FIFTH DIVISION
July 24, 1998
No. 1-97-0495
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
) the Circuit Court
Plaintiff-Appellee, ) of Cook County.
)
v. ) No. 86-C6-60369
)
JOSE CASTILLO, ) Honorable
) John A. Wasilewski,
Defendant-Appellant. ) Judge Presiding.
JUSTICE THEIS delivered the opinion of the court:
Defendant, Jose Castillo, was charged by information with two
counts of murder and one count of armed violence (Ill. Rev. Stat.
1983, ch. 38, pars. 9-1(a)(1),(a)(2), 33A-2) for the death of David
Flores, which occurred on May 11, 1986. Defendant fled Illinois and
was extradited from Texas in 1995. Following a jury trial, defendant
was convicted of murder. The court sentenced defendant to 27 years'
imprisonment, with credit for 430 days served and the sentence to run
concurrently with a nine-year sentence for violation of bail bond on
the murder charge. Defendant filed a late notice of appeal, which was
allowed by the appellate court. On appeal, defendant asserts two
trial errors: (1) the circuit court erred by refusing to provide an
involuntary manslaughter instruction to the jury; and (2) the court
erred in its determination that defendant knowingly waived his right
to submit a voluntary manslaughter instruction given defendant's
language barrier. For the following reasons, we affirm.
The trial began September 11, 1996. After opening arguments, the
State and the defense entered stipulations regarding pathology and
forensic evidence. The parties stipulated that David Flores' death
was caused by a gunshot wound to the chest and there was no evidence
of close-range firing of the gun.
The State then called three eyewitnesses. Betty Lou Watts, then
known as Betty Helmar (Watts), testified that on May 10, 1986, she
went to Jose's Bar, located in Chicago Heights, Illinois, to meet
David Flores. Around one o'clock that next morning, a man, whom Watts
identified in court as defendant, approached Flores. The two men
began arguing in Spanish and ended up in a scuffle. After others
broke up the fight, the bar owner asked defendant to leave the bar.
Soon thereafter, Watts and Flores prepared to leave the bar.
When they got outside, Flores told Watts to go home with some friends.
Flores then went to the parking lot because defendant had called him
out there. According to Watts, the two again started scuffling and
wrestling on the ground. While they were wrestling, Watts turned her
head to speak to someone. Watts next heard a gunshot and, when she
turned back around, Watts saw Flores on the ground and defendant, at
least 10 feet away, pointing the gun at Flores. Defendant then shot a
second time. Watts ran over to shield Flores and told defendant not
to shoot Flores anymore. Defendant dropped his hand down and ran
toward the alley.
The State then called Augustine Falcon, who was 16 years old at
the time and a member of the band playing at Jose's Bar that evening.
In the early morning hours of May 11, 1986, Falcon observed an
argument between defendant and Flores in which the two were yelling
and pushing each other. After the fight was broken up, Falcon saw
defendant walk outside. After one minute passed, defendant returned
to the bar and said to Flores in Spanish, "[L]et's settle this."
Flores responded, "[L]et's go." Defendant walked out the door and
Flores followed.
Falcon, along with other bar patrons, walked outside and observed
defendant with his arm out and a gun in his hand. Flores was
standing, with his arms to his side, about 10 to 15 feet in front of
defendant. Falcon then saw defendant shoot Flores twice, one shot
right after the other. After the two shots were fired, Flores fell
and Watts ran over and covered Flores with her body. Falcon then saw
defendant run toward the alley, and Falcon ran back into the bar to
see if anyone had called the police. Falcon further testified that he
had seen Flores and defendant at parties and drinking together
numerous times.
Joy Franklin, a bartender at Jose's Bar, corroborated the fight
in the bar between defendant and Flores. Franklin testified that,
after the fight was broken up, defendant left the bar but returned a
minute or two later and waved someone outside. Franklin did not go
outside and the next thing she knew she heard two gunshots, one right
after the other. Franklin prepared to leave with her friend and
defendant's cousin, Julianna Castillo, when Falcon came into the bar
and said someone had been shot.
The two women went to Franklin's car. As they were driving past
the alley, Franklin heard a whistle. Franklin recognized Nowie Torrez
and defendant coming from the alley and the two men ran and got into
Franklin's car. Franklin testified that, when defendant got into the
back seat, she saw a gun in the waist part of his pants. Defendant
told Franklin to take him to Chicago and she responded that she would
take defendant to his brother's. Shortly thereafter, they were
stopped by the police. The State then rested its case in chief.
Defense counsel called two investigators who testified to prior
inconsistent statements by Augustine Falcon and Betty Watts.
Defendant then testified on his own behalf. On the night of May 11,
1986, defendant went with his friend, nicknamed "El Machine," to
Jose's Bar. Defendant was having a beer at the bar when Flores
approached and said he wanted to fight defendant. Defendant had seen
Flores before but was not acquainted with him, and the two had never
had a drink together. Defendant smelled alcohol on Flores' breath.
When defendant told Flores that he must have mistaken defendant for
someone else, Flores hit defendant in the shoulder. Defendant did not
hit back but simply left the bar.
As defendant was going to his car, Flores "got to [defendant]" in
the parking lot and pushed defendant's shoulder again. The men again
started to struggle when defendant noticed Flores had a small gun.
Defendant then testified as follows:
"Q. What did you do when he pointed [the gun]
at you?
A. I grabbed his hand.
Q. When you grabbed his hand, what happened
then?
A. One shot fired.
Q. Who fired that shot, you or the other man?
A. The guy with the gun in his hand.
Q. What happened after he fired the shot?
A. I grabbed the hand like this (indicating)
and I took the gun away from him.
Q. Did you actually take the gun from him?
Did you disarm him?
A. Yes.
Q. What happened after you disarmed the man
that took the shot at you?
A. He grabbed my hand and he pulled it and
another shot fired.
Q. Now, when he pulled your hand, did you
ever try to pull your hand away from him?
A. No."
Flores ripped defendant's shirt and then fell to the ground.
Defense counsel introduced defendant's ripped shirt into evidence and
defendant demonstrated the struggle for the jury. Defendant testified
that he neither aimed the gun at Flores nor intentionally pulled the
trigger to shoot him. After Flores fell, defendant stood surprised
for a moment. Then defendant walked away with the gun still in hand.
Defendant kept the gun because he was afraid the patrons who had
exited the bar might shoot him if he left the gun behind.
Defendant did not return to his car because he was stunned and
scared. Instead, defendant got into Joy Franklin's car. Franklin,
defendant's sister-in-law, and two men were already in the car. After
driving a few blocks, they were stopped by the police. When the
passengers were exiting the car, the gun fell and fired. On cross-
examination, defendant explained that his hand was two arms' lengths
away from Flores' chest when the gun went off. Defendant also
explained that, in the car, he had given the gun to one of the other
men. There were final stipulations regarding two bulletholes found in
doors of the transmission shop next to Jose's Bar and that the bullet
found in the transmission shop was fired from the same gun that fired
the bullet found in David Flores. The defense then rested. After
closing arguments and deliberations, the jury returned a guilty
verdict for murder. The court sentenced defendant to 27 years'
imprisonment.
On appeal, defendant first argues that the court's refusal to
give defendant's tendered jury instruction on involuntary manslaughter
deprived defendant of a fair trial. The State counters that defendant
has waived review of this issue by failing to include it in his post
trial motion. We agree with defendant, however, that substantial
defects in jury instructions are not waived for purposes of appeal by
the failure to make timely objections if the interests of justice so
require. 134 Ill. 2d R. 451(c); People v. Redd, 173 Ill. 2d 1, 41-42,
670 N.E.2d 583, 602 (1996). Thus, we review defendant's claim that
the circuit court erred by failing to instruct the jury on defendant's
tendered involuntary manslaughter instruction.
The decision to give a specific jury instruction lies within the
province of the circuit court and that decision will not be reversed
absent an abuse of discretion. People v. Garcia, 165 Ill. 2d 409,
432, 651 N.E.2d 100, 111 (1995); People v. Kidd, 295 Ill. App. 3d 160,
167, 692 N.E.2d 455, 460 (1998); People v. Austin, 133 Ill. 2d 118,
124, 549 N.E.2d 331, 333-34 (1989) (voluntary manslaughter instruction
within discretion of the trial court). An involuntary manslaughter
instruction should be given when there is some credible evidence in
the record that would reduce the crime of first-degree murder to
involuntary manslaughter. People v. DiVincenzo, No. 82942, slip op.
at 6 (June 18, 1998). "Where some evidence supports the instruction,
the circuit court's failure to give the instruction constitutes an
abuse of discretion." DiVincenzo, No. 82942, slip op. at 6, citing
People v. Jones, 175 Ill. 2d 126, 132, 676 N.E.2d 646, 649 (1997).
Whether an involuntary manslaughter instruction is warranted in
any given case turns on the particular facts and circumstances.
Involuntary manslaughter requires a less culpable mental state than
first-degree murder. DiVincenzo, No. 82942, slip op. at 6. Under the
relevant provisions of the Illinois Criminal Code of 1961, as they
existed in 1983, murder required proof that defendant intended to kill
or do great bodily harm, or knew that such acts created a strong
probability of death or great bodily harm. Ill. Rev. Stat. 1983, ch.
38, pars. 9-1(a)(1), (a)(2). In contrast, involuntary manslaughter
required proof that defendant's actions, though not intended to kill
an individual, were nevertheless likely to cause death or great bodily
harm to some individual and were performed recklessly. Ill. Rev.
Stat. 1983, ch. 38, par. 9-3(a).
According to defendant's account, Flores drew a gun and pointed
it at defendant. Defendant grabbed Flores' hand and one shot went
off. Defendant then wrested the gun away from Flores. Flores then
grabbed defendant's hand and a second shot fired. During the
instructions conference, defense counsel posited that defendant's act
of grabbing the loaded gun could be construed as reckless and thereby
warranted an involuntary manslaughter instruction. The State
objected, arguing that, if the defendant's testimony were to be
believed, his actions would constitute self-defense or an accidental
occurrence, neither of which would warrant a recklessness instruction.
Agreeing with the State, the court determined that, if the jury
believed the defendant's version, he would be found not guilty. The
court decided there was no reckless act and the evidence did not
support an involuntary manslaughter instruction.
On appeal, defendant concedes that his defense at trial was one
of self-defense. Nevertheless, both trial and appellate counsel have
attempted to define various acts by the defendant as reckless. While
trial counsel argued that defendant's grabbing of the loaded gun
constituted the reckless act, on appeal appellate counsel modified
defendant's position to suggest during oral argument that defendant
acted recklessly when he obtained the gun and continued to struggle
with Flores over the loaded gun.
Even construing defendant's version of the events in the light
most favorable to defendant, we agree with the circuit court's
determination that defendant's acts cannot be construed as even slight
evidence of recklessness. Factually, this case is distinguishable
from other cases in which the defendant was entitled to a recklessness
instruction when defendant introduced a gun into the argument, pointed
the loaded gun at another, and then the gun was discharged after a
struggle. People v. Roberts, 265 Ill. App. 3d 400, 403, 638 N.E.2d
359, 361 (1994) (defendant drew a gun from jacket pocket and victim
was shot during the ensuing struggle); People v. Austin, 207 Ill. App.
3d 896, 898, 566 N.E.2d 492, 493 (1990) (on remand, defendant entitled
to involuntary manslaughter instruction when gun she drew and held on
bus driver fired and killed bus driver during struggle); People v.
Consago, 170 Ill. App. 3d 982, 986, 524 N.E.2d 989, 992 (1988)
(defendant drew a gun from desk drawer and victim killed by bullet as
she reached for the gun); People v. Sibley, 101 Ill. App. 3d 953, 956,
428 N.E.2d 1143, 1145 (1981) (defendant, who had drawn gun and held it
on father, shot boy when struggling with boy's father). In those
cases, defendant was entitled to an involuntary manslaughter
instruction because defendant's actions as the initial aggressor could
be construed as reckless.
Here, the trial court properly refused to give an involuntary
manslaughter instruction to the jury as the facts did not support a
conclusion of reckless conduct by the defendant. According to
defendant's version, Flores was the initial aggressor in both the bar
and parking lot encounters. In the parking lot encounter, defendant
intentionally obtained the gun in an attempt to protect himself.
Moreover, defendant's continued struggle over the loaded gun merely
continued defendant's intentional defense of self. The court
correctly determined that defendant's version supported either a
murder conviction or a finding of not guilty.
The second and final issue on appeal is whether the circuit court
properly determined that defendant, given his language barrier,
knowingly waived his right to submit a voluntary manslaughter
instruction. Again, the State argues defendant waived review of this
issue because it was not included in defendant's post trial motion.
And again, defendant requests plain-error review of the instruction
issue. 134 Ill. 2d R. 451(c); People v. Redd, 173 Ill. 2d 1, 41-42,
670 N.E.2d 583, 602 (1996).
We begin by noting the distinction between waiver of a
defendant's right and defendant's exercise of his decision not to
pursue an available trial "strategy." Certain trial decisions belong
solely to defendants, among them, whether to appeal, what plea to
enter, whether to waive a jury trial, and whether to testify. People
v. Brocksmith, 162 Ill. 2d 224, 227, 642 N.E.2d 1230, 1232 (1994),
citing People v. Ramey, 152 Ill. 2d 41, 54, 604 N.E.2d 275, 281
(1992). The decision to tender an instruction on a lesser-included
offense also belongs to defendant rather than to defense counsel.
Brocksmith, 162 Ill. 2d at 229, 642 N.E.2d at 1232. Not all such
trial decisions are treated equally, however.
In People v. Smith, 176 Ill. 2d 217, 234-35, 680 N.E.2d 291, 303
(1997), our supreme court explained that, while the trial court may be
required by rule or statute to advise defendants of certain rights or
to document an on-the-record waiver of those rights, other trial
decisions by defendants do not require such scrutiny. In particular,
while valid jury waivers and voluntary guilty pleas require certain
court admonishments, the Smith court determined that a defendant's
decision on whether to testify does not require the circuit court's
scrutiny. Smith, 176 Ill. 2d at 234, 680 N.E.2d at 302-03, citing 725
ILCS 5/103-6 (jury waiver), 113-4(c) (voluntary guilty plea) (West
1994). Thus, the circuit court "is not required to advise a defendant
of his right to testify, to inquire whether he knowingly and
intelligently waived that right, or to set of record defendant's
decision on this matter." Smith, 176 Ill. 2d at 235, 680 N.E.2d at
303.
We find the reasoning of Smith equally applicable to a
defendant's decision regarding whether to submit an instruction on a
lesser-included offense to the jury. See People v. Gramc, 271 Ill.
App. 3d 282, 289-90, 647 N.E.2d 1052, 1057 (1995). Consequently, we
find that the circuit court is not required to advise a defendant of
the right to make that decision, to inquire whether the defendant
knowingly and intelligently waived that decision, or to set of record
the defendant's decision on the matter. See Smith, 176 Ill. 2d at
235, 680 N.E.2d at 303.
In this case, however, the circuit court endeavored to set of
record defendant's decision to forego a voluntary manslaughter
instruction. Thus, we have been asked to review the court's
determination of whether defendant exercised that decision in an
informed manner. In conducting that review, we find that defendant's
asserted confusion regarding the voluntary manslaughter instruction is
belied by the full record, which demonstrates the court's thorough
examination of defendant's decision to forego the voluntary
manslaughter instruction.
Before the defense rested, the court outlined to the parties the
status of the case and acknowledged the defense strategy of not
requesting a voluntary manslaughter instruction. The court then
confirmed that intended strategy with defense counsel. Defense
counsel indicated he had spoken with both defendant and defendant's
wife regarding whether to tender the voluntary manslaughter
instruction. The court then questioned defendant as to whether he had
discussed the instruction with his attorney and defendant indicated he
had. The court then reviewed at length the available sentencing
options for voluntary manslaughter versus first-degree murder.
Afterward, the record then indicates a three-page colloquy between the
court and defendant regarding the voluntary manslaughter instruction.
Although defendant is correct that he exhibited some confusion, that
confusion seemed to concern the logistics of the court instructing the
jury on both murder and voluntary manslaughter. After repeating the
question and explaining defendant's choice several times, the court
determined that defendant understood the all-or-nothing strategy and
had exercised his decision to pursue that line of defense. Upon
review of the full record, we find that the circuit court properly
determined that defendant knowingly exercised his decision to forego a
voluntary manslaughter instruction.
In conclusion, we find no error in the circuit court's decision
not to give an involuntary manslaughter instruction or in its
determination that defendant knowingly exercised his decision to
forego a voluntary manslaughter instruction.
Affirmed.
HARTMAN and HOURIHANE, JJ., concur.