People v. Harris, 81-3064

• Decision Date: 10 May 1984
• Docket Number: No. 81-3064,81-3064
• Citation: 463 N.E.2d 1030,123 Ill.App.3d 899,79 Ill.Dec. 476
• Parties: , 79 Ill.Dec. 476 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael HARRIS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1030

463 N.E.2d 1030

123 Ill.App.3d 899, 79 Ill.Dec. 476

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael HARRIS, Defendant-Appellant.

No. 81-3064.

Appellate Court of Illinois First District, Fourth Division.

May 10, 1984.

James J. Doherty, Public Defender of Cook County, Chicago (Hugh Stevens, Asst. Public Defender, Chicago, of counsel), for defendant-appellant.

Richard M. Daley, State's Atty. of Cook County, Chicago (Michael E. Shabat, Paula Carstensen, Edward Barron, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

ROMITI, Justice:

Following a jury trial defendant Michael Harris was found guilty of the murder of Valencia Harris, the attempt murder and aggravated battery of Jerome Jones, and the aggravated battery of Robert Freeman. He was sentenced to 40 years imprisonment for murder, 5 years consecutive for aggravated battery of Freeman, 12 years consecutive for attempt murder, and 5 years concurrent to the 12 years for aggravated battery of Jerome Jones, for a total of 57 years. On appeal defendant contends: (1) the trial court erred in refusing to instruct the jury on voluntary manslaughter based on provocation and involuntary manslaughter; (2) the court abused its discretion in sentencing defendant to consecutive terms of imprisonment.

We affirm.

The testimony of the State's witnesses established the following chain of events. Jerome Jones, the brother of Valencia Harris, testified that on May 5, 1978 Valencia lived with their father in Chicago. At 9 p.m. that day Jerome and his girlfriend arrived at Valencia's home. Valencia had told Jerome that day that she was going to divorce the defendant. When the defendant subsequently rang the doorbell Jerome told Valencia to call the police. He went to the front door and asked the defendant what he wanted. Defendant asked to talk to Valencia but Jerome told him she did not want to talk to him. When defendant asked who was in the house Jerome told him it was none of his business. The defendant broke a glass pane in the door and reached in to open the door. He then ran around the side of the house to the kitchen door. There he kicked in an outer storm door and broke the glass on the inner door in order to reach in to open the door. Jerome took a butcher knife from the kitchen and threatened to cut off the defendant's arm if he did not remove it. The defendant said he was going to kill Jerome and then retreated. Before running off defendant threw bricks and items ripped from Valencia's car at the home's windows.

Jerome telephoned his grandparents, Robert and Julia Freeman. He told Robert what had happened and asked him to bring a gun. The police subsequently arrived and toured the area in a fruitless search for the defendant. The Freemans arrived at the house and shortly thereafter Valencia yelled that defendant was outside, armed with a gun. Jerome asked Julia Freeman if she had brought a gun but she did not respond. Robert Freeman stated that he would talk to the defendant.

Robert testified that when he unlocked the front door the defendant shoved it open, knocking him against the wall. Robert reached for the defendant and defendant struck him on the head with the gun, knocking him to the ground. Robert followed defendant up some stairs, stating that he wanted to talk to him. But when defendant pointed the gun at him Robert backed into the living room, out of sight of the defendant. He then heard a shot.

Jerome testified that after Robert went toward the front door he went to the middle bedroom where Valencia was. He saw defendant enter a first bedroom down the hall. Defendant fired a gun at Jerome. Jerome ran to the kitchen, heard another shot, and ran back to the middle bedroom. He again ran to the kitchen, asking Julia where the gun was. She told him it was in her bag and he retrieved it and returned to the middle bedroom. According to Julia during this time the defendant had also fired a shot at her.

When Jerome returned to the middle bedroom with the gun he saw Valencia using the phone on the east side of a bed. Defendant, on the west side of the bed, raised his arm and shot Valencia in the face. She fell to the floor and tried to get under the bed. As she did so defendant leaned over the bed and shot her twice more. Julia Freeman also testified that she saw the defendant walk into the middle bedroom with a gun, shoot Valencia once, and then shoot her twice more after she fell.

Jerome attempted to shoot the defendant but his gun would not fire. Defendant pointed his gun at him, saying he was going to kill him. Jerome dropped his gun and ran. The defendant fired his gun, but the bullet did not strike Jerome.

Jerome escaped the house by diving out a back window into the yard. As he fled over a fence his clothing became entangled. The defendant caught him and straddled him on the ground. Defendant announced that he was going to kill him, pointed his gun at Jerome's chest, and the gun "clicked" two or three times. He then hit Jerome over the head with the gun, causing a large gash. When defendant dropped the gun Jerome grabbed him yelling for help. Defendant struck him on the head with a garbage can lid and ran off. He ultimately fled the state and was arrested in Maryland. Valencia was pronounced dead at the hospital at 10:40 p.m. It was stipulated that if called the pathologist who examined her body would testify that death was caused by multiple gunshot wounds. She had been struck by three bullets. One pierced the left area of her nose and continued down through her lung; a second bullet pierced her left thigh, and the third bullet pierced her left arm and lodged in her chest.

Defendant testified that he had married Valencia Harris in April, 1975. In April of 1978 they separated, defendant moving in with his mother and Valencia moving in with her father. Defendant spoke to her about reconciling. During this period she informed him she had a boyfriend, Reginald Banks, and at one point introduced Banks to him. Defendant testified that he was jealous of Banks. Late in April defendant gave his wife money for the downpayment on an apartment she was to find for them. Instead she used the money to buy a car. Defendant testified that at this time he believed she was seeing other men. He lost his job because he was absent so often in attempts to talk to her.

The afternoon of May 5, 1978 defendant planned to visit his wife. He called her father's house several times but there was no answer. At 6:30 p.m. he began drinking rum. At 7 p.m. he looked for Valencia at her house, her girlfriend's house and Banks' house. At the latter home he was told that Banks was out. He concluded that Banks and his wife were out together. Defendant returned to Valencia's house some time after 8:30 p.m., having finished a pint bottle of rum. He rang the bell and Valencia answered the door. When he told her he wished to talk to her she told him to get away from the door. Defendant spotted Jerome Jones in the house and asked who he was. Jerome responded that he was Valencia's boyfriend and told him to get away from the door. Defendant believed Banks was in the house, and he kept asking Jerome who was in there. Defendant testified that he was upset and angry because he wanted to see his wife and because he wanted to know if Banks was in the house. Defendant admitted that he then made the attempts to get into the house as described by Jerome in his testimony.

Defendant next drove to his brother's home and obtained a gun from a closet, checking to be sure it was loaded. He returned to Valencia's home, still upset in his belief that she was there with Banks. Defendant admitted striking Robert Freeman with the gun when he entered the home. He testified that when he entered the first bedroom he saw Jerome pointing a gun at him from a hall leading to the middle bedroom. Defendant jumped to the side and shot at Jerome. He then entered the middle bedroom where he saw Valencia standing by the bed, speaking on the telephone. As defendant approached her to talk to her he saw Jerome standing behind her in a doorway leading to the kitchen. Jerome had a gun pointed at defendant and defendant heard the gun clicking. Defendant ducked, turning away from Jerome, and shot at him from a distance of about 8 feet. Valencia was hit and defendant ran, chasing Jones out the back, attempting to shoot him when he caught him, and striking him over the head with the gun. Defendant then fled.

Defendant's mother testified that in April of 1978 defendant appeared upset and depressed. He began to drink more and was often drunk, a condition she had never before witnessed in him. The evening of the shooting he seemed unusually quiet and appeared depressed.

(1)

It is defendant's contention that based on these facts the trial court erred in refusing to instruct the jury on voluntary manslaughter based on provocation and involuntary manslaughter. Over State objection the jury was instructed on voluntary manslaughter based on a mistaken belief that self-defense was justified.

Voluntary manslaughter is statutorily defined as follows:

" * * * A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:

(1) The individual killed, or

(2) Another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed.

Serious provocation is conduct sufficient to excite an intense passion in a reasonable person. * * * " (Ill.Rev.Stat.1981, ch. 38, par. 9-2(a).)

Defendant first contends the jury could have concluded that he shot his wife in a fit of passion provoked by what appeared to be an adulterous meeting between his wife and Reginald Banks. The committee comments to the Illinois statute cite adultery as one of the categories of provocation recognized within the law...