Appeal from the Circuit Court of Will County; the Hon. Robert
R. Buchar, Judge, presiding.
JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
The defendant, Rosemary Cox, appeals following her conviction for murder in the circuit court of Will County. The defendant was sentenced to the minimum term of 20 years in the Department of Corrections.
On appeal the defendant presents the following allegations for review: (1) that the trial court erred in denying a motion to suppress following an arrest without a warrant; (2) the trial court erred by refusing to give defendant's tendered instruction regarding voluntary manslaughter (provocation); (3) that the trial court's failure to give an elements instruction which incorporated the affirmative defense of justifiable use of force, even though not tendered by defense counsel, amounted to plain error; (4) that the defendant was not proved guilty beyond a reasonable doubt; (5) that the court should exercise its power to reduce the degree of the offense from murder to manslaughter pursuant to Supreme Court Rule 615(b)(3) (87 Ill.2d R. 615(b)(3)).
The evidence indicates that on October 19, 1980, the 65-year-old defendant repeatedly shot and killed her 68-year-old live-in companion, Willie Hatten, with whom she had been living for three to four years prior to the shooting. However, on the day of the shooting and for a short time prior thereto, the couple had been separated. Evidence was presented that the defendant had, as early as July 1980, told the decedent's son, "I love your father and I'll kill him." The threat had been made because the decedent had not returned home the night before.
The defendant owned a .22-caliber revolver which was kept under her mattress in her apartment "for protection." No evidence was presented which indicated that the defendant normally carried the gun with her.
On October 19, 1980, the defendant went to the front yard of the decedent's home and an argument followed. The decedent was heard to have told the defendant that "he was going to kick her mother fucking ass." The defendant shot at the decedent three times, and an autopsy revealed the cause of death to be a gunshot wound to the decedent's chest. Another wound was located on the right upper arm. The decedent was intoxicated.
When the defendant arrived at the decedent's house he was with another woman. He asked her to stay in the bedroom while he answered the door. While in the bedroom, Shirley Lanier heard an argument between the decedent and the woman later identified as the defendant. She heard the woman ask the decedent why he hadn't taken her to the laundromat and why he had not come home the night before. The argument continued until gunshots were heard.
Shortly after the shooting, the defendant was arrested in her home without a warrant. The defendant was advised of her Miranda rights and elected to talk to the police. The defendant told them that she had waited for the decedent to return home to take her to the laundromat. When he failed to show up the defendant walked to the decedent's house. Upon hearing a woman's voice coming from inside the house, the defendant knocked on the door but stood away from the window so the decedent couldn't see her. When the decedent failed to open the door the defendant broke the latch and entered the house. The decedent came out of the bedroom in his shorts. The defendant told him that she would not hurt the woman and asked him to bring her out of the bedroom. An argument followed which ended in the defendant shooting and killing Hatten.
The defendant's first argument on appeal concerns the refusal of the trial court to suppress her statements to the police following her arrest. Specifically, the defendant contends her arrest was illegal because it occurred without either a warrant or under exigent circumstances. She does not contend that the police did not have probable cause to arrest her, however.
• 1 While the defendant is correct in that the warrantless and nonconsensual entry into a suspect's home to make an arrest absent exigent circumstances is prohibited by the fourth amendment (Payton v. New York (1980), 445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct. 1371), where the police have probable cause to arrest a defendant, they may make a warrantless arrest at the entrance to a defendant's home after the defendant voluntarily opens the door in response to the police knocking on the door (People v. Schreiber (1982), 104 Ill. App.3d 618, 432 N.E.2d 1316, cert. denied (1983), 459 U.S. 1214, 75 L.Ed.2d 452, 103 S.Ct. 1214; People v. Krohn (1981), 100 Ill. App.3d 37, 426 N.E.2d 540).
• 2 The evidence taken at the suppression hearing indicated that the defendant voluntarily admitted the police to her home. We believe that based upon the evidence the trial court properly denied defendant's motion to suppress.
Next the defendant contends that the trial court erred in refusing to give a tendered instruction regarding voluntary manslaughter (provocation).
• 3 During the trial, the defense argued that the defendant shot the decedent in self-defense. Based on such evidence, the jury was properly instructed on self-defense and voluntary manslaughter based on the unreasonable belief that the defendant's use of force was justified.
• 4, 5 Serious provocation recognized as sufficient to require an instruction for voluntary manslaughter based on provocation includes physical injury or assault, mutual quarrel or combat, illegal arrest and adultery with the offender's spouse. Mere words or gestures are not adequate to mandate the instruction. (People v. Fausz (1983), 95 Ill.2d 535, 449 N.E.2d 78; People v. Baggett (1983), 115 Ill. App.3d 924, 450 N.E.2d 913.) While the trial court may believe there is sufficient evidence to support a self-defense instruction and a voluntary manslaughter instruction based upon an unreasonable belief that force was necessary, it does not follow that a voluntary manslaughter instruction based upon provocation must also be given. (People v. Lockett (1980), 82 Ill.2d 546, 413 N.E.2d 378.) While acts of passion or a sudden desire for revenge may indicate a state of mind which would entitle a defendant to a voluntary manslaughter instruction based on provocation, if the ...