APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE MARY MAXWELL THOMAS, JUDGE PRESIDING.
The opinion of the court was delivered by: Rizzi
JUSTICE RIZZI delivered the opinion of the court:
Defendant, Gwendolyn Evans (Gwen), killed her husband Jerry Evans (Jerry), and was found guilty of first degree murder by a jury. She was sentenced to 20 years imprisonment. On appeal, she contends that (1) the State failed to prove beyond a reasonable doubt that she was not acting in self-defense, (2) the trial court erred in failing to instruct the jury that her conduct could be considered self-defense even though Jerry was not armed, and (3) that her constitutional right to due process was violated because of the wording of the Illinois Pattern Jury Instruction on second degree murder that was given to the jury. We reverse the judgment of conviction for the reason that the State failed to prove beyond a reasonable doubt that Gwen was not acting in self-defense.
Gwen was 39 at the time of the homicide. She graduated from grade school and attended Du Sable High School for three years. At the time of her arrest she was unemployed and receiving public aid for food and any medical attention that she needed. Although Jerry worked, he spent his money on himself and did not give Gwen the money needed to support the household on a regular basis. Jerry was 6 foot, 230 pounds, and physically well-developed. Gwen is 5 foot, 8 inches and 135 pounds.
At close to midnight on December 10, 1988, Gwen stabbed Jerry with a kitchen knife that she had been using earlier in the day to peel potatoes. There was a stab wound to Jerry's lower chest about four inches long. There was another stab wound in his upper left chest area about an inch long, and there was a stab wound to his left upper arm. The stab wounds were consistent with the premise that they were inflicted by a person who was right-handed and shorter than the decedent; Gwen is right-handed. Jerry died from the wounds on December 11, 1988.
Gwen and Jerry were married in July of 1980. The two of them and Gwen's daughter lived in Chicago. About a year after the marriage, Jerry began drinking heavily, going out alone, and staying out late. He was getting drunk every weekend. Also, he would come home drunk and start arguments and fights with Gwen.
As a result of the many fights while Jerry was drunk, Gwen suffered numerous physical injuries. On separate occasions, Jerry hit her with a variety of objects, including a baseball bat, a skillet, and a shovel. On other occasions, he beat her with his fists and slapped her, and he spit on her and threw objects at her. Gwen was also verbally brutalized continuously by Jerry. Jerry would tell her: "Fuck you bitch." He would also call her names such as "mother-fucking ass" and "bitch," and "red-assed bitch."
In one incident, Jerry slapped Gwen's face while he was drunk, and she threatened to call the police. As Gwen was running upstairs to her girl friend's apartment to use the telephone, Jerry grabbed a snow shovel from the hallway closet and said: "You old red bitch." He then hit Gwen in the leg with the shovel. A couple of days later, due to the intensive pain, Gwen went to Michael Reese Hospital. Gwen's leg was so swollen that she could not walk. The parties stipulated to the testimony of Jenny Stevens, a nurse at Michael Reese Hospital. Her testimony corroborates the testimony about Gwen's visit to the hospital for the injury.
In another incident, Jerry hit Gwen on the left shoulder with a piece from a broken baseball bat. Gwen was taken to Michael Reese Hospital, where an orthopedic surgeon found that she had a hairline fracture to the tip of her right shoulder, and Gwen's arm was put in a sling for three or four weeks.
On another day, Jerry slapped Gwen and continuously hit her until she fell on the couch. He then slapped and hit her again. He beat her continuously until her tooth came out and she swallowed it.
On another occasion, Jerry became angry and told Gwen: "Fuck you, bitch." He then threw a glass peanut butter jar at her. Gwen ducked her head and threw her hand up. The jar hit a cabinet and broke, but a piece of glass cut Gwen's finger. The finger was bleeding and when the bleeding would not stop, Gwen went to Michael Reese Hospital, where she was treated for a serious cut on one of the fingers of her left hand.
On the day after one of Gwen's birthdays, Jerry called Gwen a "red-assed bitch." He beat her and slapped her so hard that it sounded like a gunshot. He then ran out of the house and did not come back until the next morning. When he returned he was drunk. Gwen was lying in bed, wearing a nightgown. Jerry came in, threw Gwen out of the house and locked the door.
Gwen went across the hall to a neighbor's apartment and telephoned the police. She then went back to her apartment and began knocking on the door. The police never came. But, after awhile Jerry let her back in the apartment. Gwen was having sharp pains in her neck and shoulders, as well as shortness of breath, due to Jerry's beating the night before. As a result, Gwen asked Jerry to take her to a hospital. He took her to Michael Reese Hospital, where it was found that Gwen had a swollen area on her forehead and tenderness in her neck and shoulders.
There were other specific incidents of physical and mental abuse while Jerry was drunk. One day he came home drunk and began throwing pots, pans, and catsup, mustard and mayonnaise jars at Gwen. He then picked up a cocktail table and threw it in the middle of the floor and it broke in half. Also, he threw a skillet which skimmed Gwen's head. Every time Gwen tried to get out the door, she would get hit by Jerry.
Eventually, Gwen was able to escape and she ran down the street to see a friend. Gwen returned to her apartment with the friend, who asked Jerry to "cool out." Jerry replied: "Okay, man. I ain't got nothing else to throw at the old red bitch so I guess I'll just go on and cool out." He then fell asleep at the kitchen table.
One winter, Gwen and Jerry were outside making a snowman. Jerry wanted to drag Gwen through the snow, but Gwen refused. Jerry grabbed Gwen and dragged her through the snow against her will. As he dragged her, Gwen's jacket was pushed upward, and rocks and glass scratched her back. Gwen kicked and screamed until he finally let her go. Gwen then ran to her sister's apartment. Jerry followed, and banged on the door and tried to get into the apartment. Jerry yelled through the door that he was going to drag Gwen through the snow again, and he called her a "red-assed bitch," and said that he was going to beat her "mother-fucking ass." He also told her that he was going to "fuck" her up. Finally, Jerry left, and Gwen spent the night with her sister.
Around August of 1988, Gwen learned that Jerry had a girl friend. Gwen found out about the girl friend because the girl friend would telephone the apartment asking for Jerry, mostly on weekends. Gwen asked Jerry to tell her to stop calling. Jerry told Gwen that he had gotten drunk and given the telephone number to the other woman but he did not mean to give her the telephone number. Jerry said that he would tell her to stop calling.
On the morning of December 10, 1988, Jerry was home. After answering a telephone call, Jerry told Gwen that he was going to the store, and he left the apartment. As he left, Gwen asked Jerry if he would bring back some chicken wings for her to eat for lunch. Gwen waited for Jerry to return, but at noon she started to peel some potatoes with a kitchen knife because she was hungry. There was no other food in the house. The kitchen knife that Gwen used to peel the potatoes was the knife that was later used in the homicide.
Later in the day, Jerry returned with the chicken wings, and a bag of food from a Cub Foods mart. Jerry put the Cub Foods bag on the couch, and the telephone rang. After answering the telephone call, Jerry said that he had some place to go and left the apartment. Gwen then noticed the Cub Foods bag and said to herself: "He must have took his friend out to Cubs and I've been asking J.D. -- I wanted to go shopping too, you know." Gwen looked in the bag to see what was inside, but left the bag on the couch.
Gwen then began sweeping the living room floor, and her friend Shirley stopped by to visit; Shirley lived in the same apartment building as Gwen. Later, at about 4 p.m., Gwen went to Earl Scott's house. Earl Scott was a friend of both Jerry and Gwen. Gwen had heard Jerry mention Earl Scott's name on the telephone earlier, and she thought that Jerry might be there.
Earl Scott was not home when Gwen arrived, but his uncle was there and Gwen stayed and talked with him. Earl Scott testified that he was not home at the time because Jerry had come to his house that afternoon and the two of them went out drinking. Earl Scott testified that Jerry was drinking beer and Bacardi rum, and that they had "quite a lot to drink that day."
When Earl Scott came home, he told Gwen that Jerry just dropped him off and was on his way home. Gwen, therefore, telephoned her home to tell Jerry that she was on her way home. When Jerry answered the telephone, he told Gwen: "You can keep your red ass over there. You ain't been here all day. What you want to come here now for."
Gwen knew from the conversation that Jerry was drunk, and after she hung up the phone, she asked Earl Scott to walk her home. Earl Scott walked Gwen to the front steps of her apartment, but he did not walk her upstairs. When Gwen got home, it was close to midnight.
After she entered the apartment, she saw Jerry. He was standing in the living room and he "looked like a wild man." His eyes were "bugged" and he had sweat on his face, with his hair standing straight up. He looked mad. He said: "Bitch, you finally brought your ass home, huh?" Gwen said: "I see you took your girl friend to Cub's, huh?" Jerry said: "I'm a grown assed man. I can take anybody anywhere I want them. That is my goddam car. I pay the car note. I work hard for that mother-fucking car. I do what I want to do. Yeah, I took her to Cub's Food."
Gwen thought Jerry was going to hit her, so she started running to the bedroom. She was trying to go around a table to get to the bedroom, but Jerry cut her off. Gwen testified as follows:
I went across. I did not go to him. I went across to the other side of the couch because I know he was going to start hitting me, to try to go running to the bedroom, and before I can get over there, he ran over there and he started hitting me in my face with the paper bag. I took the bag and snatched it and threw it on the floor. That's when he come down to my face and he started saying, if you all don't like what the fuck I do, you can get your mother-fucking ass out of here.
When he was in my face, he started spitting in my face. I said, J.D., get out of my face. Stop spitting on my face. He say, you don't tell me what to do. He started to spit -- a whole lot of spit started coming on my face.
So I took his forehead, that is when he hit me in the back of my head and kept on hitting, kept on hitting. I had my head down.
I was closing my eyes, I looked down on the floor, and I seen that knife down there. So I picked the knife up and I just started stabbing and I was just stabbing at him and stabbing and just kept on swinging my arms, kept swinging my arms back there, and he kept on hitting me.
Then he said, you old red bitch, you done stabbed me. I'm going to break your mother-fucking neck. So I dropped the knife. That is when I ran down the back steps.
He was chasing me down the back steps. He was chasing me. He was chasing behind me and then he started hollering, Gwen. I ran downstairs and I ran behind the garbage can that was down there on the first floor.
He kept saying, Gwen, Gwen. I wouldn't answer. I had did that one time, and when I came out, he really beat me up. I said, I ain't going to answer. I did not know if I had stabbed the knife for real or not anyway.
Then I heard something say boom. So then I started tippy toes out because I didn't know if he was going to jump out of somewhere or what. I ain't seen him over there where the steps was at, and then I looked over that way and that is the garage over there, the roof, and he was laying over there.
I said, J.D., J.D. He said, Gwen, Gwen. So I climbed over. You got to kind of like climb over there. I climbed over there, and that is when I put his head in my lap.
I said, J., J. He said, Gwen, Gwen. I said, J., you're hurt. I'm going to call the police. I'm going to get you some help. I'll be right back.
When I ran into the house, I ran -- It was raining outside, rain and snow. Then the bedroom is right there. He was getting wet and everything. I snatched a blanket off the bed and I ran back out there and covered him up. Then I ran back in there, and I called the police.
I called Earl first. * * * Then I called the police and I went back out there with J.D. and put J.D.'s head back on my lap and I sat out there with him and I seen out front the flashing lights so I assumed that was the police and I was saying, back here, help, help, help. They heard me. I said come in the back, come in the back. They came around the back and --
Then Earl had came up and I climbed back over and Earl said, what happened. I said, we got to fighting. He said, don't tell the police nothing, you know. He said, he'll be all right, you know. We thought he was going to be all right.
The ambulance came, and they dragged him down the steps. They couldn't pick him up. The man was too small. He bumped his head going down the steps.
I told him to wait a minute, let me hold his head. I caught his head down the last couple of steps and they put him in the ambulance and me and Earl were standing there and I asked, could I sit in. They told me, no, there is no room, you know.
I told them that I was his wife and this was his best friend and could we sit in there with him and they said, no. By that time Ricky had pulled up-- my brother, Ricky, was coming over to spend some time with us. He asked, what happened. After I explained to him, he said, well, you can ride with me to the police-- to the hospital so --
Q: Did you go to the hospital with him?
A: We rode behind the ambulance to the hospital and --
A: When I got to the hospital, that is when the police the lady officer came over and said, you're under arrest, and she read me my rights and took me down to the 51st Street Police Station.
Q: Gwen, when you called 911, you told them some dudes stabbed your husband?
A: Yes. I figured if I said that they would hurry up and come fast because they know it was a bad neighborhood and they know a lot of times you can get stuck-up and a lot of peoples got messed up around there and they know there is an whole lot of thugs over there.
If I tell them it was some dudes, you know, that robbed him and stabbed him, they will hurry up and come. Because if you just say, I cut my husband, they may just take their time, you know. They think it's just--
A: Yeah and wasn't nothing, you know. They take a long time to come. In order to get an ambulance to come, you have to tell them -- you have to stretch it real hard.
Q: When you saw the police later, you told them you stabbed him? A: Yes.
In addition, Gwen testified as follows:
Q: How come you picked up that knife?
A: Because when J.D. told me he was going to break my neck, I thought he was going to break my neck. When he hit me last time and I thought my neck was broken, I went to Michael Reese Hospital. They thought it was broke. He told me, he said, next time, I'm going to break your mother-fucking neck if you ever, you know, put your hands on me. So when I pushed him in his face and he say he was going to fuck me up, I figured he was going to try to break my neck because he kept hitting me all behind my head. He was hitting harder and harder. I didn't want my neck broken. I was trying to keep him from stop hitting me.
Q: Gwen, did you kill him because he had a girl friend?
A: No. We didn't even get into about the girl friend. It was because he was -- I had no intention to kill him. I wanted him to stop. I stabbed him because he was hitting me. He kept hitting me harder, and I know he was going to break my -- All I can think about is he is going to break your neck, he's going to break your neck. You'd better stop him. If he breaks your neck, you're dead, you know. I was trying to stop him from breaking my neck.
Q: How do you feel about J.D.?
A: I still love J.D. I miss him. I wish he was still alive. I wish I was still his wife, and he was still with me.
Paramedics and the police arrived on the scene shortly after the occurrence. Gwen told one of the police officers at the scene that "my husband left the apartment to get some cigarettes, he got to the alley, and then ran back upstairs holding his chest yelling 'Gwen, Gwen.'" Gwen testified that she told the police officer that because, "I didn't think it was their business to know exactly what happened, at that time." She said, "I just wanted to hurry up and get my husband to the hospital." Later, when she was at the police station, she told the police that she stabbed her husband and gave an account of what occurred.
In the meantime, a police officer at the scene went up the back stairs and into the second-floor rear apartment. There was blood splattered all over the wall above the couch in the front room, which would indicate a violent struggle preceded the homicide. The blood that had been splattered was "leading toward the kitchen." There was also blood on the kitchen floor.
Another investigating police officer who was at the scene testified that he went to the apartment and looked in a dresser that was near the couch. He testified that in the top drawer of the dresser he saw a black fur scarf or muffler, and under the garment was the knife that was involved in the homicide. The knife was a "standard kitchen knife," about nine inches long overall, with a six-inch blade. The knife still had blood on the blade from the homicide. In addition, another investigating police officer testified that he found a pair of blood stained blue jeans in the apartment. The blood stained blue jeans were found in open view on the bed in the bedroom near the kitchen.
Gwen was arrested at Michael Reese Hospital and taken to Area 1 police station. The Felony Review Unit of the State's Attorney's office was called into the case, and an assistant State's Attorney took an oral statement from Gwen at the police station. No tape recording was used. The assistant State's Attorney made a hand written summary of Gwen's oral statement, which was signed by Gwen. The hand written summary by the assistant State's Attorney provides:
I explained to Gwendolyn Evans I am an Assistant State's Attorney, a lawyer working with the police and not her lawyer. I gave Gwendolyn Evans the above rights which she indicated she understood. Gwendolyn then agreed to give the following statement, which is a summary and not verbatim. My name is Gwendolyn Evans. I also use Gwendolyn Knight. I am 39 years old. I live at 1243 ...