Appeal from the Circuit Court of Kane County; the Hon. Marvin
Dunn, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Kane County verdicts were returned finding defendant guilty of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1)), voluntary manslaughter (unreasonable belief) (Ill. Rev. Stat. 1981, ch. 38, par. 9-2(b)), and involuntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, par. 9-3(a)), all in connection with the shooting death of Harold E. Peters. The trial court entered judgment on each of the verdicts, and defendant thereafter filed his timely post-trial motion asserting that the verdicts were inconsistent because of the different mental states involved in each offense. The trial court subsequently denied the motion, vacated the convictions for voluntary manslaughter and involuntary manslaughter, and retained the judgment for the conviction of murder, sentencing defendant to 20 years' imprisonment.
Defendant appeals, contending that his constitutional rights to be free of double jeopardy (U.S. Const., amend. V; Ill. Const. 1970, art. I, sec. 10) were violated when the court entered a judgment and sentenced him upon a charge of which he was impliedly acquitted. On this basis, he seeks to have the murder conviction vacated and the involuntary manslaughter conviction reinstated. We will consider this issue as well as a related one which we perceive to be even more troublesome; i.e., whether the jury verdicts were inconsistent so as to require reduction of defendant's offense or reversal of his conviction.
Harold Peters, referred to at trial as "Ed," had been romantically involved with defendant's sister, Catherine Einsiedel, and was the father of Einsiedel's daughter, Shannon. Einsiedel had lived with Peters intermittently over the course of their three-year relationship, removing herself to defendant's home when she and Peters fought. At the time of the homicide, Einsiedel had left Peters, and she and Shannon had been staying with defendant for three or four months. However, Einsiedel continued to maintain some relationship with Peters.
On the evening of May 18, 1982, Einsiedel received a visit from Tony Charbauski. While Charbauski and Einsiedel were upstairs in her bedroom, Peters came into the house, admitting himself through a window. Peters went upstairs, and upon finding Einsiedel and Charbauski, became agitated and tried to get Charbauski to fight. As Charbauski was leaving the house, Peters threatened and attempted to kick him. When Peters came back inside the house, Einsiedel informed him that she wanted to end their relationship. As Peters left, he broke the dust cover of defendant's stereo, told Einsiedel he would pay for the damage, and gave her some money.
Defendant returned home approximately one-half hour later. Defendant and Peters were close friends, and defendant was aware of the relationship and problems between Einsiedel and Peters. Defendant knew Peters possessed guns, was skilled in the use of firearms, and previously threatened or spoke of threatening people, including defendant, with guns. Defendant testified that Peters was much more violent when he had been drinking. When defendant arrived home on the night in question, Einsiedel told him of the incident with Peters. Defendant indicated that he was sick of such behavior by Peters. Peters had been calling or coming to the house two or three times per week, usually in an intoxicated state, in the middle of the night.
Defendant testified that he went to bed and had started to fall asleep when he heard Peters' truck pull up. Defendant got up, feeling that he should be prepared if Peters attempted to break in, and told Einsiedel that Peters was there. Defendant, who testified that he was afraid for himself, Einsiedel, and Shannon, got his shotgun and went downstairs. When he opened the door, defendant found Peters outside, leaning against the porch rail. Peters was wearing only a tucked-in T-shirt and jeans, and was standing about five feet from defendant. After a brief conversation with defendant about the dust cover, Peters asked to talk to Einsiedel. According to defendant, Einsiedel, who had followed defendant downstairs, indicated that she did not want to speak with Peters, and defendant told Peters to leave. Peters, who defendant thought was intoxicated, became angry. Peters turned around and started walking down the steps, putting his hands up in the air, and making some remark about defendant shooting him. What occurred next is in conflict.
Einsiedel testified that as Peters turned around, she yelled at her brother not to shoot, the shotgun then went off and Peters fell to the ground. When asked what was the position of the gun as defendant shot Peters, the witness indicated it was in an "aim" position. According to Einsiedel, Peters had only a cigarette in his hand at the time, and his arms were raised up in the air. She testified that Peters fell about five feet from where he was originally standing on the porch. Einsiedel ran over to Peters; she did not see any weapons on or near him. Peters was pronounced dead by paramedics who arrived on the scene shortly thereafter. On cross-examination, Einsiedel stated she could not see Peters for a few seconds just prior to the shooting because she was looking at her brother and the gun. She stated for the month preceding the shooting Peters had carried a pocket knife in a holster on his belt.
Defendant testified that as Peters began walking down the porch steps, defendant got worried and removed the safety device from the shotgun. Immediately before the shot was fired, defendant heard his sister say, "Don." Defendant started to turn towards her and she said, "Don't shoot!" Defendant turned and looked back at Peters and saw him lower his hands and begin to turn around, a movement which made defendant think that Peters was going to get a gun. Defendant testified that at that time the shotgun was leaning against his shoulder and was pointing straight up into the air. Upon seeing Peters' movement, defendant lowered the shotgun and began to pull it to his shoulder, at which time the gun discharged. Defendant stated he did not aim the gun. He stated that before the gun went off, Peters was facing him. An autopsy revealed that Peters had been shot once in the back.
The jury was instructed on murder, voluntary manslaughter, and involuntary manslaughter. The issues instructions on voluntary manslaughter required the jury to find that defendant believed, albeit unreasonably, that circumstances existed which justified his use of force. (Illinois Pattern Jury Instruction (IPI), Criminal, No. 27.01 (2d ed. 1981).) The issue of defendant's belief was also submitted as part of the issues instruction for murder and required the jury to find that defendant did not believe justifying circumstances existed. (IPI Criminal No. 27.01 (1968).) Finally, the jury was instructed that by definition the offense of involuntary manslaughter was an unintentional one, although a lack of intent was not included as an issue in the issues instruction on that offense. (IPI Criminal Nos. 7.07, 7.08 (2d ed. 1981); Ill. Rev. Stat. 1981, ch. 38, par. 9-3(a).) Guilty verdicts were returned on each of these charges, and defendant was sentenced only upon the greater offense of murder. The convictions for voluntary manslaughter and involuntary manslaughter were vacated.
Because of the constitutional ban against double jeopardy (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, sec. 10), multiple prosecutions or punishments for the same offense are barred. (Ill. Rev. Stat. 1981, ch. 38, par. 3-4(a); Illinois v. Vitale (1980), 447 U.S. 410, 65 L.Ed.2d 228, 100 S.Ct. 2260.) As a corollary to this principle, the Criminal Code of 1961 provides that "[a] conviction of an included offense is an acquittal of the offense charged." (Ill. Rev. Stat. 1981, ch. 38, par. 3-4(a).) It is well established that voluntary manslaughter and involuntary manslaughter are lesser included offenses of murder (People v. Fausz (1983), 95 Ill.2d 535, 449 N.E.2d 78; People v. Arndt (1972), 50 Ill.2d 390, 280 N.E.2d 230; People v. Ellis (1982), 107 Ill. App.3d 603, 437 N.E.2d 409; People v. Cowen (1979), 68 Ill. App.3d 437, 386 N.E.2d 435), and involuntary manslaughter is a lesser included offense of voluntary manslaughter. (People v. Towers (1974), 17 Ill. App.3d 467, 308 N.E.2d 223.) Defendant therefore contends that his conviction of involuntary manslaughter operated as an acquittal of the charges of murder and voluntary manslaughter and that convicting and sentencing defendant for murder violated his constitutional right to be free from double jeopardy. We disagree.
This identical argument was considered and rejected by the court in People v. Kettler (1983), 112 Ill. App.3d 1061, 1067, 446 N.E.2d 550. Noting that a jury may, and frequently does, return guilty verdicts upon both the charged offense and its lesser included offense (see People ex rel. Carey v. Scotillo (1981), 84 Ill.2d 170, 417 N.E.2d 1356; People v. Bone (1982), 103 Ill. App.3d 1066, 432 N.E.2d 329; People v. Burnette (1981), 97 Ill. App.3d 1015, 423 N.E.2d 1193), the court concluded that section 3-4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 3-4(a)) applies only to those instances where the jury returns a verdict upon the lesser offense and is silent as to the charged offense. (People v. Kettler (1983), 112 Ill. App.3d 1061, 1067, 446 N.E.2d 550; see also People v. Keith (1978), 66 Ill. App.3d 93, 383 N.E.2d 655; People v. Roberts (1976), 36 Ill. App.3d 811, 345 N.E.2d 132.) In this situation, the jury's silence on the greater offense will be deemed an "implied acquittal" of that offense. Green v. United States (1957), 355 U.S. 184, 2 L.Ed.2d 199, 78 S.Ct. 221.
• 1 We agree with the reasoning of the Kettler decision and accordingly find no "implied acquittal" of either murder or voluntary manslaughter in the instant case. Here, the jury was not silent on either of these offenses but, to the contrary, returned a specific finding of guilt on each of them. Under these circumstances, "the doctrine of `implied acquittal' would be literally fictional." People v. Kettler (1983), 112 Ill. App.3d 1061, 1067, 446 N.E.2d 550; see also People v. Krogul (1983), 115 Ill. App.3d 734, 737, 450 N.E.2d 20.
We reach this conclusion mindful of several recent cases which at first glance appear to support defendant's position that the "implied acquittal" doctrine applies here. We find those cases distinguishable. In People v. Stuller (1979), 71 Ill. App.3d 118, 389 N.E.2d 593, the jury was instructed on both murder and unreasonable belief voluntary manslaughter. The issues instruction for voluntary manslaughter required the jury to find that defendant believed circumstances existed which justified his actions. The issues instruction for murder, however, omitted the element required under these circumstances, that defendant did not believe justifying circumstances existed. (Stuller; see also People v. Vega (1982), 107 Ill. App.3d 289, 437 N.E.2d 919.) The jury returned verdicts of guilty on both the murder and voluntary manslaughter charges. The trial judge vacated the voluntary manslaughter verdict and entered judgment on the murder conviction. On appeal, the murder conviction was reversed and the cause remanded to the circuit court with instructions to enter a finding of guilty of voluntary manslaughter and to impose an appropriate sentence. The appellate court reasoned that the specific finding on the voluntary manslaughter count that defendant believed justifying circumstances existed, which finding was supported by sufficient evidence, negated the requisite intent for murder. We view the Stuller decision as limited to its facts and do not believe it stands for the broad proposition now advanced that conviction of a lesser included offense automatically negates the requisite intent for the ...