People v. Lewis

JUSTICE HARRISON, dissenting:

I decline to join in the majority’s opinion in this case because I believe there was sufficient evidence presented at trial to warrant the giving of a second-degree murder instruction based on serious provocation. Although the majority admits that where there is evidence of mutual combat in the record it is reversible error to refuse such an instruction (People v. Johnson (1991), 215 Ill. App. 3d 713, 728 , 575 N.E.2d 1247, 1257 ), it concludes that the combat was not mutual because “there is nothing to indicate that defendant willingly participated in the struggle.” (229 Ill. App. 3d at 881.) However, mutual combat is defined as a fight or struggle which both parties enter willingly or where two persons, upon a sudden quarrel and in hot blood, mutually fight upon equal terms and where death results from the combat. People v. Austin (1989), 133 Ill. 2d 118, 125 , 549 N.E.2d 331, 334 ; People v. Burks (1981), 103 Ill. App. 3d 616, 621 , 431 N.E.2d 1085, 1088 .

As the majority notes, 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 been arguing, that the deceased slapped her, that they began fighting and “were down on the ground wrestling over the knife” when the deceased was stabbed. Similarly, in Burks, the reviewing court held that there was sufficient evidence to find the defendant had committed voluntary manslaughter based on serious provocation where an argument erupted which escalated into a physical assault and ended with the victim being stabbed. ( 103 Ill. App. 3d at 620-21 , 431 N.E.2d at 1088 .) Given the past incidents of drinking and arguing between the pair, and the evidence that such an argument escalated into mutual combat at the time of the stabbing, an issue of fact existed as to whether defendant was provoked. See People v. Dare (1986), 140 Ill. App. 3d 413, 420 , 488 N.E.2d 1304, 1308-09 ; Johnson, 215 Ill. App. 3d at 728 , 575 N.E.2d at 1256-57 .

The majority cites People v. Slaughter (1980), 84 Ill. App. 3d 1103 , 405 N.E.2d 1295 , as controlling because here, as in Slaughter, the defendant testified that her actions were defensive and motivated by fear of the deceased. However, a defendant’s testimony that he acted in self-defense does not negate his right to a manslaughter-provocation instruction. (People v. Ford (1987), 163 Ill. App. 3d 497, 503 , 516 N.E.2d 766, 770 .) Furthermore, where the court in Slaughter admitted that the defendant’s testimony that the victim grabbed him and choked him before the fatal stabbing “could constitute serious provocation,” its conclusion that the record was “devoid of evidence that defendant acted under sudden and intense passion due to provocation” is totally incongruous and should not be followed. Slaughter, 84 Ill. App. 3d at 1109 , 405 N.E.2d at 1301 .

The record herein contained evidence which could support the conclusion that defendant acted under sudden and intense passion at the time of the stabbing. The trial court’s failure to instruct the jury on second-degree murder based on provocation precluded defendant from obtaining the jury’s consideration of this theory, despite the evidentiary basis for it. This error requires reversal of defendant’s conviction and remandment of the cause for a new trial. See People v. Barnes (1982), 107 Ill. App. 3d 262, 267-68 , 437 N.E.2d 848, 852 .

I also disagree with the majority’s conclusion that it was not error for the trial court to deprive defendant of her right to cross-examine a State’s witness about his pending felony charge. Although the State’s Attorney’s affidavit represents that no “deals” had been made with the witness, this fact does not preclude inquiry as to the pending charge because, as the majority concedes, defense counsel need not show beforehand that any promises of leniency have been made or that any expectations of special favor exist in the mind of the witness. (People v. Triplett (1985), 108 Ill. 2d 463, 476 , 485 N.E.2d 9, 15 .) Further, counsel is entitled to inquire into such promises or expectations whether based on fact or imaginary. ( 108 Ill. 2d at 476 , 485 N.E.2d at 15 .) Rather, the only requirement when impeaching by showing bias, interest or motive is that the evidence used must not be remote or uncertain and must give rise to the inference that the witness has something to gain or lose by his testimony. ( 108 Ill. 2d at 475-76 , 485 N.E.2d at 15 .) Here, the evidence was not remote or uncertain. The record shows that the witness had a pending residential burglary charge, and the existence of this charge gave rise to the inference that the witness had something to gain or lose by his testimony. Thus, the fact that no “deals” had been made should not have prevented inquiry into the witness’ pending charge, where that information’s only relevance was to rebut the inference arising from that charge.

The majority further argues that no error occurred in foreclosing this line of inquiry where there was no offer of proof “demonstrating that the evidence excluded had a positive and direct bearing on the issue of bias or motive to testify falsely,” citing People v. Johnson (1986), 150 Ill. App. 3d 1075, 1082 , 502 N.E.2d 304 . However, in People v. Paisley (1986), 149 Ill. App. 3d 556 , 500 N.E.2d 96 , also cited by the majority, the court held that despite a witness’ testimony during an offer of proof that he had not entered negotiations with the State regarding his pending charges and had not been promised or led to believe that his testimony would affect his treatment in his case, evidence of his pending charges should have been presented where it would have shown possible bias in his testimony resulting from a desire to affect his treatment in jfuture negotiations on the charges. 149 Ill. App. 3d at 561 , 500 N.E.2d at 100 .

The United States Supreme Court has declared that revealing a witness’ possible biases, prejudices or ulterior motives was “a proper and important function of the constitutionally protected right of cross-examination.” (Davis v. Alaska (1974), 415 U.S. 308, 316-17 , 39 L. Ed. 2d 347, 354 , 94 S. Ct. 1105, 1110 .) In Davis, the defendant was precluded from cross-examining a witness regarding his probationary status and hence his possible bias. The Court concluded:

“[I]t seems clear to us that to make *** inquiry [into the witness’ credibility] effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliance of the witness. [The defendant] was thus denied the right of effective cross-examination which ‘ “would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” Brookhart v. Janis [(1966)], 384 U.S. 1, 3 [, 16 L. Ed. 2d 314, 316 , 86 S. Ct. 1245, 1246 ].’ Smith v. Illinois [(1968), 390 U.S. 129, 131 , 19 L. Ed. 2d 956, 959 , 88 S. Ct. 748, 750 .]” Davis v. Alaska (1974), 415 U.S. 308, 318 , 39 L. Ed. 2d 347, 355 , 94 S. Ct. 1105,1111 .

The Davis Court’s rationale was followed by our supreme court in Triplett ( 108 Ill. 2d at 479-86 , 485 N.E.2d at 17-20 ), and I believe it is equally applicable in the instant case. Thus, because I believe reversible error to have been committed, I would remand for a new trial.