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01/25/89 the People of the State of v. Willie Skipper


January 25, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

WILLIE SKIPPER, DEFENDANT-APPELLANT

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

533 N.E.2d 44, 177 Ill. App. 3d 684, 127 Ill. Dec. 426

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE GINO DIVITO, JUDGE PRESIDING. 1989.IL.73

APPELLATE Judges:

JUSTICE RIZZI, McNAMARA and WHITE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Defendant, Willie Skipper, was granted leave to raise additional issues and leave to cite supplemental authority. We therefore file this supplemental opinion to address the additional issues raised by defendant.

In defendant's supplemental brief, defendant argues that (1) the jury instructions were defective and (2) the trial court erred in not submitting four of defendant's instructions to the jury. We affirm the trial court on both of these issues.

In support of defendant's argument that the jury was improperly instructed on the elements of aggravated battery, defendant relies on People v. Reddick and Lowe (1988), 123 Ill. 2d 184, 526 N.E.2d 141. In People v. Reddick, the supreme court held that when the IPI voluntary manslaughter instruction and the instruction for murder are read together, they erroneously state the burdens of proof on the issues of whether a defendant has acted under either intense passion or has acted under the unreasonable belief that his action was justified. 123 Ill. 2d 184, 194, 526 N.E.2d 141, 145. This holding was extended to the lesser included of aggravated batter. 123 Ill. 2d 184, 202, 526 N.E.2d 141, 148-49.

In Reddick, the court stated that the proof of a mental state associated with manslaughter is like an affirmative defense. Therefore, a defendant must produce enough evidence to put the defense in issue. Once this is accomplished, the burden then shifts to the State to disprove the mitigating mental conditions of voluntary manslaughter beyond a reasonable doubt. 123 Ill. 2d 184, 195-97, 526 N.E.2d 141, 145-46. Thus, in the instant case, defendant was required to produce enough evidence to support his belief that his acts directed towards the victim were justified. At that point, the burden shifted back to the State to prove that defendant had no such belief beyond a reasonable doubt.

According to defendant's testimony, the victim, Claude, hit defendant across the face with a newspaper. Defendant pulled out a knife and chased Claude. When defendant caught up with Claude, Claude also had a knife. The two men struggled and when the knife was knocked out of Claude's hand, Claude was cut. Defendant was acquitted of attempt murder and found guilty of aggravated battery. No evidence was adduced indicating that Claude threatened defendant's life when he hit defendant across the face with the newspaper. Moreover no evidence was adduced which would have given defendant a reasonable belief that his pulling out a knife and chasing Claude after being hit with a newspaper was a justifiable use of deadly force. Any right of defendant to defend himself ended when Claude ran away. At that point, there was no need for defendant to chase Claude and thereby use deadly force. As such, this testimony is insufficient, standing alone to substantiate a finding of not guilty as urged by defendant.

Thus, in reliance on this court's decision in People v. Carter (No. 1-86-2734, December 22, 1988), we find that if any error existed in the given instructions, it was harmless beyond a reasonable doubt. Moreover as the supreme court stated in People v. Fierer, "[i]n order for an alleged error in instructions to be considered harmless, it must be demonstrated that the result of a trial would not have been different if the proper instruction had been given." 124 Ill. 2d 176, 187, 529 N.E.2d 972, 976 (1988). Based upon our reading of the record, we do not find that the result would have differed. Furthermore we conclude that any error that may have occurred from the court's failure to give the instructions tendered by defendant was harmless where the evidence was clear and convincing such that the jury's verdict could not have been different. See People v. Bailey (1986), 141 Ill. App. 3d 1090, 1104, 490 N.E.2d 1334, 1344.

Accordingly, the judgment of the trial court is affirmed.

CASE RESOLUTION

AFFIRMED.

19890125

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