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People v. Desavieu

OPINION FILED DECEMBER 9, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JEAN DESAVIEU, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. William Cousins, Judge, presiding.

JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 11, 1984.

Following a jury trial, defendant was convicted of murder and sentenced to a term of 40 years. On appeal, he contends that (1) the trial court should have instructed the jury, sua sponte, on voluntary manslaughter; (2) his conviction should be reduced to voluntary manslaughter; (3) he was denied his right to a fair and impartial jury when the court refused to ask the supplemental questions he submitted for voir dire examination; (4) he was deprived of his rights to be present at all stages of trial and to effectively communicate with counsel when he was prevented from seeing the juror cards; (5) he was denied his sixth amendment right to confront witnesses against him when he was prevented from (a) cross-examining a crucial State witness regarding his prior conviction and current use of drugs and (b) impeaching that witness with evidence of a motive to testify falsely; (6) prosecutorial misconduct before the grand jury deprived him of due process; (7) he was denied a fair trial as a result of the prosecutor's (a) introduction of irrelevant and prejudicial evidence concerning decedent's family and occupation, (b) improper references to decedent as "the victim" and (c) repeated misstatements of law; and (8) the trial court's refusal to consider his claim of self-defense as a factor in mitigation resulted in an excessive sentence.

Robert Dean, a long-time friend of both decedent and defendant, testified that after leaving a bar he and defendant walked to the 35th Street "L" station. While they were waiting for a train, Raymond Johnson joined them and an argument ensued between defendant and Johnson during which the two men grabbed each other and began to wrestle. In the struggle, defendant was pushed by Johnson and fell onto the train tracks where, without engaging in further discussion, he drew a pistol and fired at Johnson, who was standing about 10 feet from the edge of the platform. As Johnson fell backward, defendant jumped onto the platform and fired two more shots at him. Johnson then tried to tackle defendant and he was shot again, after which defendant left the station. Approximately 45 seconds later, a train arrived. Dean admitted that prior to making a statement to the police he had a conversation with decedent's brother, John Johnson, a county law enforcement officer, but denied that he was threatened or that he had testified at the grand jury hearing because of any such threat. Dean also denied that decedent had prevented defendant from getting up from the tracks or that defendant had asked whether Johnson was serious about threatening to keep him (defendant) on the tracks.

Douglas Grier testified that while waiting for a train at the 35th Street "L" station, he saw defendant and decedent "tussling." In the struggle, defendant was knocked off the platform onto the tracks, where he drew a gun and fired at Johnson who was standing a few feet from the edge of the platform trying to talk to defendant. After hearing a shot and a "click," Grier saw Johnson spin around and fall down. Defendant then climbed on the platform, walked toward Johnson, and kicked him. After the two men resumed "tussling," Grier heard two more shots and saw Johnson fall again. As defendant left the station, a train arrived. Grier stated that defendant fired slightly upward from his position on the tracks and that Johnson was standing at least two, but not 10, feet from the edge of the platform.

Dr. Mitra Kalelkar testified that Johnson sustained two gunshot wounds, either of which could have been fatal. One bullet entered decedent's lower abdomen and the other entered the back of his neck; each coursed slightly downward. Dr. Kalelkar noted that decedent also had a small abrasion on his forehead. The doctor stated that a downward abdominal wound would not be caused by a bullet fired upward from a distance of three to four feet if the victim was standing upright, but that it was possible that decedent was stooped over when he was shot in the abdomen and that any hard part of his clothing, such as a pants zipper, could affect the course of the bullet. In any event, she could not exactly state from the wounds the position Johnson had been standing in at the time he was shot in the abdomen.

Officer Petak testified that on June 12, 1980, at the police station, Dean said he knew who had shot Raymond Johnson and that, upon Dean's request, he (Petak) called decedent's brother John because Dean said he feared defendant and would say nothing else until John was present.

Defendant, who had previously been convicted of armed robbery, aggravated battery, and attempted armed robbery, testified that after leaving a bar where he drank only one-half a glass of beer, he went to the 35th Street "L" station. He met Dean there and, as they waited for a train, Johnson approached and asked him (defendant) to buy a dance ticket. When he refused, Johnson — who appeared drunk — began to call him names. As he started to walk away, Johnson grabbed him, pushed him against a partition, and punched him. He slipped and fell with his back toward Johnson, who then hit him in the side of the face and pushed him onto the train tracks. Johnson then assumed a wrestler's stance, crouching over with his hands extended, less than one foot from the edge of the platform. He (defendant) looked down the tracks and saw a train approaching. He told Johnson that a train was coming, and Johnson replied, "I'm a fireman. I save lives. It's about time I take one." Defendant then asked Dean, who was nearby on the platform, whether Johnson was serious, and Dean replied, "Serious as cancer." He drew his gun and asked Johnson to back up because the train was coming. When Johnson would not move, he fired at him but the gun misfired. He fired a second shot, and Johnson stumbled backward but did not fall down. He then placed the gun in his coat pocket and climbed back onto the platform and, when Johnson lunged at him, he struck him with the gun. Johnson lunged once more, and he fired the gun again attempting to shoot Johnson in the buttocks but the bullet struck him in the back of the neck. Johnson continued to struggle, and he shot him once more — after which, with Dean's assistance, he propped Johnson up near the pillar. The train then arrived and he left the station, boarded a bus, and went home. Defendant stated also that while on the tracks he was in fear for his life because after Johnson refused to allow him back on the platform he saw the lights of an oncoming train and realized that the electrified third rail and the traffic-filled Dan Ryan Expressway were behind him.

After his arrest five days later, defendant made a statement to an assistant State's Attorney. Later, at the station, Dean told him (defendant) that John Johnson, Officer Petak, and other police officers "got him in the police station and told him things he was going to have to say, or that he would be charged."

Defendant admitted that he disassembled his gun and threw it in Lake Michigan; that he knew the trains would stop at every station at that time of night; and that at the time of his arrest he told Officer Petak that he knew nothing about the killing, but that subsequently he told Petak what had occurred. In rebuttal, Petak testified that defendant had not mentioned seeing the lights of an oncoming train or that, after firing the first shot at Johnson, he put the gun into his coat pocket.

OPINION

We first consider defendant's contention that the trial court erred by failing to instruct the jury, sua sponte, on voluntary manslaughter. The jury was instructed as to self-defense, and defendant concedes that against the advice of his counsel, he expressly directed him not to tender a manslaughter instruction and that he signed a waiver form to that effect. However, he now argues that the court should have submitted that instruction on its own initiative, over his objections. We disagree.

• 1 We believe that People v. Taylor (1967), 36 Ill.2d 483, 224 N.E.2d 266, is dispositive of this issue. There, it was held that the trial court's failure to give a manslaughter instruction where none was tendered cannot be asserted as a ground for reversal on review. The court stated, "it was not the duty of the [trial] court to submit issues and questions to the jury which the parties, by their action, said they did not desire passed upon." (36 Ill.2d 483, 488, 224 N.E.2d 266, 269.) In People v. Lewis (1981), 97 Ill. App.3d 982, 423 N.E.2d 1157, relying on Taylor, we made the same ruling, and we also noted that the decision by counsel as to whether a manslaughter instruction should be submitted is a tactical one involving various strategy considerations which would militate against imposing a duty to instruct the jury sua sponte.

• 2 Turning then to defendant's further argument that the trial court failed to determine whether his waiver was knowingly and intelligently made, we note that the trial court was informed by defendant's counsel that he had prepared a manslaughter instruction but that defendant refused to allow him to tender it. Additionally, it appears that counsel presented a waiver signed by defendant to that effect. Defendant does not deny that he told his counsel not to present the instruction nor does he deny that he signed the waiver. We believe, under these circumstances, that there was a knowing and intelligent waiver by defendant.

• 3 Defendant alternatively contends that his conviction should be reduced from murder to voluntary manslaughter, maintaining that the evidence shows, at most, that the killing was the result of either a mutual struggle or his unreasonable belief that self-defense was necessary. However, it appears to us that there was ample evidence to support the murder conviction. Defendant testified that after he climbed back onto the platform, Johnson lunged at him and attempted to throw him back onto the tracks; that Johnson was stronger and larger; and that it was in the course of his attempt to repel Johnson's attack that he shot him again. However, the testimony of other witnesses is contradictory. Dean stated that defendant jumped back onto the platform and, with gun in hand, pursued and shot at Johnson who was behind a pillar, and Grier stated that Johnson had been disabled from the first shot and that it was defendant who then kicked him and renewed the struggle. Furthermore, defendant's claim that he was weakened by a recent illness is uncorroborated, and the evidence indicates that he and Johnson were close in size and weight. Moreover, defendant's assertion that he was in fear for his life because he saw an approaching train is overcome by testimony of Grier, that defendant did not look left or right as he stood on the tracks; of Dean, that defendant did not attempt to remount the platform before he shot Johnson; and of both Grier and Dean, that defendant had left the platform before the train arrived. The credibility of witnesses and the weight to be given their testimony is a matter for the trier of fact, and we will not substitute our judgment where there is evidence which supports their findings. People v. Stringer (1972), 52 Ill.2d 564, 289 N.E.2d 631.

• 4 Defendant next contends that the trial court's refusal to ask the supplemental questions he had submitted for voir dire examination prevented him from ascertaining the potential biases and prejudices of prospective jurors. He argues that this was a denial of his constitutional right to an impartial jury which requires reversal of his conviction. We disagree.

It is well settled that although a litigant is entitled to a trial by an impartial jury (People v. Jackson (1977), 69 Ill.2d 252, 371 N.E.2d 602, there is nothing in the constitutional guarantee of this right which prevents reasonable regulation of the manner in which jurors are selected (People v. Lobb (1959), 17 Ill.2d 287). The plain language of Supreme Court Rule 234 which governs voir dire examination provides, in pertinent part:

"The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate * * *. Questions shall not directly ...


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