APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
519 N.E.2d 28, 165 Ill. App. 3d 375, 116 Ill. Dec. 438 1988.IL.50
Appeal from the Circuit Court of Will County; the Hon. John F. Cirricione, Judge, presiding.
JUSTICE STOUDER delivered the opinion of the court. HEIPLE and SCOTT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER
The Will County grand jury indicted the defendant, Antoine Hudson, and his brother, Robert Hudson, for murder. The two men were charged with shooting and killing Alfred Mabry. After a bench trial, the defendant was found guilty of the lesser included offense of voluntary manslaughter. (People v. Hoffer (1985), 106 Ill. 2d 186, 478 N.E.2d 335.) The defendant was sentenced to a term of six years' imprisonment. On appeal, the defendant contends the following: (1) the trial court erred in finding him guilty of manslaughter on an accountability theory; and (2) the trial court abused its discretion by imposing a six-year sentence upon the conviction.
On the morning of March 27, 1986, the defendant's car was burned. The defendant cleaned out the car that morning and took a gun from the car, placing it in his pocket. Robert Hudson came to the defendant's home later that morning. Robert was also carrying a gun. Two friends of the defendant's (Sammy Robinson and Brenda Miller) also came to the defendant's home that day, and around 1:30 p.m., the defendant and Robert left the house with Robinson and Miller in Robinson's car. The defendant and Robert had brought their weapons with them. The defendant claims he normally would not carry his gun; however, he did on this day because he lived in a violent, dangerous neighborhood. As the parties were driving out of the Joliet housing projects, Robert noticed a gray Buick parked along the street. The Buick's driver, Terry McNair, was standing outside the driver's side door of the car talking to a girl in the doorway of a house. As the parties drove by, Robert indicated that the person (Alfred Mabry) in the front passenger seat of the Buick was responsible for the defendant's car being burned. The defendant asked Robinson to pull over, claiming that he wished to speak to Mabry about the burning of the defendant's car. The defendant got out of Robinson's car and walked to the driver's side of McNair's car. As the defendant walked toward the passenger side of the Buick, Mabry got out of the car. The defendant testified that Mabry exited the Buick and warned the defendant not to come any closer, stating, "I killed one nigger and I'll kill another." The defendant contends that as Mabry spoke he was reaching toward his waistband. The defendant testified that Mabry then produced a pistol and pointed it at the defendant. Upon hearing gunfire from the side of the Buick, the defendant dropped to the ground, drew his weapon and began firing. The defendant fired until his gun was empty. The defendant's shots were not returned by Mabry. A few seconds after the shooting stopped the defendant looked up and saw Mabry's feet by the door of the Buick. The defendant also saw Robert walking around from the side of the Buick. Robert was holding a black revolver in his hand as he approached the defendant. The defendant then left the scene in Robinson's car and returned home. Upon returning home, the defendant found Robert sitting in the defendant's car. Robert had walked home from the scene of Mabry's murder. The defendant gave his gun to Robert and does not know what became of the weapon. The defendant was arrested 20 minutes later while riding in Robinson's car. The car was traveling on Interstate 55, heading for Chicago.
Upon police investigation it was determined that Mabry had been shot four times; each bullet coming from Robert's gun. It was also discovered that Mabry did in fact have a gun in his possession. However, Mabry's gun was not fired, as it was found to be fully loaded.
The defendant and Robert were indicted for the murder of Alfred Mabry. Robert was brought to trial first. The jury found Robert guilty of murder, and the court sentenced him to a term of 20 years' imprisonment. After a bench trial the defendant was convicted of the lesser included offense of voluntary manslaughter. (People v. Hoffer (1985), 106 Ill. 2d 186, 478 N.E.2d 335.) The defendant was sentenced to a term of six years' imprisonment.
The defendant's first contention is that the trial court erred in finding him guilty of voluntary manslaughter on a theory of accountability.
"(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 negligently or accidentally causes the death ...