Where some evidence supports the instruction, the circuit court's failure to give the instruction constitutes an abuse of discretion. A defendant commits involuntary manslaughter when, without lawful justification, he unintentionally kills an individual by recklessly performing acts that are likely to cause death or great bodily harm. For purposes of involuntary manslaughter, a person acts recklessly when he consciously disregards a substantial and unjustifiable risk that his acts are likely to cause death or great bodily harm to another. Defendant contends that there was some evidence that he acted recklessly in causing the victim's death. Defendant first argues that his own testimony contained some evidence that his struggle with the victim over the gun was reckless.
Defendant is incorrect.
In order for this act to be reckless, defendant must have consciously disregarded a substantial and unjustifiable risk that the act would cause death or great bodily harm. The only evidence in defendant's testimony that he suggests is evidence of recklessness is that he struggled with the victim after the victim drew a gun and threatened to injure him. This testimony, however, was not evidence of recklessness, but was instead some evidence that defendant acted with regard to a justifiable risk of injuring the victim in order to protect himself. The evidence contained in defendant's own testimony thus did not warrant an involuntary manslaughter instruction. Second, defendant argues in the alternative that some evidence existed that, contrary to his own testimony, he himself produced the gun during the struggle, rather than the victim.