SUPREME COURT OF ILLINOIS
549 N.E.2d 331, 133 Ill. 2d 118, 139 Ill. Dec. 819 1989.IL.1810
Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. John A. McElligott, Judge, presiding.
Modified on Denial of Rehearing January 29, 1990.
JUSTICE STAMOS delivered the opinion of the court.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS
Following a jury trial in the circuit court of Cook County, defendant, Peggy Austin, was convicted of the murder of Helen Richard and received a sentence of 30 years' imprisonment. Due to the circuit court's refusal to allow the defendant's tendered jury instruction regarding voluntary manslaughter based on serious provocation, the appellate court reversed the conviction and remanded the cause for a new trial. (170 Ill. App. 3d 1047.) We granted the State's petition for leave to appeal (107 Ill. 2d R. 315).
On February 13, 1984, at approximately 7 p.m., the victim, a Chicago Transit Authority bus driver, stopped her bus at the corner of 74th Street and Ashland Avenue in Chicago to pick up passengers. Defendant and several others who had been waiting at the bus stop boarded the bus. Defendant placed her canvas bag on the first seat of the bus, dropped some change into the fare box and showed the driver a student bus pass. The driver informed defendant that she could not use the pass because it was a school holiday. Defendant stated she was only going a short distance, and asked if she could stay on the bus. The driver, however, stopped the bus and informed defendant that she would have to pay full fare, leave the bus, or be removed.
According to the testimony of other passengers on the bus, the driver began to reach for the telephone near her seat. Defendant then struck the driver in the face. The driver then arose from her seat and began to exchange blows with defendant. This altercation continued for 30 to 40 seconds until defendant pulled a gun from her waistband. The driver slapped or grabbed defendant's wrist and, in the struggle, defendant fired a shot into the floor of the bus. The momentum of their struggle allowed the driver to force defendant off the bus. After both parties had exited the bus, defendant shot and killed the driver. Defendant then fled the scene, only to return a few moments later to retrieve the canvas bag she had left on the bus. She then fled again, and the police apprehended her a short time later.
Defendant, testifying in her own defense, offered a slightly different view of these events. Defendant admitted that even though she paid only 80 cents of the $1 fare, she asked for a transfer (a ticket that allows CTA passengers to board connecting buses or trains without paying another fare) in order to catch another bus. The driver responded by telling defendant to "get the hell off the bus." Defendant then attempted to unlawfully take a transfer, and the driver prevented this by hitting defendant's hand with a CTA transfer punch. Defendant retaliated by striking the driver, which led to the altercation and the shooting as already described. Defendant testified that she carried a gun to protect her valuables in high-crime areas, and that she thought that brandishing the gun would frighten the driver into stopping the fight. She fired the first shot for the same reason. She stated that she did not know how the gun went off the second time, and that she did not intend to shoot the driver.
At the close of the trial, the circuit court, using Illinois Pattern Jury Instructions, Criminal, Nos. 7.02 and 7.06 (2d ed. 1981) (hereinafter IPI Criminal 2d), instructed the jury that it could find defendant guilty or not guilty of murder or, in the alternative, guilty or not guilty of voluntary manslaughter based on defendant's unreasonable belief that the killing was justified. Defendant moved for the voluntary manslaughter instruction based on serious provocation (IPI Criminal 2d No. 7.04), claiming that she had been in mutual combat with the bus driver. The trial court refused to allow the instruction because defendant had initiated the altercation and the parties had not fought on equal terms, defendant having used a deadly weapon. The appellate court disagreed, noting that the evidence as to who was the aggressor was in dispute, and that the testimony of the passengers, the evidence of defendant's and driver's similar size and the evidence of injuries defendant sustained during the fight combined to constitute enough evidence of serious provocation to require the second voluntary manslaughter instruction. 170 Ill. App. 3d at 1049-50.
The issue on appeal to this court is whether the appellate court was incorrect in finding that there was any evidence of serious provocation because of mutual combat which would require the provocation voluntary manslaughter instruction. In a reply brief, defendant also contends that the instruction the trial court gave the jury, regarding voluntary manslaughter because of an unreasonable belief that the killing was justified, was erroneous because of the flawed phrasing of that instruction. However, any error in giving or refusing instructions will not justify a reversal when the evidence in support of the conviction is so clear and convincing that the jury's verdict would not have been different. (People v. Ward (1965), 32 Ill. 2d 253, 256; People v. Bailey (1986), 141 Ill. App. 3d 1090, 1104.) Our review of the record in this case reveals that there was no evidence presented at trial to support defendant's claim that she believed that, at the time of the shooting, circumstances existed which would have justified killing the bus driver. Because the evidence did not support even a correctly phrased instruction, an erroneous instruction on the crime of voluntary manslaughter based on belief of justification could not have prejudiced the defendant. People v. Chevalier (1989), 131 Ill. 2d 66, 71.
Voluntary manslaughter, under the version of section 9-2(a) of the Criminal Code of 1961 applicable to the present case, *fn1 was an unjustifiable homicide where the assailant is under a sudden and intense passion resulting from serious provocation by the victim. Serious provocation is conduct sufficient to excite an intense passion in a reasonable person. Ill. Rev. Stat. 1985, ch. 38, par. 9-2(a).
Whether to tender a jury instruction on voluntary manslaughter is within the discretion of the trial court. (See People v. Jacobs (1976), 44 Ill. App. 3d 290, 292-93.) This discretion, however, is controlled by clear guidelines from this court. If there is evidence in the record that, if believed by the jury, would reduce a crime from murder to manslaughter, a defendant's request for a manslaughter instruction must be granted. (People v. Handley (1972), 51 Ill. 2d 229, 235; Jacobs, 44 Ill. App. 3d at 292.) Defendant has the burden of proving there is at least "some evidence" of serious provocation or the trial court may deny the instruction. (People v. Neal (1983), 112 Ill. App. 3d 964, 966.) The evidence upon which defendant relies must rise above the level of a mere factual ...