APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
529 N.E.2d 732, 175 Ill. App. 3d 136, 124 Ill. Dec. 751 1988.IL.1391
Appeal from the Circuit Court of Cook County; the Hon. Thomas Hett, Judge, presiding.
JUSTICE SCARIANO delivered the opinion of the court. HARTMAN, P.J., and EGAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO
Following a jury trial, defendant was found guilty of murder and sentenced to 30 years' imprisonment. He appeals, arguing that: (1) the trial court erred in failing to inquire into the bias of prospective jurors; (2) he was denied a fair trial by the assistant State's Attorney's references to the victim's family; (3) the evidence does not support his conviction; (4) he was denied a fair trial by the assistant State's Attorney's cross-examination; (5) the trial court erred in admitting evidence of his four prior convictions; (6) the trial court abused its discretion in sentencing him to 30 years' imprisonment; and (7) the voluntary manslaughter instruction given in this case incorrectly stated the State's burden of proof.
At trial, Mary Brooks, defendant's sister, testified that she lived with the victim, Edward Youngblood, and their two daughters. On February 8, 1985, defendant came to Mary's home at approximately 5:30 p.m., and the victim returned home two hours later. Defendant asked Youngblood for money that he owed him and, when the victim replied that he did not have it, defendant began "cussing" at him. The two men went into a bedroom to discuss the matter, but defendant was still upset when they returned to the kitchen. Later in the evening defendant and Youngblood left the apartment together to go to a store, and when they returned they were no longer fighting but rather just talking. Youngblood went down to another apartment to visit some friends, and defendant followed him about 10 minutes later. The people in the apartment would not allow defendant to enter, so defendant and Youngblood returned to Mary's apartment, laughing and talking. At approximately 9 p.m., defendant and Youngblood returned to their friends' apartment, but about 10 minutes later Mary brought Youngblood back to her apartment. Youngblood later returned to the friends' apartment with his seven-year-old daughter, who returned to Mary's apartment shortly thereafter. Mary then heard a "commotion" and "cussing" and, upon going out in the hallway, saw Youngblood standing on the steps at the landing between the 8 1/2 and the 9th floors of the apartment building, his arms and chest bleeding, and saw defendant standing on the landing between the eighth and ninth floors. Defendant was holding a knife with a blade approximately 12 inches long, which he was swinging toward Youngblood as Youngblood backed up the stairs. Mary pulled Youngblood away and he turned and walked into their apartment. Defendant also went into the apartment, stopped in the living room to make a phone call, and then walked into the room Youngblood was in and began swinging his knife at him. Youngblood picked up a chair and used it as a shield, and defendant began hitting the chair with the knife, breaking the chair. Youngblood then picked up a bookcase, holding it in front of him as he walked forward, forcing defendant to walk out of the apartment. Defendant continued swinging the knife towards Youngblood, and by the time they were out in the hallway, Youngblood was holding just one piece of the bookcase. Clarence Coleman and Joseph Williams came out of their apartment just as Youngblood was standing at the top of the stairs on the ninth floor and defendant stood on the landing between the eighth and ninth floors. Coleman and Williams grabbed defendant, trying to take the knife away from him. Youngblood threw the piece of bookcase he was holding at Brooks, but hit Williams instead. Defendant broke loose of the two men, "charged" up the stairs and stabbed Youngblood in the chest. Prior to this time Youngblood had not fought back or threatened defendant, but he now began to fight.
Clarence Coleman testified that on February 8, 1985, defendant and three others were in an eight-floor apartment drinking and gambling. At approximately 10 p.m., Youngblood and his daughter arrived. Defendant was drunk and upset, and Youngblood asked defendant to come upstairs with him. He did not threaten defendant, but could not convince him to leave. When Mary came in, Youngblood and their daughter left with her. Approximately 15 minutes later Youngblood returned with his daughter, and when he left, defendant stated "I'm going upstairs to get that nigger." Defendant left, and approximately 20 minutes later Coleman heard a "commotion." He and Williams went out into the hallway and saw defendant holding a knife in his hands and Youngblood bleeding. Defendant charged at Youngblood, jabbing him with the knife, after Youngblood threw a stick towards him. Coleman never saw Youngblood threaten defendant, nor did he see Youngblood with a weapon.
A medical examiner testified that Youngblood had a total of four stab wounds, one to the left armpit, one to the left chest which punctured the left lung, one to the left elbow and one to the right lower back. Youngblood also had 12 incise wounds: three to his face, four on his chest, two on his back, two on his left arm, and a defense wound on the palm of his right hand. He also had a total of nine abrasions on his body. The doctor testified that all wounds were inflicted at approximately the same time and that Youngblood died as a result of the multiple stab and incise wounds.
Defendant testified on his own behalf. He stated that he asked Youngblood for money he owed him and Youngblood replied he would not pay it. Youngblood began arguing with defendant because defendant would not allow him to have any of his liquor. Youngblood "got in a heated rage" and came at defendant, but defendant's brother stepped in and "broke it up." Mary asked defendant to leave, which he did, and he did not return to Mary's apartment that day. Youngblood followed defendant out of the apartment, wanting to talk to him. Defendant responded that he had nothing to talk about with Youngblood and left to go to the store. Youngblood arrived at the store while defendant was there. Defendant then went to Coleman's apartment, where Youngblood arrived shortly before defendant fell asleep. When defendant awoke Youngblood was gone. Defendant denied ever telling Coleman he was "going to get" Youngblood. As defendant left the apartment he encountered Youngblood, who told him "I'm going to teach you about running me off," which defendant testified meant embarrassing him. Youngblood then began hitting defendant in the face with his fists. Defendant was dazed and as he began to fall backwards he reached forward, grabbing Youngblood around the waist and, feeling a knife in his waistband, took it from him. Youngblood ran upstairs and then returned with a stick which he used to beat defendant about the face and hands. Defendant fell down as Youngblood advanced upon him, and defendant began swinging the knife "wildly." Coleman and Williams grabbed defendant while Youngblood chanted and called names, then threw his stick at defendant, hitting Williams. Youngblood ran back to his apartment, returning with a chair and a stick which had been part of a bookcase. He hit defendant with the stick while blocking himself with the chair. Defendant was swinging the knife at Youngblood, asking him "What's wrong with you?" After that Youngblood "lay there and quit swinging the stick." Defendant then left and went to a gas station, where he asked an attendant to call the police. When the police arrived he told them that he had been in a fight, that a "guy" was trying to kill him and that he had cut him. He also relinquished his knife to the police. The police took him to the hospital, where he was treated for cuts over his eye and finger and thumb and a splint was placed on his finger and thumb.
On cross-examination, defendant testified that he took the knife from Mary, then stated that he took it from "him" and not Mary. By stipulation, the defense presented evidence that defendant told a nurse at the hospital that he was hit on the right hand with an unknown object, he was examined and found to have swelling and tenderness of the left hand. There was an abrasion on defendant's right wrist and a half-inch superficial laceration on his face. Defendant was under the influence of alcohol and in acute distress.
The jury returned a verdict finding defendant guilty of murder, and the trial Judge sentenced him to 30 years' imprisonment. He appeals.
Defendant relies on the recent supreme court case of People v. Reddick (1988), 123 Ill. 2d 184, consolidated with People v. Lowe, cause No. 65002, in support of his argument that the jury instructions given in his case were incorrect and denied him a fair trial. This argument was not raised before the trial court, but defendant contends that this court should consider this issue under the plain error doctrine. (Reddick, 123 Ill. 2d at 198.) The instructions at issue state in part as follows:
"To sustain the charge of murder, the State must prove the following propositions:
First : That the defendant performed the acts which caused the death of Edward Youngblood; and
Second : That when the defendant did so, he intended to kill or do great bodily harm to Edward Youngblood; or he knew that his act would cause death or great bodily harm to Edward Youngblood; or he knew that his acts created a strong probability of death or great bodily harm to Edward Youngblood; and
Third : That the defendant was not justified in using the force which he used." Illinois Pattern Jury Instructions, Criminal, Nos. 7.02, 24 -- 25.06 (2d ed. 1981) (hereinafter IPI Criminal 2d).
"To sustain the charge of voluntary manslaughter, the State must prove the following propositions:
First : That the defendant performed the acts which caused the death of Edward Youngblood; and
Second : That when the defendant did so, he intended to kill or do great bodily harm to Edward Youngblood; or he knew that his acts would cause death or great bodily harm to Edward Youngblood; or he knew that his acts created a strong probability of death or great bodily harm to Edward Youngblood; and
Third : That when the defendant did so he believed that circumstances existed which would have justified killing Edward Youngblood; and
Fourth : That the defendant's belief that such circumstances existed was unreasonable." IPI Criminal, 2d No. 7.06.
In Reddick, the supreme court held that the IPI voluntary manslaughter instruction, when read in conjunction with the instruction for murder, fails to inform the jury that the State bears the burden of disproving mitigating mental states.
"The voluntary manslaughter instructions indicate that to obtain a voluntary manslaughter conviction the People must prove the existence of one of the alternative mitigating mental conditions which the People contend did not exist. By contrast, the murder instruction makes no mention of the mitigating mental conditions. These instructions essentially assure that, if the jury follows them, the jury cannot possibly convict a defendant of voluntary manslaughter. The reason is that even if a mitigating state is proved, it will have been proved by the defendant, not the People.
The burden-of-proof instructions regarding both voluntary manslaughter and murder . . . were thus incorrect in placing upon the People the burden of proving the existence of intense passion or unreasonable belief in justification. The instructions should have placed upon the People the burden of disproving the existence of either of these two states of mind." (Reddick, 123 Ill. 2d at 194-97.)
The court went on to reverse defendants' convictions and remand their cases for new trials, holding that the incorrect instructions constituted "grave error" warranting reversal, even though defendants had not objected to the instructions as given.
The State responds that pursuant to the test announced in People v. Erickson (1987), 117 Ill. 2d 271, 513 N.E.2d 367, Reddick should not be applied retroactively. In Erickson the supreme court held that judicial opinions announcing new constitutional rules will be applied retroactively when the following factors are present: "(1) the case to which the new rule is to be applied was not final or was pending on direct review when the rule was declared and (2) the rule to be applied retroactively is of constitutional dimension." (117 Ill. 2d at 289.) The State maintains that Reddick relates to a procedural matter and is not of "constitutional dimension."
We disagree. Reddick held that the jury was not correctly instructed as to the State's burden of proof when the IPI jury instructions on murder and voluntary manslaughter were given. The right of an accused to have the State prove all the elements of his alleged crime (People v. Turner (1984), 127 Ill. App. 3d 784, 469 N.E.2d 368) is incontestably of ...