Appeal from the Circuit Court of Sangamon County; the Hon. C.
Joseph Cavanagh, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 8, 1985.
Following a jury trial, defendant Mark Sloan was convicted of murder and home invasion and sentenced to 40 years' imprisonment. On appeal, defendant argues that: (1) the trial court erred in refusing his instructions on voluntary manslaughter and self-defense; (2) his conviction must be reversed because no involuntary manslaughter instruction was tendered or given; and (3) the trial court abused its discretion in sentencing him without fully considering his potential for rehabilitation. In view of our disposition of the first issue, we need not address defendant's other arguments.
At about 2 a.m. on January 13, 1983, defendant went to the home of his former girlfriend, Cynthia Johnson, armed with a sawed-off shotgun. After knocking on the door for 10 to 15 minutes, defendant forcibly entered the residence. Cynthia, her new boyfriend, Rick Wilson, her roommate, Wanda Johnson, and Cynthia and defendant's baby were already inside. Wilson and defendant exchanged words, and then defendant shot and killed Wilson.
The week before the shooting, on January 7, defendant and Wilson fought at a party. Cynthia, Wanda, and defendant's girlfriend, DeAnn Mottley, were also at the party. The witnesses gave different versions of the fight. Defendant maintains that Wilson and his friends ganged up on defendant, and either Wilson or his friend, Fitzgerald Clay, cut defendant on the arm with a knife. Cynthia testified that defendant and Wilson started to argue, and defendant took a swing at Wilson. Cynthia saw no more of the fight; however, she later determined Wilson had won. Mottley testified Wilson and his friends ganged up on the defendant, kicked him, and made him wet his pants. On the way home, she noticed a two- to three-inch cut on defendant's arm. Later that evening, Wilson, his friends, Cynthia, and Wanda went to Mottley's house looking for defendant. Wilson threatened to kill defendant with a gun.
On January 13, defendant asked Mottley if he could borrow her car to go to Cynthia's home and check on his baby. He brought the sawed-off shotgun with him. At trial, defendant testified that he hid the gun under his coat and knocked on Cynthia's door. After 10 to 15 minutes, he pushed the door open. He saw Wilson sitting in the bedroom and asked why Wilson and his friends had jumped defendant at the party. Wilson replied he would kill defendant the next time. Defendant stated he was not there to argue and started toward the other bedroom. Wilson then rushed at defendant, who turned and brought out the gun. As Wilson dared defendant to shoot, defendant stumbled, and the gun discharged.
Defendant also testified he was afraid of Wilson because Wilson had beaten and cut him. Defendant thought Wilson was going to attack him. He was scared and could not tell if Wilson had anything in his hands. The front room light was dimmed, and only the television was on in the bedroom. Defendant asserted he did not intend to shoot or kill Wilson. Defendant testified he brought the gun only to protect himself. He denied kicking in the door. He further denied threatening either Cynthia or Wanda.
According to Cynthia, defendant stated he had come to see his baby when he knocked on her door. Cynthia told Wilson to go into the bedroom and shut the door because she did not want a fight in her house. Cynthia took her baby and hid in Wanda's room because she was scared. She then heard defendant kick down the door. Wilson and defendant began to argue about their previous fight. At one point, defendant stated, "Shut up, your time is going to come now." Wilson continued to argue, and Cynthia heard a gunshot. Defendant then said, "Cynthia, put my baby down because you're next. And Wanda, if you're in there, I got a bullet for you too." Cynthia entered the living room and saw defendant holding the gun. He fled, and she called the police.
Cynthia believed defendant had come just to see his baby. She also believed he did not know Wilson was present because Wilson's car was not parked in front of her house. She stated she knew Wilson had carried a gun in the past, but he was unarmed that night.
Wanda's testimony was almost identical to Cynthia's. According to Wanda, defendant stated he wanted to see his baby as he knocked. She also heard defendant kick in the door. Wilson and defendant argued about their previous fight, and at one point, defendant told Wilson his time would come sooner or later. The argument continued until Wanda heard the shot. Defendant then threatened to kill both Wanda and Cynthia.
The police investigated and found the door casing lying on the floor and Wilson dead. They arrested defendant at Mottley's house. At trial, the jury heard a tape-recording of defendant's statement to police. Defendant stated four or five individuals jumped him at a party on January 7. He claimed either Wilson or Clay cut him with a knife. On January 13, defendant was thinking about the fight. He decided to go to Cynthia's house to see if Wilson was there and to "take care of the problems." After beating on Cynthia's door, defendant pushed and it came open because it was already damaged. He saw Wilson and asked him what he was doing there. Wilson replied it was none of defendant's business. Defendant then pulled out the gun and Wilson dared him to shoot. The two exchanged words until Wilson jumped up to rush at defendant, and defendant shot Wilson. Cynthia came out of the bedroom, and defendant asked her if the baby was all right. He then fled.
At the instructions conference, defendant tendered instructions on voluntary manslaughter and self-defense. The judge refused to give the jury either instruction. The judge reasoned that it would be preposterous to give the voluntary manslaughter instruction merely because the lighting was bad and defendant could not tell if Wilson was armed. The court also held Wilson was entitled to use deadly force to repel the tumultuous invasion of the residence. Defendant, therefore, had no right to assert self-defense in killing Wilson.
• 1 In homicide cases, if there is any evidence in the record which, if believed by the jury, would reduce a crime to manslaughter or support an affirmative defense, then instructions defining manslaughter and the defense should be given if requested. (People v. Bratcher (1976), 63 Ill.2d 534, 540, 349 N.E.2d 31, 34; People v. Joyner (1972), 50 Ill.2d 302, 306, 278 N.E.2d 756, 759.) Only very slight evidence on a given theory is required to entitle defendant to an instruction on that theory. People v. Cookson (1982), 108 Ill. App.3d 861, 865, 439 N.E.2d 1033, 1036.
The State first contends defendant was precluded from asserting self-defense or voluntary manslaughter as a matter of law. The State asserts section 7-2 of the Criminal Code of 1961 allowed Wilson to use force against defendant. (Ill. Rev. ...