Appeal from the Circuit Court of Kane County; the Hon. John L.
Nickels, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 8, 1985.
Following a jury trial in the circuit court of Kane County on three counts of murder, defendant was convicted of the lesser offense of voluntary manslaughter (Ill. Rev. Stat. 1983, ch. 38, par. 9-2) and was sentenced to a 10-year term of imprisonment in the Department of Corrections. On appeal, defendant claims that the trial court erred in: (1) instructing the jury, over defendant's objection, as to the lesser included offense of voluntary manslaughter where defendant had predicated his defense on the jury's receiving no such compromise verdict; and (2) admitting evidence of the deceased's surviving family and prior medical history and evidence of the defendant's prior crimes or bad acts. We reverse.
On November 2, 1983, the deceased, 61-year-old Veo McGhee, went with his cousin, Larry McGhee, to their aunt's (Lottie McGhee) house to discuss some bills which had not been paid to Lottie. Lottie ran a boarding house and rented out rooms to various individuals, including defendant. According to Larry McGhee, Veo had been taking care of Lottie's bills. He became upset that her bills were not being paid and went to Lottie's to talk with defendant about his failure to pay them. There was evidence that the deceased was intoxicated at the time he and his cousin went to Lottie's.
When they arrived at Lottie's, Larry waited while Veo went inside to talk with his aunt. Approximately 10 minutes later, defendant and another man, Micky Boyd, entered the house; several other men also came shortly thereafter. Veo "put them out" because they entered the house without knocking. Defendant was outside with Veo at that time, and the two men began arguing, although Larry McGhee could not hear exactly what was said. According to Larry, Veo was yelling. The two men then went back inside the house and Larry remained outside.
Ten to 15 minutes later, Larry became concerned and went inside to check up on Veo. After talking with Lottie for a few minutes, Larry heard Veo and defendant arguing again upstairs, although he could not understand what was being said. Larry then heard a scuffle upstairs which lasted about two minutes. When the scuffle ended, Larry went upstairs and saw defendant coming down the stairs, holding a bloody knife in his right hand; defendant's sleeve and hand were also bloody. Defendant stated, "Veo shouldn't have been * * * with me." He then continued downstairs with the knife.
Larry found Veo upstairs sliding down a hallway wall almost to the floor. Veo had blood on his face and shirt. Boyd was standing over Veo across the hallway and called to Larry to get an ambulance.
Paramedics were called to the scene but were unable to revive Veo, who died of stab wounds to his neck and left lower rib area. A search by police of the scene and of Veo's clothing at the hospital revealed no weapon on or about Veo's person. However, Officer Michael Perez did discover a bloody knife just north of Lottie's house.
Several hours later, defendant was seen by police walking westbound towards the police station and Lottie's house. He was placed under arrest and transported to the station, where he was processed. According to one of the arresting officers, defendant was "very intoxicated" at the time and could not even stand up.
The following morning, defendant was interrogated at the police station. After the Miranda rights were read to him, defendant gave a statement to police in which he admitted stabbing Veo McGhee. According to defendant, Veo came up to him and yelled that he (Veo) was taking over the house and that he wanted defendant out. Defendant stated that he would leave but could not take all his belongings with him at that time. Defendant then left the room, putting his knife in the waistband of his pants as he left. Defendant stated that when he reached the stairs, Veo again yelled to him, saying something to the effect, "Nigger, I'll kill you." At that point, defendant said that Veo placed his right hand into his right front pants pocket. Defendant thought Veo may have had a gun, so defendant took his knife and stabbed Veo. When asked how many times defendant had stabbed Veo, defendant stated "once," although he "may have" stabbed him more than once, but "couldn't remember."
According to the statement, defendant then ran out of the house and down the street, throwing the knife away as he left. The knife was discovered where defendant said he had thrown it. Defendant went to his cousin's house, where he continued to drink. Later he decided to turn himself in and was picked up on the way to the police station. Defendant also stated that Veo had threatened him in the past and that there were "indications" of a gun, although defendant had never seen Veo with a gun or carrying a gun. However, defendant said that Veo had told him in the past that he had a gun. Defendant identified the recovered knife as his own.
Cora Reid, Lottie's sister and Veo's aunt, testified that on several occasions when she would call Lottie, the phone was grabbed from Lottie's hand and defendant got on and stated that if Veo came over, he would kill him. This happened approximately two days before Veo was killed. Lottie testified that she did not remember defendant ever taking the phone from her and threatening to kill Veo. However, Lottie was described by one State's witness as being "senile."
After hearing the evidence and arguments of counsel, the jury was instructed as to self-defense, murder and, over defendant's objection, the lesser included offense of voluntary manslaughter. A guilty verdict was returned on the latter offense. Sentence was imposed and a timely appeal followed.
• 1 Defendant's first contention is that the trial court erred in instructing the jury, over his objection, as to the lesser included offense of voluntary manslaughter where the defendant predicated his defense on the jury's receiving no such compromise verdict. Defendant's argument is, essentially, that he has the absolute "right" to determine whether the lesser offense of voluntary manslaughter should go to the jury, and that the trial court errs when it instructs the jury as to a lesser offense in the absence of a defendant's consent or request. Defendant further argues that he had no notice that the State would seek a voluntary manslaughter instruction, and that his assumption that this theory would not be presented to the jury caused him to forego an intoxication defense, which he claims would have been effective against both the murder and voluntary ...