{ "id": 2575563, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHERRY WHITERS, Defendant-Appellant", "name_abbreviation": "People v. Whiters", "decision_date": "1990-09-28", "docket_number": "No. 1\u201487\u20142644", "first_page": "334", "last_page": "342", "citations": [ { "type": "official", "cite": "204 Ill. App. 3d 334" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "133 N.E.2d 859", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "301 Ill. 307", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5016776 ], "opinion_index": 0, "case_paths": [ "/ill/301/0307-01" ] }, { "cite": "424 N.E.2d 429", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1921, "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 753", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499861 ], "year": 1921, "pin_cites": [ { "page": "757" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0753-01" ] }, { "cite": "82 N.E.2d 198", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "201" } ], "opinion_index": 0 }, { "cite": "229 Ill. 81", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5630040 ], "pin_cites": [ { "page": "89" } ], "opinion_index": 0, "case_paths": [ "/ill/229/0081-01" ] }, { "cite": "430 N.E.2d 358", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1907, "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 761", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3071717 ], "year": 1907, "pin_cites": [ { "page": "768" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0761-01" ] }, { "cite": "396 N.E.2d 274", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 569", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3288610 ], "pin_cites": [ { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0569-01" ] }, { "cite": "106 S. Ct. 139", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1987, "opinion_index": 0 }, { "cite": "88 L. Ed. 2d 114", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "474 U.S. 847", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6356578, 6355363, 6357005, 6355181, 6357965, 6357713, 6356051, 6355800, 6355571, 6357462, 6357208, 6356761, 6356219, 6356382 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/474/0847-08", "/us/474/0847-02", "/us/474/0847-10", "/us/474/0847-01", "/us/474/0847-14", "/us/474/0847-13", "/us/474/0847-05", "/us/474/0847-04", "/us/474/0847-03", "/us/474/0847-12", "/us/474/0847-11", "/us/474/0847-09", "/us/474/0847-06", "/us/474/0847-07" ] }, { "cite": "478 N.E.2d 335", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "106 Ill. 2d 186", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138004 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/106/0186-01" ] }, { "cite": "460 N.E.2d 824", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "122 Ill. App. 3d 13", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3523312 ], "year": 1985, "pin_cites": [ { "page": "23-24" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0013-01" ] }, { "cite": "333 N.E.2d 497", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "30 Ill. App. 3d 1034", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2625818 ], "pin_cites": [ { "page": "1037" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/1034-01" ] }, { "cite": "553 N.E.2d 1128", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "pin_cites": [ { "page": "1132" } ], "opinion_index": 0 }, { "cite": "197 Ill. App. 3d 162", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2482722 ], "year": 1975, "pin_cites": [ { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0162-01" ] }, { "cite": "522 N.E.2d 1249", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "119 Ill. 2d 563", "category": "reporters:state", "reporter": "Ill. 2d", "weight": 3, "opinion_index": 0 }, { "cite": "516 N.E.2d 766", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1988, "opinion_index": 0 }, { "cite": "163 Ill. App. 3d 497", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3547343 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "504" }, { "page": "505" }, { "page": "505-06" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/163/0497-01" ] } ], "analysis": { "cardinality": 799, "char_count": 16111, "ocr_confidence": 0.757, "pagerank": { "raw": 8.231899763276036e-08, "percentile": 0.4773573671669661 }, "sha256": "9d845f24f763ad5a49b71a297ea13b955dce7e02f028814f3cd67fa374654f4a", "simhash": "1:120f79963909c592", "word_count": 2665 }, "last_updated": "2023-07-14T21:36:30.653748+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHERRY WHITERS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE O\u2019CONNOR\ndelivered the opinion of the court:\nSherry Whiters was charged with murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 \u2014 1(a)(2)) and convicted of voluntary manslaughter for the stabbing death of Cecil Barker. Whiters and Barker sporadically lived together for nine months. However, they apparently dated others during this period.\nAt trial, Shirley Hargrove testified that she had lived with Barker for approximately six to seven years. Specifically, she testified that on February 13, 1987, one day before his death, Barker visited her to discuss that she was seeing another man. During Barker\u2019s visit, an argument ensued and Barker slapped her in the face, hurting her mildly. Subsequently, Barker was arrested and charged with battery.\nWhiters testified that she went to the police station the next day, February 14, to help get Barker released. But as she was entering the station, Barker was leaving. They rode a bus together to Whiters\u2019 apartment. While on the bus, Barker allegedly told Whiters what had occurred the night before. When the defense attorney asked what Barker said on the bus, the assistant State\u2019s Attorney objected, and the court sustained the objection on the grounds that it was hearsay. The defense attorney made an offer of proof outside the jury\u2019s presence, and Whiters testified that Barker told her that he \u201cbeat that bitch\u2019s [Hargrove\u2019s] ass and that he was hitting her with his fist and kicking her in her stomach and in her pussy.\u201d She also testified that Barker said that he \u201cpistol whipped her [Hargrove] \u2014 trying to kick her pussy out.\u201d\nIt is uncontested that Barker spent that night in Whiters\u2019 apartment and left the morning of February 15. Later, Barker returned to Whiters\u2019 apartment between 2 and 3 p.m. Between 3 and 4 p.m., Whiters\u2019 aunt, Erma Allen, arrived. Sometime after 4 p.m., Barker and Whiters argued and fought intermittently for the next four hours. At one point, Barker approached Whiters and asked her to dance. When Whiters refused, Barker tried to put his arms around her, and she pushed him away. This activity continued for about 20 to 30 minutes. Later, Whiters went to her bedroom to change clothes because she was going to walk Erma Allen home and planned to meet another man.\nSubsequently, Barker followed Whiters into her bedroom and they argued about Whiters walking Erma Allen home. During the argument, Barker allegedly forced Whiters onto the bed, held both of her hands over her head with one hand, used his other hand to remove her pants, and forcibly had sexual intercourse with her. However, in Whiters\u2019 post-arrest statement to Assistant State\u2019s Attorney Cuomo, Whiters stated that the intercourse was consensual. While Whiters was in the bedroom, the phone rang. When Whiters attempted to answer the phone, which was located in the kitchen, Barker allegedly pulled the phone off the wall. Then, Barker and Whiters began to argue again, and Barker allegedly pushed Whiters against the washing machine and bent over her as he choked her. Whiters was apparently able to push him off and told him to leave. When Barker reached the front door, he dropped a bag that contained his belongings, approached Whiters in the kitchen, and started arguing with her again. He allegedly grabbed her arm and twisted it behind her back. Whiters then apparently broke loose, and Barker said that \u201che was going to kick her ass.\u201d Then, Whiters grabbed a knife, pointed it towards Barker, and told him to go home. As Barker moved towards Whiters, she stabbed him in the abdomen. Whiters caught Barker before he fell to the floor, and said, \u201c[0]h, my God, I didn\u2019t mean it.\u201d Then, Whiters ran to call an ambulance. Barker died several hours later. Whiters alleged that she stabbed Barker in self-defense.\nOfficer Coffman testified that he questioned Whiters at the police station after the stabbing. The officer testified that Whiters said that \u201cBarker pushed her around, grabbed her by the arm and pulled her around the apartment; that [t]hey were in the kitchen; [s]he picked up a kitchen knife, she held it out towards him and he got stabbed.\u201d Additionally, the officer noticed that Whiters\u2019 skin on her arm was discolored and that there were not any other visible marks. At the police station, Whiters also gave Assistant State\u2019s Attorney Cuomo a statement, wherein she stated that the sexual intercourse with Barker was voluntary and that, as Barker came towards her during an argument, she grabbed a knife and stuck it into Barker\u2019s abdomen.\nAlso at trial, Erma Allen testified that she had been at Whiters\u2019 apartment since about 3 p.m.; that Whiters and Barker argued while she was there; that she saw Barker trying to pull Whiters\u2019 pants off in Whiters\u2019 bedroom; that Barker \u201csnapped\u201d the phone; that when Barker packed his clothes in a bag, he dropped it at the front door, approached Whiters, started arguing with her again, and twisted Whiters\u2019 arm; and that Whiters\u2019 said \u201cshe didn\u2019t mean it.\u201d\nDuring the State\u2019s case in chief, Barker\u2019s mother testified that they had a \u201cvery good relationship,\u201d and Barker\u2019s stepfather testified that he had an \u201cokay\u201d relationship with Barker. The State continued to question Barker\u2019s stepfather, as stated below:\n\u201cQ. Did you ever have any trouble with him [Barker] of an extraordinary nature?\nDEFENSE ATTORNEY: Objection.\nASSISTANT STATE\u2019S ATTORNEY: His character has been put into the trial. He can\u2019t testify himself. He\u2019s dead.\nTHE COURT: Objection overruled based upon issues placed in the trial in opening statements. You may answer, sir.\nQ. What kind of son was he? How did you get along with him?\nA. We got along okay.\nQ. Did you have any extraordinary difficulties with him, anything out of the ordinary?\nA. No.\nDEFENSE ATTORNEY: Objection.\nTHE COURT: Overruled.\u201d\nWhen the State cross-examined Hargrove, she testified that Barker was a loving person; and Barker\u2019s employer testified that Barker was a good employee.\nIn rebuttal, the State\u2019s questions to Barker\u2019s employer were as follows:\n\u201cQ. Sir, during that period of two years that Mr. Barker worked for you did you ever see or hear of any complaint whatsoever as to violence on his part?\nDEFENSE ATTORNEY: Objection.\nTHE COURT: Overruled. You may answer.\nA. No, none whatsoever.\nQ. During that two year period, sir, did you ever hear any complaint about him misusing a weapon that he used in the course of his employment?\nDEFENSE ATTORNEY: Objection.\nTHE COURT: Objection overruled. He may answer.\nA. Definitely not.\nQ; During that two-year period, sir, did you ever see Mr. Barker drunk?\nA. Nope.\nQ. During that two-year period, sir, did you ever receive any complaints from anyone that he was intoxicated while working?\nA. No, no, I didn\u2019t.\nDEFENSE ATTORNEY: Objection.\nTHE COURT: Overruled.\u201d\nThe jury found Whiters guilty of voluntary manslaughter. Whiters appeals.\nInitially, Whiters argues that the trial court erred in refusing to instruct the jury on involuntary manslaughter because if the jury believed Whiters\u2019 testimony that she grabbed the knife only to fend off Barker, rather than intending to kill him, the jury could have concluded that picking up the knife during a domestic quarrel was reckless within the statutory definition and that her reckless act caused Barker\u2019s death. We agree. In order to warrant an involuntary manslaughter instruction, there must be some evidence of \u201creckless\u201d conduct. (Ill. Rev. Stat. 1985, ch. 38, par. 9 \u2014 3(a); People v. Ford (1987), 163 Ill. App. 3d 497, 504, 516 N.E.2d 766, appeal denied (1988), 119 Ill. 2d 563, 522 N.E.2d 1249.) Recklessness is defined by section 4 \u2014 6 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 4 \u2014 6) as follows:\n\u201cA person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.\u201d Ill. Rev. Stat. 1985, ch. 38, par. 4 \u2014 6.\nAt issue, then, is whether the record contains any evidence of acts by Whiters which, if believed by the jury, could reasonably be concluded reckless conduct, and those acts which caused Barker\u2019s death. Generally, in a murder trial, it is error to refuse instructions on manslaughter if the record holds any evidence which, if believed, would reduce the crime to a lesser offense. (People v. Gibson (1990), 197 Ill. App. 3d 162, 169, 553 N.E.2d 1128, 1132; People v. Jenkins (1975), 30 Ill. App. 3d 1034, 1037, 333 N.E.2d 497.) The trial court committed reversible error by refusing the involuntary manslaughter instruction when the following evidence existed by Whiters\u2019 testimony as well as Erma Allen\u2019s: that Whiters and Barker were quarreling; that Barker had ripped the telephone off the wall; that Barker physically assaulted Whiters; that Whiters grabbed a kitchen knife and held it at her waist; that Barker approached Whiters; that she screamed, \u201c[0]h my God, I didn\u2019t mean it\u201d after Barker was stabbed and fell to the ground; and that Whiters attempted to summon help immediately. Consequently, if the jury believed Whiters, it could have concluded that she knew or should have known that pointing the knife at Barker in the middle of an obviously heated verbal and physical domestic quarrel created the strong possibility of death or great bodily harm. Whether this evidence establishes recklessness, rather than intent to kill, is ultimately a question of fact for the jury. Accordingly, we conclude that this case must be remanded for a new trial, in which the court below shall instruct the jury on involuntary manslaughter.\nDespite the necessity of a new trial, we address other issues because they are likely to come up again upon retrial.\nWhiters argues that the trial court improperly instructed the jury because non-IPI instructions were given. We disagree. The trial court did not err in its jury instructions when it determined that the original IPI Criminal 2d No. 26.01 would avoid juror conflict and confusion. (Illinois Pattern Jury Instructions, Criminal, No. 26.01 (2d ed. 1981) (hereinafter IPI Criminal 2d).) Although IPI Criminal 2d No. 26.01 recommends that separate guilty and not guilty verdict forms be submitted to the jury on both murder and voluntary manslaughter, the trial court is not obligated to give a not guilty verdict form for each charge (People v. Ford (1987), 163 Ill. App. 3d 497, 505, 516 N.E.2d 766, appeal denied (1988), 119 Ill. 2d 563, 522 N.E.2d 1249), because inconsistent verdicts and juror confusion have resulted from the use of separate forms. (People v. Hoffer (1984), 122 Ill. App. 3d 13, 23-24, 460 N.E.2d 824, aff\u2019d (1985), 106 Ill. 2d 186, 478 N.E.2d 335, cert. denied (1985), 474 U.S. 847, 88 L. Ed. 2d 114, 106 S. Ct. 139.) Accordingly, this court has held that using the original form of IPI Criminal 2d No. 26.01 is not error. People v. Ford (1987), 163 Ill. App. 3d 497, 505-06, 516 N.E.2d 766, appeal denied (1988), 119 Ill. 2d 563, 522 N.E.2d 1249.\nFurther, Whiters argues that she was denied a fair trial because the trial court excluded her testimony regarding a conversation she had with Barker on the bus the day before his death. Whiters contends that the testimony was admissible to demonstrate Barker\u2019s state of mind and the effect the conversation had on her state of mind. We disagree. Whiters\u2019 testimony regarding the alleged conversation was not admissible to show Barker\u2019s state of mind because there was no reasonable probability that the testimony was truthful. Extrajudicial statements that demonstrate a declarant\u2019s state of mind are admissible as an exception to the hearsay rule if the declarant is unavailable and there is a reasonable probability the testimony is truthful. (People v. Goodman (1979), 77 Ill. App. 3d 569, 574, 396 N.E.2d 274.) While Barker was unavailable, there was no reasonable probability that Whiters\u2019 testimony was truthful because there was not any evidence or witnesses, other than Whiters, that corroborated that Barker allegedly told her that he \u201cbeat that bitch\u2019s [Hargrove\u2019] ass; that he was hitting her with his fist; kicking her in her stomach and in her pussy; and that he pistol whipped her [Hargrove] \u2014 trying to kick her pussy out.\u201d Additionally, the alleged conversation was too remote and irrelevant to Whiters\u2019 state of mind because Whiters\u2019 subsequent actions, such as allowing Barker to spend the night at her apartment and allowing him to return the following day, indicated that she did not feel threatened by Barker as a consequence of such statements. Moreover, according to Whiters\u2019 testimony, she did not feel threatened during their prolonged fight on February 15.\n\u201cQ. You went back into that kitchen area?\nA. Yes.\nQ. Why did you go there?\nA. I had clothes to hang up, food to turn over, I was cooking, fixing to clean up, washing.\nQ. So you were worried about cleaning off the kitchen area and taking care of the clothes?\nA. Right.\nQ. So would it be fair to say up to that point you weren\u2019t worried about Cecil Barker?\nA. I was worried about whether he was doing \u2014 you know, because he wasn\u2019t leaving.\nQ. When you walked into the kitchen area you weren\u2019t worried about Cecil Barker, were you?\nA. I was wondering how I was going to get out.\nQ. You weren\u2019t afraid about him killing you, were you?\nA. No.\nQ. You weren\u2019t afraid about him beating you, were you?\nA. I didn\u2019t know what he was going to do.\u201d\nAccordingly, the trial court properly excluded Whiters\u2019 testimony about the bus conversation.\nFinally, Whiters argues that she was denied a fair trial when testimony regarding Barker\u2019s good character and reputation was admitted into evidence in the State\u2019s case in chief and in rebuttal. We agree. The State may not present evidence of the victim\u2019s character as a quiet and peaceful man unless the defendant has first offered evidence of the victim\u2019s character as a turbulent and quarrelsome man, even where the issue of self-defense has been interposed. (People v. Lester (1981), 102 Ill. App. 3d 761, 768, 430 N.E.2d 358, citing Kelly v. People (1907), 229 Ill. 81, 89, 82 N.E.2d 198, 201.) Although the defense attorney in her opening statement stated that she intended to show Barker\u2019s violent and jealous nature, the opening statement is not evidence. In fact, the jury was instructed that the opening statement is not evidence. Accordingly, the trial court erred in allowing Barker\u2019s mother\u2019s testimony and Barker\u2019s stepfather\u2019s testimony in the State\u2019s case in chief because the defense had not first offered evidence of Barker\u2019s character. Furthermore, the trial court erred in allowing the rebuttal testimony of Barker\u2019s employer. \u201c[EJvidence of character is confined to proof of a person\u2019s general reputation, and it is error to prove character by personal opinion or specific acts.\u201d (People v. Goodwin (1981), 98 Ill. App. 3d 753, 757, 424 N.E.2d 429, citing People v. Willy (1921), 301 Ill. 307, 133 N.E.2d 859.) Consequently, the complained-of testimony was reversible error because Whiters was prejudiced by the improper character evidence that tended to rebut Whiters\u2019 claim of self-defense by the State\u2019s introduction of evidence that Barker had a peaceful character.\nFor the reasons stated above, the judgment of the circuit court of Cook County is reversed, and the case is remanded for a new trial.\nReversed and remanded.\nBUCKLEY, P.J., and CAMPBELL, J., concur.\nSubsequent to oral argument, Justice Manning recused herself. Justice Buckley read the briefs, listened to the taped oral argument and participated in the decision.", "type": "majority", "author": "JUSTICE O\u2019CONNOR" } ], "attorneys": [ "Randolph N. Stone, Public Defender, of Chicago (Alison Edwards, Assistant Public Defender, of counsel), for appellant.", "Cecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb, Gael O\u2019Brien, and Kenneth W. Goff, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHERRY WHITERS, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1 \u2014 87\u20142644\nOpinion filed September 28, 1990.\nRandolph N. Stone, Public Defender, of Chicago (Alison Edwards, Assistant Public Defender, of counsel), for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb, Gael O\u2019Brien, and Kenneth W. Goff, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0334-01", "first_page_order": 356, "last_page_order": 364 }