The opinion of the court was delivered by: Justice Heiple
Agenda 16-September 1999.
The sole question presented in this appeal is whether the trial court erred by refusing to instruct the jury on involuntary manslaughter at defendant's murder trial. We hold that the trial court properly refused the requested instruction.
Defendant was convicted of murder following a jury trial in the circuit court of Cook County. Defendant appealed, and the appellate court affirmed the conviction. 298 Ill. App. 3d 839. We allowed defendant's petition for leave to appeal to this court.
The following evidence was presented at trial. Betty Lou Watts testified that on the night of May 10, 1986, she went to a bar in Chicago Heights to meet the victim, David Flores. Watts and the victim drank and danced with friends from 8 p.m. until 1 a.m. Shortly after 1 a.m., defendant entered the bar and approached the victim. The two men began arguing and then started fighting, knocking over drums in the band that was playing that evening. Patrons in the bar grabbed the two men to separate them, and the owner ordered defendant to leave. As Watts and the victim also prepared to leave, defendant called to the victim to come out to the parking lot. When Watts and the victim arrived in the parking lot, the victim told Watts to go home. The victim and defendant then began fighting again, this time wrestling on the ground. Watts turned her head for a minute because someone called her. While she was looking away, she heard a gunshot. When she turned back around, the victim was on the ground and defendant was standing 10 or more feet away from him, pointing a gun at him. Defendant then fired a second shot, striking the victim. Watts ran to the victim, who was trying to speak. Blood gushed out of his mouth. Watts yelled at defendant not to shoot any more. Defendant fled.
Augustine Falcon testified as follows. On the night of May 10, 1986, he was playing in a band at a bar. Between 1 and 1:30 a.m. on May 11, the band had just finished a song when an argument broke out between the victim and defendant. The two men began pushing each other and wrestling. The two were then separated, and defendant left the bar. About a minute later, defendant came to the door of the bar and called to the victim and to come outside to "settle this." The victim then said, "Let's go," and left the bar. Falcon began to disassemble his band equipment, but when he saw everybody leaving the bar, he decided to go outside. Once outside, he turned and saw defendant standing 10 to 15 feet away from the victim, pointing a gun at the victim. Defendant then fired two shots at the victim in rapid succession. The victim fell to the ground, and Watts ran to cover his body.
Defendant testified as follows. On May 11, 1986, he went into a bar at approximately 1:30 a.m. As he was standing beside the bar, a man came to him and said that he wanted to fight him. Defendant had seen the man before, but was not acquainted with him. The man's breath smelled of alcohol. Defendant told the man that maybe he had mistaken him for someone else. The man then hit defendant. Defendant did not hit back, but instead left the bar. As he was going to his car, the man caught up with him in the parking lot. The man pushed him on the shoulder and then stood in front of him. The two men started to struggle. The other man then produced a weapon. Defendant did not see where the man got the weapon. The man pointed the weapon at defendant. Defendant grabbed the man's hand, and the man fired one shot. Defendant then took the gun away from the man. The man grabbed defendant's shirt sleeve and pulled, causing another shot to fire. The man fell to the ground. Defendant then left the scene, taking the gun with him because he feared that someone in the crowd might use it to hurt him.
Both sides stipulated that the victim's blood-alcohol content at the time of death was 0.221, that a single bullet was found lodged in a building near the crime scene, and that the victim died from another bullet found lodged in his chest. The trial court instructed the jury on the charged offense of murder and on the justifiable use of force in self-defense. The court denied defendant's motion to instruct the jury on involuntary manslaughter, ruling that there was no evidence of a reckless act. The jury convicted defendant of murder.
On appeal, defendant argued that the trial court erred by refusing to give an instruction on involuntary manslaughter. The appellate court rejected this argument, holding that the evidence at trial could have supported either a conviction or acquittal of murder, but that there was no evidence of reckless conduct by the defendant as required for an involuntary manslaughter instruction. 298 Ill. App. 3d at 844-45.
Defendant's sole contention before this court is that the trial court erred by refusing to instruct the jury on the offense of involuntary manslaughter. The instruction of the jury is a matter resting within the sound discretion of the trial court. People v. Hope, 168 Ill. 2d 1, 46 (1995). An instruction is justified on a lesser offense where there is some evidence to support the giving of the instruction. People v. DiVincenzo, 183 Ill. 2d 239, 249 (1998). Where some evidence supports the instruction, the circuit court's failure to give the instruction constitutes an abuse of discretion. DiVincenzo, 183 Ill. 2d at 249.
A defendant commits involuntary manslaughter when, without lawful justification, he unintentionally kills an individual by recklessly performing acts that are likely to cause death or great bodily harm. DiVincenzo, 183 Ill. 2d at 250; 720 ILCS 5/9-3 (West 1996). For purposes of involuntary manslaughter, a person acts recklessly when he consciously disregards a substantial and unjustifiable risk that his acts are likely to cause death or great bodily harm to another. DiVincenzo, 183 Ill. 2d at 250; 720 ILCS 5/4-6 (West 1996).
Defendant contends that there was some evidence that he acted recklessly in causing the victim's death. Defendant first argues that his own testimony contained some evidence that his struggle with the victim over the gun was reckless. Defendant is incorrect. In order for this act to be reckless, defendant must have consciously disregarded a substantial and unjustifiable risk that the act would cause death or great bodily harm. DiVincenzo, 183 Ill. 2d at 250; 720 ILCS 5/4-6 (West 1996). The only evidence in defendant's testimony that he suggests is evidence of recklessness is that he struggled with the victim after the victim drew a gun and threatened to injure him. This testimony, however, was not evidence of recklessness, but was instead some evidence that defendant acted with regard to a justifiable risk of injuring the victim in order to protect himself. The evidence contained in defendant's own testimony thus did not warrant an involuntary manslaughter instruction.
Second, defendant argues in the alternative that some evidence existed that, contrary to his own testimony, he himself produced the gun during the struggle, rather than the victim. Defendant apparently bases this contention on the fact that none of the State's witnesses saw the victim draw the gun. Defendant thus asserts that there was some evidence that it was actually defendant who drew the gun, and if so, there was some evidence that he thereby acted recklessly. While the court is impressed with defendant's ingenuity, we note one fatal flaw in his argument: there was absolutely no evidence that defendant produced the gun. Defendant did not so testify, and neither did any of the State's witnesses. In order to prove the recklessness required for the giving of an involuntary manslaughter instruction, defendant must point to some evidence of ...