APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
529 N.E.2d 1001, 175 Ill. App. 3d 420, 124 Ill. Dec. 884 1988.IL.1433
Appeal from the Circuit Court of Cook County; the Hon. James J. Heyda, Judge, presiding.
JUSTICE MURRAY delivered the opinion of the court. LORENZ, P.J., and PINCHAM, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
Defendant Michael C. Berry appeals from his conviction and sentence for voluntary manslaughter in a bench trial in 1986. Defendant was charged with murder and armed violence and, after being found guilty of voluntary manslaughter, was sentenced to an extended term of 20 years to run consecutively to an extended six-year term he was serving for an unrelated theft conviction.
The facts are partially undisputed. Defendant was indicted for murder and armed violence that resulted in the death of Anna Warren. At that time defendant had been living with Irene Anderson and her seven children for approximately one year. Irene and two of her adult daughters, Brenda and Betty Anderson, testified to the following as State witnesses.
On April 1, 1985, Irene came home from work at 3:30 p.m. and defendant arrived at Irene's apartment an hour later. Defendant appeared to have been drinking. Prior to this date, defendant and Irene had had a disagreement concerning the victim, Anna Warren, whom Irene had never met. Irene objected to persistent, harassing phone calls from Warren and accused defendant of having an affair with Warren, an accusation defendant denied. After Irene and defendant arrived home on April 1, 1985, Warren called and said she was "on the way over to get her man."
After Warren's arrival, she, Irene, and defendant went into Irene's bedroom to talk. Brenda testified that Warren appeared to have been drinking. Irene's daughters, Brenda and Betty, observed much of what subsequently occurred in the bedroom, and the following facts were testified to by the three Andersons. Warren removed her coat and blouse and two marijuana cigarettes fell to the floor. Warren then said that she was going to tell Irene everything after she ate some food Irene had offered to her. A quarrel then ensued between Warren and defendant, during which Warren insulted both defendant and Irene while relating various details of her relationship with defendant. At one point, defendant got up and started rummaging through a dresser drawer. When Warren expressed consternation, Irene told her there was nothing in the drawer but old socks, or old purses according to Betty, whereupon Warren picked up a heavy ceramic ashtray and held it down at her side. Irene testified that she had taken a knife away from one of her children several weeks earlier and had placed it on the nightstand from where it had later disappeared.
Irene asked defendant and Warren, who were by then standing facing each other, not to argue in her house in front of her children. While defendant and Warren were facing one another, Irene stepped between them, facing defendant. She then felt a burning pain in her neck and realized she had been cut with a knife. She originally stated that she didn't know who slashed her, but later testified that defendant did it. She did not testify that she saw a knife in either defendant's or Warren's hand. Then Irene either moved out of the way or was shoved away by defendant, whereupon Warren brought out a can of Mace and attempted to spray him. According to Brenda, the Mace spray missed defendant; however, Betty stated that the spray hit defendant. Thereafter, defendant lunged at Warren, knocking them both to the floor with Warren's head hitting a radiator. Defendant landed on top of Warren. Irene saw defendant striking Warren with his fists; Brenda saw defendant stabbing her, but could not actually see the weapon. All three State witnesses testified that Warren remained motionless after she hit the floor and that the assault lasted anywhere from 3 to 10 minutes.
Defendant then started to leave, but came back and started dragging Warren, saying he was going to throw her in the alley and let her die. Irene ordered him out and he left the apartment. Warren received five stab wounds in the head and neck area, one of which severed her spinal cord, paralyzing her from the neck down. She died four weeks later from resultant complications.
Defendant testified in his own defense. His testimony differed from that of the State witnesses in several aspects. He testified that Warren had often come to Irene's apartment with her (Warren's) boyfriend. Defendant also stated that he, Irene, and Warren drank alcohol and smoked marijuana during Warren's visit. He further testified that after Warren threatened him with the ashtray, she slashed Irene's neck. Defendant then pushed Irene out of the way whereupon Warren tried to spray Mace at them and attempted to stab them with a knife. Defendant then ran at Warren and pushed her to the floor, at which time he was sprayed with Mace as it discharged when Warren hit the floor, causing his eyes to severely water and blur. Warren allegedly tried to stab defendant, and she was accidentally stabbed as defendant attempted to wrest the knife from her. Defendant claimed that in the struggle, he was stabbed several times and exhibited several scars to the court allegedly sustained in the struggle.
Other testimonial inconsistencies concerned how long the struggle lasted and Warren's movements, or lack thereof, after she was stabbed. After Warren's death, defendant was arrested in Mississippi, where he said he had gone to see his ill father. The trial court stated that it did not believe defendant's self-defense testimony and found him guilty of voluntary manslaughter after concluding that he had acted under a sudden and intense passion resulting from serious provocation caused by the Mace spraying.
At the sentencing hearing, the State introduced evidence of defendant's prior convictions for theft in 1985, armed robbery in 1981, and two convictions in 1977 for delivery of a controlled substance. Additionally, when he killed Warren, defendant was out on bond for a theft arrest for which he was subsequently convicted. The State requested an extended-term sentence since defendant had ...