People v. Thomas

• Decision Date: 30 June 1989
• Docket Number: No. 1-87-1327,1-87-1327
• Citation: 134 Ill.Dec. 100,542 N.E.2d 100,185 Ill.App.3d 1050
• Parties: , 134 Ill.Dec. 100 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Vincent THOMAS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 100

542 N.E.2d 100

185 Ill.App.3d 1050, 134 Ill.Dec. 100

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Vincent THOMAS, Defendant-Appellant.

No. 1-87-1327.

Appellate Court of Illinois,

First District, Second Division.

June 30, 1989.

Paul B. Biebel, Jr., Public Defender of Cook County, Stephanie L. Ellbogen, Chicago, for defendant-appellant.

Richard M. Daley, State's Attorney of Cook County, Inge Fryklund, James Fitzgerald, Chicago, and Judith M. Pietrucha, for plaintiff-appellee.

Presiding Justice BILANDIC delivered the opinion of the court:

After a jury trial, defendant, Vincent Thomas, was convicted of murder for shooting and killing James Jones, and of armed violence for shooting Eric Archie. He was sentenced to consecutive terms of 28-years for murder and 10-years for armed violence in the Pontiac Correctional Center.

The State presented evidence as follows: Eric Archie testified that on April 10, 1986, the evening before the incident, he was at a grocery store with James Jones. Around 10:30 p.m., defendant walked into the store and spoke with Jones. They began to fight and defendant hit Jones in the face. Archie broke up the fight. He and Jones then left the store.

When defendant left the store, he proceeded to fight with Jones in front of the store. Archie broke up that fight.

Archie and Jones walked down the block. Defendant and Jones began to fight for a third time. Archie grabbed Jones and pulled him off defendant. Defendant got into a car and drove away.

Around 8 a.m. the following morning, Archie and Jones were standing in front of Jones' car at 101st and Princeton Streets when a car pulled up in front of Jones' car. Defendant got out on the passenger side. Jones asked defendant if he came back to finish the fight. Defendant replied: "No, I come [sic] to kill you." Jones stepped back. Defendant pulled a gun from his waist and walked toward Archie.

Defendant asked Archie where the "stuff" was. Archie replied that he did not know what defendant was talking about. Defendant swung his gun at Archie's head. The gun fired and struck Archie in the foot. Jones and Archie started to run in opposite directions.

Archie looked back and saw defendant at the entrance to an alley. Archie went to a neighbor's house to ask her to call his father. He heard two more shots being fired.

Felbert Morris testified that he drove the car used in the incident. At 8 a.m., Morris picked up defendant. Defendant asked Morris directions as they drove which did not lead to the store Morris was going to. Defendant told Morris to pull over by two men. Morris did not recognize either man.

Defendant got out of the car, said, "What are you going to do now," and walked up to the two men. Defendant took a swing at the taller of the two men. A shot was fired and Morris saw a gun in defendant's hand. Morris did not know defendant had a gun. He did not give defendant the gun.

The two men ran and defendant shot twice at the shorter man, who was running toward an alley. Defendant was 30 to 35 feet away from the victim when he fired the two shots.

Chicago Police Officer Lawrence Wronka testified that he was on duty on April 11, 1986. At 8:35 a.m., he received a call. When he arrived at 315 West 101 st Street, he saw a crowd in an alley where a man was lying face down in a pool of blood. He searched the area for weapons but did not find any.

Dr. Shaku Teas, of the Cook County Medical Examiner's Office, testified that Jones died of a gunshot wound to the back.

Defendant testified that while he was in Morris' car, Morris pointed out the men that jumped defendant the night before. Defendant asked Morris to pull over so he could ask them why they had jumped him the night before. Morris warned defendant that Archie had had a gun the night before, but defendant said that he was not worried. Morris then told defendant to take a gun which Morris had under the driver's seat. Defendant took the gun.

Defendant walked up to Archie and Jones. Archie pulled something from his back pocket and swung at defendant. Defendant fell against the car and his gun went off. The gun was pointing down and defendant did not think the bullet hit anybody.

Defendant heard more shots coming from Jones' direction. Defendant turned and began shooting back. Defendant was not aiming, he "was just shooting." He only shot at Jones twice. He fired at Jones because he feared for his own personal safety and thought that Jones was trying to kill him.

Defendant got back in the car with Morris. Morris told him to throw the gun out the car window. Defendant got out of the car in front of his brother's house, but did not go in. He walked around for approximately 29 hours.

On recross, he stated that during the period he walked around, he talked to his wife and unsuccessfully tried to talk to his lawyer about some personal business around 4 p.m. on the day of the incident.

Defendant was sentenced to concurrent terms of 28-years for murder and 10-years for armed violence. This appeal followed.

I.

The principal assignment of error is that the defendant was denied a fair trial because the jury instructions misstated the law regarding burden of proof. We agree.

After this case was tried, the Illinois Supreme Court decided People v. Reddick (1988), 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141, and held that when Illinois Pattern Jury Instructions Criminal (IPI) 7.02 (murder), 7.04 (voluntary manslaughter--provocation) and 7.06 (voluntary manslaughter--belief of justification) are given together, they misstate the State's burden of proof. Those three IPI instructions were given in this case.

The supreme court held that the improper instructions constitutes grave error and requires reversal of the defendants' convictions even though the defendants failed: to object to the instructions; to present instructions which correctly stated the law; to raise the issues in a post-trial motion; or to dispute their correctness on appeal. 123 Ill.2d 184, 198, 122 Ill.Dec. 1, 526 N.E.2d 141.

Reddick is fully retroactive to this case. In People v. Brooks (1st Dist.1988), 175 Ill.App.3d 136, 124 Ill.Dec. 751, 529 N.E.2d 732, appeal denied, 124 Ill.2d 557, 129 Ill.Dec. 151, 535 N.E.2d 916, and in People v. Shields (1st Dist.1989), 181 Ill.App.3d 260, 129 Ill.Dec. 949, 536 N.E.2d 999, this division held that this error is "incontestably of constitutional dimension, and a ruling regarding that right must be applied retroactively." Brooks, 175 Ill.App.3d 136, 142, 124 Ill.Dec. 751, 529 N.E.2d 732. We adhere to the views we expressed in Brooks and Shields.

In arguing that the instruction constituted harmless error, the State cited People v. Skipper (1st Dist.1988), 177 Ill.App.3d 684, 127 Ill.Dec. 426, 533 N.E.2d 44, and People v. Carter (1st Dist.1988), 177 Ill.App.3d 593, 126 Ill.Dec. 846, 532 N.E.2d 531, appeal denied, 121 Ill.2d 574, 122 Ill.Dec. 441, 526 N.E.2d 834. In Skipper and Carter, the defendants did not present enough evidence to justify instructions on voluntary manslaughter. (Carter, 177 Ill.App.3d 593, 598-600, 126 Ill.Dec. 846, 532 N.E.2d 531; Skipper, 177 Ill.App.3d 684, 689-90, 127 Ill.Dec. 426, 533 N.E.2d 44.) However, here, defendant testified that he heard shots coming from Jones' direction. This was enough evidence to allow the jury to consider the voluntary manslaughter instructions. (See People v. Dortch (1st Dist.1974), 20 Ill.App.3d 911, 314 N.E.2d 324, appeal denied, 56 Ill.2d 588; People v. Baggett (1st Dist.1983), 115 Ill.App.3d 924, 71 Ill.Dec. 225, 450 N.E.2d 913, cert. denied (1984), 465 U.S. 1032, 104 S.Ct. 1298, 79 L.Ed.2d 698.) Obviously, the State agrees that the defense in the case at bar presented sufficient evidence because the voluntary manslaughter instructions were tendered by the State. Therefore, this cause is reversed and remanded for a new trial.

II.

We will discuss other assignments of error, because the questions may recur in another trial. Defendant initially contends that the prosecutor's comments during closing arguments deprived him of a fair trial.

Reversible error exists where there are reasonable grounds for believing the jury was prejudiced by improper remarks. (People v. Allen (1959), 17 Ill.2d 55, 160 N.E.2d 818.) Where, as here, numerous comments are made, it is unnecessary to assess the effect of each isolated comment. (People v. Whitlow (1982), 89 Ill.2d 322, 60 Ill.Dec. 587, 433 N.E.2d 629, cert. denied, 459 U.S. 830, 103 S.Ct. 68, 74 L.Ed.2d 68.) Improper remarks do not constitute reversible error unless they result in substantial prejudice to the accused. People v. Tiller (1982), 94 Ill.2d 303, 321, 68 Ill.Dec. 916, 447 N.E.2d 174, cert. denied (1983), 461 U.S. 944, 103 S.Ct. 2121, 77 L.Ed.2d 1302.

During both opening and rebuttal closing arguments, the jury heard two different prosecutors comment on defendant's phone call to his attorney on the day of the incident. During closing argument, the prosecutor also commented on recent teen suicides. The defendant objected. The court said that the prosecutor "should not ask the jurors to put themselves in the place of anybody on either side, but he may certainly comment on the fearless enforcement of the law and the evil alleged in this charge." In closing, the prosecutor also inferred defendant was lying, and the Judge knew defendant was lying and could not do anything about it.

When all of the allegedly improper remarks are read together, they cannot be said to have constituted a material factor in defendant's conviction or to have substantially prejudiced defendant's right to a fair trial.

III.

Defendant also argues that the trial court erred in refusing to submit instructions on the offense of involuntary murder to the jury. During the instructions conference, defense counsel requested an instruction on involuntary manslaughter for the shooting of Jones. The trial judge refused.

It is reversible error for the trial court not to give a...