Appeal from the Circuit Court of Cook County; the Hon. Joseph
Urso, Judge, presiding.
JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant, Alberto Kindelan, was convicted of the offense of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(2)) and sentenced to a term of 40 years in the Illinois Department of Corrections. On appeal, defendant contends that: (1) the trial court erred in refusing to ask prospective jurors whether they could accept the legal theory of self-defense; (2) the trial court gave an improper issues instruction with respect to the offense of murder; (3) the sentence imposed is arbitrarily excessive and fails to reflect adequate consideration of defendant's rehabilitative potential; and (4) the State's discriminatory use of peremptory challenges violated defendant's constitutional rights. For the following reasons, we affirm in part and remand for an evidentiary hearing on the issue of the State's use of peremptory challenges.
The record sets forth the following facts pertinent to this appeal. Defendant, a dark-skinned Cuban, was charged with the fatal stabbing of Valerino Guillen on the evening of July 2, 1983, in front of the Guillen home in Chicago. On the night of the incident, approximately 8:15 p.m., Juan and Juanita Guillen, brother and sister, were sitting on their front porch with two friends when they saw approximately seven teenagers talking and leaning on the next-door neighbor's fence. The neighbor, Norma Quintana, asked the teenagers not to lean on the fence because they were bending it. PoPo Ramos, one of the teenagers, shouted profanities at Norma and refused to leave. At that point, Juanita also asked them to leave. PoPo again shouted profanities and told Juanita to mind her own business. When Juan warned PoPo not to talk to his sister that way, PoPo dared Juan to come outside the fence and fight. Juan accepted the dare, and the two fought for several minutes in the street. No weapons were used, and testimony indicates that Juan was the apparent "winner" of the fight. PoPo then left with a friend, warning Juan that they would be back with guns.
After PoPo left, Juanita told Juan to go into the house and to stay there. A few minutes later, Frankie Ramos, PoPo's brother, and three friends, including defendant, arrived at the Guillens' house. At least one member of the group was carrying a bat. Frankie had been told that a group of kids had beaten up his brother, and he wanted to see Juan about the incident. Juanita explained that it had been a fair one-on-one fight and managed to appease Frankie and his friend. As Frankie was leaving, a car pulled up, and PoPo's mother, her daughter, and two other women emerged from the car and started to scream that they wanted to see Juan.
At that point, Valerino came out of the Guillen house. He had just taken a shower and asked Juanita about the cause of the commotion. Valerino was wearing baggy pants and gym shoes, but did not have on a shirt. After Juanita explained the situation to him, Valerino, standing with both arms folded over his chest, attempted to calm the women. During the confrontation, defendant joined the group, positioning himself close to Valerino. Suddenly, defendant took a step forward and plunged a knife into Valerino's chest. Valerino staggered backward and with his hand over the wound, attempted to climb onto his porch. He then collapsed on the porch, bleeding profusely. Defendant and the other members of the Ramos group fled. Valerino was taken to the hospital where he died from the stab wound.
At trial, defendant admitted that he had stabbed Valerino, but claimed that he had done so because he had thought Valerino was going to hit one of the Ramos girls. Defendant stated that he could not understand the conversation between Valerino and the Ramos women because it had been in English and he spoke only Spanish, but he had heard that Valerino was a dangerous man. When Valerino unfolded his arms and lifted his hand in a gesture, defendant thought that he was going to strike the girls, and, consequently, stabbed him to protect the girls. Defendant stated that he had not gone to the Guillen home with the intent to kill Valerino. In fact, he had been unarmed until someone handed him a knife while he was standing in front of the Guillen home.
Prior to the voir dire of the venire, defendant requested the court to ask the jury whether they believed a person could be justified in killing another in self-defense or in defense of others. The court declined, stating that it did not think it was a proper question at that point because no issue of self-defense had been raised. In response, defendant stated that he had included self-defense as an affirmative defense in the pleadings. Nevertheless, the court declined to ask the question.
Thereafter, jury selection commenced, after which the proceedings were continued to the following day. At the outset of the next day's proceedings, defendant moved for a mistrial alleging that the State had used all seven of its peremptory challenges to illegally exclude blacks from the jury. The State replied that there were three blacks on the jury and countered that defendant had used nine of its peremptory challenges to dismiss nine white persons, adding, "[T]here's nothing wrong. It's a pre-emptory [sic] challenge and I'm sure he has his reasons just as we had our reasons." Finding that there had been no systematic exclusion of blacks by the State, the court denied defendant's motion for a mistrial.
Following the trial, the jury returned with a verdict of guilty of murder, and judgment was entered on the verdict. Thereafter, defendant's post-trial motion was denied, and he was sentenced to a term of 40 years in the Illinois Department of Corrections. Defendant's timely appeal followed.
• 1 On appeal, defendant first contends that he was denied his right to a fair and impartial jury and the right of peremptory challenge by the court's refusal to question prospective jurors about their opinions concerning the use of justified force in self-defense or the defense of others.
Supreme Court Rules 431 and 234 (87 Ill.2d R. 431; 94 Ill.2d R. 234) prohibit inquiry into matters of law during voir dire. Rule 234, made applicable to criminal cases by Rule 431, states in part: "Questions shall not directly or indirectly concern matters of law or instructions." The express purpose of Rule 234 was to shorten voir dire by eliminating questions which did not advance the purpose of the procedure to ascertain bias or prejudice. People v. Stack (1986), 112 Ill.2d 301, 493 N.E.2d 339.
Recently, in People v. Muhammad (1985), 132 Ill. App.3d 901, 478 N.E.2d 457, appeal denied (1985), 108 Ill.2d 582, this court held that Rule 234 prohibits questions during voir dire which concern the theory of self-defense in murder prosecutions. (See also People v. DeSavieu (1983), 120 Ill. App.3d 420, 458 N.E.2d 504, appeal denied (1984), 99 Ill.2d 531; People v. Bradley (1981), 97 Ill. App.3d 1100, 424 N.E.2d 33, appeal denied (1981), 85 Ill.2d 578.) In reaching its decision, the Muhammad court stated that a question concerning self-defense was expressly prohibited by Rule 234 because it is "a question of law to which the jury was instructed when all the evidence was presented." People v. Muhammad (1985), 132 Ill. App.3d 901, 905, 478 N.E.2d 457.
Similarly, in the present case, prior to voir dire, the court instructed the venire that following presentation of the evidence and the arguments, the jurors would be instructed as to the applicable law, which they had an "absolute duty to accept." In addition, each venireman was asked individually if he or she could apply the law as instructed and, following trial, was specifically instructed as to the law regarding the justifiable use of force. Accordingly, we conclude that the trial court properly refused defendant's question. In reaching our determination, we find defendant's reliance on People v. Stack (1986), 112 Ill.2d 301, 493 N.E.2d 339, unpersuasive for the reason that Stack specifically addresses the defense of legal insanity.
• 2 Next, defendant contends that the trial court erroneously gave the jury an improper issues instruction on the offense of murder which failed to inform the jury that in order to convict defendant, the State had to prove defendant acted without lawful justification. Defendant argues that, without this information, the jurors could have concluded that defendant was guilty of murder whether or not he had acted in justifiable defense of his friends. In response, the State argues that defendant has waived this issue for review by failing to tender different instructions, by failing to object to the murder instruction at trial, and by failing to include the objection in his post-trial motion. ...