*1
еxamined the record of the trial proceed-
late counsel has apparently
of whether
trial counsel met the
ings, we should rule
the issue
Washington
(1984),
Strickland v.
U.S
provided by
standards
2052, reh’g
Ed.
S.
denied
U.S.
80 L.
104 Ct.
so,
to do
for we do not
Ed.
We remand this appoint post- and to for unlawful cannabis possession judgment Court comply Supreme can counsel, so that counsel conviction R. 651(c) (134 651(c)). Ill. 2d Rule remanded with instructions.
Vacated and HARRISON, JJ.,
RARICK and concur. ILLINOIS, Plaintiff-Appellee, v. THE THE PEOPLE OF STATE OF LEWIS, Defendant-Appellant. CAMELLA Fifth District No. 5 — 90—0129 8, 1992.
Opinion filed June *2 HARRISON, J., dissenting. Evers,
Daniel M. Kirwan and Dan Appellate W. both State De- Office, Vernon, fender’s of Mt. for appellant. Haida, (Kеnneth
Bob Attorney, State’s Boyle Belleville R. and Norris, Stephen Office, E. Attorneys both of State’s Appellate Prosecutor’s counsel), People. for the JUSTICE RARICK delivered the opinion the court: Following trial, defendant, Lewis, guilty Camella was found of first-degree (Ill. murder eh. Rev. Stat. for par. 1(a)(2)) 9— the stabbing subsequent and death of her Jones. boyfriend, Louis Defendant was sentenced a term of 24 years’ imprisonment Department Illinois of Corrections.
In this appeal, defendant contends that she was denied a fair trial where the triаl court: (1) refused to instruct the jury second-degree on murder based on sudden and passion intense resulting from serious provocation deceased; (2) and her right denied defendant cross-examine a State’s witness charges against about the wit- pending ness. affirm. We trial,
At Irvin Duckworth testified that on he was August drinking beer with the deceased around 5 p.m. when defendant came up and asked the go deceased whether he was When ready to home. “No,” deceased said replied, home, defendant “When come you I’m going tо kill you.” Duckworth merely stated the deceased Duckworth, not the threat nor did be- laughed seriously, and did take fights. their something “always” cause this was defendant said Duckworth, then returned to the residence she According to defendant deceased, Brown, girlfriend. and Brown’s shared with the he beer further and deceased drank Duckworth testified a.m., to Duckworth’s residence and had they until around when went residence, ap- and The then left Duckworth’s a sandwich. deceased later, Duckworth learned that the deceased five minutes рroximately residence, at defendant’s Duckworth arrived had been stabbed. When Louis, killed killed Louis.” Mandingo he heard her saying “Mandingo knife, often defendant with a testified that seen Duckworth that he had been she in her Duckworth admitted which carried bra. 1985. misdemeanor theft in convicted of Jones, sister, testified that around 10:45 Estella the deceased’s standing saw defendant and deceased August she p.m. 1 a.m. Ms. was at her home around arguing. 14th Street and Jones her, Duckworth, the deceased arrived and who lived out, way to the kitchen to fix sandwiches. On went door, that he cigarette, for and stated knocked on her bedroom asked later, phone Ms. Jones received going home. About minutes Ms. had been stabbed. When informing call residence, and Duckworth arrived at deceased’s Jones *3 that defendant there two officers. Ms. Jones testified was with police an with a man argument her the had into gotten told that deceased knife, a Man- pulled when the deceased had Mandingo named and that him from deceased and stabbed had taken the knife the dingо away knife had Mandingo. Defendant had taken the and defendant her that Ms. Jones observed earlier clothes since the time changed night. liv- the deceased had been
Ms. Jones testified that defendant and that time she months and that ing together approximately two thing.” everyday the as “an heard defendant threaten deceased had like, “I’ll kill you.” the things to deceased say Defendant would Jones, to Ms. According in her bra. usually Defendant a knife kept the deceased a and she had never seen type,” deсeased “wasn’t violent drinking. when he had abuse defendant been brother, defendant and Brown, testified that the deceased’s two for living approximately at his residence
the deceased had been his door. banged on defendant morning August months. On the Brown saying “Help.” name and calling Defendant was Brown’s ground on the lying his and looked out window saw outside, he got observed standing his When Brown by body. defendant he her had hap- defendant with a knife in her hand and asked what had himself. pened. Defendant told that deceased stabbed decеased happened, Brown tried to ask the deceased what had and the finger again his at defendant. Brown asked defendant what pointed men, had and she told him that three happened, Mandingo, one named hands, had the deceased. Brown saw on her stabbed blood defendant’s shorts, knife; defendant in dropped yard. and knife Brown’s hospital,
Brown drove the deceased defendant and when arrived, later he her told that the was dead. Defendant then said she repeatedly that “didn’t mean to do it.” Brown testified that а knife her day,” carried bra that when “[e]very and defendant and the deceased she argue, would often told the deceased that she kill him. Brown found some of defendant’s clothes with in the blood them bathroom of his house and turned over them Brown admitted that in police. 1987he was convicted of two robberies. Hill, Officer Curtis East St. Louis that police department, testified he was dispatched to State Street around 1 or 1:30 a.m. on Au- arrival, gust 10. Hill Upon large Officer puddle observed blood ground. and a knife on the defendant, Officеr Hill spoke to who in- formed him that boyfriend had into gotten fight with two “guys” and that he been stabbed aby Mandingo. man named Harry
Dr. Parks testified that he performed autopsy the de- ceased. Dr. Parks stated that the deceased one suffered wound at the collarbone, base his neck above the left which left pierced the com- mon carotid artery extended down into the of the upper lobe left lung. Dr. Parks testified death caused combination of massive bleeding and of the left collapse lung. People’s deceased’s exhibit scene, knife found at the was capable inflicting deceased’s Dr. wound. Parks stated deceased’s blood-alcohol level, indicated toxicology report, milligrams per 0.272 deci- liter of blood.
Detective Marion Hubbard, East St. Louis police department, tes- tified interviewed police defendant at the on August station signed and took a two-page statement from her. Detective Hubbard read to the body of defendant’s statement:
“I have staying at 1743 for State about two months with my boyfriend, Jonеs, brother, Louis George, and his *4 George’s girlfriend. Louis and I fight all the time. The I reason had the small kitchen knife with me is I always because carried a I Louis, knife. carried it for protection because when he drunk he got on me. always jumped coming were We 14th about and Columbia Place from his house when sister’s we out in front of the build- arguing. got apartment were When we to Street, fighting. me we slapped got on State Louis and ing me, my hit I knife in hand and it fell on had the When Louis wrestling the knife ground over We were down on ground. I know I I him. don’t got accidentally and the knife and stabbed a on me and I him at. There was lot blood where stabbed me, me then I called got I him off of and top Louis was on so apartment. When George help, upstairs for who was Mandingo him and three more I told George came down Louis him George put him. and jumped picked up dudes had I and hospital. upstairs car took him to the went washed and had blood changed they off of me and I shorts because blood I Community Hospital. got Then When on them. I walked I he was thought me that Louis was dead. George there told and the him, quit lying,[’] police told don’t [‘]Why you I playing. to the apart- officer me into the car. We drove back get told and officer arrested me building police ment first and then me to jail. took I kill not know he was dead until
I did not mean to Louis. did later.” with the deceased testified that she had been involved
Defendant with him at living four months had for and approximately that the for months. Defendant testified Brown’s residence about two he drinking,” he and then “was nice until started became deceased argue and Defendant stated that fight. violent” and liked to “very these once arguments, threatened previously deceased breaking glass time on her and another drawing two-by-four board Defend- it, away. times she had run her with but both trying and cut from the deceased carried a knife for protection ant testified that she he intoxicated. she was afraid of when because gone the deceased had defendant and evening August On the Place. Defendant stated complex at Columbia apartment there, and the deceased drank sev- werе drank one beer they while she evening, together all and the deceased drank eral beers. Duckworth leaving, defendant was drunk. Upon and defendant knew the deceased in, house, and the deceased went went to his sister’s and the deceased home, began out. deceased and came On walk got cigarette, they her. Defendant testified and arguing slapped with defendant apartment the front their had reached it fell me and I knife and hitting pulled my
“started [sic] I knife me and choking and I got I fell down I the knife and seen me, him of so cut tried to off get *5 I told got up upstairs, and I off of me and went blood [sic] and the needed police to call the ambulance because some help.” told Brown different story
Defendant stated that she originally talking about on” her and was afraid of jumping because “was she him. After to hospital, up- taken defendant went stairs, blood, clothes, to wiped off some old and ran put deceased, she hospital. Defendant stated that did not intend to kill the but she scared to “just trying get that and was him off me be- cause he was me hard.” Defendant ever choking very denied threaten- ing the and denied pulling fight began. the knife before their Long
Dr. testified that he toxi- Christopher operates the forensic laboratory at cology University. Long’s laboratory St. Louis Dr. re- analyzed ceived and the deceased’s blood and found it to con- sample tain 0.272 grams per alcohol 100 milliliters of blood. Dr. stated Long that a blood-alcohol level between .20 and .30 was indicative of “very alcohol heavy consumption” and that the decеased’s could level .27 reasonably be as “pretty described drunk.” conference,
At the jury instructions defense counsel in tendered concerning second-degree structions (Il murder based on “serious provocation” 1989, 38, Rev. Stat. 2(aXl); ch. Pattern par. Hlinois l. 9— Instructions, Jury (hereinafter Criminal IPI Criminal), 7.03A, Nos. 7.04A (2d ed. 1989 Supp.)), second-degree on an “unrea murder based in sonable” belief the need for (Ill. self-defense Rev. ch. Stat. par. 7.05A, IPI 2(aX2); 2d, Criminal Nos. (1989 7.06A Supp.)), 9— involuntary manslaughter (Ill. based an act performed “recklessly” Rev. Stat. par. 3(a); 2d, 7.07, сh. IPI 7.08). Criminal Nos. 9— The State argued mitigation both forms of in second-degree mur der not presented could be not jury “[tjhey’re logically because or legally consistent.” The prosecutor further contended: “I don’t think a defendant can have They both theories. have to elect which go they’re going acting under. Is the defendant under serious provo cation does or the defendant acting think self-defense?” [she’s]
The trial court ruled be in- originally given structions on forms of both later second-degree murder but reversed its decisiоn and ruled that both forms of not mitigation pre- could be sented the jury. The court then refused in- defendant’s tendered on second-degree structions upon provocation. murder based Defend- ant contends rejection the trial court’s these instructions constituted reversible error. do not agree. We
In the Illinois Assembly General amended the Criminal Code of 1961 (Code) and replaced voluntary manslaughter with second-de- However, case gree pertaining voluntary- murder. law involved manslaughter applicable аnd murder under the old law is to first-de gree People murder under the new law. See second-degree murder 1256- v. Johnson court, deciding first-degree whether trial court (appellate refusing its defendant’s offer of sec by murder case abused discretion ond-degree upon provocation,” murder instructions based “serious all of which dealing provocation,” five cases with “serious considered manslaughter statute). old voluntary were decided under the which, if believed any jury, If evidence in record there in manslaughter, manslaughter of murder to charge would reduce *6 v. Leonard given. (People struction tendered the defendant must be Moreover, 411, 420-21, 358, 83 2d 415 (1980), 363.) Ill. N.E.2d volun is the belief” support there evidence in record “unreasonable manslaughter, manslaughter “provocation” voluntary as well as tary (See (1973), v. Craven give People the court must instructions both. 419, 425-26, 1, 4-5; (1981), v. March 95 Ill. People 54 Ill. 2d N.E.2d 1212,1218 46, 54, is to instruct the (it permissible 3d 419 N.E.2d App. Therefore, although manslaughter).) of types voluntary as jury both that it could erroneously trial the case at bar concluded court murder, еrror second-degree on both forms of jury not instruct if of record supported is to defendant the evidence only prejudicial theories. both to have the consider
A defendant in a criminal case is entitled foundation, a however tenu recognized defense which has any legally Ill. 3d ous, (People (1989), App. v. Robinson the evidence. manslaughter A 286.) “provocation” voluntary 545 N.E.2d that the defend where the indicates is warranted evidence instruction resulting of passion ant acted as a result sudden and intense 3d |(People App. v. Ford 163 Ill. provocation. combat, evidence of ad- 766, 770.) or assault is Mutual quarrel, voluntary manslaughter a instruction. require
provocation Robinson, at 286. 189 Ill. 3d at 545 N.E.2d App. Sate during or immediately preceding mutual occurs
When combat death, not be manslaughter may instruction voluntary infliction of Nor at the outset. refused, aggressor if was the even the defendant that there was ground refused validly the instruction be may at earlier kill formulated an intent was evidence that defendant’s have may criminal intent the defendant’s time, if there is evidence that 189 Ill. (Robinson, altercation. or heat during arisen out Leonard, 2d 286; 83 Ill. at at see also 349-50, 545 N.E.2d at App. if the evi- even required The instruction is 358.) 415 N.E.2d at (Robinson, a scuffle. momentary dence of mutual combat only March, 286; at see 95 Ill. App. at 545 N.E.2d also App. 3d evi 1218.) at at where there is sufficient Accordingly, 419 N.E.2d it to refuse record, combat in the is reversible error dence mutual at Johnson, 215 Ill. 3d at 575 N.E.2d such instruction. 1257. case, there is no evidence which warranted the
In the instant giving second-degree provocа of a murder instruction based on serious drinking through tion. The record shows the deceased had and, level, out evening extremely his blood-alcohol considering drunk. get Defendant testified that when the deceased drank he would very “jump her, pro violent and on” and that she carried a knife for tection against defendant. Several State’s confirmed that witnesses argued and the deceased and defendant testified regularly, that during previous arguments her, deceased had once threatened glass. with board and once awith broken Defendant testified that *** hitting deceased “started me and I and it fell pulled my knife and I fell got down and knife and he was me and I choking tried me, to get him off of so I cut with the knife.” Defendant’s written statement also mentioned that she frequently fought with the deceased and that her fear her reason for carrying knife. Defendant’s statement indicated that at the time stabbed, the deceased was the two were fighting “were down on the ground wrestling over the knife.” Evidence that not only defendant’s hands but also her were shorts bloodstained is consistent claim that the occurred or stabbing struggle combat *7 with the deceased. case,
Given the relevant of Slaugh facts this we v. People believe ter 84 (1980), 1103, Ill. App. 1295, 3d 405 N.E.2d In controlling. Slaughter, the reviewing court found that the trial not court’s decision to an give “provocation” instruction on voluntary manslaughter was proper because the defendant had testified that his actions consistently were by defensive and motivated fear and the to escape desire the victim. The testimony the in the present defendant case likewise demоnstrates that actions were motivated fear of the by and were defensive in nature. Although defendant and the deceased struggled, nothing there is to indicate that defendant willingly partici pated in the struggle. “provocation” To warrant a instruction based upon combat, mutual the be struggle must mutual. with an Struggling attacker in an effort to or ward off defend one’s self against assault is not sufficient to warrant a provocation Slaughter, instruction. As in record the present case is “devoid of evidence that defendant 882 pаssion provocation”
acted
sudden and intense
due to
at
under
1109,
Ill.
3d
time of the
84
at
Defendant witness restricted when trial court refused to allow improperly was his residen- question George defense counsel to Brown about pending agree. do not burglary charge. tial We protects
The amendment to Federal constitution sixth cross-examination, and the should al right defendant’s be to 102 Ill. 2d (People (1984), lowed wide latitude show bias. v. Owens cert, 261, 267-68, denied 469 U.S. 83 (1984), 464 N.E.2d 361; 149 Ill. 3d Peoplе Paisley (1986), App. L. Ed. 105 S. Ct. v. 2d 556, 560, charges of a witness are 98-99.) pending 500 N.E.2d The bias, influenced in testimony might by admissible to that his be show terest, Triplett (1985), 108 Ill. falsely. (People or a motive to v. testify of im 9, 15.) type Cross-examination for this N.E.2d only is a to trial court’s broad peachment right subject matter interrogation or repetitive unduly harassing discretion to preclude Paisley, to matter. proper subject to confine cross-examination 99; at 108 Ill. 2d at Triplett, Ill. at 500 N.E.2d see also App. 3d 475, 485 at 15. bar, counsel, cross-examination,
In the case at defense being “currently asked State’s witness Brown whether he mis objected The State and moved for a charged for another offense.” trial, had made with the arguing that no “deals” witness with an offense was irrelevant charged evidence that witness was to used charges of a deal. Arrests or be unless there evidence against a witness something that the has rise the inference witness give
“must words, In other testimony. or lose gain [Citation.] Triplett, some over the witness.” ‘leverage’ State must have at 18. Ill. 2d at 485 N.E.2d examining prior have to show the defеndant does not Although or promised leniency expects has been the witness the witness at at 485 N.E.2d (Triplett, receive treatment Ill. 2d favorable defense counsel demonstrates that 15), Attorney’s affidavit State’s Further, no made. because knew trial “deals” had been before excluded demonstrating that evidence proof no offer of there was tes or motive to on the issue of bias bearing and direct positive this line the trial court to foreclose it was error for not tify falsely, 1075, 502 N.E.2d v. inquiry. People Johnson *8 304.
883 Based uрon foregoing, of the judgment circuit court of St. Clair is affirmed. County
Affirmed. LEWIS, J.,
H. concurs. HARRISON,
JUSTICE dissenting: I decline to in join majority’s opinion this case because be lieve there was sufficient presented evidence at trial to warrant giving of a second-degree murder instruction based on serious provoca tion. Although the majority admits that where there is evidence of mu tual combat in the record it is reversible error to refuse such an instruction (Pe ople v. Johnson (1991), 713, 215 Ill. App. 728, 3d 1247, N.E.2d 1257), it concludes that the combat was not mutual be cause “there nothing to indicate that defendant willingly partici pated in the struggle.” (229 Ill. 3d at App. 881.) However, mutual com bat is defined as fight or struggle which parties both enter willingly or where persons, two upon a sudden quarrel blood, and in hot mutu fight ally upon equal terms and where death results from the combat. People v. Austin (1989), 125, 118, Ill. 2d 331, 334; N.E.2d Peo ple v. Burks (1981), 621, 103 Ill. App. 3d 1088.
As the
notes,
majority
the record shows that at the time of the
incident, the deceased was extremely drunk. Defendant testified that
when the deceased drank he would get very violent and that the two
frequently argued and fought when he drank. Defendant’s written
statement indicated that the two had
arguing,
that the deceased
slapped her, that they began fighting and “were
on the ground
down
wrestling over the knife” when the deceased was stabbed.
Similarly,
Burks, the reviewing court held that there was sufficient evidence to
find the defendant had committed voluntary manslaughter
based
se
rious provocation where an argument erupted which escalated into a
physical assault and ended with the victim being
(103
stabbed.
Ill. App.
3d at
The majority cites People Slaughter
v.
84 Ill.
405 N.E.2d
here,
as controlling because
as in Slaughter,
defendant testified that her actions were defensive and motivated by
However,
a defendant’s
acted
testimony
fear of
deceased.
*9
negate
right
manslaughter-provocation
in
not
his
to a
self-defense does
497, 503,
163
v.
Ill.
3d
516
(People
(1987),
App.
instruction.
Ford
Furthermore,
the court in
admitted
770.)
Slaughter
N.E.2d
where
the
him and
grabbed
that the defendant’s
that
victim
choked
testimony
the fatal
“could constitute serious
stabbing
provocation,”
before
the
of
that defendant
its conclusion that
record was “devoid
evidence
passion
provocation”
totally
under
and intense
due to
acted
sudden
not
3d
incongruous
Slaughter,
App.
and should
be followed.
84 Ill.
at
1109,
The record herein evidence could con support contained which at the passion that defendant acted under sudden and intense clusion The to stabbing. time of the trial court’s failure instruct from precluded defendant second-degree provocation murder based of the eviden obtaining theory, despite consideration this jury’s for of defendant’s conviction it. This error reversal requires basis tiary a new trial. See v. Barnes People and remandment of cause for 267-68, Ill. 3d 437 N.E.2d 852. (1982), 107 App. that not disagree
I also conclusion it was error majority’s right of her to cross-еxamine a deprive for the trial court to the State’s pending felony charge. Although witness his State’s about no had made with that “deals” been Attorney’s represents affidavit witness, as to the preclude inquiry pending this fact does not concedes, need not because, defense counsel charge majority as or of have been made that any promises leniency that show beforehand (Peo exist the mind the witness. expectations special favor any Further, 463, 476, 9, 15.) N.E.2d ple v. 108 Ill. 2d 485 Triplett (1985), expectations to into suсh or inquire promises counsel is entitled N.E.2d at (108 fact or Ill. 2d at imaginary. whether based on showing bias, Rather, 15.) only requirement impeaching by must remote or or is that the evidence used not be interest motive that has to the inference the witness give uncertain must rise Ill. (108 to or lose his 2d at something gain by testimony. Here, remote or uncertain. The 15.) at the evidence was not burglary had a residential pending
record shows that
witness
charge gave
rise
the inference
and the existence
this
charge,
Thus, something
testimony.
or lose
his
gain
by
the witness had
prevented inquiry
have
that no
had been made should not
fact
“deals”
only rele
where that information’s
pending charge,
into the witness’
arising
charge.
the inference
from
vance was
rebut
foreclosing
that no error occurred in
argues
The
further
majority
“demonstrating
no
of proof
line of
there was
offer
inquiry
this
where
the evidence excluded
a positive
bearing
and direct
on the
citing People
v.
issue of
or motive
Johnson
testify
bias
falsely,”
(1986),
in Peo
App.
However,
150 Ill.
The United Supreme States Court has declared that revealing a biases, witness’ pоssible prejudices or ulterior motives was “a proper and important function of the constitutionally protected right cross- (Davis v. Alaska examination.” 308, 316-17, 415 U.S. 39 L. Ed. *10 347, 354, 1110.) Davis, 94 S. Ct. In the defendant was pre- cluded from cross-examining a witness regarding probationary sta- tus and hence his possible bias. The Court concluded: *** seems clear to us that to make inquiry wit- “[I]t [into effective,
ness’ credibility]
defense counsel should have been
permitted
expose to the jury the facts from which jurors, as
the sole triers of fact and credibility, could
draw
appropriately
inferences
relating to
reliance of the witness.
defend-
[The
was thus
right
denied the
of effective cross-examination
ant]
‘
which
“would be constitutional
magnitude
error of the first
and no amount of showing of want of prejudice would cure it.”
Brookhart v. Janis [(1966)],
3[,
384 U.S.
16 L. Ed. 2d
v. Illinois
316,
The Davis Court’s rationale our supreme was followed court Triplett (108 Ill. 2d at 17-20), 485 N.E.2d at and I it believe in the equally applicable Thus, instant case. because I revers believe committed, ible error to have would remand for a new trial.