APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
516 N.E.2d 412, 162 Ill. App. 3d 1046, 114 Ill. Dec. 257 1987.IL.1550
Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Maloney, Judge, presiding.
JUSTICE PINCHAM delivered the opinion of the court. SULLIVAN, P.J., concurs. JUSTICE LORENZ, specially Concurring.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM
Defendant, Aaron Morris, was tried on two counts of murder and one count of armed violence. His defense was self-defense and defense of his dwelling. The jury returned a verdict finding Morris guilty of voluntary manslaughter and the court sentenced him to 10 years' imprisonment. On appeal, Morris contends (1) the trial court erred when it sustained the prosecutor's objections to questions he was asked about his state of mind when he shot the deceased; (2) the evidence did not prove him guilty of voluntary manslaughter beyond a reasonable doubt; (3) the trial court erred in refusing to give a jury instruction on defense of a dwelling; and (4) the trial court abused its discretion in sentencing Morris to 10 years' imprisonment. We reverse and remand.
Defendant shot and killed Bobby Thomas in the vestibule of the building in which defendant lived. Thomas had returned and entered the vestibule after a fight between him and the defendant in front of defendant's building had been broken up by Thomas' friends, who took Thomas away. The events which precipitated the shooting are as follows.
Bobby Thomas and his friend Richard Adams were arguing on the corner of 57th and Laflin Streets in Chicago. They had been drinking whiskey and beer for several hours. Thomas and Adams left the corner and continued to argue. While still arguing loudly they stopped in front of the apartment building where the defendant lived with his sister. Defendant heard the loud argument and profane language of Thomas and Adams and he saw them in front of his residence. The defendant testified, "I walked over to them [Thomas and Adams] and I asked them, I said, 'Would you all keep your noise down or the landlord will call the police.'" Thomas cursed the defendant. Defendant testified that he turned to walk away. Thomas said, "[Don't] turn your back on me," and, as defendant walked away, Thomas said, "I will kill you." Defendant testified he turned around and told Thomas that he was not going to do anything to him and to "go about your business." He testified:
"A. At this time, while I was facing him, he [Thomas] said, 'You got something, man?' I said I got some food stamps and I showed them to him, and I turned around and faced my sister and then he struck me from behind and my forehead hit the door.
Q. When he struck you from behind, tell the ladies and gentlemen of the jury how he struck you.
A. He pushed me with force (indicating).
A. I again turned around and got to fighting.
Q. How many times did you hit Bobby Thomas?
Q. Can you describe for the ladies and gentlemen of the jury how you were hitting Bobby Thomas at this point?
A. Like this. Then I had grabbed him by the hair, and then I just [started] hitting him (indicating).
Q. Approximately how long did this fight last?
A. No more than a couple minutes.
Then some guys, they broke the fight up."
Defendant won the fight. Thomas' face was beaten and his nose and mouth were bleeding. Defendant went back inside his apartment building. With the help of his three friends, Thomas was taken home, where he went to the washroom and looked at his face in the mirror. Angelo Caldwell, a State's witness who went with Thomas to his home after the fight, testified that he was standing in front of the washroom door in Thomas' house. Caldwell testified:
"Q. What did you see within the washroom?
A. Bobby was looking at his face in the mirror.
Q. After he did that, what happened then?
A. He turned around and went straight out the back door.
Q. Did you do anything when Bobby Thomas went out of the back door of the house?
A. Yes, I went behind him.
Q. You, in fact, left ...