Appeal from the Circuit Court of Adams County; the Hon. Dennis
K. Cashman, Judge, presiding.
PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
On July 9, 1984, an information was filed in the circuit court of Adams County charging defendant, Jerry Williams, with the murder of his 13-year-old niece, Michelle Powell. After a trial by jury, a judgment of conviction was entered on October 25, 1984. After a sentencing hearing, on November 30, 1984, the trial court found that the crime was performed in an exceptionally brutal and heinous manner and imposed an extended-term sentence of 50 years' imprisonment. Defendant appeals contending that (1) he was denied due process because the trial court did not instruct the jury that the State was required to negate, by proof beyond a reasonable doubt, certain elements that would have reduced the homicide to voluntary manslaughter, and (2) the sentence was excessive. We affirm.
By his own admission at trial, defendant killed Michelle on the afternoon of June 30, 1984, and then hid her body. When found, the body had skull lacerations in the area of the forehead and the left temple and a gaping wound to the throat. Michelle was approximately 5 feet 6 inches in height and weighed approximately 98 pounds. Defendant had retired after 15 years service in the Army and had some disability in his lower left leg, resulting from a wound in Vietnam. He testified that the wound impaired his mobility. He maintained that he killed Michelle in self-defense. The evidence at trial centered on the testimony of investigators as to two inconsistent versions of the events surrounding the killing which defendant told to investigators and defendant's testimony which was inconsistent with both of those versions.
According to the first version, Michelle came to defendant's house at about 3:30 p.m. and asked to borrow $20 so that she could buy T-shirts for herself and a boyfriend. Defendant told investigators that she became angry when he refused, grabbed a butcher knife and started slashing at him. Defendant then backed away, picked up a large stove bolt and, as she advanced, hit her on the left side of her head. According to this version, she continued to advance, so he hit her on the top of the head and grabbed her hand holding the knife. According to the investigators, defendant said that she then stumbled into him, at which time the knife was near her throat and they "together" slashed her throat. Defendant was reported to have stated that Michelle died at that time, and so he wrapped her body in a blanket and disposed of it.
The investigators testified that several hours after giving the foregoing statements, defendant told them that it was not true. He then contended that when she asked for $20, he told her he could give her $5 but intimated that it would be for sexual favors. When she still demanded $20, he gave her $10 and told her "to take it or leave it." Defendant purportedly said that Michelle went into the living room and sat on the couch and he followed her and put his arm around her, but she pushed his arm away in a few minutes and walked back to the kitchen. According to the investigators, defendant admitted that he then hit her in the back of the head with the stove bolt, next hit her with a bottle and, as she lay on the floor, he slit her throat with a knife.
In testifying in his own defense, defendant stated that when Michelle requested $20, he gave her $5, saying that was all he could give her. Defendant denied having told the investigator anything about his request for sexual favors. Defendant then stated that "there was no verbal, you might say verbal conversation of sex or anything of that nature, but it was more an impression that one person would give another one, say, through eye-to-eye contact, that you could take it either way, or just about any way." According to defendant, Michelle then got up from the table and went into the living room and he followed her. Defendant said she kicked off her shoes and sat on the couch, and he sat down in the middle of the couch but did not put his arms around her. Defendant stated that she then walked away, saying "no, man, no, man" and "oh, no, man" and went to the kitchen table and picked up a knife. Defendant further testified that:
"She seemed like she was turning around and reaching behind her, or on the side of her, and grabbing the handle of the knife. I guess I thought I was in jeopardy, or whatever, or marked the defense, I don't know. I just immediately bent down and knowing where we keep our door stop you might say, reached down, picked it up, and in one continuous motion, came up and hit her on the head."
Defendant told the jury that Michelle had been in the process of turning around when he hit her and that after he did so, she completed her turn and faced him. He said he then saw a "flicker or a flash of something" which he thought was the knife. He told the jury that at this point he hit Michelle in the head and threw the bolt on the floor. He said, "I guess I was stunned because she started coming toward me, or advancing on me, and I thought that it was over." He testified that Michelle continued to advance toward him and that he tripped and they both fell. He told the jury that he was sitting on her left arm, straddling her waist, with his left arm holding her right arm down. He said that Michelle struggled and he reached over and picked up a soda bottle and hit her in the left temple area. He said that he hit her because he did not know if she had anything in her hands and he wanted to subdue her.
Defendant described the next few minutes in the following words:
"Like I said, this is hard to describe. It's a blur. I come back and the damage had been done to her throat area. Her throat was cut. The blade of the knife was next to her throat, or above it. I couldn't even say if it was on it. My hand was on the handle of the knife. I don't know if her hand or anything else was in that general area."
The weakness in defendant's contention that he believed it was necessary to slit Michelle's throat in order to protect himself is readily apparent. We consider the question of whether reversible error resulted from the method in which the jury was instructed in the light of the weakness in defendant's theory and the very strong proof that he was guilty of murder.
Section 9-2(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9-2(b)) provides that one who "intentionally or knowingly kills an individual commits voluntary manslaughter if" the killer has an unreasonable belief that circumstances exist that would legally justify the killing. Some evidence was presented here that defendant had such an unreasonable belief, and the trial court instructed the jury that the jury could find the defendant merely guilty of voluntary manslaughter. The court did so by a series of instructions which were tendered by the State, and to which the defendant made no objection.
One such instruction was in the form of Illinois Pattern Jury Instruction (IPI), Criminal, No. 7.06 (2d ed. 1981). It required the State to prove beyond a reasonable doubt every element of voluntary manslaughter as defined by section 9-2(b). The jury was also instructed that defendant was charged with murder which included the offense of voluntary manslaughter. The jury was then instructed as to the issues in murder by an instruction in conformity with IPI Criminal 2d Nos. 7.02 and 24-25.06A. The instructions required the State to prove beyond a reasonable doubt each of the statutory elements of murder based on intent (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)(1)) and also required the State to so prove that the killing was not justified. The instruction did not require the State to negate the existence of an unreasonable belief on the part of defendant that would reduce the severity of the homicide from murder to voluntary manslaughter under section 9-2(b). The manner of instructing the jury was in conformity with the traditional manner of doing so when issues of self-defense and voluntary manslaughter have been raised.
At least since 1981, defense counsel have been contending that the format of IPI Criminal (2d ed. 1981) and, more particularly, the wording of IPI Criminal 2d No. 7.02 is erroneous in cases where murder is charged and the question of whether the defendant's conduct merely constituted voluntary manslaughter is supported by some evidence. They have contended that the State is required to negate, by proof beyond a reasonable doubt, the existence of the voluntary manslaughter elements of provocation or passion (Ill. Rev. Stat. 1983, ch. 38, par. 9-2(a)) or, as here, unreasonable belief of justification (Ill. Rev. Stat. 1983, ch. 38, par. 9-2(b)). We recognized the problem in People v. March (1981), 95 Ill. App.3d 46, 419 N.E.2d 1212, and People v. Wood (1984), 129 Ill. App.3d 29, 471 N.E.2d 1060, but were ...