APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
516 N.E.2d 1292, 163 Ill. App. 3d 754, 114 Ill. Dec. 898 1987.IL.1632
Appeal from the Circuit Court of Cook County; the Hon. Howard Miller, Judge, presiding.
Modified Opinion Filed November 3, 1987, on Denial of Rehearing. As amended January 7, 1988.
JUSTICE STAMOS delivered the opinion of the court. HARTMAN and BILANDIC, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS
Defendant was convicted of murder after a jury trial and was sentenced to a term of 40 years' imprisonment. On appeal, he contends that: (1) he was denied his right to a fair trial where he was prevented from presenting evidence of and instructing the jury on self-defense; (2) the trial court erred in refusing to instruct the jury on involuntary and voluntary manslaughter; (3) he was denied his right to confrontation where the trial court restricted cross-examination of the State's witnesses; and (4) the trial court abused its discretion in sentencing defendant to 40 years' imprisonment without giving adequate consideration to his potential for rehabilitation.
The record reveals that the victim, Homer Davis, suffered a shotgun wound to the back on October 1, 1983, and died several days later. Defendant, who had been arrested on the night of the shooting, was charged with the murder and was tried in March 1985.
Marvella Sandifer, a neighbor of the deceased, testified that at approximately 8:30 p.m. on the evening of October 1, 1983, her attention was drawn to the street in front of her home by loud voices. She testified further as follows: Peering from the front door, she and her husband saw three men, identified as the victim, defendant, and Ronnie Mapps. Mapps carried a shotgun. The victim told defendant and Mapps that if they put down the gun, he would fight them. Defendant dropped a jacket he was carrying, snatched the gun from Mapps' hands, and told him, "I'll take the gun and break it down." The victim retrieved the jacket that defendant had dropped and began to back away. When the victim was approximately nine feet from defendant and Mapps, defendant held the gun to his waist and discharged it, striking the victim in the back. Sandifer ran to her kitchen and telephoned the police.
On cross-examination, Sandifer stated that she did not speak to the police about the incident that evening but spoke to the State's Attorney's office five days later at the request of the victim's brother. She was not permitted to testify to the substance of this conversation. Sandifer stated that she did not know Mapps by name until she spoke with an assistant State's Attorney.
Charles Woods, the victim's brother, testified that he was at home on October 1 when he overheard the victim engaged in an argument outside. Woods testified further as follows: He peered from the front window and saw the victim standing by defendant and Mapps. Mapps carried a shotgun. Woods immediately telephoned police, then went outside. Defendant snatched the shotgun from Mapps, dropped a jacket to the ground, and shot the victim as he retrieved the jacket and began to walk away. Woods screamed, and defendant and Mapps fled the scene. Woods identified defendant and Mapps for the police by name and in a police lineup later that evening.
On cross-examination, Woods stated that the victim had been involved in a fight with members of a street gang, to which defendant and Mapps belonged, approximately two weeks earlier. Woods denied that the victim belonged to a gang. He stated that he did not speak to Sandifer on the night of the shooting about the incident but did speak with her on a later date at the hospital, but he was not permitted to state how he learned she was an eyewitness, why she was at the hospital, or what was said in the conversation; the court characterized this part of the cross-examination as "fishing."
Steven Shoup, a Chicago police patrol officer, testified that he responded to a radio call regarding a man shot at the scene of the incident. Shoup testified further as follows: Upon arrival, he observed a man, identified as the victim, lying on the ground in a pool of blood. Shoup approached the victim, who was conscious, and asked him what had happened. The victim replied, "Tony shot me," and further stated that his assailant was the defendant. When an ambulance arrived, Shoup searched the scene and found a used shotgun shell on the street by the curb. The officer then located witnesses to the shooting, Charles Woods and Diana Anderson, and entered their names in his case report.
Police sergeant James Gorman testified that he (at the time a detective) and his partner, Detective James Pienta, were assigned to investigate the victim's death. Gorman further testified as follows: After speaking to the victim at the hospital, the police returned to the scene and attempted to locate defendant and Mapps. Defendant and Mapps were found later that evening and transported to the police station, where they were questioned and placed in a lineup. Woods identified defendant and Mapps.
On cross-examination, Gorman stated that defendant's father visited his son as he was being questioned by police at the station. Gorman denied hearing defendant tell his father that two other men had shot the victim and further denied that anyone told defendant to "shut up."
Defendant's father, Eddie Robinson, Sr., testified that he arrived at the police station at approximately 11 p.m. on the evening of October 1 after learning that defendant had been arrested. The father testified further as follows: He was not permitted to see defendant until approximately 1:30 a.m. He asked defendant whether he had committed the shooting, but defendant was told by a police officer to "shut up" when defendant began to answer his father. The father was then instructed to leave.
Defendant testified that on the evening of September 17, 1983, approximately two weeks prior to the instant incident, he was standing in front of a liquor store with approximately 20 persons, including the victim and several friends. Defendant further testified as follows: He asked the victim to purchase a pint of whiskey for him. The victim purchased the liquor but then returned and passed it among his own friends. When someone passed the bottle to defendant's friend, the victim pulled out a gun. Defendant grabbed the victim's hand, and the gun discharged. Defendant and his friends fled.
On the evening of October 1, he left his home with Mapps to "make peace" with the victim. The victim had made threats against defendant and his family. Defendant and Mapps found the victim talking with two other men. Defendant approached the victim and his companions and apologized. When the victim began to yell at defendant, defendant became frightened. As defendant was talking with the victim, he saw one of the victim's companions pull a shotgun from the trench coat he was wearing. Defendant grabbed for the gun, and it fell to the ground in the struggle and discharged, striking the victim. Defendant never touched the trigger of the shotgun but handled only the butt and barrel. The victim's companions fled from the scene. After throwing the shotgun from the scene, defendant and Mapps also fled. Defendant was arrested by police several hours later.
Defendant tried to tell the police that there had been two other men at the scene, but the police told him to "shut up." The shotgun at the scene did not belong to defendant, and he did not have any intent to kill or cause harm to the victim. Defendant was trying to defend himself when the shotgun discharged.
On cross-examination, defendant stated that he came within three feet of the victim when he approached him, and did not see that the victim was carrying any weapon. Defendant maintained that he was not pointing the shotgun at anyone when it discharged. He admitted that he fled from the scene with Mapps and did not call the police to report the shooting.
Prior to opening statements at trial, the State presented a motion to require defense counsel to specify whether the theory of his defense would be accident or self-defense, as defense counsel had stated that either might be used. The court advised counsel that an affirmative defense such as self-defense must be set forth in his answer and further stated that both theories could not be used. The State argued to the court that self-defense invoked the defense of justification and related to an intentional, not accidental, shooting. Defense counsel argued in reply that the instant case involved elements of both self-defense and accident and that the circumstances of each defense were not inconsistent with those of the other. The court ruled that such affirmative defenses were inconsistent and that counsel would have to make an election between accident and self-defense. Counsel elected self-defense.
Thereafter, defense counsel moved for a mistrial. At a sidebar conference, counsel made an offer of proof of the victim's propensity for violence. The State argued in reply that defendant's testimony that the shooting was accidental foreclosed his claim of self-defense. The court denied defendant's motion for a mistrial and ruled that all testimony as to the victim's prior bad acts should be excluded.
In rebuttal, Robert Sandifer testified that he witnessed the shooting and that he saw only three persons in the street at the time of the shooting. Collic Peer, a neighbor of the victim, similarly testified that there were only three persons in the street both before and after the shooting.
After closing argument, an instructions conference was held. Defense counsel requested instructions on voluntary manslaughter, self-defense, and involuntary manslaughter. These instructions were refused by the court, which found that the defendant's theory of defense, that the shooting was accidental and not intentional, precluded a claim of voluntary manslaughter and self-defense. The court found no evidence to allow an instruction on involuntary manslaughter.
At the sentencing hearing, the State in aggravation stated that the victim was unarmed and that defendant was on probation for a felony assault offense in the State of Washington at the time of the instant crime. In mitigation, defendant argued that he supported a "common-law wife" and two children. He also stated that he graduated from high school and completed a communications course in the United States Army prior to his discharge. He was subsequently sentenced to 40 years' imprisonment. I. Self-Defense
Robinson's first contention on appeal is that the trial court improperly ruled that his lack of intent to shoot the victim precluded his claim of self-defense, preventing him from presenting evidence in support of his case and denying him the right to a fair trial. He also maintains that the trial court erred in failing to instruct the jury on the law of self-defense.
At the time of the events underlying the offense charged against Robinson, section 9 -- 2 of the Criminal Code of 1961 provided in relevant part as follows:
"Voluntary manslaughter. (a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and ...