dissenting:
I dissent from the majority holding that defendant adequately raised the issue of self-defense and that the trial court committed reversible error in refusing to instruct the jury as to the law of self-defense. I would affirm the judgment entered on the jury verdict finding defendant guilty of murder.
The majority tenuously relies on scanty comments by defendant that, while pointing a loaded gun at the victim, defendant became afraid when he saw the victim holding a beer can and heard Jeffries tell the victim to hit him. These bare statements can hardly imply self-defense unless the court “fragments the testimony in a ‘selective process *** so attenuated as to strain credulity to the breaking point.’ ” United States v. Wagner (9th Cir. 1987), 834 F.2d 1474, 1486 n.12, quoting United States v. Crowder (D.C. Cir. 1976), 543 F.2d 312, 318.
A self-defense instruction should be refused where defendant fails to present some evidence from which a jury could conclude that defendant had a subjective belief that use of force was necessary to defend himself against the imminent use of unlawful force. (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 1; People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378.) Defendant must produce enough evidence to place the defense in issue. At that point, the burden shifts to the State to disprove the defense beyond a reasonable doubt. People v. Carter (1988), 177 Ill. App. 3d 593, 532 N.E.2d 531.
Significantly, it is a question of law whether or not defendant has introduced sufficient evidence to support an instruction on self-defense. (People v. Shelton (1985), 140 Ill. App. 3d 886, 489 N.E.2d 879, citing People v. Woods (1980), 81 Ill. 2d 537, 410 N.E.2d 866.) When the law of self-defense does not apply to, and is not supported by, the issues and evidence in the case, a self-defense instruction may properly be refused. (People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31; People v. Shelton (1985), 140 Ill. App. 3d 886, 489 N.E.2d 879; People v. McGee (1982), 110 Ill. App. 3d 766, 443 N.E.2d 1057; People v. Chatman (1982), 110 Ill. App. 3d 19, 441 N.E.2d 1292.) Instructions are not justified if they are wholly unrelated to the case and are based on the merest factual reference in a witness’ comment. (People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31; People v. Robinson (1987), 163 Ill. App. 3d 754, 516 N.E.2d 1292.) Furthermore, a court may refuse, as a matter of law, to accept only an assertion or comment by defendant to support a self-defense instruction when the defendant also offers strong testimony that it was an accidental injury. See, e.g., People v. Tanthorey (1949), 404 Ill. 520, 89 N.E.2d 403; People v. Mitchell (1987), 163 Ill. App. 3d 58, 516 N.E.2d 500; People v. Purrazzo (1981), 95 Ill. App. 3d 886, 420 N.E.2d 461; People v. Dzambazovic (1978), 61 Ill. App. 3d 703, 377 N.E.2d 1077; see generally Annot., Accused’s Right, in Homicide Case, to Have Jury Instructed as to Both Unintentional Shooting & Self-Defense, 15 A.L.R.4th 983 (1982).
The court may consider, in determining this question of law, defendant’s testimony, the type of wound inflicted, defendant’s intent or motive, testimony of other witnesses, whether the testimony is contradictory, and references to a self-defense scenario. (See, e.g., People v. Robinson (1987), 163 Ill. App. 3d 754, 516 N.E.2d 1292.) The trial court here properly considered evidence of defendant’s intent or motive. Defendant repeatedly testified he did not intend to shoot.
“Q. And was it your intention to shoot him at that time?
A. No, it wasn’t.
* * *
Q. Did you go downstairs intending to shoot [the victim]?
A. No, I did not.
* * *
Q. When you pulled your pistol, did you intend to shoot him?
A. No, I did not.
Q. What did you intend to do at that time?
A. I pulled it just to scare him.
Q. And why did you shoot him?
A. Because of my right shoulder hitting the mailbox.”
The trial court also properly considered defendant’s repeated statements that the killing was an accident. (See People v. Tanthorey (1949), 404 Ill. 520, 89 N.E.2d 403.) Defendant stated:
“My right shoulder bumped into the mailbox and caused the pistol to go off.
* * *
I had taken two steps backwards and when I bumped into my
mailbox, that is what caused it to go off.
* * *
And on the second step backwards was when my shoulder
bumped into that mailbox and caused the pistol to go off.
* * *
My right shoulder bumped into the mailbox ***.
* * *
Q. Are you telling that jury that this was an accident?
A. Yes, it was.
* * *
Q. You didn’t tell the first two police officers that it was an accident.
A. Yes, I did.
Q. You did?
A. Yes, I did.”
Defendant’s only intent was “to scare him.” He took out his pistol, pointed it at the victim and cocked it merely “to make him leave me alone.” Defendant repeated: “I pulled it [out] just to scare him.” Defendant apparently succeeded. In fact, defendant testified that when he drew the gun, the victim “had turned around and begun to run.” Defendant watched him run away. Unfortunately, as the scared victim turned and ran, he slipped, and defendant claimed that he accidentally shot him in the back.
In addition, defendant cannot rely on self-defense since he acted as the aggressor. (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 1; People v. Shelton (1985), 140 Ill. App. 3d 886, 489 N.E.2d 879.) Defendant returned to the scene with a loaded gun and ran towards the victim, while the victim merely stood holding a beer can and then fled. (See, e.g., United States v. Wagner (9th Cir. 1987), 834 F.2d 1474; People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31; People v. Shelton (1985), 140 Ill. App. 3d 886, 489 N.E.2d 879; People v. McGee (1982), 110 Ill. App. 3d 766, 443 N.E.2d 1057.) As a matter of law, therefore, he cannot invoke the affirmative defense of justifiable use of force.
Furthermore, a defendant invoking self-defense must actually have believed that a danger existed. The danger must be of an imminent and present harm, and not merely harm threatened at a future time or threatened by someone without the present ability to carry out the threat. (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 1.) Defendant here does not claim the victim was attempting to harm him at the time of the shooting. There was no advance by the victim toward defendant and no physical movement or verbal threats from the victim. There was insufficient evidence that the victim presented any imminent threat. See People v. McGee (1982), 110 Ill. App. 3d 766, 443 N.E.2d 1057, comparing People v. Foster (1980), 81 Ill. App. 3d 915, 401 N.E.2d 1221 (victim’s threats followed immediately by victim’s advance toward defendant), with People v. Shelton (1985), 140 Ill. App. 3d 886, 489 N.E.2d 879 (following argument, defendants left and later went to victim’s home armed with weapons).
Defendant must not only believe his use of force was necessary to avert imminent danger, but also that the kind and amount of force which he used was necessary. (People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31.) The privilege of using deadly force is limited to situations where the force imminently threatened apparently will cause death or great bodily harm. (Ill. Rev. Stat. 1985, ch. 38, par. 7— 1; People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31.) Defendant here makes absolutely no claim, nor is there any evidence, that he thought it was necessary to use a deadly weapon. Prior to the shooting, the victim held a beer can in one hand. The victim did not say he was going to strike defendant and did not move his arm. No jury could make a rational finding that holding a beer can at waist level, in a normal position at a 45-degree angle to the body, is a “striking position” which would create fear of imminent death or great bodily harm.
Moreover, the trial court could also rely on defendant’s testimony that the first encounter could not even be described as a fight. “It wasn’t a fight, it was just a little, a brief argument, that is all it was.” Defendant’s bare statement expressing his fear during the first encounter with the victim is merely one evidentiary aspect of the requirement of reasonable belief that force was necessary to prevent imminent harm in the second encounter. See Ill. Ann. Stat., ch. 38, par. 7 — 1, Committee Comments, at 351-52 (Smith-Hurd 1989).
Defendant also points to his bad eyesight and the silhouetted hand holding the beer can. Poor eyesight does not mandate a self-defense instruction. (See, e.g., United States v. Wagner (9th Cir. 1987), 834 F.2d 1474 (notwithstanding defendant’s severely impaired eyesight and mistaken perception of an attacker advancing with a weapon, the court upheld the refusal of a self-defense instruction).) Moreover, defendant here does not even suggest that the victim was advancing on him.
Defendant notes Jeffries’ urging that the victim “hit him.” A bare statement of defendant that the victim might harm him is wholly insufficient to support a self-defense instruction. See People v. Carter (1988), 177 Ill. App. 3d 593, 532 N.E.2d 531.
I would find no evidence upon which a jury could conclude that defendant actually believed deadly force was necessary to prevent imminent death or great bodily harm. (See Ill. Rev. Stat. 1985, ch. 38, par. 7 — 1; People v. Cannon (1988), 176 Ill. App. 3d 49, 530 N.E.2d 1035.) Defendant’s subsequent drawing of the gun was unreasonable, excessive and invalidated any possible claim of self-defense under Illinois law. (See People v. Carter (1988), 177 Ill. App. 3d 593, 532 N.E.2d 531; People v. McGee (1982), 110 Ill. App. 3d 766, 443 N.E.2d 1057; People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31; Ill. Rev. Stat. 1985, ch. 38, par. 7 — 1.) Defendant could not have feared for his life, even unreasonably. A jury could not have viewed this as a situation requiring the use of deadly force for protection. No matter how we view the facts, turning them inside out and searching for any possible inference of self-defense, the testimony never changes. The victim offered no threat to defendant, who briefly left the scene to acquire, and returned to display, a loaded, cocked, deadly weapon.
The majority muddles this critical issue considerably by incorrectly insisting that the crux of this case lies in its finding that an accident theory may be raised as an alternative to a self-defense theory. I agree with the conclusion, but for a different reason, one which significantly affects the result of this case.
The majority, citing Robinson, proclaims that the accidental defense cases which have upheld the refusal of a self-defense jury instruction did so because there was no evidence of self-defense. That is not correct. In fact, the courts in all of those cases, as here, found bare references to self-defense. However, the courts found the evidence wholly insufficient to permit the jury to be instructed on self-defense. The fact that the alternative defense happened to be accidental injury did not alter or affect the fact that there was simply insufficient self-defense evidence.
Thus, many Illinois cases which happen to involve an alternative defense theory of unintentional injury, such as accident, hold that defendant offered insufficient evidence of self-defense to support an instruction.
In People v. Bratcher, defendant testified that two police officers started beating him and stated they were going to “whip him,” and he struck the officer. The court found this “merest factual reference” to self-defense insufficient to support an instruction because defendant testified he was angry and automatically struck out at the officer.
In People v. Tanthorey, defendant testified that during a disagreement he threw up his hand to protect himself when the gun he held fired. Our supreme court held that the self-defense instructions were properly refused because defendant testified the killing was an accident.
In People v. Mitchell, defendant testified he fatally cut his wife’s neck after she attacked him. There was also some evidence that defendant made a statement that he intended to kill his wife. The court held that a self-defense instruction was properly refused, notwithstanding the bare factual reference to self-defense. The type of neck wound was not a typical wound inflicted in self-defense, and defendant testified the killing was an accident.
In People v. Holloway (1985), 131 Ill. App. 3d 290, 475 N.E.2d 915, defendant attacked the victim with a hammer, and the victim produced a gun. During the struggle, the gun fired twice. The court held that the self-defense instruction was properly refused because the entire defense was premised on accident and on defendant’s lack of intent to kill.
In People v. Shelton, a codefendant testified that the victim grabbed, punched and kicked defendant, who ran away. He returned later and the victim again advanced, charging and carrying a raised bicycle. Defendant took a knife from his pocket and extended it in the victim’s direction, and the victim accidentally ran into the knife. The court upheld the refusal of a self-defense instruction because defendant testified that he did not intend to stab the victim and that the victim accidentally walked into the knife.
In People v. McGee, a witness testified he saw the victim pull a knife toward defendant. The court upheld the refusal of an instruction because, following an argument, defendant left the tavern and returned 15 minutes later with a pistol. The court concluded that the victim presented no imminent threat to defendant at the time of the shooting.
In People v. Purrazzo, defendant testified that his wife threatened him and pointed a gun at him. He disarmed her, and the dog jumped on his arm, causing the gun to repeatedly fire accidentally. The court upheld the refusal of a self-defense instruction because defendant testified the shooting was accidental, and because the evidence failed to show the killing resulted from the threats or provocation that preceded it. (The majority here claims the acts of self-defense in Purrazzo “did not immediately precede the injury.” (187 Ill. App. 3d at 1074.) On the contrary, defendant wrestled the gun from his wife and pushed her down on the couch immediately preceding the accidental firing of the gun when the dog jumped on his arm.)
In People v. Dzambazovic, defendant testified he struggled to get the gun, presumably to protect himself from being shot. No self-defense instruction was required. This court relied on defendant’s testimony that the actual killing was an accident.
In the present case, the evidence established that the victim died either as a result of defendant’s intention to kill him, which the jury found, or inadvertently when defendant bumped against the mailbox, which the jury rejected in finding defendant guilty of murder. There was no justification for giving a self-defense or voluntary manslaughter instruction.
The majority relies heavily on People v. Buchanan (1980), 91 Ill. App. 3d 13, 414 N.E.2d 262, and People v. Whitelow (1987), 162 Ill. App. 3d 626, 515 N.E.2d 1327. These cases offer weak support for such a jury instruction.
In Buchanan, not only were the instructions unchallenged, but the court in fact gave jury instructions on self-defense and voluntary manslaughter. The only issue was whether the trial court erred in excluding certain evidence of the victim’s reputation and character to support evidence that the victim was the initial aggressor.
Moreover, Buchanan is weak support for characterizing the present matter as a self-defense case. In finding error, the Buchanan court did note that the theory of an accidental shooting during a struggle did not negate the self-defense theory because the preceding events placed the shooting in a self-defense context. However, in contrast to the present case, the evidence in Buchanan disclosed that the victim angrily approached defendant, grabbed defendant’s car keys from the ignition to prevent escape, threatened defendant, hit him, and dragged him from the car. The victim was rushing toward defendant with his hand reaching into the pocket where he always carried a knife when defendant .grabbed the victim’s gun from the car trunk. Defendant first fired over the victim’s head, and then accidentally shot the victim as they struggled over the gun. The present case involves no aggressive attack by the victim; no physical contact between the victim and defendant; no rush for a defensive weapon; no warning shot; and no struggle over the gun. Buchanan has little or no relevance here.
Similarly inapplicable is Whitelow, where defendant was involved in an argument outside a liquor store. One man held a broken bottle, and defendant grabbed an object from a third man to defend himself. He did not realize it was a gun. The gun accidentally discharged when he grabbed it, killing a fourth person. No such circumstances existed here. The evidence of self-defense found in Whitelow and Buchanan is not present here.
The majority shares the concern,of many Illinois courts (see, e.g., People v. Joyner (1972), 50 Ill. 2d 302, 278 N.E.2d 756), about the distinction between self-defense, which requires intentional use of force, and an accidental or unintentional shooting. In Joyner, the court reversed a conviction because a voluntary manslaughter instruction was improperly omitted.
Many Illinois cases have dwelt on this issue and have expressly set forth a general rule forbidding these inconsistent theories. See, e.g., People v. Shelton (1985), 140 Ill. App. 3d 886, 489 N.E.2d 879; People v. Charleston (1985), 132 Ill. App. 3d 769, 477 N.E.2d 762; People v. Holloway (1985), 131 Ill. App. 3d 290, 475 N.E.2d 915; People v. Chatman (1982), 110 Ill. App. 3d 19, 441 N.E.2d 1292; People v. Purrazzo (1981), 95 Ill. App. 3d 886, 420 N.E.2d 461; People v. Dzambazovic (1978), 61 Ill. App. 3d 703, 377 N.E.2d 1077; People v. Johnson (1964), 54 Ill. App. 2d 27, 283 N.E.2d 283; see also State v. Hafeli (Mo. App. 1986), 715 S.W.2d 524.
As a general rule, however, inconsistent theories may be submitted to the jury. The United States Supreme Court recently held in Mathews v. United States (1988), 485 U.S. 58, 64, 99 L. Ed. 2d 54, 61, 108 S. Ct. 883, 887, that inconsistent defenses may be raised. The Court specifically noted that State cases support the proposition that a homicide defendant may be entitled to instructions on both accident and self-defense. (Accord United States v. Wagner (9th Cir. 1987), 834 F.2d 1474; United States ex rel. Bacon v. DeRobertis (N.D. Ill. 1982), 551 F. Supp. 269, 273, affd (7th Cir. 1984), 728 F.2d 874; People v. Robinson (1987), 163 Ill. App. 3d 754, 516 N.E.2d 1292; People v. Whitelow (1987), 162 Ill. App. 3d 626, 515 N.E.2d 1327; People v. Stewart (1986), 143 Ill. App. 3d 933, 494 N.E.2d 1171; People v. Purrazzo (1981), 95 Ill. App. 3d 886, 420 N.E.2d 461; People v. Brooks (1985), 130 Ill. App. 3d 747, 474 N.E.2d 1287; People v. Cruz (1978), 66 Ill. App. 3d 760, 384 N.E.2d 137; People v. Smythe (1971), 132 Ill. App. 2d 685, 270 N.E.2d 431; see generally Annot., 15 A.L.R.4th 983 (1982); 4 C. Torda, Wharton’s Criminal Procedure §§545, 547, at 32, 34 (12 ed. 1976).) Thus, inconsistent defenses of self-defense and accident may be raised alternatively, but only where there is enough evidence to support each theory. The present case simply does not have sufficient evidence to support a self-defense instruction, and the majority evades the true nature of the issue on appeal by focusing on the question of conflicting defenses.
I believe that defendant was proved guilty of murder beyond a reasonable doubt; that the jury was properly instructed; that the trial court correctly denied defendant’s motion to suppress his statement; and that defendant was not denied a fair trial as the result of any prosecutorial comment. I also believe that the sentence imposed was appropriate. Consequently, I would affirm the judgment of conviction.
Justice McNamara participated in this opinion prior to his assignment to the sixth division.