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01/26/88 the People of the State of v. Ruben Vincent

January 26, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

RUBEN VINCENT, DEFENDANT-APPELLANT

DEFENDANT WAS CHARGED WITH BOTH MURDER (ILL. REV. STAT. 1985, CH. 38, PAR. 9-1), AND VOLUNTARY MANSLAUGHTER BASED ON AN UNREASONABLE BELIEF IN SELF-DEFENSE (ILL. RE

v.

STAT. 1985, CH. 38, PAR. 9-2(B)). THE JURY ACQUITTED DEFENDANT OF MURDER, BUT CONVICTED HIM OF VOLUNTARY MANSLAUGHTER.



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

520 N.E.2d 913, 165 Ill. App. 3d 1023, 117 Ill. Dec. 562 1988.IL.76

Appeal from the Circuit Court of Cook County; the Hon. Nicholas T. Pomaro, Judge, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. STAMOS and BILANDIC, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

Following a jury trial in June 1984, defendant was found guilty of voluntary manslaughter and sentenced to four years' imprisonment. Defendant appealed, and in July 1986, this court ordered a new trial based upon the trial court's submission of an instruction to the jury which impermissibly shifted the burden of proving self-defense to the defendant. In August 1986, the State filed a petition for rehearing and a motion to supplement the record, alleging that the jury instruction upon which the reversal and remand were based was mistranscribed. This court then withdrew its slip opinion and ordered a hearing pursuant to Supreme Court Rule 329 (107 Ill. 2d R. 329), which mandates that the trial court must resolve any disputes regarding the accuracy of the record on appeal. After hearing evidence and argument, the trial court found that the jury instruction in question as contained in the report of proceedings was incorrect. Defendant appeals from that finding, raising the following issues: (1) whether the evidence presented at the Rule 329 hearing established that the jury instruction which was transcribed in the report of proceedings was erroneous; (2) whether the jury was properly instructed as to the burden of proof on the issue of justifiable use of force.

In February 1981, defendant and a friend, Byron Bolden, were walking toward the Bryn Mawr "el" station in Chicago when a stranger, Emmett Harris, bumped into defendant. Defendant testified that after words were exchanged Harris threw a bottle, which hit defendant in the chest. Harris swore at defendant, and then, according to defendant, walked up and hit defendant in the face, causing defendant to fall to the ground and blur his vision. As he tried to get up, he saw Bolden struggling with Harris. Defendant took out his knife, and "stuck it out" as Harris tried to hit him. Defendant testified that he did not intend to harm Harris, but wanted only to stop him. Defendant did not know whom he had hit, or if he had hit anyone at all. Bolden and Harris continued to fight, and as defendant was getting up he "stuck" his knife out again and stabbed Bolden in the leg.

Defendant testified that he was not angry at Harris, but simply scared. The fight lasted only a few seconds. Harris was taller and heavier than defendant. The doctor who performed the autopsy testified that Harris died as a result of a stab wound to his chest.

Defendant appealed, and this court reversed his conviction and remanded his case for a new trial, because the record indicated that the following instruction had been given to the jury:

"The jury is justified in finding the defendant not guilty if they find the defendant establishes the following propositions:

1. That defendant, Ruben Vincent, acted to defend himself against the use of unlawful force to his person; and

2. That the defendant, Ruben Vincent, reasonably believed that the force he used was necessary to prevent imminent death, or great bodily harm to himself, or the commission of a forcible felony." (Emphasis added.)

Thereafter, pursuant to the State's petition for rehearing, this court withdrew its opinion and remanded the case to the trial court for a hearing pursuant to Supreme Court Rule 329. At that hearing, conducted in October 1986 before Judge Pomaro, four witnesses testified: Thomas Carroll, Judge Pomaro's clerk at the time of the trial; Assistant State's Attorneys Lee Messinger and Kevin Kelly; and Tobias Dixon, defendant's attorney at trial.

Because Judge Pomaro is blind, Carroll acted as the Judge's eyes and sat in on the instruction conference. Carroll also read the court's instructions to the jury. He testified that he did not recall making any mistakes as he read, and there were no objections or sidebars during the reading of the instructions. After reading the instructions, Carroll gave them to the sheriff, who brought them into the jury room with the rest of the evidence. After reviewing a certified copy of the instructions and the record of proceedings, Carroll testified that he remembered reading the following instruction at trial:

"The jury is justified in finding the defendant not guilty if they find the evidence establishes the following propositions:

1. That defendant, Ruben Vincent, acted to defend himself against the use of unlawful force to his person; and

2. That the defendant, Ruben Vincent, reasonably believed that the force he used was necessary to prevent imminent death, or great bodily harm to himself, or the commission of a forcible felony." (Emphasis added.)

Carroll admitted that he had no independent knowledge of the instruction on self-defense. He also stated that he believed he had read "evidence establishes" because if he had read ...


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