APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
527 N.E.2d 325, 173 Ill. App. 3d 344, 122 Ill. Dec. 827 1988.IL.552
Appeal from the Circuit Court of Cook County; the Hon. Ralph Reyna, Judge, presiding.
PRESIDING JUSTICE CAMPBELL delivered the opinion of the court. BUCKLEY and MANNING, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL
Following a bench trial, defendant, Ruben Alcazar, was convicted of the voluntary manslaughter (Ill. Rev. Stat. 1985, ch. 38, par. 9-2) of Alejandro Bahena and the unlawful use of a weapon (Ill. Rev. Stat. 1985, ch. 38, par. 24-1(a)(7)) and sentenced to concurrent prison terms of seven years and four years, respectively. On appeal, defendant contends that: (1) the State failed to prove beyond a reasonable doubt that it was unreasonable for defendant to have believed that his use of deadly force was justified; (2) the trial court violated defendant's statutory right to a speedy trial when it allowed the State to add the unlawful use of a weapon charge after more than 120 days had elapsed since the date defendant had been taken into custody; and (3) the trial court abused its discretion in sentencing defendant by failing to consider defendant's rehabilitative potential. For the following reasons, we affirm defendant's conviction and the sentence imposed for voluntary manslaughter and reverse the conviction and sentence for unlawful use of a weapon.
The record sets forth the following facts which are relevant to this appeal. On the evening of June 9, 1985, defendant and two of his friends, Marshall Jiminez and Frankie Rodriguez, were standing outside of the entrance to defendant's apartment building at 177 Wildwood, Wheeling, Illinois, when a verbal argument ensued between defendant and Alejandro Bahena. Apparently, defendant and Alejandro had been feuding with each other for over a year regarding the use of certain parking spaces in the apartment complex. That night Alejandro admitted that he had been the one who had slashed the tires on defendant's car a few days earlier. Angered by the admission, defendant went into his apartment to get a sawed-off shotgun, which he concealed under a black karate-style robe he was wearing. Defendant then rejoined Marshall and Frankie and was later joined by Eduardo Ochoa. There is conflicting testimony as to whether defendant showed the gun to his friends at this point. However, the verbal altercation continued between defendant and Alejandro.
Defendant then told his friends to go home. As Eduardo walked by Alejandro and his friends, a fight broke out. There is conflicting testimony as to whether Eduardo ran back to defendant or whether defendant walked up to Alejandro. In either event, defendant showed Alejandro the gun, and the name-calling continued as defendant backed up toward his own apartment building. As Alejandro and his friends followed defendant toward defendant's apartment building, Alejandro kept taunting defendant to use the gun. There was conflicting testimony as to whether Alejandro had been drinking prior to the altercation.
When defendant and Frankie reached defendant's apartment building, Ernesto Eloiza, defendant's father-in-law, was at the front entrance door to the building. Ernesto testified that Alejandro threatened to kill defendant, but he did not see any weapon. After defendant and Frankie entered the vestibule of the apartment building, Ernesto attempted to hold the front entrance door shut from the inside to prevent Alejandro from entering the building. However, Alejandro managed to push open the door and step into the building. At that point, defendant shot and killed him.
There is conflicting testimony as to where defendant was standing at the time he shot Alejandro. Frankie had told the police that defendant had been on the stairs near the entrance, but later stated that he and defendant had agreed to say that defendant was on the second landing. Ernesto testified that defendant was on the stairs. Juan Malgoza testified that defendant was on the stairs, approximately six feet from the door to his own apartment unit. In defendant's oral statement to the police, he stated that he had been on the second-floor landing, but later stated that he was on the stairs near the front entrance to the building. It was stipulated by the parties that no blood was found inside the front entrance door. Rather, the bloodstains were outside the door, indicating that defendant had shot Alejandro just as he pushed open the door, causing Alejandro to fall backward into the bushes near the front stoop.
At trial, defendant admitted to killing Alejandro, but claimed that it was in self-defense. Although a knife was found next to Alejandro's body, there is conflicting testimony as to whether Alejandro was armed with a knife at the time of the shooting. Following closing arguments, the trial court found defendant guilty of voluntary manslaughter and unlawful use of a weapon and entered judgment on the verdict. The trial court then denied defendant's motion for a new trial and, after hearing arguments in aggravation and mitigation, sentenced defendant as indicated. Defendant's timely appeal followed.
Defendant first contends that the trial court erred in finding that his belief that he was in imminent danger of death or great bodily harm when Alejandro pushed open the front entrance door of his apartment building was unreasonable. Defendant argues that in finding him guilty of voluntary manslaughter, the trial court implicitly found that Alejandro had been the aggressor and that defendant had not possessed the intent to commit an illegal act. Defendant further argues that in viewing the circumstances which surrounded the shooting, it is evident that he fired the single shot "to protect himself, his loved ones and his home from the deceased's violent intrusion."
In response, the State contends that the argument between defendant and Alejandro which precipitated the shooting was strictly verbal and not physical. The State admits that Alejandro's entry into the apartment building may have necessitated the use of non-deadly force, but that defendant's intentional use of deadly force at the moment Alejandro opened the front entrance door was "an unreasonable response to a non-deadly attack."
"A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to ...