People v. Dower

578 N.E.2d 1153, 218 Ill. App. 3d 844, 161 Ill. Dec. 507, 1991 Ill. App. LEXIS 1445
CourtAppellate Court of Illinois
DecidedAugust 26, 1991
Docket1-88-1646
StatusPublished
Cited by15 cases

This text of 578 N.E.2d 1153 (People v. Dower) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Dower, 578 N.E.2d 1153, 218 Ill. App. 3d 844, 161 Ill. Dec. 507, 1991 Ill. App. LEXIS 1445 (Ill. Ct. App. 1991).

Opinion

JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises from a jury verdict finding defendant, Frank Dower, guilty of murder. Defendant was sentenced to 40 years’ imprisonment. Defendant contends that (1) the voluntary manslaughter instruction erroneously stated the burden of proof on the issue of whether he acted under a reasonable belief in self-defense; (2) improper comments made by the prosecution in closing and rebuttal arguments deprived him of a fair trial; (3) his conviction should be reversed because the trial court refused to instruct the jury on a lesser included offense; (4) his guilt was not proved beyond a reasonable doubt because the evidence supports a conviction for voluntary manslaughter, not murder; and (5) the trial court abused its discretion in imposing a 40-year sentence on defendant.

On December 4, 1986, Officer James O’Donnell and Officer Joseph Edisic found the body of Constance Dillon in the apartment located at 4126 West 24th Place in Chicago. Officer Frank DeMarco of the Chicago police department crime laboratory testified that he went to the apartment and found the victim facedown on the bed with her head on the bed and her feet and legs on the floor. Alongside the bed on the floor, police found a metal blade knife with a wooden handle on the opposite side of the bed from where the victim was found, approximately six feet away from her. Officer DeMarco examined the knife and found no blood and no fingerprints on it. Additionally, there was no blood or brain matter on the floor near where the knife was found.

Officer Terrence Thedford was assigned to investigate the murder. In an attempt to find defendant, Thedford went to the home of a woman who the officer thought might know where defendant was, to defendant’s recent places of employment and to defendant’s mother’s home. Defendant was not at any of these places. Thedford also went to defendant’s sister’s and brother’s homes and spoke with them. Defendant was not there and his sister and brother did not know where he was.

At 2:30 p.m., defendant turned himself in to a newscaster and was taken to the police department. Defendant revealed where he had thrown the gun. Police found a .38 revolver where defendant indicated it would be. The gun contained one spent bullet casing and one live bullet.

At 6:30 p.m., Assistant State’s Attorney Kelley informed defendant of his Miranda rights. Defendant told Kelley that prior to the shooting, he had been out with his friends drinking alcohol and snorting cocaine. Defendant claimed to have arrived home at 12:30 a.m. Defendant asserted that the victim was waiting for him at the back door. The couple argued about defendant being out late. Thereafter, defendant ate something and retired to the bedroom to watch television. Defendant claimed to have fallen asleep and awakened to find the victim standing over him with a knife. Defendant and the victim argued about the paternity of their youngest son. Defendant stated that the victim never raised or threatened him with the knife, but that she always kept it at her side. Defendant did not believe that he was the father of the child, so defendant and the victim continued to argue. During the argument, defendant reached under the mattress, pulled out the .38 revolver and shot the victim.

After Kelley and the police retrieved the gun, Kelley took a handwritten statement from defendant. Defendant explained what had happened and Kelley wrote it down; Kelley did not ask any questions during this time. Defendant and his mother read the statement out loud, made corrections and initialed the changes. Both defendant and defendant’s mother signed the statement.

After the close of the evidence at trial, the court denied defendant’s request to submit Illinois Pattern Jury Instructions, Criminal, Nos. 7.03 and 7.04 (2d ed. Supp. 1987) (hereinafter IPI Criminal 2d), which are the instructions for voluntary manslaughter where the defendant suffers from sudden intense passion resulting from serious provocation by the victim. Instead, the jury received instructions for voluntary manslaughter where the defendant unreasonably believed circumstances did exist which would justify the killing of the victim.

The Illinois Supreme Court held in People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, that IPI Criminal 2d No. 7.04 (voluntary manslaughter — provocation) and Criminal 2d No. 7.06 (voluntary manslaughter — belief of justification) erroneously state the burdens of proof on the issues of whether a defendant acted under sudden intense passion or unreasonable belief in justification. (Reddick, 123 Ill. 2d at 194, 526 N.E.2d at 145.) The Illinois Supreme Court found that either of the above IPI voluntary manslaughter instructions, when read in conjunction with the instruction for murder, fails to inform the jury that the burden to disprove the particular mitigating mental state rests upon the State. (Reddick, 123 Ill. 2d at 197, 526 N.E.2d at 145.) In People v. Shields (1991), 143 Ill. 2d 435, the Illinois Supreme Court held that because the holding in Reddick is of constitutional dimension and because the appeals before it were pending on direct review when Reddick was decided, the Reddick decision applies retroactively. (Shields, 143 Ill. 2d at 445.) Similarly, we find that since this case was on direct appeal when Reddick was decided and since the Shields court found that the giving of the disputed instructions together is of constitutional dimension, Reddick applies retroactively to the case at bar.

Reddick, however, does not mandate automatic reversal of convictions arising from trials in which the disputed instructions were given. (Shields, 143 Ill. 2d at 445.) In determining the effect of faulty jury instructions on the validity of a defendant’s conviction, the instructions should not be judged in artificial isolation but must be considered in light of the record as a whole, including the evidence and arguments presented to the jury. (Shields, 143 Ill. 2d at 445-46; Cupp v. Naughten (1973), 414 U.S. 141, 146-47, 38 L. Ed. 2d 368, 373, 94 S. Ct. 396, 400.) Furthermore, the errors identified in Reddick may be harmless. (Shields, 143 Ill. 2d at 446-47; People v. Austin (1989), 133 Ill. 2d 118, 123-24, 549 N.E.2d 331; People v. Harris (1989), 132 Ill. 2d 366, 395, 547 N.E.2d 1241, 1254.) Constitutional errors may be deemed harmless if it can be shown that the errors were harmless beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 828.) The Illinois Supreme Court, in determining Shields, used the Chapman harmless error test to determine whether a retrial was necessary. Shields, 143 Ill. 2d at 447.

Those same principles of review apply to the circumstances in the case at bar. Here, defendant was found guilty of murder. Defendant claims that he was awakened by the victim standing over him with a knife in her hands. Defendant asserts that he and the victim argued about the paternity of their child. While arguing, defendant pulled out a gun and shot the victim.

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Cite This Page — Counsel Stack

Bluebook (online)
578 N.E.2d 1153, 218 Ill. App. 3d 844, 161 Ill. Dec. 507, 1991 Ill. App. LEXIS 1445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dower-illappct-1991.