APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
517 N.E.2d 745, 164 Ill. App. 3d 99, 115 Ill. Dec. 334 1987.IL.2001
Appeal from the Circuit Court of Vermilion County; the Hon. Ralph S. Pearman, Judge, presiding.
JUSTICE SPITZ delivered the opinion of the court. GREEN, P.J., and McCULLOUGH, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ
After a jury trial, defendant was convicted of murder, aggravated battery, armed violence, and unlawful use of a firearm by a felon. Defendant was sentenced to 40 years' imprisonment for the offense of murder, 30 years for the offense of armed violence, consecutive, and five years for the offense of unlawful use of a firearm by a felon, consecutive, for a total sentence of 75 years. In this direct appeal from the foregoing convictions and sentences, defendant raises 14 separate alleged errors. On September 16, 1985, defendant was charged by information with four counts of murder, one count of aggravated battery, one count of armed violence, and one count of unlawful use of a firearm by a felon. On January 6, 1986, a jury trial commenced to hear evidence regarding these charges. As the parties are well aware of the facts of this case, and the issue of reasonable doubt has not been raised, only a fairly brief summary of the extensive testimony which was presented in the case is initially set forth, and additional facts are related as necessary in the analysis of the individual issues presented for review.
Robert Givens testified on behalf of the State. He stated that during the late evening hours of September 14 and the early morning hours of September 15, 1985, he was in the area of the Modest Tavern. His cousin, the murder victim, Clayton Woods, called him to the outside, near the tavern. The witness saw the defendant, whom he had known for 10 years, exit a car and go across the street. The witness testified that the victim was approximately 5 feet tall, and weighed 135 pounds, and that the defendant was 6 feet tall, and weighed 180 pounds. He testified that he saw the defendant with something in his hand, and that he hit Mary Duckworth, the victim of the aggravated battery, across the face, saying, "I told you I was going to get you." Givens testified that he thought the defendant had a gun because something shiny was in his hand, and later he saw the defendant point a derringer at him. He identified the gun used by the defendant. Givens further testified that after Duckworth fell down, Woods approached the defendant, but after seeing the gun, Woods stepped behind Givens to shield himself from the defendant. Givens, who had his arm in a cast, stood there while Woods locked his arms around Givens' waist. Givens testified that the defendant cocked the gun, came over the top of Givens, and struck Woods with the gun, knocking him to the ground. According to Givens, Woods had nothing in his hands and made no aggressive movements toward the defendant. Givens testified that the defendant kicked the victim, who was curled up, between five and seven times. The defendant stopped and appeared to be leaving when he saw a knife. According to Givens, he then stated, "Well, look what I've got here," and stabbed Woods three to four times. Givens stated that the victim did not possess anything to defend himself with during the stabbing. Givens also testified that the final time the defendant stabbed the victim, the defendant went to pull out the knife, but the knife remained inside the victim's body, so the defendant went back with his hand to pull it out. The defendant ran to the car, and Givens tried to get the victim into the tavern. Givens stated that while the victim struggled to get inside, the defendant returned, either striking or stabbing the victim again, knocking him into the doorway. He kicked Woods again and then left. The witness testified that he did not see Mary Duckworth with a weapon, nor did he see her make any aggressive movements toward the defendant. The witness heard the victim Woods ask the defendant why he was doing this, to which the defendant responded that he should not mess with his niece.
James Grayson, another witness to the stabbing, testified that he initially saw the defendant sitting in a car across the street from Modest Tavern. The defendant exited, walked toward Mary Duckworth, and struck her in the face. She questioned him as to why he was doing this, but the defendant did not respond. The witness continually watched the incident and never saw an object in Duckworth's hand. The victim Woods then came over, and the defendant pointed a gun at him. The victim Woods shielded himself behind Robert Givens, and the defendant told Givens to move. Givens responded, "I'm not holding him, he's holding me." Grayson testified that the defendant hit the victim in the head with the gun, and he fell to the street. He was then kicked and stomped by the defendant while he attempted to cover up. As the victim tried to get up, a straight-blade knife fell from his clothing. With the gun in one hand, the defendant stabbed the victim three to four times in the chest with that knife. Grayson testified that the victim then got up, took three steps, and fell. Grayson then left the area. He testified that he never saw the victim or Mary Duckworth provoke the defendant. He also identified the gun used by the defendant.
Four other eyewitnesses, including Mary Duckworth, the victim of the aggravated battery for which defendant was convicted, presented testimony which substantially corroborated the testimony of Givens and Grayson.
Claxton Harmon Williams, Jr., the defendant, age 37, testified in his own behalf. He stated that on September 14, 1985, he was riding in a car with Noah Rife and Celena Young. Defendant stated that Rife had been having problems with his girlfriend and wanted to talk. They drove into the country, but had no weapons. They stopped at a package liquor store and purchased one quart of beer and a soda. The beer was later emptied out at the request of police officers after defendant and Rife were stopped while urinating on a roadway. After a vehicle search, they were permitted to leave. The defendant testified that he did not drink because he was not feeling well. He denied looking for Clay Woods or Mary Duckworth. While driving from the country to the Modest Tavern, the defendant claimed that he slept in the car.
Defendant testified that while they were parked in front of the tavern, an individual approached the car and indicated that Woods and Duckworth were at the Modest Tavern. Defendant testified that this individual, whom he refused to identify, gave defendant a handgun. Defendant testified that he did not want the gun and placed it on the floor of the car. He exited the vehicle and went across the street to speak with Duckworth and Woods. Defendant testified that he approached Duckworth and asked her about an incident involving his cousin. Defendant testified that she denied any knowledge of this incident, became belligerent, and refused to speak with him about the incident. The defendant stated that he saw her hand in her purse, and claimed that he saw a knife inside. He further testified that she reached for it, and he screamed, "Don't pull any knife on me," so he struck her with his fist. Defendant then stated that Clay Woods was right there, and he was pulling for a knife, which he always carried, so the defendant jumped on him. The defendant claimed that he had no weapons at that time. According to defendant's testimony, he and Woods were fighting for the knife, and they went to the ground. The defendant remembered having control of the knife but did not recall stabbing the victim. As others approached, the defendant believed that they were going to jump him, so he ran to the car to get a gun. The victim ran into the Modest Tavern. The defendant stated that he knew the victim had a knife and was capable of using it. He further stated that he ran after the victim and remembered swinging at him and cutting him. He claimed that he then left the tavern and suddenly saw Mary Duckworth in the doorway. Thinking she had a knife, he cut her in the face, and then drove to the Fair Oaks housing project. The defendant admitted speaking to Kelly on September 8 about the incident wherein Kelly was injured and looking for Mary Duckworth on that date, but he was unable to find her. The defendant testified that Duckworth and the victim had a reputation for using knives. The defendant denied making a statement at the public safety building that "he had to do it to get even because they cut [his] niece, Lisa." His cousin Kelly was not known as Lisa. The defendant did not recall describing to the police the manner in which Kelly was cut. The defendant testified to being present during two incidents where he witnessed Clay Woods stab others without reason.
On cross-examination, the defendant testified that he was 5 feet 10 1/2 inches tall, and that he weighed 165 pounds. He stated that he "imagined" that he stabbed the victim, agreeing that he did not see any other person stab, kick, or hit the victim that evening. The defendant denied exiting his car and walking away while the police attempted to stop him. He admitted talking to Kelly after the incident wherein Kelly was allegedly cut by Duckworth, but he testified that he looked for those responsible only on the evening that Woods was killed. Defendant admitted that the incident wherein Kelly had been cut had upset him and he did not like it. Defendant testified that he knew both the victim and Mary Duckworth carried knives and had reputations for using them. When the defendant exited the vehicle near the tavern, he knew that Clay Woods was there. Defendant stated that he knew their reputations for violence, yet he claimed that he did not initially bring the gun with him.
Defendant testified that during his conversation with Duckworth, he did not have his arms crossed. He stated that he verbally told her not to bother Kelly. The defendant stated that he saw her reach into her purse and saw a knife. He could not identify its blade, color, type, size, or type of handle, nor could the defendant testify as to how she was holding her purse. He stated that he told her not to pull the knife. At this time, defendant testified that Woods was in the vicinity, and he had a butcher's knife which was half removed from his clothing. The defendant claimed that he jumped on Woods to prevent him from attacking him. He stated that he grabbed the arm area of the victim and claimed that he neither kicked nor stomped him. The defendant did not recall the victim's hiding behind Robert Givens. Defendant testified that during the struggle between the two, the knife fell out, and the defendant gained possession. The defendant did not know how many times the victim was stabbed. After previously stating that he did not strike the victim with his fist, defendant admitted that he did strike the victim. The defendant reiterated the sequence of events, indicating that he followed the victim into the tavern and cut his face, then ran back to the car to get the unloaded gun, because he feared for his personal safety. He stated that he had the knife in his left hand and the gun in his right. Defendant testified that Woods went into the tavern and that he paid no attention to the whereabouts of Mary Duckworth until he cut her on his way out of the tavern. The defendant testified that he dropped the knife on the way to the car. He stated that he had a nick on his right arm, yet photographs taken of him after the incident did not reflect any such injury. The defendant testified that statements testified to have been made by him to officers at the public safety building were concoctions. The defendant did not remember stabbing the victim Woods in the heart or the victim's begging for his life.
At the Conclusion of the testimony, an instructional conference was conducted, closing arguments were made, and the jury was instructed. Subsequently, the jury returned verdicts of guilty on all counts.
A presentence report was prepared, a sentencing hearing was conducted, and defendant was sentenced to 40 years' imprisonment for the murder conviction, 30 years' imprisonment for the armed violence conviction, and five years' imprisonment for the unlawful use of a firearm by a felon conviction. The trial court ordered that these sentences be served consecutively, for a total sentence of 75 years' imprisonment in the Department of Corrections. Defendant was also sentenced to six months' imprisonment for wilful and contumacious conduct at the sentencing hearing, and this sentence was ordered to be served concurrently with the other sentences. This is a direct appeal from the convictions and sentences in this case.
A large number of the issues raised by defendant on appeal relate to alleged errors in the jury instructions. We initially note that only one of these numerous issues was presented to the trial court and properly preserved for appeal. This issue is whether the court erred by refusing to instruct the jury that the State had to disprove that defendant was acting under sudden and intense passion resulting from serious provocation in order to convict defendant of felony murder. The underlying felony in the felony murder count was aggravated battery. This is an affirmative defense that would have reduced the offense of murder to manslaughter pursuant to section 9-2(a) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 9-2(a)). This instruction was given with regard to the charges of murder contained in counts I through III; however, this instruction was refused with regard to the charge of felony murder contained in count IV.
Section 9-2(a) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 9-2(a)) provides, in pertinent part:
"(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 intense passion resulting from serious provocation by:
(1) The individual killed, or
(2) Another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
Serious provocation is conduct sufficient to excite an intense passion in a reasonable person."
Defense counsel argued at length that an instruction pursuant to section 9-2(a) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 9-2(a)) should have been given with regard to the felony murder count as well as the other murder counts. The trial court refused to instruct the jury in this manner with regard to the felony murder count. The trial court based its ruling upon People v. Ellis (1981), 93 Ill. App. 3d 981, 984, 418 N.E.2d 88, 90, cert. denied (1982), 456 U.S. 907, 72 L. Ed. 2d 165, 102 S. Ct. 1755, wherein the court stated:
"Defendant contends the trial court committed error by refusing to instruct the jury to find that he had only the requisite mental state to commit involuntary manslaughter, a lesser-included offense of murder. The State's response is that involuntary manslaughter requires the mental state of recklessness, and felony murder does not require that any mental state be shown.
Once again, we adopt the reasoning of this court set forth in People v. Weathers (1974), 18 Ill. App. 3d 338, 309 N.E.2d 795. In Weathers, the defendant was charged with and found guilty of murder, armed robbery and attempted robbery. The defendant argued the trial court erred in refusing to instruct the jury as to involuntary manslaughter and reckless conduct. He based the argument on the fact that, in his view, the jury could have found him guilty of an offense less than murder, e.g., involuntary manslaughter. As here, it was the State's theory that defendant was guilty of murder under the so-called 'felony murder rule' (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a))(3)). In Weathers, the court said:
'No intent is required, and the accused need not be the actual perpetrator of the killing. (People v. Brooks (1972), 51 Ill. 2d 156, 281 N.E.2d 326.) It follows, then, that it would be impossible for one committing a homicide during the course of a forcible felony to be guilty of manslaughter.' Weathers, 18 Ill. App. 3d 338, 346, 309 N.E.2d 795, 801.
In the case at bar, defendant testified that he participated in the robbery. For that reason, a finding by the jury of manslaughter or reckless conduct could not be premised. Therefore, the trial court did not err in refusing to give defendant's proposed instructions regarding lesser offenses."
Although we agree that in most instances, the reduction in culpability due to passion should not be available as a partial defense to a felony murder charge, we believe that under the unusual fact situation presented by defendant's testimony in the instant case, the jury should have been given the provocation-voluntary manslaughter instruction in conjunction with the felony murder charge. As defendant points out, while either "unreasonable self-defense" or sudden and intense passion resulting from serious provocation reduces an offense from murder to manslaughter, the same diminished mental state is not a defense to the crime of aggravated battery. (People v. Chatman (1981), 102 Ill. App. 3d 692, 430 N.E.2d 257; People v. Mosley (1979), 68 Ill. App. 3d 721, 386 N.E.2d 545; People v. Christiansen (1981), 96 Ill. App. 3d 540, 421 N.E.2d 570.) Therefore, a defendant facing two people in mutual combat can be seriously provoked, and if he kills both, he is guilty of two counts of voluntary manslaughter. It would be absurd to state that under the identical facts, if one of the victims dies and one lives, he is now guilty of murder because as to the one that lives, he is guilty of aggravated battery, and hence, under the felony murder doctrine, the affirmative defense of provocation is inapplicable. We agree with defendant that such a result is contrary to common sense. Furthermore, in People v. Viser (1975), 62 Ill. 2d 568, 343 N.E.2d 903, a case involving a charge of felony murder, the Illinois Supreme Court stated that it would have been error for the trial court to refuse to give a voluntary manslaughter instruction pursuant to section 9-2(a) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 9-2(a)).
One of the rationales behind the felony murder doctrine (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(3)) is that a person who intends to commit a forcible felony should not be excused from the unintended results of his actions which occur during the course of the original felony. A person who intends to rob a shopkeeper or rape an individual is not allowed to claim that he was provoked by his victim or to raise any other affirmative defense if in the course of committing the original felony, the intended victim or any other person is killed. (People v. Moore (1983), 95 Ill. 2d 404, 447 N.E.2d 1327.) Once a person intends to commit a forcible felony and takes a substantial step to carry out that intent, he is liable for all of the actual results of his actions, even if they are unintended. (People v. Doherty (1963), 28 Ill. 2d 528, 193 N.E.2d 37.) An individual cannot claim that he was provoked by a person against whom he has already committed or attempted to commit a forcible felony.
However, in the instant case, according to defendant's version, he had no felonious intent when he initially approached Duckworth and Woods. Defendant claims that he committed no felony and formed no felonious intent until he was provoked by both Woods and Duckworth drawing knives on him. He contends that the jury could have believed his version of the events and concluded that Duckworth was the initial aggressor, that defendant became provoked by her actions, that defendant acted in self-defense and in passion in hitting her but that his actions were unreasonable because they were too severe a response, that Woods pulled a knife on him, and that defendant also acted out of intense passion and self-defense in striking and stabbing Woods. We also note that the jury could have concluded, based upon defendant's testimony, that defendant's initial actions against Duckworth and all of his actions against Woods were the result of intense passion due to provocation, but that the final attack on Duckworth constituted an aggravated battery. Even if the jury believed this scenario, according to the instructions, the jury would be obligated to find defendant guilty of felony murder.
As this court stated in People v. Bolden (1985), 132 Ill. App. 3d 1047, 1058, 477 N.E.2d 1380, 1387:
"We hold today that when the defendant in a murder trial introduces some evidence of intense passion or of unreasonable belief, it is to be treated as a partial affirmative defense and the burden is on the State to negate the elements which would lead to a verdict of voluntary manslaughter."
As the court stated in People v. Rodriguez (1981), 96 Ill. App. 3d 431, 435-36, 421 N.E.2d 323, 326:
"Very slight evidence upon a given theory will justify an instruction. People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 52; People v. Harris.
. . . We recognize that the victim and an apparently disinterested witness testified that the victim was brutally beaten by the defendants and Nuncci without provocation and that a jury would not be likely to accept the defendants' diametrically opposed version of the events. However, the credibility of the witnesses can only be resolved by the jury, not by the trial court. (People v. Dowdy (1974), 21 Ill. App. 3d 821, 316 N.E.2d 33.) The defendants were entitled to their theory of defense even if the trial Judge believed that the evidence ...