Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. John J. Crowley, Judge, presiding.
JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
The defendant, Hubert Almo, appeals from his conviction in the circuit court of Cook County of murder and armed violence and his concurrent sentences of 30 and 20 years, respectively, for those two crimes. The appellate court affirmed the defendant's conviction and sentence for murder and vacated his conviction and sentence for armed violence (123 Ill. App.3d 406). We granted the defendant's petition for leave to appeal to this court (87 Ill.2d R. 315).
On March 9, 1979, at approximately 9:15 p.m., Rick Bynum, a full-time security guard at the YMCA hotel, was playing cards in the library of the hotel which was then located on South Wabash Avenue in Chicago. Bynum was off duty at the time. The defendant entered the room and killed Bynum with a single bullet from the defendant's .44 magnum revolver. The police found no gun on Bynum's body. Conflicting accounts of the remaining facts were presented by the State's witnesses and by the defendant, who testified in his own behalf.
The State's version of the case was largely presented by Sandy Russell, Stephen Murchison, and Janie Boyd, all of whom were nearby in the YMCA when the shooting occurred, but not in the same room. Russell and Murchison each testified that they were sitting in the YMCA lobby talking to each other when a black man wearing a white coat and a black hat walked past them into the next room and stood by a table where some people were playing cards. About 5 to 10 minutes later they heard a shot and they dropped to the floor. A few minutes later the same man passed them, placing a gun in his pocket and calmly walking out as though nothing had happened. Murchison testified that he ran into the library after he heard someone say that a security guard had been shot.
Janie Boyd testified that she was playing cards in the YMCA lobby, on the other side of an open doorway to the room in which Bynum was playing cards with three other people; two more people were standing around. She saw the defendant walk in. She next heard a commotion and saw Bynum stand up, apparently trying to pull the table up with him. She then heard a single gunshot, and Bynum fell to the ground. Then according to Boyd, the defendant knelt next to Bynum and said, "Get up you coward, get up because I ain't done anything to you yet. Get up you coward [obscenity], get up because I ain't did anything to you." When Bynum did not get up the defendant turned and walked away.
None of the persons in the room where the shooting occurred testified. A police officer testified that when he arrived at the scene defendant was walking out of the building. The defendant offered no resistance.
The defendant's version of events was different. According to him, Bynum's reputation for violence, his prior threat to kill the defendant, and his actions on the night of the shooting caused the defendant to believe that his life was in immediate danger, and to shoot Bynum in self-defense.
The defendant had been a resident of the YMCA since 1972 and was still living there when the shooting occurred. He was employed as a full-time security guard for Andy Frain and a part-time security guard at the YMCA and was licensed to carry a gun. He first met Bynum approximately three months before the shooting when Bynum began working at the YMCA. One day, when the defendant was drinking coffee in the YMCA cafeteria, Bynum told him to "go catch some air," which apparently meant to leave the building. When the defendant did not leave, Bynum called the police and had him arrested. The defendant spent the night in jail charged with disorderly conduct, but when Bynum did not appear to press charges the next morning, the defendant was released. The next day, Bynum told the defendant to move out of the hotel. He told the defendant that he could be on the first floor of the YMCA, but "if I catch you higher than the first floor I am blowing your head off." The defendant testified that it was his understanding that YMCA security guards were required to carry their guns when they were on the hotel premises and that whenever the defendant saw him, Bynum was carrying a gun.
At the time of Bynum's alleged threat the defendant's rent was paid up, and he did not move out. The defendant testified that on another occasion before the shooting he watched Bynum beat up a blind man on the first floor of the YMCA. According to the defendant, Bynum claimed that he had earlier caught the blind man attempting to break into someone's room with a screwdriver.
On March 9, the defendant returned home to the YMCA after window shopping in downtown Chicago. He went up to the second floor, where he saw Bynum sitting at a table with some women. According to the defendant, Bynum said, "Here, this nigger is here," the defendant answered, "Hey man, why don't you leave me alone," and Bynum replied, "What did I tell you?" Next Bynum told a girl sitting near him to move and, when she did not, he shoved her out of her chair onto the floor. Bynum jumped up. The defendant, trying to defend himself, shot once. He then walked downstairs to the YMCA switchboard, picked up the phone, and reported to the police that he shot someone.
The defendant testified that he saw Bynum wearing a gun at 9:15 p.m. on the evening that the defendant shot him. The defendant further testified that, contrary to what Janie Boyd claimed, he did not follow Bynum, and he did not say anything to him after he shot him. At the close of the evidence, the defendant moved for a directed verdict, contending that he had not been proved guilty beyond a reasonable doubt. The circuit judge reserved his ruling.
The jury was provided with verdict forms for the charges of voluntary manslaughter, murder, and armed violence. During the deliberations, the jury foreman sent a note asking, "Do we have to find innocent or guilty on all three charges, or are two enough?" The circuit judge sent the following instructions:
"A verdict of either guilty or not guilty should be returned on the armed violence charge. If you find the Defendant guilty of the murder charge then you need not return a verdict on the voluntary manslaughter charge. If you find the Defendant guilty of the voluntary manslaughter charge, then you need not return a verdict on the murder charge. If you find the Defendant not guilty of both the murder and the voluntary manslaughter charges then you must sign both of these verdicts not guilty. If you find the Defendant not guilty of both the murder and the voluntary manslaughter charges, then you must sign a not guilty verdict on the armed violence charge."
The jury deliberated further and then returned three verdicts, guilty on each of the three charges of voluntary manslaughter, murder, and armed violence. The defendant moved for a mistrial, or in the alternative, for entry of the verdict on the voluntary manslaughter charge only, claiming that verdict indicated that the jury concluded that the defendant believed that he was acting in self-defense, although his belief was unreasonable. The motion was denied. The trial court changed the word "need" to the word "must" in the quoted instruction above and submitted the new instruction to the jury, together with new verdict forms for both murder and voluntary manslaughter, and charged the jury to continue to deliberate. The circuit judge did not submit new verdict forms for armed violence.
The jury then returned a verdict of guilty of murder; no verdict was returned for voluntary manslaughter. The defendant moved for judgment notwithstanding the verdict, but this motion and the reserved motion for directed verdict were denied. Although the appellate court affirmed the conviction of murder, the conviction of armed ...