People v. Willis, 1-87-1846

• Decision Date: 01 March 1991
• Docket Number: No. 1-87-1846,1-87-1846
• Parties: , 155 Ill.Dec. 113 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. George WILLIS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 113

569 N.E.2d 113

210 Ill.App.3d 379, 155 Ill.Dec. 113

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. George WILLIS, Defendant-Appellant.

No. 1-87-1846.

Appellate Court of Illinois First District, Fifth Division.

March 1, 1991.

Randolph N. Stone, Chicago (Elyse Krug Miller, of counsel), for defendant-appellant.

Jack O'Malley, Chicago (Inge Fryklund, William D. Carroll, and Eileen Rubin, of counsel) for plaintiff-appellee.

Justice McNULTY delivered the opinion of the court.

Following a bench trial, defendant George Willis was found guilty of voluntary manslaughter and sentenced to ten years in the Department of Corrections. The issues raised on appeal are: (1) whether the State failed to prove that defendant did not act in self-defense; (2) whether the trial court erred when it allowed a victim impact statement to be introduced at defendant's sentencing hearing; (3) whether in sentencing defendant, the court improperly considered as an aggravating factor that defendant's conduct resulted in the taking of a life; (4) whether the court's reliance on the statutory aggravating factor that the crime was brutal and heinous was proper where defendant received a non-extended sentence; (5) whether the trial court failed to consider mitigating evidence; and (6) whether the trial court erred in denying probation.

Defendant George Willis was employed as a doorman at Pepper Plums Restaurant and Bar. Lee Cummings was the head of security at Pepper Plums, and in charge of hiring, firing and scheduling employees' working hours. On April 27, 1986, Cummings informed defendant that he was reducing defendant's hours. An argument ensued and when it became physical the owner of Pepper Plums separated the men. Defendant then informed co-employees and customers that he knew some "shady characters" who would take care of Cummings.

On April 28, 1986, defendant asked Cummings to reconsider his decision to reduce defendant's hours. When Cummings refused, defendant began swearing and insulting Cummings. Cummings then told defendant that he was going to clock defendant out for the evening and walked into the kitchen. Defendant followed Cummings into the kitchen and a fight again ensued. According to defendant, Cummings grabbed a knife and thrust it at defendant. The men struggled for possession of the knife. Defendant gained control of the knife and stabbed Cummings in the chest. Defendant then stabbed Cummings ten more times and Cummings died from multiple stab wounds.

Defendant's first contention on appeal is that his conviction should be reversed because the State failed to prove that he was not acting in self-defense when he fatally stabbed Cummings. Although the trial court found that defendant acted in self-defense when he stabbed Cummings the first time, the court found defendant guilty of voluntary manslaughter because: (1) he failed to retreat although there were three exits and (2) he unreasonably believed that the 10 subsequent stab wounds were justified.

Defendant maintains that the court improperly considered defendant's failure to retreat. As defendant points out, a non-aggressor is under no duty to retreat from a place where he has a right to be before employing force to protect himself. (In re D.N. (1988), 178 Ill.App.3d 470, 475, 127 Ill.Dec. 466, 533 N.E.2d 84; People v. Estes (1984), 127 Ill.App.3d 642, 82 Ill.Dec. 741, 747, 469 N.E.2d 275, 281.) This being the case, the court must reverse the trial court's determination unless it concludes that defendant's conduct in stabbing Cummings 10 additional times was not justified as necessary self-defense.

Defendant contends that the trial court erred in concluding that defendant was unjustified in the amount of force used. Defendant contends that where the initial use of force is justified, the claim of self-defense is not necessarily negated because several wounds were inflicted after the attack. To support his contention that subsequent wounds do not negate self-defense, defendant relies on In the Interest of S.M. (1981), 93 Ill.App.3d 105, 48 Ill.Dec. 690, 416 N.E.2d 1212; and People v. Shipp (1977), 52 Ill.App.3d 470, 10 Ill.Dec. 357, 367 N.E.2d 966. In Shipp, the court noted that deadly force is generally unjustified where the aggressor has been disabled or disarmed. The court nonetheless, declined to "mechanically" apply the general rule based upon the particular facts of the case, specifically that the defendant had been shot, beaten, assaulted and threatened by the decedent and was aware of the fact that the decedent had killed his first wife. Thus, the court in Shipp concluded that in light of these circumstances and the fact that the decedent continued to advance upon the defendant even after the defendant began firing at him, defendant was justified in firing subsequent shots. (Shipp, 52 Ill.App.3d at 476, 10 Ill.Dec. 357, 367 N.E.2d 966.) Similarly, in In the Interest of S.M., the evidence showed that defendant tried to avoid a confrontation with four boys who were advancing toward him, but even after they were shot, the boys continued to advance on the defendant. Thus, under the circumstances, the court found that it was reasonable for the defendant to believe that he was still in danger and to continue firing shots at the boys. In re S.M., 93 Ill.App.3d at 110, 48 Ill.Dec. 690, 416 N.E.2d 1212.

In response, the State contends that in the present case, the use of force cannot be justified as self-defense since Cummings had indeed been both disabled and disarmed. The State cites People v. Chatman (1981), 102 Ill.App.3d 692, 58 Ill.Dec. 315, 430 N.E.2d 257, in support of this argument. In Chatman, after the victim struck the defendant with a board, the victim dropped the board, and was left empty-handed. The defendant, nevertheless, repeatedly stabbed the victim who attempted to retreat and repel the defendant. The court upheld the jury's finding of voluntary manslaughter in light of the fact that the defendant repeatedly stabbed the victim even after the victim no longer presented any danger to the defendant. (Chatman, 102 Ill.App. 3d at 700, 58 Ill.Dec. 315, 430 N.E.2d 257; see also In re D.N., (1988), 178 Ill.App.3d 470, 474, 127 Ill.Dec. 466, 533 N.E.2d 84) (defendant continued her aggression beyond the reasonable need for self-defense where defendant continued to strike the victim after the victim fell to her knees and was no longer in a position to take the offensive); People v. Zolidis (1983), 115 Ill.App.3d 669, 71 Ill.Dec. 411, 450 N.E.2d 1290 (court rejected defendant's claim of self-defense where the evidence showed that he had stabbed the victim 17 times while the victim was disabled and falling to the ground); People v. Ingram (1983), 114 Ill.App.3d 740, 743, 70 Ill.Dec. 435, 449 N.E.2d 564 (defendant's conduct was not justified as necessary self-defense where defendant stabbed the victim 25 times after the victim had been disarmed).

The State contends that like Chatman, the defendant used deadly force after it was no longer necessary. Even if the initial stab was justified, the State maintains that defendant continued stabbing Cummings after he was disabled and disarmed. Defendant's own testimony was that after he first stabbed Cummings in the chest, Cummings turned away, counterclockwise, from defendant. Therefore, the State maintains that in light of this evidence, regardless of defendant's justification for stabbing Cummings in the first place, defendant continued his aggression beyond the reasonable need for self-defense.

Defendant further contends that the claim of self-defense is only negated where the State proves that the interval between the initial stab wound and the subsequent wounds was sufficient to allow a reasonable person to realize that no further stabbing was necessary. In Shipp, the court determined that shots fired after a peril has ceased to exist do not negate a self-defense claim if the shots are fired in the space of a few seconds where one is under great stress and has been pursued by one intent on doing great bodily harm. As the court emphasized, the person attacked is not expected to use infallible judgment. (Shipp, 52 Ill.App.3d at 477, 10 Ill.Dec. 357, 367 N.E.2d 966.) Similarly, in People v. Bailey (1975), 27 Ill.App.3d 128, 326 N.E.2d 550, the court stated that "[w]hen it has been found that a defendant was initially firing in self-defense, courts have been reluctant to find that a span of only a few seconds was a sufficient time for the defendant to realize that further shooting was unnecessary." In Bailey, since the evidence indicated that no more than about two seconds had elapsed between defendant's first and last shot, the court concluded that there was an insufficient interval between the time the shots were fired to allow the defendant to realize that he was no longer in danger. (Bailey, 27 Ill.App.3d at 136, 326 N.E.2d 550.) Likewise, the court in In re S.M., concluded that where the evidence was that several shots were fired in rapid succession, there was an insufficient interval between shots which would have allowed defendant to realize that further shots were not necessary. In re S.M., 93 Ill.App.3d at 111, 48 Ill.Dec. 690, 416 N.E.2d 1212.

In contrast to the cases cited by defendant, the court in People v. Hanson (1985), 138 Ill.App.3d 530, 92 Ill.Dec. 901, 485 N.E.2d 1144, upheld the jury's finding that the interval between firing the three shots was sufficient to allow defendant to realize that no further shooting was necessary. In reaching this conclusion, the court was influenced by evidence that between his firing of three shots, the defendant hesitated and turned to the door. Moreover, in People v. Adams (1979), 71 Ill.App.3d 70, 75, 27 Ill.Dec. 277, 388 N.E.2d 1326, the court determined that an interval of one and-a-half to two minutes between the firing of the first shot and subsequent shots was sufficient to allow defendant to realize that she was no...