dissenting:
I agree with the majority’s holding that the verdicts of guilty of murder and not guilty of armed violence are legally consistent. However, I believe that evidence was improperly excluded and the jury was not properly instructed, and therefore the defendant should receive a new trial.
The trial judge erred by refusing to admit evidence of. the decedent’s reputation for violence. Based on People v. Adams (1962), 25 Ill. 2d 568, the trial court ruled that such evidence was admissible only after there was evidence that the defendant acted in self-defense and that the decedent committed an aggressive act toward the defendant. However, we held in People v. Lynch (1984), 104 Ill. 2d 194, decided simultaneously with this case, that similar evidence was admissible to prove who was the aggressor. That is an issue in this case. The defendant here was attempting to prove the likelihood that the victim, with his reputation for violence, was the aggressor. However, the trial judge sustained objections to the use of reputation witnesses and to the defendant’s own testimony in this regard. The defense in this case was based entirely on justifiable self-defense, and the trial judge’s refusal to admit the reputation evidence was critical. I would hold that here, as in Lynch, the reputation evidence was admissible to prove who was the aggressor. It would then be up to the jury to decide how much weight to give to the evidence.
Although I agree that we should not be second-guessing trial judges, it is clear here that the trial judge erred when he ruled that there was no aggressive act directed toward the defendant. The record indicates that three individuals who had been drinking came into the defendant’s home and stayed for some time. Two of these individuals returned a short time later and began quarreling. The defendant pointedly asked them to leave, but they did not. When the defendant pointed a gun at them, the victim, who was only five or six feet away, began walking toward the defendant with his hands raised above shoulder level, and as he kept coming toward the defendant, he said, “You don’t want to do that, man. You don’t want to do that.” Given the victim’s drunken condition, his quarrelsome behavior, and his refusal to depart from the defendant’s home when asked, the defendant could have believed that the victim was trying to seriously injure him with his hands, or to wrest the gun from the defendant in order to shoot the defendant. Why would he walk toward a man holding a gun rather than away from him? This was some evidence that the victim was the aggressor, and evidence of the victim’s reputation for violence would have been a proper supplement to this showing.
This error was critical, because it affected two different rulings, both essential to the defendant’s theory of self-defense. First, once self-defense is in issue and there is evidence of an act of aggression directed toward the defendant, evidence of the victim’s reputation for violence is admissible under Adams, the case on which the trial judge relied (People v. Adams (1962), 25 Ill. 2d 568), as well as under Lynch. Second, the victim’s aggressive conduct supports the defendant’s argument that the jury should have received a justification instruction.
The State does not dispute the defendant’s assertion that the absence of justification is an element of the crime of murder. Instead, the State argues that the trial judge was under no obligation to sua sponte instruct the jury regarding either justification or manslaughter, particularly when defense counsel chose not to offer the jury the option of a manslaughter conviction. However, an examination of the record gives a clearer picture of what actually occurred. Defense counsel objected to the murder instruction offered by the State because it did not include the words “without justification.” Since the entire defense strategy was to depict this killing as justifiable and therefore excusable, this element was essential to the defense case. When defense counsel asked the trial judge whether a manslaughter instruction would automatically be given along with a justification instruction, the trial judge asked whether defense counsel was making a motion to that effect. The trial judge’s comments earlier in the trial led defense counsel to believe that, relying on People v. Lockett (1980), 82 Ill. 2d 546, the trial judge would not give a justification instruction without also giving a manslaughter instruction. It was obvious that the defense strategy was not to offer the jury the option of convicting the defendant of the lesser crime of manslaughter. Faced with the trial judge’s refusal to answer his question, along with the judge’s response that he could not choose counsel’s trial strategy for him, the defense counsel made no motion and did not offer his alternative instruction for murder. The State’s instruction was consequently given, over the defense objection.
Section 9 — 1(a) of the Criminal Code of 1961 plainly states that “[a] person who kills an individual without lawful justification commits murder ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 9—1(a).) There can be no doubt that a defendant who requests an instruction which includes lack of justification is entitled to it. The defendant was improperly prejudiced in this case by the refusal of the trial judge to directly answer counsel’s inquiry, and because the trial judge created the misleading impression that he would hold that a justification instruction must always be paired with a manslaughter instruction, thereby forcing counsel, who wished not to raise the issue of manslaughter, to forgo an instruction on a statutory element crucial to his defense strategy. Instead of steering clear of strategy issues, as the trial judge professed to do, it seems to me that he directly involved himself with them. I do not regard a trial as a contest of moves and countermoves. Rather, it should be an effort to assist the jury in determining what really happened. The trial judge, by chilling defense counsel’s efforts to include lack of justification in the murder instruction, prevented that from happening.
Lockett is distinguishable and does not control this case. In Lockett, the defendant’s requested manslaughter instruction was refused by the trial court. This court held that, where evidence was presented that the defendant believed that the killing was justified, both a manslaughter and self-defense instruction should be given. The jury would decide whether or not the defendant’s belief was reasonable. (People v. Lockett (1980), 82 Ill. 2d 546.) Lockett did not address the issue where, as here, the defendant does not wish to have a manslaughter instruction given, but does want the murder instruction to include the element of justification. Since the statute identifies lack of justification as an element of murder, and since there is no requirement that a manslaughter instruction be given in every murder case, I believe that a defendant who provides evidence that the killing is justified is entitled to an instruction on justification, regardless of whether the defendant also requests an instruction on manslaughter. Justification and manslaughter are related but separate legal issues. I do not believe that the law of Illinois requires that they be coupled under all circumstances.
For the reasons stated above, I would have allowed evidence concerning the victim’s reputation for violence and I would have allowed an instruction regarding the absence of justification.