a conviction for involuntary manslaughter or armed violence and that his sentence was excessive.
At about 2 a.m. on August 8, 1980, the defendant was at his home, in his pajamas, when he heard loud voices coming from the house of his neighbors, the Sterns. He went to investigate, and found his brother, Jeff Wells, and the Stern brothers, Eddie and Danny. The three had been drinking Jack Daniel's whiskey and cola since earlier that evening. After the defendant arrived at the Stern residence, Jeff Wells departed for the Wells home and the defendant remained with the Sterns.
Eddie and Danny were roughhousing with each other, and the defendant attempted to break up the scuffle. Danny responded by challenging the defendant to fight, and the defendant replied that if he wanted to fight, he would have to do so at the defendant's house. At trial, Danny stated that the defendant's invitation to fight at his house occurred after he suggested to the defendant, who had been "talking loud," to be quiet or leave.
The defendant then departed the Stern residence and went home, where he changed from his pajamas into a pair of jeans and obtained a butcher knife with a seven-inch blade from the kitchen. The Stern brothers followed the defendant to his home, and the defendant came out of the back door with a knife to meet them. There were several differing accounts of the events that followed, four of which were presented to the jury.
Danny Stern testified that, when he came out of the back door, the defendant appeared to be carrying something behind his back, although Danny could not discern what it was because of darkness. As he approached and moved to within five feet from Danny the defendant said "now talk bad." Eddie then circled around behind the defendant and pushed him in the back. Danny did not know if his brother had anything in his hand when he pushed the defendant. According to Danny, the defendant did not fall, but instead turned and "made a swinging motion" towards Eddie. Danny testified that he did not see the defendant stab Eddie. The next thing he remembered was seeing Eddie's body lying on the defendant's back porch, because, as Danny stated at trial, he blacked out for a period of time which he estimated at 15 minutes.
The remaining versions of these events were offered by the only other surviving occurrence witness, the defendant, who did not testify at trial. Madison County Deputy Sheriff Randall Lamb stated that he arrived at the Wells residence at 2:18 a.m. on the morning of August 8, 1980, where he found the body of Eddie Stern lying on the rear porch. After speaking with Danny Stern, who appeared "highly intoxicated," Lamb decided to take an oral statement from the defendant.
According to Lamb, the defendant told him that he had walked outside with the knife and "kind of waved" it around to induce Danny to go home. He was then hit from behind with something that felt like a brick and as a result of the blow, he fell to the ground. As he fell, he raised his arms to protect his face, and in the fall, the defendant felt that he had cut himself on the left forearm. When the defendant realized that he was bleeding, he went into his house for a paper towel, and as he attempted to go back outside, he discovered Eddie lying on his back steps, bleeding and blocking the door. The defendant informed Lamb that he might have stabbed Eddie when he raised his arms during the fall, but he did not know whether he had done so.
Later on the morning of August 8, the defendant gave two oral statements to Madison County authorities. Both of these were videotaped and transcribed and the tapes were played to the jury. During the first interview, taken at 5:25 a.m. on August 8, the defendant again stated that when he went outside with the knife, he was struck in the back with a brick. As he fell, his right hand, which held the knife, swung back over his right shoulder at the level of his ear. When he hit the ground, he cut his lip. The defendant maintained, as he had done earlier, that he went back inside when he noticed that he was bleeding, and he first discovered that Eddie was injured when he saw him lying on the back porch, preventing him from opening the door.
In his second videotape interview, taken at 8:59 a.m., the defendant said that he wanted to correct some statements he had made in the earlier taped interview. This time, the defendant recalled that he was carrying the knife at his side, where Danny could have seen it, as he exited the rear door after changing clothes and obtaining the knife. He was struck from behind, and he fell, either making contact with the ground or coming close to doing so. In the fall, he injured his lip and cut himself on the arm. The defendant then ran back into the house with only the screen door closed behind him, set the knife on the sink and washed the blood from his arm. He picked up the knife once again and went to shut the door, where he confronted Eddie and Danny outside the door. He opened the screen door nearly all the way, thrust the knife "back at 'em" and told them "you guys go home before somebody gets hurt." The defendant related in the interview that "Eddie Stern and Danny, they kept moving like * * * trying to scare me * * * so I just stuck it out a little farther then they, one of them * * * I turned my head to look at Danny and I guess Eddie jumped on me * * * or was gonna jump on me and I just stuck him."
It was established at trial that the cause of Eddie Stern's death was loss of blood from a stab wound to the heart. That wound was approximately 1 1/2 inches long, 3/4 of an inch wide and two inches deep and was described by the coroner's pathologist as "more or less a straight-on wound with no angle to it at all." The coroner's report stated that the weight of the decedent was 180 pounds, and an analysis three hours after death showed a blood alcohol content of .20% and a urine alcohol content of .14%.
The defendant argues that the evidence introduced at trial fails to meet the State's burden of proving beyond a reasonable doubt that his act of stabbing Eddie Stern was unjustified. In support of his position, the defendant notes that because the Stern brothers were intoxicated and because Eddie had struck him with a brick, the defendant believed when they approached his back door that they intended to cause further serious injury to him and that his life was in danger. The defendant maintains that this belief was reasonable under the circumstances as a matter of law. (Ill. Rev. Stat. 1981, ch. 38, par. 7-1.) He contends that his response to this threat, by picking up the knife, partially opening the door and thrusting the knife at the nearest of his two attackers in order to scrape him slightly and scare him away, was entirely justified.
The People respond that there was no evidence presented to support the defendant's claims of self-defense. They assert that the defendant, by advancing upon Danny with a butcher knife, was the aggressor, who was therefore required to withdraw from the confrontation. (Ill. Rev. Stat. 1981, ch. 38, par. 7-4(c).) It is insisted that Eddie was entitled to use force, perhaps even deadly force, against the defendant, since he could have reasonably believed that the defendant intended to stab Danny. Ill. Rev. Stat. 1981, ch. 38, par. 7-1.
• 1 We cannot accept the State's contentions, for they are based on the assumption that the defendant was the aggressor. As noted above, the evidence conflicted concerning the origins of the confrontation. Danny Stern asserted that the defendant challenged him to fight him at his house, after Danny had admonished him to be quiet. Yet, in all of the defendant's statements, he maintained that it was Danny who had first suggested a fight, and it should be recalled that the Stern brothers followed the defendant to his home. Whether the defendant was actually the aggressor in this case, thus not entitled to use deadly force against Eddie Stern, is a question of credibility properly for the jury. (People v. Day (1972), 2 Ill. App.3d 811, 277 N.E.2d 745.) Moreover, we are also of the opinion that the defendant's testimony regarding his assessment of the threat posed to him by the Sterns is "some evidence" of his belief that deadly force was necessary. (People v. Lockett (1980), 82 Ill.2d 546, 413 N.E.2d 378.) The evidence introduced at trial did therefore raise the issue of justifiable use of force.
• 2 However, we do not agree with the defendant that the State failed to disprove this defense beyond a reasonable doubt. The evidence shows that the defendant was struck either by Eddie Stern, or possibly by a brick he threw. But, as noted above, it is not obvious who initiated the confrontation. Also, there is no proof that the Sterns were armed in any way while they were on the defendant's back porch, and, in the defendant's second videotape statement, he told the authorities that the Stern brothers remained on his back porch while he went inside to wash the blood from his arm and the butcher knife. These factors indicate to us that whether the defendant's belief in the need to defend himself by stabbing Eddie Stern was reasonable was a question for the jury (People v. Brophy (1981), ...