Appeal from the Circuit Court of Cook County; the Hon. Robert
L. Massey, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 19, 1984.
Defendant was charged by information with voluntary manslaughter, by stabbing Walter Sims (deceased) with a knife, without lawful justification, in the unreasonable belief that the circumstances were such that, had they existed, would justify such killing and with armed violence in that, while armed with a knife with a blade over three inches, she committed the felony of voluntary manslaughter. (Ill. Rev. Stat. 1981, ch. 38, pars. 9-2(b), 33A-2.) Following a bench trial, defendant was found guilty of voluntary manslaughter and not guilty of armed violence and sentenced to three years in the penitentiary. Defendant appeals, contending that the finding of not guilty of armed violence based on voluntary manslaughter is inconsistent with the finding of guilty of voluntary manslaughter since each offense had the same essential elements and, consequently, that the conviction for voluntary manslaughter should be reversed.
The evidence at trial showed that deceased, age 42, and defendant, age 30, were married. Deceased had injured his hip some years prior to this incident and could not walk without a cane. On June 7, 1981, defendant returned home from work. Deceased was not home, but was at his mother's apartment across the street. According to deceased's mother, defendant hit deceased with her hands or fists several times and accused deceased of having somebody "in my house." After deceased's mother told them they could not fight there and to get out, defendant said to deceased, "You c'mon, I'm going to fix you." The couple left and returned to their apartment, where deceased was killed by defendant, who stabbed him in the neck with a steak knife.
Defendant gave several statements to authorities. First, she orally told a police officer that she killed deceased but did not mean it. She explained that she had come home from work at approximately 1 a.m. and found the house messed up. She then became upset and found deceased at his mother's house where some words were exchanged. She slapped deceased and went back across the street followed by deceased who remained in the apartment doorway waving his cane. She then went into the kitchen, got a steak knife, and went back and killed him. During a second conversation, when an assistant State's Attorney was present, defendant said deceased hit her with the cane. Defendant also gave a written statement which was transcribed and received into evidence.
Defendant testified that she came home from work at approximately 1 a.m. and found her apartment messed up. Deceased answered the door at her mother-in-law's house, and when she asked him why the apartment was messed up, he called her a name and she slapped him. She also noticed that his speech was slurred, and he smelled of alcohol. She denied telling deceased she was going to "fix him," but claimed deceased said he was going to "fix her." Later, inside their own apartment the argument resumed. Deceased called her names and hit her with the cane. Because she thought deceased was going to kill her and she knew that in 1976 deceased had been convicted of aggravated battery arising from a shooting, she went to the kitchen and grabbed a steak knife. As he moved toward her, deceased raised the cane and said, "I'm going to put you on ice," swung the cane, but missed, then swung again. She then stabbed at deceased's neck with the steak knife. Deceased stepped backwards, and she ran out of the apartment.
In closing argument, defendant argued that she should not be found guilty of armed violence because "it is almost inevitable that some sort of weapon" will be used in a voluntary manslaughter. Defendant also argued that where a person has an honest, although unreasonable, belief that he has a right to protect himself, but is also found guilty of armed violence, one must be sentenced to a period of six years or more, which is "totally out of line" and "not what the legislature intended." Defendant also argued that the weapon used was not something defendant carried on her person before the incident, and, consequently, she should not be found guilty of armed violence.
In rebuttal to this argument, the State pointed out there are ways to kill somebody without a deadly weapon, such as strangling, but that "when it is defined under the armed violence, you are guilty of armed violence," and it made no difference that defendant had not previously carried the knife around. The prosecutor also stated:
"Now, as to the question of voluntary manslaughter and armed violence, Counsel is saying don't find it because six years is unreasonable, if this was a jury trial, you couldn't make the argument. The jury would be instructed otherwise. We are obligated to look at the facts and not say that we feel sorry because they might go to a penitentiary for a statutory period of time."
Following a recess, the court made its findings in the following colloquy:
Based upon the evidence that has been offered in the case, the Court does find from the evidence that the defendant is guilty of voluntary manslaughter. That will be the finding of the Court.
[Assistant Public Defender]: May I approach the Bench?
[Assistant State's Attorney]: As to the ...