People v. Everette

• Citation: 565 N.E.2d 1295,152 Ill.Dec. 377,141 Ill.2d 147
• Decision Date: 04 October 1990
• Docket Number: No. 69351,69351
• Parties: , 152 Ill.Dec. 377 The PEOPLE of the State of Illinois, Appellant, v. Donald EVERETTE, Appellee.
• Court: Supreme Court of Illinois

Page 1295

565 N.E.2d 1295

141 Ill.2d 147, 152 Ill.Dec. 377

The PEOPLE of the State of Illinois, Appellant, v. Donald EVERETTE, Appellee.

No. 69351.

Supreme Court of Illinois.

Oct. 4, 1990.

As Modified on Denial of Rehearing Feb. 4, 1991.

Neil F. Hartigan, Atty. Gen., Springfield, and Cecil A. Partee, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago and Inge Fryklund, David R. Butzen, Joseph Brent and Renee Goldfarb, Asst. State's Attys., of counsel), for the People.

Michael J. Pelletier, Deputy Defender, and Martin Carlson, Asst. Appellate Defender, of the Office of the State Appellate Defender, Chicago (John S. Delnero, of Fagel, Haber & Maragos, and Joel J. Africk and Glenn E. Heilizer, of Jenner & Block, of counsel), for appellee.

Justice CLARK delivered the opinion of the court:

The issue before this court is whether a homicide defendant is entitled to an instruction on self-defense when he testifies that he accidentally killed the victim. In People v. Lockett (1980), 82 Ill.2d 546, 551, 45 Ill.Dec. 900, 413 N.E.2d 378, this court stated that "[a] self-defense instruction is given in a homicide case when there is some evidence in the record which, if believed by a jury, would support a claim of self-defense." We continue to adhere to our statement in Lockett and now hold that a homicide defendant is entitled to such an instruction, even where he testifies that he accidentally killed the victim. In the case at bar, we hold that appellee failed to demonstrate sufficient evidence to warrant an instruction on self-defense to the jury and that the trial court's refusal to tender an instruction on the law to the jury was correct. We therefore reverse the appellate court's decision and remand the cause to that court for further proceedings.

In a jury trial in the circuit court of Cook County, appellee, Donald Everette, was convicted for the November 1, 1985, murder of the victim, Johnny Island. Appellee was sentenced to 25 years in the Illinois Department of Corrections.

During the instruction conference at the close of all the evidence, appellee tendered the definitional and issues instructions on self-defense. These instructions included Illinois Pattern Jury Instructions, Criminal, No. 2.01 (2d ed. 1981) (IPI Criminal 2d), which charges murder but includes the offense of voluntary manslaughter; IPI Criminal 2d No. 7.05, the definition of "voluntary"; IPI Criminal 2d No. 7.06, the issues on voluntary manslaughter; IPI Criminal 2d No. 24.06, defining a person's justified use of force; IPI Criminal 2d No. 7.01, the modified definition of murder if an instruction on involuntary manslaughter is given; IPI Criminal 2d No. 7.02, the modified issues on the charge of murder if an instruction on involuntary manslaughter is given; and IPI Criminal 2d No. 24-25.06, modified for a self-defense theory.

Appellant objected, arguing that appellee could not request instructions on self-defense, which requires a showing of intent and volition, and also present evidence demonstrating that the killing was an accident, which requires a showing of lack of intent to commit the harm that resulted. The evidence, appellant argued, could not demonstrate both defenses and, therefore, appellee was not entitled to have the charge to the jury contain an instruction on self-defense.

The trial court believed that since the two defenses are, by definition, inconsistent with each other, charging the jury with an instruction on self-defense precluded appellee's right to rely on an accident defense. The court concluded that the evidence demonstrated only an accident defense and denied appellee's motion to instruct the jury as to the law of self-defense. The charge to the jury included instructions for involuntary manslaughter and murder.

Appellee's conviction was reversed on appeal. (187 Ill.App.3d 1063, 1076, 135 Ill.Dec. 472, 543 N.E.2d 1040.) The majority concluded that appellee presented enough evidence at trial to support a self-defense instruction and that the trial court's denial of appellee's request to so instruct the jury was reversible error. The cause was remanded for a new trial. (187 Ill.App.3d at 1076, 135 Ill.Dec. 472, 543 N.E.2d 1040.) The dissenting justice said that appellee's testimony was insufficient evidence upon which to instruct the jury on self-defense. (187 Ill.App.3d at 1076, 135 Ill.Dec. 472, 543 N.E.2d 1040.) (McNamara, J., dissenting).) We granted appellant's petition for leave to appeal (107 Ill.2d R. 315).

At trial, the State introduced evidence to establish the following. On November 1, 1985, at approximately 10 p.m., three men were standing near the breezeway of the Stateway Gardens Housing Project in Chicago where appellee lived. One of the three men was the victim.

Appellee entered the breezeway and approached his mailbox near the entrance to his building. When the victim saw appellee enter the breezeway, he stepped aside and away from appellee. In appellee's presence, the victim and his companions referred to an altercation between the victim and appellee that occurred in June 1985, wherein the victim struck appellee on the side of the head with a wine bottle. The victim and appellee exchanged words regarding the June incident, but appellee retrieved his mail and returned to his apartment without any physical confrontation.

Appellee returned to his mailbox a short time later while the victim and his companions were still in the area. Edward Jeffries, one of the men with the victim, testified that appellee ran towards the men as he descended a ramp from the building in which his apartment was located. Mr. Jeffries testified that he saw appellee pull a black revolver from his pants as he ran towards the men and point it at the victim. The victim turned and began to run from appellee, but slipped and fell. Mr. Jeffries testified that he then heard a shot. After realizing the victim had been shot, he went to his mother's apartment and called the police. After the shooting, appellee walked back up the ramp leading to his apartment building without speaking to either the victim or his companions.

Appellee introduced evidence at trial to establish the following. When he arrived at his mailbox on the evening of November 1, 1985, the victim and his companions were gathered in the breezeway and began to taunt him about the June 1985 incident. Appellee retrieved his mail and returned to his apartment, where he noticed that two of the three letters retrieved from his mailbox were not addressed to him. Appellee left his apartment to return the misdelivered letters to his mailbox and to get something to eat. Before he left, he concealed a loaded gun in the waistband of his pants under his jacket.

The victim asked appellee what he was doing back downstairs, and when appellee turned to answer the victim, he noticed what he thought was a beer can in the victim's hand. Appellee testified that the victim's hand was at his waist and angled behind his back in what appellee thought was a striking position:

"Q. And what position was [the victim's] arm at that time?

A. It was in a striking position.

Q. Would you stand, please, and show the ladies and gentlemen of the jury what you mean when you say his hands was [sic ] in a striking position?

A. Yes.

[Defense counsel]: Indicating, Judge, for the record, arm held about a 45-degree angle from the body, hand at waist height and drawn slightly behind the body."

Appellee testified that he thought that the victim was about to hit him.

Appellee took out his gun, cocked the trigger and pointed it at the victim. As he did so, he took two steps backwards and bumped his shoulder into the mailboxes. The collision caused appellee to fire the gun. Appellee testified that the gun discharged accidentally and that he had only meant to scare the victim with the gun. Appellee heard a scream and then turned and walked upstairs. He went to a neighbor's apartment and asked the woman living in the apartment to take the gun. Appellee then returned to his apartment where he telephoned his brother and mother. His brother came to his apartment and remained there with appellee until he was arrested by the police a few hours later.

A review of the appellate court decisions published in the past few years shows that the court has been divided on whether instructions on self-defense are appropriate where the evidence demonstrates that an accident may have occurred. Several panels of the appellate court have refused to allow a jury to be charged with self-defense instructions where the evidence demonstrates that the homicide was an accident. See, e.g., People v. Holloway (1985), 131 Ill.App.3d 290, 310-11, 86 Ill.Dec. 536, 475 N.E.2d 915; People v. Purrazzo (1981), 95 Ill.App.3d 886, 895, 51 Ill.Dec. 47, 420 N.E.2d 461; People v. Dzambazovic (1978), 61 Ill.App.3d 703, 716-18, 18 Ill.Dec. 441, 377 N.E.2d 1077.

The decision in People v. Robinson (1987), 163 Ill.App.3d 754, 114 Ill.Dec. 898, 516 N.E.2d 1292, reviewed these decisions in an effort to reconcile the apparent split. The Robinson court separated the decisions into two categories. In so doing, the Robinson court correctly observed that those decisions which refused to instruct the jury as to self-defense did so because there was insufficient evidence in the record to support the instruction and not because there was an inherent or definitional contradiction in the defenses. (Robinson, 163 Ill.App.3d at 762, 114 Ill.Dec. 898, 516 N.E.2d 1292 ("such cases disclose * * * no self-defense was actually shown on the facts, thus justifying no instruction thereon that could contradict an accident theory in the first place"); see also People v. Joyner (1972), 50 Ill.2d 302, 308, 278 N.E.2d 756; People v. Tanthorey (1949), 404 Ill. 520, 530-32, 89 N.E.2d 403; People v. Jersky (1941), 377 Ill. 261, 267, 36 N.E.2d 347.) Those cases that allowed the jury to be charged with self-defense instructions had...