No. 1-12-2345

THIRD DIVISION December 30, 2015 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 09 CR 14893-01 ) AUSTIN HARMON, ) ) The Honorable Defendant-Appellant. ) Noreen V. Love, ) Judge Presiding.

______________________________________________________________________________

JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justice Fitzgerald Smith concurred in the judgment and opinion. Presiding Justice Mason specially concurred, with opinion.

OPINION

¶1 In this case, we review a first-degree murder conviction and sentence where the

defendant shot the victim in alleged self-defense or defense of others after the victim punched

one of his friends while on a public way. We hold the following:

1. The State proved beyond a reasonable doubt that defendant was not acting in self-

defense or defense of others from death or great bodily harm. Defendant's use of deadly force

was also not justified to prevent the commission of a forcible felony, as simple battery on a

public way, elevated to aggravated battery under section 12-4(b)(8) of the Criminal Code of 1-12-2345

1961 (720 ILCS 5/12-4(b)(8) (West 2008)) (now renumbered as 720 ILCS 5/12-3.05 by Pub. Act

96-1551, art. 1, § 5 eff. July 1, 2011)), does not suffice to satisfy section 2-8 to constitute a

forcible felony (720 ILCS 5/2-8 (West 2008)) of the type that would justify using deadly force

under section 7-1(a) for justified use of deadly force (720 ILCS 5/7-1(a) (West 2008)).

2. Defendant also failed to demonstrate the mitigating factors for reduction of his

conviction to second degree murder where the defendant's testimony that he believed the victim's

punch of his friend was a gunshot was incredible, and there was no other evidence that defendant

had even an unreasonable belief in self-defense or defense of others or that he was acting under

sudden and intense passion resulting from provocation.

3. The trial court erred in not allowing any questioning of a prosecution witness regarding

potential bias stemming from any hope of a deal with the State for his pending criminal charges,

but this error was harmless beyond a reasonable doubt because the testimony of the other

witnesses in the case corroborated witness's testimony and the State's case was strong overall.

4. The trial court did not abuse its discretion in sustaining several objections to defense

counsel's questions concerning what defendant thought would happen during the incident, where

the majority of the objections were on valid grounds, only one objection specifically concerned

what defendant thought would happen, and defendant otherwise testified extensively to his state

of mind.

5. Defendant did not show any reversible error in sentencing where the record as a whole

established that the court considered all relevant mitigating and aggravating factors and did not

abuse its discretion in imposing a sentence of 65 years' imprisonment.

¶2 We affirm defendant's conviction and sentence.

¶3 BACKGROUND

-2- 1-12-2345

¶4 Defendant, Austin Harmon, was found guilty of first degree murder of London Clark in a

bench trial. Defendant was sentenced to 65 years' imprisonment. The following background facts

are from defendant's and the State's briefs, the majority being from the State's brief where the

facts are presented "accurately and fairly without argument or comment" (Ill. S. Ct. R. 341(h)(6)

(eff. Feb. 6, 2013)) regarding the trial testimony, and without any argument disputing the

presentation of facts in defendant's reply brief.

¶5 On July 25, 2009, at around 7 p.m., defendant was walking with three friends through the

streets of Broadview, Illinois. Defendant was 18 years old and had just graduated from high

school. The three friends defendant was walking with were: Dion Flowers; Marcus Calloway;

and Darrell Williams.

¶6 At trial, Jason Morris testified that he was at his relative's house in the 2100 block of

22nd Avenue in Broadview around 7 p.m. on July 25, 2009. While there, he saw London Clark.

Jason was friends with London's older brother, Eddie Clark, and also knew London from the

neighborhood. London told Jason that he had just "got into it with some fugazies," which meant

fake people and is a disrespectful term. Jason and London went out and walked together on 22nd

Avenue while talking about the incident. A lot of people were outside. Jason and London then

saw the same group of individuals London was talking about when they got closer to the corner.

Jason recognized defendant, Marcus, and Dion in that group. He did not know the fourth person.

Jason testified that Marcus was wearing his hat tilted to the left, which represented a gang. Jason

testified that it seemed Marcus was looking for trouble because Marcus was never in that part of

town. Jason told Marcus to straighten his "mother f***ing" hat because Marcus' hat was tilted to

the left. Tilting one's hat to the left signifies the For Corner Hustlers, or Vice Lord, gang. Jason is

a Gangster Disciple. Dion and London were within two feet of each other at this point. Dion

-3- 1-12-2345

smirked and so London punched him in the face. Dion's legs buckled like he was going to fall,

but Dion caught himself. London stepped back after he punched Dion. Jason stepped off to the

side in a fighting stance in order to help London fight, which blocked his view of defendant, but

he heard gunshots and took off running. Jason was about 20 feet away when he noticed that

London was not next to him. Jason turned around and saw London on the ground. Defendant,

Marcus, Dion, and the fourth individual were running in the opposite direction. Jason went back

to London and used his cell phone to call an ambulance. Jason's cell phone was in a cell phone

holder connected to the belt loop on his pants. Eddie came to the area, but could not view

London in that condition, so he walked down the block and sat in his car.

¶7 The police and an ambulance arrived. Jason spoke to the police on the scene but only

provided Marcus' name at that time. Jason did not see a gun in anyone's hand that night. Jason

did not have a gun in his possession, and he did not see London with a gun either. Jason went to

the police station and viewed two separate photo arrays. Jason identified defendant and Dion as

two of the individuals who were at the scene.

¶8 On cross-examination, Jason explained that he was a member of the Gangster Disciples

gang and that defendant and his group were in Gangster Disciple territory that night. Jason

testified that it is considered disrespectful to have one's hat tilted to the left while walking

through Gangster Disciple territory. This signal indicated to Jason that Marcus wanted to start

some trouble. Jason testified that he was 6'1" tall and weighed 225 pounds in July 2009. Jason

also acknowledged that he had criminal charges pending against him at the time of trial, but that

the State did not make any promises to him in exchange for his testimony with regard to those

charges.

-4- 1-12-2345

¶9 Dion testified that he was 18 years old and a freshman in college at the time of trial, that

he grew up in the Broadview/Maywood area, and that he had known defendant since grammar

school. Dion testified that defendant was a good friend of his and that he visited him during the

pendency of this criminal case and did not want to testify against defendant but received a

subpoena to testify in court. Dion testified that Marcus was another friend of his, and that he

knew Darrell Williams, the fourth individual in the group, through Marcus. Dion testified that he

used to be involved with the Four Corner Hustlers, and that defendant and Marcus were both also

members of the Four Corner Hustlers. Darrell was associated with the Four Corner Hustlers as

well. Dion knew Jason from the neighborhood and knew that Jason was the leader of the

Gangster Disciples. Dion also knew London but not very well.

¶ 10 Dion testified that he was walking in the area of 22nd Avenue and Fillmore Street around

7 p.m. on July 25, 2009 with defendant, Marcus, and Darrell. They all wore hats tilted to the left.

Dion explained that the titled hats meant they were associated with gangs. Dion saw Jason and

London walking towards them on 22nd Avenue with angry expressions on their faces. Jason

yelled at them to "turn those mother f***ing hats straight." London said, "You all heard what he

said." Dion testified that London did not have anything in his hands, but Jason hid his hand under

his shirt like he had a gun. Dion testified that he thought he saw the butt of a gun, but that Jason

never pulled it out so he never saw it. Dion was afraid he was going to get shot but did not run

off. Instead, Dion said, "We ain't even on that," which meant that they did not want any

problems. London then punched Dion in the face. Dion stumbled, but caught himself so he did

not fall. Within a second of London lunging at him, Dion heard three or four gunshots. Dion

testified that he did not look up while the shots were being fired but looked up after he heard the

shots and saw defendant with his right arm extended and a gun in hand, and London was on the

-5- 1-12-2345

ground. Dion testified that Jason was backing away and did not have a gun in his hand. Everyone

fled. Dion never saw London with a gun either. Dion further testified that neither Jason nor

London ever threatened them with a gun. Dion also did not receive any injuries from the punch.

¶ 11 After Dion saw London on the ground and defendant holding a gun, he ran to Marcus'

house. He ran by himself and did not know where anyone else went. Defendant, Marcus, and

Darrell all ended up at Marcus' house too. All four of them went to the basement. Dion testified

that defendant was sobbing and said, "[E]veryone wants to play tough out here and getting into it

over nothing." Dion also testified that defendant may have said something to the effect the he

"may have to serve 45 years to life for this" and told Dion and the others that he would know if

someone snitched. Defendant still had the gun with him. It was a black revolver. Defendant

asked the group what he was supposed to do with it, and then he went upstairs and came back

without the gun. Dion testified that he did not know what happened to the gun. After that, he and

the group all went to a party in Bellwood.

¶ 12 Dion spoke with the police one or two days later. Initially, Dion denied knowing anything

about the shooting. Dion testified that he then had a change of heart and did not want to ruin his

career, so he told the police what happened and provided a handwritten statement. Dion admitted

that one of the reasons he told the police what really happened was because his mother was

present for the interview. Dion also admitted that he told the police and testified before the grand

jury that Jason was holding his best buckle with his shirt over it and that it looked like a gun, but

that he never actually saw a gun at the scene.

¶ 13 On cross-examination, Dion testified that it looked like Jason had a gun and that he was

afraid when Jason and London approached him. Dion stated that he took it as a threat when Jason

yelled at them to turn their hats straight.

-6- 1-12-2345

¶ 14 On redirect examination, Dion acknowledged that neither Jason nor London ever

threatened them with a weapon and that the only person he saw with a gun that night was

defendant.

¶ 15 Gene Temesvari, a resident in the neighborhood, testified that he was inside his home at

2100 S. 22nd Avenue around 7 p.m. on July 25, 2009. Gene was making coffee at that time and

observed, through his kitchen window, three African-American males between the ages of 18

and 25 walk south on Fillmore Street. After that, he heard 3 loud pops: a first pop; then a 1-to-1½

second pause, and then 2 quick more pops after that. Gene thought they were firecrackers and did

not give it much thought at the time. Gene later looked out his living room window and saw two

young men walk by who were not the same men he saw before. Gene also saw an individual on

the ground. Gene called the police but learned that a call had already been made. Gene could not

identify the three males by face.

¶ 16 Broadview police officer Klamer responded to the call of shots fired and a subject shot at

22nd and Fillmore at 7:01 p.m. on July 25, 2009. Klamer was the first officer on the scene and

observed a black male leaning over another black male on the ground. Officer Klamer

approached and the man said that "my brother was just shot." Officer Klamer learned that the

man's name was Eddie Clark and the victim's name was London Clark. Officer Klamer called for

an ambulance that transported London to Loyola Medical Center.

¶ 17 Yvette Clark testified that in July 2009 she lived in Westchester with her two sons,

London and Eddie. London was 20 years old on July 25, 2009, and was enrolled at Clafin

University, scheduled to begin in August 2009. Yvette testified that she was home around 2 p.m.

on July 25, 2009, and that London and Eddie were both also home. Yvette left for a picnic

around 2:30 p.m. Yvette missed a call at 7 p.m. that night from London's cell phone. When she

-7- 1-12-2345

called back, Eddie answered. After that, she went to Loyola Medical Center, but London had

already died. Yvette was taken to a room and saw London's body.

¶ 18 Dr. Adrienne Segovia conducted London's autopsy. Dr. Segovia's examination revealed

three gunshot wounds to his body. The first bullet entered London's chest, went through his lung

and tore a portion of his heart and lodged in his spine, from where she recovered it. The second

bullet entered London's abdomen, went through the soft tissue and fractured his pubic bone. Dr.

Segovia recovered the second bullet from London's right buttock. Both of these bullets had a

downward trajectory consistent with the shooter being over the victim and shooting downward.

London could have been on the ground or stumbling at the time he received those gunshot

wounds. The trajectory of the bullets was not consistent with London standing erect in front of

the shooter. The third bullet entered and exited London's left elbow. It was a through-and-

through gunshot wound. Dr. Segovia testified that London's blood was negative for alcohol,

cocaine, and heroine. Dr. Segovia opined that the cause of London's death was multiple gunshot

wounds and that the manner of death was homicide.

¶ 19 Sergeant Carlo Viscioni and Detective Tom Ferris testified that they were both members

of the West Suburban Major Crimes Task Force that was activated around 7 p.m. on July 25,

2009. They responded to the Broadview police department and were briefed on the facts of the

case. Sergeant Viscioni spoke with Jason around 10:30 p.m. on July 25, 2009, to identify the

suspects involved in the shooting. Sergeant Viscioni put together two separate photo arrays.

Jason identified defendant as the shooter and Dion as another individual who was present. Jason

also identified Marcus from a driver's license as another person who was present.

¶ 20 Sergeant Viscioni, Detective Ferris, and other officers arrested defendant at his home

around 12:30 a.m. on July 26, 2009. Defendant was transported back to the Broadview police

-8- 1-12-2345

department. Sergeant Viscioni and Detective Ferris conducted a videotaped interview with

defendant around 1:15 a.m. Defendant was advised of his Miranda rights (Miranda v. Arizona,

(1966)); defendant indicated that he understood his rights and agreed to speak with

the detectives. During the interview, defendant stated that he was in the area but had nothing to

do with the shooting. Defendant said that he was with his friend Terrence and they walked to

12th Street and Fillmore together and hung out with some people there, then he walked home

alone after that. Defendant said that he saw the police lights at 21st Avenue and Fillmore Street

on his way home and heard that London got shot. Defendant said he arrived home around 9:20 or

9:25 p.m. because he had a 9:30 p.m. curfew from a gun case. Defendant said that Dion was not

with them and provided detectives with names of alibi witnesses. The detectives then confronted

defendant with information that a witness put him at the scene of the shooting with three of his

friends. Defendant responded by saying that he could have lied and said that he shot the victim

because one of the guys had a gun; instead, he maintained that he had nothing to do with the

shooting and said that he was not there. Defendant told the detectives that they needed to talk to

more people, like Terrence or Marcus or Dion, because defendant told them everything that he

knew.

¶ 21 Sergeant Viscioni and Detective Ferris re-interviewed defendant around 5 a.m. on July

26, 2009. This interview was also videotaped. During this second interview, Sergeant Viscioni

told defendant that the detectives spoke with defendant's alibi witnesses and they said that

defendant was directly involved in the shooting. Defendant then admitted that he shot London.

Defendant said that he was walking down 22nd Avenue and Fillmore Street with Dion, Marcus,

and Darrell, and that he had a .32-caliber handgun in his coat pocket. Defendant and his friends

were walking in one direction, and London and Jason were walking toward them. Defendant said

-9- 1-12-2345

that Jason, the large individual in the other group, had his hand in his pocket, and that Jason

pulled out a gun and fired the first shot. Defendant said that London then punched Dion, but

defendant thought Dion had been shot. Defendant said that he reacted by firing his gun.

Defendant stated that he did not remember how many times he fired his gun, but he knew that it

was more than once. Defendant told Sergeant Viscioni that he was frantic and dumped his gun in

a sewer. Other officers then went to search for the gun while Sergeant Viscioni continued his

conversation with defendant. Defendant then changed his story about the location of the gun and

said that he hid it behind a baseball park at a school near his home. That area was then searched,

but no gun was found. When Sergeant Viscioni told defendant that they did not find the gun,

defendant then told a third version that he threw it in a creek after the shooting. The police again

searched for the gun, but it was never recovered.

¶ 22 During cross-examination, Sergeant Viscioni testified that defendant told him during one

of the interviews that he thought he heard a gunshot before he fired his gun and that he was not

looking for trouble. Defendant also said that he had been shot at the week before, so he got the

gun for protection and carried it with him wherever he went.

¶ 23 On redirect, Sergeant Viscioni testified that defendant said London did not have a

weapon on him. Also, during the first interview of defendant, defendant gave a number of

different alibis and different versions of what occurred. Defendant did not state that the shooting

was a terrible accident, or that he shot London in self-defense.

¶ 24 Detective Ferris also had another videotaped interview with defendant at around 8:45

p.m. on July 26, 2009. Defendant provided more details about the shooting during this interview.

Defendant said that he saw Jason and London walking towards defendant and his group of

friends with six or seven people walking behind them. The other people were not directly behind

-10- 1-12-2345

Jason and London; rather, they were further down the street. Defendant said that as Jason and

London got closer, Jason told them to turn their hats straight and that they were going to get

"f***ed up." Defendant stated that Jason never said that he had a gun but, as they got closer,

defendant said that Jason raised his shirt a little bit and defendant saw a gun. Defendant said that

he then heard a gunshot and, after that, London took a swing at Dion. Defendant said he heard

the smack and saw Dion falling, but thought that Dion had been shot. Defendant said that the

gunshot happened before the swing. He first heard the gunshot and then the smack when London

hit Dion and did not mistake the punch for a gunshot. Defendant further stated that he knew there

was going to be trouble – either a fight, a stabbing, or a shooting – when Jason and London

walked up, but he did not turn away or back down.

¶ 25 Assistant State's Attorney Andy Dalkin had another videotaped interview with defendant

around 12:45 p.m. on July 26, 2009. Sergeant Viscioni and Detective Ferris were both also

present. Dalkin identified himself and read defendant his Miranda rights. Defendant then gave a

statement to Dalkin, which was substantially the same as the statement he made to Detective

Ferris admitting his guilt. However, defendant provided some additional information in his

statement to Dalkin. Defendant said that after the shooting he went back to Marcus' house, and

that Marcus, Dion and Darrell were there. Defendant stated that he told them he might get 45

years to life for the shooting. Defendant also said that he left Marcus' house to throw the gun in

the creek. Defendant also stated that he in fact never saw Jason "up the gun," and that London

did not have a gun. Defendant further said that he had trouble with Jason and the Gangster

Disciples in the past, but denied looking for trouble that night even though he was walking in

Jason's neighborhood, which was Gangster Disciple territory, and knew there was a possibility

he would run into them. Defendant denied going over there for revenge, however, even though

-11- 1-12-2345

he knew it was "gangsters" that had shot at him a couple of weeks earlier. Defendant claimed

that he and his friends were in that neighborhood looking for females because the girls in his

neighborhood were too young. Nevertheless, defendant decided to take his gun with him that

night.

¶ 26 The parties stipulated that Elaine O'Brien, a certified court reporter employed by the

Cook County State's Attorney's Office, transcribed the videotapes of defendant's interviews with

the police and assistant State's Attorney Dalkin.

¶ 27 After the above testimony and stipulation, the State rested. Defendant's motion for a

directed finding was denied. The defense then presented its case.

¶ 28 Marcus Calloway testified on behalf of defendant. At the time of trial, Marcus was a

senior in college and was also in the Army National Guard. Marcus testified that defendant was

like a little brother to him. Marcus was with defendant at the time of the shooting on July 25,

2009. Marcus was walking on the street with defendant, Dion, and Darrell when they were

approached by Jason and London. Marcus had known Jason for over 10 years and knew that

Jason had a reputation for violence. Marcus testified that Jason and London were speed walking

toward them with angry expressions on their faces with 18 other guys behind them. Marcus said

that Jason and London both had their hands under their shirts like they were holding guns and

that Jason asked what they were doing there and told Marcus to straighten his hat. Marcus did

not see a gun but thought that Jason and London were looking for trouble. Marcus testified that

Jason had his hands up under his shirt, like he was holding a gun, but conceded that he did not

actually see a gun. Before the grand jury, Marcus testified that Jason was holding his belt or

waist and he could not see under his shirt. Marcus also testified that London was also holding his

hands like he had a gun. Marcus testified that he wanted to avoid the situation, so he turned and

-12- 1-12-2345

ran off towards his house. That is when he heard two or three gunshots. Marcus never saw

defendant pull out a gun and did not even know that defendant had a gun that night. The last

thing he saw was Jason and London approaching with 18 people behind them. Defendant, Dion,

and Darrell all came to his house after the shooting and talked about what happened. Marcus

denied hearing defendant say that he might serve 45 years to life in prison.

¶ 29 On cross-examination, Marcus testified that he was familiar with the Four Corner

Hustlers, but that neither he, defendant, Dion, nor Darrell were members of that gang. Marcus

also testified that while the four of them wore hats that night only one of them had his hat tilted

to the left, but Marcus could not remember which one. Marcus testified that Jason, London, and

the 18 other people walked up like a mob. However, Marcus acknowledged he gave a

handwritten statement to the police on July 26, 2009 and testified before the grand jury on July

26, 2009, where he never stated that there were 18 people behind Jason and London. Marcus was

also impeached with his grand jury testimony where Marcus testified he could see London's

hands as he approached and did not see London holding a gun.

¶ 30 Darrell Williams testified he went to high school with defendant. Darrell testified he was

with defendant, Dion, and Marcus at the time Jason and London approached them. Darrell did

not notice anyone else in the vicinity at that time. Darrell testified that Jason and London had

angry faces and that Jason told them in an angry tone to straighten their "mother f***ing hats."

Darrell testified that Jason's hands were in his pants, forced in his belt, and Darrell thought that

Jason had a knife or gun. Darrell further testified that London did not say anything and that his

hands were down at his sides. London then struck Dion in the face and Darrell then saw a group

of people rushing out of the background towards them. He believed those people were with Jason

and London. Darrell testified he could hear the impact when London hit Dion in the face and that

-13- 1-12-2345

it sounded like a loud smack. Darrell got scared, so he turned and ran. As Darrell turned to run,

he heard three shots but he kept running. Darrell looked back and saw defendant holding a gun.

Darrell did not see defendant pull out the gun and did not know that defendant had a gun. Darrell

said that he, defendant, Dion, and Marcus all ran to Marcus' house and met up there, but claimed

that none of them discussed the shooting.

¶ 31 On cross-examination, Darrell testified that all four of them were wearing hats that day

but that none of them had their hats tilted to the left. Darrell further testified that he did not see

anything in London's hands, that London never said he had a gun, and that London never

threatened anyone with a gun. Darrell maintained that he started to run when London punched

Dion but admitted that when he turned and looked back, he saw defendant holding a gun in his

hand with his arm extended from his body. Darrell heard three shots and defendant was the only

one with a gun.

¶ 32 Michael Ford testified that he lived in the same house as Marcus and that he had known

defendant for two or three years. Michael testified that he, along with defendant, Dion, Darrell,

and Marcus, all gathered in the basement after the shooting. Michael never heard defendant say

that he was going to get 45 years to life. Michael also never saw defendant with a gun. Michael

testified that he did not know London, but that he did know Jason, and that he knew Jason to be a

"gangbanger" with a reputation for violence.

¶ 33 Defendant also testified. Defendant was 18 years old on July 25, 2009. He went to

Marcus' house around 3 p.m. that day and he, Dion, and Marcus walked to a gas station and then

decided to walk around after that but they were not looking for trouble. While they were

walking, they came across and Jason and London. Defendant testified that Jason and London

walked toward them at a quick pace, with angry faces, and there were 10 to 15 people a little bit

-14- 1-12-2345

behind them. Defendant testified that he had had conflicts with Jason about two or three years

earlier, that Jason had a reputation for violence, and that he though Jason and London were

approaching for trouble. Defendant also testified that he did not consider Jason to be an enemy

and did not know London before that day. Defendant testified that, from about 30 feet away,

Jason told them to "turn those mother f***ing hats straight." Jason and London kept walking

toward them and Jason repeated his statement a few times. When they were closer, about 10 feet

away, London said, "You all heard what he said." Defendant testified that Jason lifted his shirt a

little bit and said, "You all about to get f***ed up."

¶ 34 Defendant testified that he saw a black and chrome gun handle in Jason's waistband.

While defendant's brief states that defendant claimed he saw London with a gun, defendant

testified he saw Jason with a gun. Defendant testified that he saw Jason's hand on the black and

chrome handle of a gun in his waistband. Defendant testified that he was afraid that Jason would

start something because of his body language and reputation. Defendant testified that London

then made a quick lunge toward Dion and defendant heard what he thought was a gunshot.

Defendant assumed that Dion had been shot based on the sound and the way that Dion fell back.

Defendant then pulled out his gun and shot London. Defendant testified that he shot at London

three times to prevent London from shooting him, Dion, or any of his other friends again.

Defendant further testified that he "kind of had [his] eyes closed" and "kind of blacked out"

during the shooting. Defendant did not remember seeing London fall back, but recalled seeing

him on the ground. Defendant testified that he did not continue shooting at London once he was

on the ground. Defendant did not shoot at Jason because he was running away and did not shoot

at the 10 to 15 people who were behind London and Jason because they all retreated back.

-15- 1-12-2345

¶ 35 Defendant further testified that he went to Marcus' house after the shooting and that

Marcus, Dion, and Darrell arrived at the house shortly after defendant arrived, and they went to

the basement where they all discussed the shooting. Defendant testified that after seeing Dion in

the basement and realizing that he had not been shot, defendant thought that he had overreacted.

Defendant denied telling his friends that he would know if somebody snitched. Defendant never

showed the gun to Dion. Defendant testified that he disposed of the gun in the creek.

¶ 36 Defendant was arrested at his home that night and then later was charged by indictment

with aggravated discharge of a firearm and the first degree murder of London. Defendant

testified that he did not initially tell the police the truth because he was angry with them for

getting him out of bed. Defendant eventually told the police what happened and explained that he

fired his gun because he thought it was necessary to do so.

¶ 37 On cross-examination, defendant stated that he yelled and swore at the police and

provided a very detailed lie when he first spoke with them. Defendant conceded that the whole

story about being with Terrence was a lie. Defendant also explained that he believed a Gangster

Disciple shot at him a few weeks before and a couple of blocks away from the shooting in this

case. Defendant bought a loaded gun off the street after that incident, and he knew that 22nd

Avenue and Fillmore Street was Gangster Disciple territory. Defendant did not keep his gun at

home but, rather, left it in the bushiness near a park. Defendant testified that he picked up his gun

on his way to Marcus' house that day.

¶ 38 Defendant admitted that he and his friends were all wearing hats on the day of the

shooting. Defendant testified that two of them had their hats tilted to the left, one had his hat

tilted to the right, but defendant maintained that his hat was on straight. Defendant maintained

that none of them were in a gang and that tilting one's hat in a certain direction did not mean

-16- 1-12-2345

anything anymore. Defendant denied being a member of the Four Corner Hustlers, but admitted

that he associated with them.

¶ 39 Defendant admitted that he never saw a gun in London's hand and never saw London

punch Dion. Defendant did not know at the time that London punched Dion but learned of this

later when he and his friends discussed the incident at Marcus' house. Defendant further testified

that he saw London lunge at Dion and then heard a pop sound like a firecracker. Dion started to

fall backwards but caught himself. Defendant then pulled the gun out of his pocket and extended

his arm toward London, who was about three feet away from him. There was nothing in between

them. Defendant then aimed at London's midsection and fired a round. Defendant again testified

that he did not remember what happened after the first shot because he kind of blacked out, and

conceded that it is possible that London was on the ground when he fired the second and third

shots. Defendant testified that he fired all three shots with his eyes closed and then, after the

shots had been fired, he remembered coming back to himself. Defendant then saw London on the

ground and Jason running off. Defendant testified that he then ran too. Defendant testified that he

knew that London was either dead or hurt, but did not call 911 or do anything to help him.

Instead, he ran to Marcus' house. Defendant testified that he had the gun in his pocket but never

showed it to his friends. Defendant left Marcus' house, tossed the gun in the creek, and returned

10 minutes later. Defendant admitted that he wanted to get rid of the gun because he knew that

he had done something wrong.

¶ 40 On redirect examination, defendant testified that he did not pull out his gun when Jason

told him and his friends to straighten their hats and did not pull out his gun until he heard a pop

and saw Dion fall backward. Defendant testified that he believed that London was armed when

he shot him.

-17- 1-12-2345

¶ 41 Michael Ford, Marcus' cousin, also testified. Michael testified that Jason had a reputation

for violence.

¶ 42 The defense then rested.

¶ 43 In the State's rebuttal case, assistant State's Attorney Peter O'Mara testified that he had a

conversation with Marcus before Marcus testified before the grand jury on July 26, 2009.

O'Mara testified that while Marcus told him that there were other people down the block, Marcus

never said that there were 18 to 20 people behind Jason and London. O'Mara also testified that

Marcus never said that London or Jason had their hands in their shirts as if they had guns. The

State then rested in rebuttal.

¶ 44 Following closing arguments, the trial court found defendant guilty of first degree

murder. After a sentencing hearing, the court sentenced defendant to 65 years' imprisonment.

Defendant's motion for a new trial/reconsideration, motion for reconsideration and reduction of

sentence, and final supplemental posttrial motion for reconsideration, or in the alternative, a new

trial, were all denied. Defendant appealed.

¶ 45 ANALYSIS

¶ 46 I. Reasonable Doubt

¶ 47 Defendant first argues that the State failed to prove beyond a reasonable doubt that he did

not act in self-defense.

¶ 48 The well-known standard for conviction was pronounced in Jackson v. Virginia,

(1979), which is "whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt." (Emphasis in the original.)

. A conviction should not be

-18- 1-12-2345

reversed unless the evidence is so improbable, unsatisfactory or inconclusive that it creates a

reasonable doubt of defendant's guilt. People v. Evans,

(2004).

¶ 49 Determinations concerning the credibility of witnesses, the weight to be given their

testimony, and the reasonable inferences to be drawn from the evidence presented are

responsibilities of the circuit court at a bench trial. People v. McGrath,

(1989). When considering a challenge to the sufficiency of the evidence of defendant's guilt, a

reviewing court will not retry defendant. People v. Rodriguez,

(1994).

"A conflict in the evidence does not establish a reasonable doubt, and a jury verdict based on

substantial and credible evidence is not rendered reversible by the fact that other evidence was

introduced which might, if believed, have resulted in a different verdict." People v. Pursley,

(1996) (citing People v. Mendoza,

(1991)).

"Instead, only where the record leaves the reviewing court with a grave and substantial doubt of

guilt should the conviction be reversed."

(citing Mendoza,

).

¶ 50 "Once [a] defendant presents the facts supporting self-defense, the burden of disproving

the existence of justification beyond a reasonable doubt passes to the State." People v. Scott,

(citing People v. Rivera,

(1993)).

¶ 51 Section 7-1(a) of the Criminal Code provides the following regarding self-defense:

"(a) A person is justified in the use of force against another when and to the extent

that he reasonably believes that such conduct is necessary to defend himself or another

against such other's imminent use of unlawful force. However, he is justified in the use of

force which is intended or likely to cause death or great bodily harm only if he reasonably

believes that such force is necessary to prevent imminent death or great bodily harm to

-19- 1-12-2345

himself or another, or the commission of a forcible felony." 720 ILCS 5/7-1(a) (West

2008).

¶ 52 "The use of deadly force is limited to those situations where (a) the threatened force will

cause death or great bodily harm, or (b) the force threatened is a forcible felony." People v. Lee,

(1993).

¶ 53 A. Death or Great Bodily Harm

¶ 54 Defendant argues that the State failed to prove beyond a reasonable doubt that defendant

was not acting in self-defense or defense of others from death or great bodily harm. According to

defendant, he saw Jason grasping what he believed to be a handgun as he approached. Jason was

the leader of the Gangster Disciple gang and had a reputation for violence. Jason and London

were quickly approaching defendant and his friends with angry expressions on their faces and

threatening them. According to defendant, there was also a large group of individuals behind

Jason and London. In his brief, defendant also states that he saw London grasping and displaying

a handgun, but at trial during later testimony defendant admitted that he never saw a gun in

London's hand. Defendant maintains that London's punch to Dion's face sounded like a gunshot,

and he believed Dion had been shot because he was falling backward. Defendant also maintains

that he "kind of had his eyes closed" and "blacked out."

¶ 55 "A defendant affirmatively raises the issue of self-defense by presenting some evidence

regarding: (1) the threat of unlawful force against defendant; (2) an imminent danger of harm;

(3) an aggressor other than defendant; (4) the belief by defendant that danger existed and to avert

danger, the kind of force used was necessary; and (5) the belief was reasonable." Scott,

(citing Rivera,

). Under the Criminal Code, the

phrase "reasonably believes" means "that the person concerned, acting as a reasonable man,

-20- 1-12-2345

believes that the described facts exist." 720 ILCS 5/2-19 (West 2008). A defendant need not

"exercise infallible judgment," only "reasonable judgment under the existing circumstances."

People v. Evans,

(1994).

¶ 56 The trial court found defendant's testimony to be "extremely incredible, absolutely

unbelievable." We agree. While defendant testified he reacted quickly and fired with his eyes

closed, defendant's entire theory and testimony at trial was self-defense which, if believed by the

trial court, would have resulted in a justified use of deadly force. However, the trial court found

defendant's testimony entirely incredible.

¶ 57 The kind of force used, even given the circumstances of a fight emerging, was

unreasonable under the circumstances. Defendant maintained that London was brandishing a

gun, but the evidence established that London in fact did not have a gun. Even according to

defendant's own testimony, London never pulled out a gun.

¶ 58 Although defendant testified that his "boxing stance" prevented him from seeing the fact

that London merely punched Dion, all the witnesses at the scene testified that defendant was in

front of London within three feet of him. Defendant's testimony that the punch sounded like a

gunshot, and therefore defendant's shooting was in self-defense or defense of others, is

thoroughly incredible. Defendant gave a number of different alibis and different versions of what

occurred to the police. At first defendant maintained that he thought the punch was a gunshot,

but then in his videotaped interview with Detective Ferris at around 8:45 p.m. on July 26, 2009,

defendant stated he heard a gunshot and then a smack when London hit Dion. At trial defendant

went back to maintaining simply that he thought the punch was a gunshot. All the other

witnesses at the scene, including defendant's own witnesses, testified that they heard three

gunshots, which were fired by defendant. Jason testified to hearing only three gunshots. Dion

-21- 1-12-2345

testified to hearing only three gunshots, by defendant. Marcus testified that he heard only two or

three gunshots when he turned and ran toward his house. Darrell testified he could hear the

impact when London hit Dion in the face and that it sounded only like a loud smack. A neighbor

also heard only three gunshots that night: those by defendant killing London. No one other than

defendant testified that London's punch of Dion sounded like a gunshot.

¶ 59 Further, there was evidence that, after the shooting, defendant told his friends that he

could get "45 to life," and told them not to snitch, indicating a belief that he had just committed

murder. The fact that defendant disposed of the weapon also indicates a guilty state of mind and

knowledge that he did not merely act in self-defense, even under an unreasonable belief in self-

defense. Evidence of flight, as well as discarding of the weapon, is competent circumstantial

evidence that refutes the theory that defendant acted in self-defense. See People v. Wilburn,

(1994) (the defendant's flight from the scene, instruction to his friend

not to say anything, and his disposal of the murder weapon belied her claim that she acted in

self-defense).

¶ 60 Further, the coroner's examination of London revealed that two of the bullets fired at

Dion had a downward trajectory consistent with the shooter being over the victim and shooting

downward, and were consistent with London either stumbling or already being on the ground at

the time he received those gunshot wounds. The trajectory of the bullets was not consistent with

London standing erect in front of the shooter.

¶ 61 Defendant also argues that he and his friends cannot be considered the "initial aggressors"

under section 7-4 of the Criminal Code (720 ILCS 5/7-4 (West 2008)) for merely walking

around the street of Broadview with hats on. But even if the fact finder believes that the victim

was the aggressor, the question still remains whether defendant's resort to the force was

-22- 1-12-2345

reasonable under the circumstances, and whether the amount of force used by defendant was

commensurate with the force encountered. People v. Easter,

(1981). To

shoot someone in response to a punch is not reasonable self-defense or defense of others

justifying such use of deadly force. See People v. Cullen,

(1992) (where the

record indicated that the victim was unarmed when he approached the defendant and that he did

not threaten the defendant with force, but the defendant used deadly force in response, shooting

the victim in the forehead from a distance of approximately four feet when the victim's hands

were empty, the defendant failed to show that he acted in self-defense).

¶ 62 The court's finding that defendant committed first-degree murder was not so

unreasonable, improbable or unsatisfactory as to cause reasonable doubt of defendant's guilt.

¶ 63 B. Forcible Felony

¶ 64 Defendant further argues that he was justified in using deadly force where the victim was

committing a forcible felony at the time. Under section 7-1(a), a person "is justified in the use of

force which is intended or likely to cause death or great bodily harm only if he reasonably

believes that such force is necessary to prevent imminent death or great bodily harm to himself

or another, or the commission of a forcible felony." 720 ILCS 5/7-1(a) (West 2008). Defendant

argues that London punching Dion was the commission of a forcible felony. Defendant argues

that he did not have to raise this issue as an affirmative defense, and that, instead, the defense is

raised at trial by the presentation of "some evidence thereon," citing to People v. Rorer,

(1976).

¶ 65 Section 2-8 of the Criminal Code defines "forcible felony" as including the following:

"§ 2-8. 'Forcible felony'. 'Forcible felony' means treason, first degree murder, second

degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual

-23- 1-12-2345

assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson,

arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily

harm or permanent disability or disfigurement and any other felony which involves the

use or threat of physical force or violence against any individual." (Emphasis added.) 720

ILCS 5/2-8 (West 2008).

¶ 66 Defendant argues that committing a battery on a public way suffices as "aggravated

battery" under section 2-8 because section 12-4(b)(8) provides that aggravated battery is

committed when the offender "[i]s, or the person battered is, on or about a public way." 720

ILCS 5/12-4(b)(8) (West 2008). Defendant argues that the State failed to disprove that defendant

used deadly force to prevent the commission of a forcible felony, because London's battery of

Dion was on a public way and, thus, was aggravated battery.

¶ 67 This argument is legally unsound. While the plain language of our Criminal Code

"demonstrates the legislative determination that any battery committed on a public way, despite

the other details of the occurrence, is sufficiently serious to be elevated to an aggravated battery"

(emphasis omitted) (People v. Leahy,

(1992)), section 2-8 clearly

limits aggravated battery as a forcible felony to "aggravated battery resulting in great bodily

harm or permanent disability or disfigurement," as emphasized in italics above. 720 ILCS 5/2-8

(West 2008). The same argument has been made by other defendants previously and was long

ago rejected. See People v. Rodriguez,

(1994) ("Contrary to defendant's

contention, 'forcible felony' is defined to include 'aggravated battery resulting in great bodily

harm or permanent disability or disfigurement.' [Citation.] Simple battery upon a public way

intentionally was omitted from the definition of forcible felony ***."). See also Leahy,

("When the legislature designated a subset of aggravated batteries that would

-24- 1-12-2345

justify deadly force, it clearly demonstrated that it did not mean to provide a justification in the

case of any battery upon a public way.").

¶ 68 The language modifying "aggravated battery," "resulting in great bodily harm or

permanent disability or disfigurement," was added by amendment effective January 1, 1990. See

Pub. Act 86-291, § 1 (eff. Jan. 1, 1990). There is no further legislative history. However, one of

the principles of statutory interpretation is that we should give effect to every word and section

of the statute. Walters v. Metropolitan Educational Enterprises, Inc.,

(1997).

" 'If possible, courts must give effect to every word, clause, and sentence and may not read a

statute so as to render any part inoperative, superfluous, or insignificant.' " Speedy Gonzalez

Landscaping, Inc. v. O.C.A. Construction, Inc.,

(2008) (quoting

Newland v. Budget Rent-A-Car Systems, Inc.,

(2001)). Thus, we must

interpret that there was a reason that mere "aggravated battery" in the forcible felony statute was

amended to "aggravated battery resulting in great bodily harm or permanent disability or

disfigurement." 720 ILCS 5/2-8 (West 2008). While the occurrence of a simple battery is indeed

upgraded to an aggravated battery if it occurs on a public way under the aggravated battery

provision (720 ILCS 5/12-4(b)(8) (West 2008)), when we turn next to the forcible felony

provision of section 2-8, that aggravated battery must be an "aggravated battery resulting in great

bodily harm or permanent disability or disfigurement." 720 ILCS 5/2-8 (West 2008).

¶ 69 In his reply brief, defendant points to the conflict among our courts, as at least three

decisions support his position that simple battery on a public way constitutes a forcible felony

against which the use of deadly force is justified, and argues that we should follow the holdings

of these cases: People v. Jones,

(1992); People v. Hall,

(1997); and People v. Thomas,

(2011).

-25- 1-12-2345

¶ 70 In Jones,

, the Third District held that an aggravated battery

conviction was properly used to impose an extended-term sentence for being convicted within

the past 10 years of a forcible felony. The court reasoned that it did "not think the legislature was

concerned with the type of aggravated battery the defendant was charged with, but rather was

concerned with the harm that resulted from the battery" because section 2-8 delineating "forcible

felony" includes "any felony involving the use of physical force or violence against any

individual."

The Third District realized it was not on solid ground in its interpretation: "We

acknowledge, however, that the statute is subject to more than one interpretation. Although we

believe our interpretation is what the legislature intended, we would welcome further

clarification by the legislature."

The Jones court also did not cite to any other precedent

supporting its legislative intent analysis. Moreover, the Jones court did not consider the issue of

an aggravated battery as a forcible felony justifying the use of deadly force in the trial phase of a

murder prosecution.

¶ 71 We note that the Jones court makes a fatal error: it ignored the disjunctive term "other" in

the final residual clause of section 2-8 and conflated the "aggravated battery resulting in great

bodily harm or permanent disability or disfigurement" with the residual clause for other felonies.

The statute actually reads: "aggravated battery resulting in great bodily harm or permanent

disability or disfigurement and any other felony which involves the use or threat of physical

force or violence against any individual." (Emphasis added.) 720 ILCS 5/2-8 (West 2008). Thus,

the statute provides a list of types of crimes including "aggravated battery resulting in great

bodily harm or permanent disability or disfigurement," and then at the end includes the residual

clause "and any other felony which involves the use or threat of physical force or violence

against any individual." (Emphasis added.)

Again, we cannot ignore words in a statute. The

-26- 1-12-2345

clear intent is to include any crime "other" than those previously mentioned that "involve[] the

use or threat of physical force or violence against any individual."

We therefore do not find

the Jones court's interpretation applicable here.

¶ 72 The court in Hall made the same error in reading the statute. In Hall, the defendant

argued that his aggravated battery of the victim was not a forcible felony where it did not result

in great bodily harm or permanent disability or disfigurement and therefore could not serve as

the predicate offense for felony murder. Hall,

. In reading the statute, this

court held that the aggravated battery was a forcible felony that could properly serve as the

predicate offense for felony murder because defendant's aggravated battery "certainly involved

the use or threat of physical force or violence" against the victim.

. The Hall court thus

conflated the delineation of "aggravated battery resulting in great bodily harm or permanent

disability or disfigurement" with the final residual clause "and any other felony which involves

the use or threat of physical force or violence against any individual." (Emphasis added.) 720

ILCS 5/2-8 (West 2008). The residual "felony which involves the use or threat of physical force

or violence against any individual" cannot also be an aggravated battery; it must be some "other

felony."

¶ 73 The court in Thomas held that every attempted murder qualifies as a forcible felony for

purposes of the armed habitual criminal statute. Thomas,

. In reaching this

holding, however, the court held that the Illinois forcible felony statute "does not require the

actual infliction of physical injury; instead, the statute requires only the 'use or threat of physical

force or violence,' " quoting the residual clause of section 2-8.

(quoting 720 ILCS 5/2-8 (West

2006)). This much is technically true. We run into a problem, however, in reconciling this

residual clause of section 2-8 with the statute for use of force in defense of a person to justify the

-27- 1-12-2345

use of deadly force to prevent the commission of a forcible felony in section 7-1(a). If we apply

the holding of Thomas to section 7-1(a), then a person is justified in using deadly force (720

ILCS 5/7-1(a) (West 2008)) to prevent the commission of any felony which involves even the

mere "threat of physical force or violence." 720 ILCS 5/2-8 (West 2008).

¶ 74 We emphasize that the courts in Jones, Hall, and Thomas did not consider the

interpretation of the forcible felony statute (section 2-8) in the context of the justified use of

deadly force in defense of a person provision (section 7-1(a)). We therefore do not deem these

cases applicable. To the extent that defendant asks us to apply their holdings to the context of the

use of deadly force, we decline.

¶ 75 Defendant acknowledges that at least four cases are contrary to his position: Leahy,

; In re Angelique E.,

(2009); People v. Schmidt,

(2009), appeal denied,

(2009); and In re Rodney S.,

(2010). These cases do squarely address the issue of the use of deadly force to prevent the

commission of a forcible felony, and they all hold that a simple battery on a public way,

upgraded to an aggravated battery, does not suffice to constitute a forcible felony to justify the

use of deadly force.

¶ 76 We also find People v. Rodriguez,

(1994), opposes defendant's

position:

"Contrary to defendant's contention, 'forcible felony' is defined to include

'aggravated battery resulting in great bodily harm or permanent disability or

disfigurement.' (Ill. Rev. Stat. 1991, ch. 38, par. 2-8 (now 720 ILCS 5/2-8 (West 1992)).)

Simple battery upon a public way intentionally was omitted from the definition of

forcible felony: 'When the legislature designated a subset of aggravated batteries that

-28- 1-12-2345

would justify deadly force, it clearly demonstrated that it did not mean to provide a

justification in the case of any battery upon a public way.' [Citation omitted.]

Accordingly, defendant's contention fails." Rodriguez,

.

¶ 77 There are therefore five cases that squarely address the precise issue and prohibit using

deadly force to prevent a simple battery on a public way as a forcible felony; there are no cases

supporting defendant's position on this issue.

¶ 78 Schmidt's analysis of section 2-8 is the most clear. In Schmidt, this court held, in relevant

part, that the aggravated battery of a police officer without resulting great bodily harm or

disability was not a forcible felony that could support a felony murder conviction. The Schmidt

court noted that the forcible felony statute enumerates specific felonies, followed by the residual

clause for " 'any other felony which involves the use or threat of physical force or violence

against any individual,' " (Schmidt,

(quoting 720 ILCS 5/2-8 (West

2004)), and found that, "by using the word 'other' after listing 14 specific felonies, the legislature

clearly intended the residual category to refer to felonies not previously specified. Where the

statute specifically enumerated aggravated battery resulting in great bodily harm or permanent

disability or disfigurement, 'other felony' must refer to felonies other than aggravated battery.”

The Schmidt court further noted that the 1990 amendment to the forcible felony statute clearly

demonstrates an intention by the legislature to exclude aggravated batteries that do not result in

"great bodily harm or permanent disability or disfigurement" from the definition of forcible

felony. (Internal quotation marks omitted.)

. Specifically, the Schmidt court noted that,

before 1990, the statutory definition of "forcible felony" included all aggravated batteries.

However, in 1990, the legislature amended the statute by adding the phrase "resulting in great

bodily harm or permanent disability or disfigurement." (Internal quotation marks omitted.)

-29- 1-12-2345

The court found that "by enacting the 1990 amendment, the legislature expressed its intent to

limit the number and types of aggravated batteries that would qualify as forcible felonies."

We agree with the analysis in Schmidt.

¶ 79 We further note that this court has recently again recognized that "the legislature has

specified aggravated battery based on great bodily harm, permanent disability or disfigurement,

to the exclusion of aggravated battery where mere 'bodily harm' has occurred." People v. White,

, ¶ 39 (discussing the aggravated battery provision, now renumbered as

720 ILCS 5/12-3.05 by Pub. Act 96-1551, art. 1, § 5 (eff. July 1, 2011). In citing In re Angelique,

, Rodriguez,

, and Leahy,

, this court stated: "Given the legislature's decision to add language limiting the enumerated

form of aggravated battery to instances involving great bodily harm, permanent disability or

disfigurement, we agree with reviewing courts that have found the legislature deliberately

excluded aggravated battery based on mere bodily harm from the definition of forcible felonies."

White,

, ¶ 40.

¶ 80 Defendant further argues that where a penal statute is ambiguous, they must be strictly

construed in favor of defendants. We do not find the statute ambiguous. While the application of

the residual clause for any other felonies involving the use or threat of violence to the justified

use of deadly force against forcible felonies is unclear, the delineation of aggravated batteries in

section 2-8 is clear. It is clearly modified by "resulting in great bodily harm or permanent

disability or disfigurement." 720 ILCS 5/2-8 (West 2008). The felony alleged by defendant in

this case is an aggravated battery (the punch by London on a public way), and not some "other

felony," so the residual clause is not at issue. There is no ambiguity here.

-30- 1-12-2345

¶ 81 We hold that simple battery on a public way, elevated to aggravated battery under section

12-4(b)(8), does not suffice to satisfy section 2-8 to constitute a forcible felony of the type that

would justify using deadly force under section 7-1(a). Defendant's killing of London based on

the act of London punching Dion was not justified under section 7-1(a). We affirm defendant's

conviction for first degree murder.

¶ 82 II. Reduction to Second Degree Murder.

¶ 83 Defendant argues, in the alternative, that his conviction should be reduced to second

degree murder where the evidence established that defendant's belief that he was acting in self-

defense or defense of others 1 was unreasonable so as to merit a reduction to second-degree

murder. Defendant also argues that his conviction should be reduced to second degree murder

where he acted in sudden passion resulting from provocation.

¶ 84 A person commits the offense of second degree murder when he commits the offense of

first degree murder and either of the following two mitigating factors are present:

"(1) at the time of the killing he or she is acting under a sudden and intense passion

resulting from serious provocation by the individual killed or another whom the offender

endeavors to kill, but he or she negligently or accidentally causes the death of the

individual killed; or

(2) at the time of the killing he or she believes the circumstances to be such that, if

they existed, would justify or exonerate the killing under the principles stated in Article 7

of this Code, but his or her belief is unreasonable. 720 ILCS 5/9-2(a) (West 2008).

1 We do not include the commission of a forcible felony here as defendant does in his brief for this argument because, as discussed in the previous section, the use of deadly force in response to the commission of simple battery on a public way is not justified. -31- 1-12-2345

¶ 85 Defendant must prove either of these two mitigating factors by a preponderance of the

evidence. 720 ILCS 5/9-2(c) (West 2008).

¶ 86 A. Unreasonable Belief in Self-Defense or Defense of Another

¶ 87 Whether defendant acted in self-defense and, if not, whether the facts of the incident

constitute first or second-degree murder, are questions to be determined by the trier of fact and

this determination will not be disturbed on review unless the evidence is so improbable or

unsatisfactory as to raise a reasonable doubt as to the defendant's guilt. People v. Sanchez,

(1981).

¶ 88 As to defendant's alleged unreasonable belief in self-defense, defendant argues that Jason

and London led everyone at the scene, including Dion and defendant, that they were armed and

dangerous. Defendant also argues that Dion, Marcus and Darrell all testified that they were

scared. While London threw the first punch, he did not use deadly force. Also, while defendant

and his friends may have believed a large group behind Jason and London were affiliated with

them, at no point in time did these individuals approach or join in the quickly emerging

disagreement or fight. Defendant had bought his gun specifically because of his prior run-in with

the Gangster Disciples, but notably defendant did not testify that he was ever threatened with

death or serious bodily harm. Defendant purposefully went into a neighborhood known to be

Gangster Disciple territory. While defendant was certainly free to go wherever he wished, the

reason for his gun purchase and carrying his gun that night points more toward retribution and

not in any belief in self-defense or defense of others, reasonable or unreasonable. While

defendant testified that he saw London place his hand on the handle of a gun in his waistband, he

admitted that London never withdrew the gun and never had the gun in his hand. Moreover,

-32- 1-12-2345

defendant's testimony that London's punch to Dion sounded like a gunshot is not merely an

unreasonable belief; it is thoroughly incredible.

¶ 89 Defendant's reliance on People v. Brown,

(1974) is thus misplaced.

People v. Ellis,

(1982), and People v. Collins,

(1991),

also are not on point because in those cases the victims were shot during a struggle and there was

no intent to directly shoot the victims. See Ellis,

; Collins,

. Here, there was no mutual struggle and defendant had his arm outstretched and

directly shot London three times, indicating intent to kill. The evidence simply does not support

any finding of even an unreasonable belief in self-defense.

¶ 90 B. Sudden and Intense Passion Resulting from Provocation

¶ 91 To support a conviction of second-degree murder based on sudden and intense passion

resulting from provocation, there must be evidence of serious provocation of the defendant by

the victim such as to arouse an intense passion in the defendant. People v. Austin,

(1989). Serious provocation recognized as sufficient to require an instruction for second-

degree murder based on provocation includes: physical injury or assault; mutual combat; illegal

arrest; and adultery with the offender's spouse. People v. Chevalier,

(1989).

¶ 92 As to sudden and intense passion resulting from provocation, defendant argues that

London and Jason "caused serious provocation" and that "[t]heir sudden attack on defendant and

his friends, constituted a substantial physical assault, and was the initiation of mutual quarrel and

combat." In reply, defendant also argues that the State apparently concedes that defendant

believed he was under "attack" and attempted to "defend himself and his friends," and that this

suffices to constitute acting under a sudden and intense passion resulting from provocation.

However, as the State pointed out in its brief, while acts of passion or a sudden desire for

-33- 1-12-2345

revenge may indicate a state of mind which would support a finding of second degree murder

based on provocation, if the defendant's actions were merely defensive or motivated by fear and

a desire to escape the victim, a finding of second degree murder based on provocation is not

appropriate. People v. Slaughter,

(1980). Struggling with an attacker

in an effort to ward off or defend one's self against an attack is not sufficient to warrant a

conviction for second degree murder based on provocation. People v. Lewis,

(1992). Self-defense or defense of others is not equivalent to acting under sudden and

intense passion resulting from provocation.

¶ 93 If anything, it was defendant who was causing serious provocation. The evidence

established that defendant had a previous disagreement with the victim and the Gangster

Disciples, that the neighborhood he was in was known to be Gangster Disciple territory, that he

and his friends wore their hats tilted in a way to signify affiliation with a rival gang, that they

refused to straighten their hats or retreat, and that defendant purposefully brought his gun with

him that evening. The fact that defendant purposefully brought his gun with him that evening

points to premeditation and not a simple unreasonable belief he was acting in self-defense or

defense of others or "acting under a sudden and intense passion."

¶ 94 The preponderance of evidence weighs against both mitigating factors that would reduce

first degree murder to second degree murder. We therefore affirm defendant's conviction for first

degree murder and find that defendant did not prove either mitigating factor under section 9-2(a)

to reduce his crime to second degree murder.

¶ 95 III. Cross-Examination of Jason Morris

¶ 96 Next, defendant contends that his cross-examination of Jason regarding his partiality was

improperly limited and resulted in reversible error. Defendant takes issue with the following

-34- 1-12-2345

sustained objection not allowing further cross-examination of Jason after the following

questions:

"[DEFENSE COUNSEL]: Excuse me. I couldn't help [but] notice you're sitting there

in that DOC [Department of Corrections] outfit. It's true that you have a current charge

pending against you, correct?

WITNESS: Yes.

[DEFENSE COUNSEL]: And it's true also that the State's Attorney's Office is the

office prosecuting you for those current charges, correct?

WITNESS: Yes.

[DEFENSE COUNSEL]: I'm going to assume if I asked you if they made any

promises you'd say no, is that true?

WITNESS: Yes.

[DEFENSE COUNSEL]: But you wouldn't mind if they took it easy on you a little

bit with that case you got, why you're in the County for, would you?

[PROSECUTOR]: Objection.

[THE COURT]: Sustained."

¶ 97 "The right to cross-examine a witness stems from the defendant's sixth amendment right

'to be confronted with witnesses against him' (U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8;

Davis v. Alaska,

(1974)), and this right is applicable to State trials as well as to

Federal (Pointer v. Texas,

(1965))." People v. Freeman,

(1981). The right of defendants to confront their accusers is obligatory on the States through the

fourteenth amendment and "includes the right to cross-examine a witness as to the witness'

biases, interests, or motives to testify." People v. Triplett,

(1985) (citing U.S.

-35- 1-12-2345

Const., amend. XIV). A "court should afford a defendant the widest latitude to establish the

witness' bias or hostile motivation." People v. Blue,

(2001).

¶ 98 A defendant has a right to cross-examine and otherwise inquire of a witness concerning

pending criminal charges. Delaware v. Van Arsdall,

(1986). A defendant has

the right to cross-examine government witnesses regarding pending criminal charges "for the

purpose of showing bias, interest, or motive to testify falsely." People v. Freeman,

(1981) (citing People v. Mason,

(1963), and People v. Barr,

(1972)); Triplett,

. The fact that a prosecution witness has charges pending

against him indicates a possibility that the witness might attempt to curry favor with the

government by testifying for the State. Davis,

. "The defense counsel is not

required to show beforehand that any promises of leniency have been made or any expectations

of special favor exist in the mind of the witness." People v. Perez,

(1991). "Defense counsel is entitled to inquire into such promises or expectations whether based

on fact or imaginary."

. Even subjective hopes by the witness of leniency are

relevant on cross-examination. People v. Harris,

(1988). The key factor is

not the existence of actual pressure, but the witness's state of mind. People v. Baugh,

(1981). Where the witness is in a position to contemplate the possibility of leniency

or favor, the defendant should be allowed to question the witness concerning these matters.

¶ 99 Defendant initially argues that the standard of review of this issue is de novo, "because at

issue are legal conclusions to be drawn from undisputed facts," citing People v. Foskey,

(1990). This is not the correct standard of review. Cross-examination for this type of

impeachment is a matter of right subject only to the trial court's broad discretion to preclude

repetitive or unduly harassing interrogation and to confine the cross-examination to proper

-36- 1-12-2345

subject matter. People v. Lewis,

(1992) (citing People v. Paisley,

(1986)). However, because the right to confront one's accusers and cross-

examine a witness regarding pending charges is a constitutional right, there is a two-step

standard of review. "[T]he constitutional requirement must be met before the trial court may

exercise [its] discretion." People v. Prevo,

(1999) (citing People v.

Furby,

(1992)).

¶ 100 Thus, we must engage in a two-step analysis: first, we determine if the constitutional

right was satisfied; then, we examine the trial court's exercise of discretion to restrict the scope of

cross-examination. Id. at 1048. In conducting this two-step analysis, we look not to what

defendant was prohibited from doing, but at what he was allowed to do. Id. at 1047-48 (citing

People v. Weatherspoon,

(1994)). "Only if we are satisfied that the

constitutional guaranty has been satisfied will we examine the trial court's exercise of discretion

to restrict the scope of cross-examination."

at 1048 (citing Weatherspoon,

).

¶ 101 Here, it is clear that the trial court did not allow any questioning of Jason regarding

potential bias stemming from any hope of a deal with the State for his pending criminal charges.

It is clear that this was error.

¶ 102 The State confesses this error: "Given that defendant is entitled to inquire as to a witness'

subjective belief or hopes of leniency, even where no particular promises have been made, the

trial court should have allowed the question."

¶ 103 However, the State argues that this error was harmless and does not warrant reversal and

remand for a retrial. "[T]he standard of review of a claimed error affecting a Federal

constitutional right is not whether it was harmless but, rather, harmless beyond a reasonable

-37- 1-12-2345

doubt." People v. Freeman,

(1981) (citing People v. Knippenberg,

(1977), and Chapman v. California,

(1967)). "The question is whether

there is a reasonable possibility that the evidence complained of might have contributed to the

conviction." (Internal quotation marks omitted.) Chapman,

. If error is found,

"even though it encroaches on a constitutional right, it does not require reversal where it is

shown to be harmless beyond a reasonable doubt." Prevo,

-48 (citing

People v. Ciavirelli,

(1994)).

¶ 104 " 'If the entire record indicates the jury was made aware of adequate factors concerning

relevant areas of impeachment of the witness, no constitutional question arises merely because

the defendant was precluded from pursuing another line of questioning.' "

at 1048 (quoting

Weatherspoon,

).

"The factors to be considered by a reviewing court are: ' "the importance of the witness'

testimony in the prosecution's case, whether the testimony was cumulative, the

presence or absence of evidence corroborating or contradicting the testimony of the

witness on material points, the extent of cross-examination otherwise permitted, and, of

course, the overall strength of the prosecution's case." ' "

(quoting Ciavirelli,

, quoting Van Arsdall,

).

¶ 105 The testimony sought would not have been cumulative, as no questioning was allowed

regarding Jason's pending charges, but the testimony of the other witnesses in the case –

defendant's own witnesses – corroborated Jason's testimony and the State's case was strong

overall. We agree with the State and hold that this error was harmless beyond a reasonable doubt

and did not contribute to defendant's conviction.

¶ 106 IV. Limitation of Defendant's Testimony Concerning State of Mind

-38- 1-12-2345

¶ 107 Defendant next argues that the trial court erred in denying him adequate opportunity to

testify to his state of mind. Defendant again argues for de novo review, but it is well-settled that

the admissibility of evidence at trial is a matter within the sound discretion of the trial court and

the court's decision will not be overturned absent a clear abuse of that discretion. People v.

Adkins,

(2010). An abuse of discretion will only be found where the trial court's

decision is arbitrary, fanciful, or unreasonable or where no reasonable man would take the view

adopted by the trial court. People v. Becker,

(2010).

¶ 108 A defendant who raises the issue of self-defense has the right to present evidence

concerning his state of mind to show that he reasonably believed that to protect himself he

needed to use the kind of force he used. People v. Lynch,

(1984); People v.

Keefe,

(1991). "Perception of danger is always material and relevant to

defendant's belief that the use of deadly force is justified." People v. Whiters,

(1992) (citing People v. Davis,

(1963)). "It is defendant's perception of danger, not

the actual peril, which is dispositive."

Self-defense and defense of others involves what the

"defendant subjectively believed." (Emphasis in original and internal quotation marks omitted.)

Keefe,

.

¶ 109 An individual is justified in using deadly force if he or she reasonably believes that such

force is necessary to prevent imminent death or great bodily harm to himself or herself. 720

ILCS 5/7-1 (West 2008). " 'Where a claim of self-defense rests upon some reasonable basis,

exclusion of state-of-mind testimony by a defendant will ordinarily constitute reversible error

unless sufficient evidence of his intent is admitted at a subsequent stage of the trial.' " Keefe,

-52 (quoting People v. Christen,

(1980)).

-39- 1-12-2345

¶ 110 Defendant argues that the court erred in barring testimony concerning his state of mind in

three instances during trial. 2

¶ 111 First, defendant argues the trial court barred defendant from testifying as to what he

believed would happen next when defendant saw London and Jason approaching him and his

friends, yelling threats, and (according to defendant) holding guns. Defendant cites to 12 pages

of the record of the trial proceedings during which there were two objections based on leading,

one objection based on not laying a proper foundation, which were sustained but then defense

counsel was allowed to continue the line of questioning with rephrasing, one asked and answered

objection which was sustained, and one sustained objection to a question regarding who Jason

was fighting with in an incident two to three years prior to the shooting. 3 There was only one

objection as "to what [defendant] believed was going to happen next," as calling for speculation.

The trial court sustained the State's objection. The objection was raised after defendant testified

he saw Jason's handle on a gun. The context is as follows:

"[DEFENSE COUNSEL]: Okay. At this point what did you believe was going to

happen next?

[DEFENDANT]: That we –

[PROSECUTOR]: Objection to what he believed was going to happen next. That

calls for speculation.

2 We note that while defendant did not enumerate the specific instances, defendant did generally argue that it was reversible error to "repeatedly block" defendant's testimony concerning "state of mind" in his supplemental posttrial motion for reconsideration or, in the alternative, for a new trial, sufficient to preserve review of the issue. 3 The court allowed testimony of Jason's membership in the Gangster Disciples, the fact that defendant knew of Jason's violent reputation "through word of mouth" and also "actually witnessed him do bad things," and that defendant was aware that Jason had been involved with a fight with other people. The court sustained the objection only as to the question, "Who was doing the fighting?" -40- 1-12-2345

THE COURT: Sustained.

[DEFENSE COUNSEL]: It's a self-defense case, Judge. State of mind. This is why he

did what he did.

[PROSECUTOR]: Well, Judge, he has to say what happened.

[DEFENSE COUNSEL]: What's on his mind.

THE COURT: I – no. I agree with the State. I mean I think he can testify to what

happened, which leads to his beliefs, but not to speculate on what he thinks is going to

happen.

[DEFENSE COUNSEL]: Well, I mean obviously that's what triggers his conduct, is

what he believes is going to happen. The issue is whether this belief is reasonable or not,

why he did what he did. That's the defense.

[PROSECUTOR]: Yes. But that's got to be based on what he sees and what happens.

THE COURT: Yes, exactly. It has to be based on what actually happens that leads

him to do what he does.

[DEFENSE COUNSEL]: He just said he saw him with a gun. I said what did you

believe was going to happen next.

THE COURT: He said he believed it was a gun.

[DEFENSE COUNSEL]: Right. But – well, so we got a belief. Now we want to

know what did he think that meant. Where is his mind at?

[PROSECUTOR]: Well, Judge –

THE COURT: You can establish how it makes him feel, but you can't establish what

he can speculate on as to what may happen. The objection is sustained."

-41- 1-12-2345

¶ 112 However, defendant was allowed to substantially testify regarding his state of mind, and

there is no error:

"[DEFENSE COUNSEL]: How did you feel when Jason made the comment turn

your mother***ing hats straight?

DEFENDANT: Well, at that time – I was fearful.

[DEFENSE COUNSEL]: How did you feel when Jason told you that – when London

said you heard what he said?

DEFENDANT: Fearful.

[DEFENSE COUNSEL]: How did you feel when Jason said you all about to get

fucked up?

DEFENDANT: I was fearful. It confirmed my beliefs of what he was approaching us

for.

[DEFENSE COUNSEL]: What belief did you have as they approached you?

DEFENDANT: That they were going to try to start something.

[DEFENSE COUNSEL]: And why did you feel that way?

DEFENDANT: Because his reputation and body language [sic].

***

[DEFENSE COUNSEL]: How did you interpret London Clark's statement, you all

heard what he said?

DEFENDANT: Yeah, yeah. He said you all heard what he said. You all going to get

f***ed up. That's exactly what he said.

-42- 1-12-2345

[DEFENSE COUNSEL]: At that point what did you think was going to happen? You

said they're about 10 feet away.

DEFENDANT: At 10 feet away before he actually got closer to us that's when I saw

Jason with his hand – with his hand on a handle. I believe holding his waist really. And I

believed that to be a gun.

***

[DEFENSE COUNSEL]: And what did you believe it to be – that handle to be

attached to?

[DEFENDANT]: A gun.

[DEFENSE COUNSEL]: Okay. How did that make you feel?

[DEFENDANT]: Nervous and scared, fearful."

¶ 113 Thus, defendant indeed testified as to what he believed would happen next when

defendant saw London and Jason approaching him and his friends, yelling threats, and

(according to defendant) holding guns. The court sustained one objection as "to what [defendant]

believed was going to happen next," as calling for speculation but defendant was allowed to

testify to his state of mind. The record is replete with many instances of defendant testifying to

his state of mind. We find no abuse of discretion in the court's ruling.

¶ 114 Second, the trial court at one point did not allow defendant to testify that he believed that

London had a gun and had shot Dion. Defense counsel asked defendant "Well, when [London]

lunged towards Dion, what did you think he was doing?" The State objected "as to what

[defendant] thinks. It's got to be what he sees, Judge," and the court sustained the objection.

However, after that, with some rephrasing, defense counsel essentially elicited the very same

testimony sought from defendant, that he believed London had a gun and had shot Dion:

-43- 1-12-2345

"[DEFENSE COUNSEL]: After London lunged toward Dion, what did you do?

DEFENDANT: A pop [sic].

[DEFENSE COUNSEL]: What did you believe that pop to be?

[DEFENDANT]: A gunshot.

[DEFENSE COUNSEL]: Okay. What did you see Dion do after you heard the pop?

[DEFENSE COUNSEL]: Dion, he fell back like almost catching himself with one

arm. Like breaking his fall with one arm (indicating).

[DEFENSE COUNSEL]: What did you believe had happened to Dion?

[DEFENDANT]: That he had been shot.

[DEFENSE COUNSEL]: Why did you feel that way?

[DEFENDANT]: I mean because Dion – first by the sound, and then Dion – he's

pretty big. I really didn't see because – picture him falling off the hit. You know, thought

he got shot."

¶ 115 The record shows that counsel pursued this line of questioning and defendant in fact did

testify to his state of mind. Even if it could be said that initially not allowing the testimony was

error, it was harmless because defense counsel proceeded to elicit the testimony sought. Where

the court admits substantial evidence concerning the reasons for the defendant's fear, the

exclusion of evidence which would further elucidate those reasons may be considered harmless

error. People v. Damnitz,

(1994) (citing People v. Parker,

(1990)).

¶ 116 Third, defendant argues that he was "blocked" from presenting "[a]dditional state of mind

evidence" under the "guise" of defense counsel leading defendant, citing to two specific

-44- 1-12-2345

instances in the record. The first sustained objection to leading that defendant complains of

occurred as follows:

"[DEFENSE COUNSEL]: How did you feel when you saw them approaching you?

[DEFENDANT]: I was – I was nervous in a way.

[DEFENSE COUNSEL]: Why did you think they were approaching you?

[DEFENDANT]: I mean first we had past conflicts. You know, there was past

incidents. And that's – that's what led me to believe they was approaching us [sic]. But then I was

still hopeful that maybe – maybe they were going to somebody else house though [sic].

[DEFENSE COUNSEL]: Did you believe they were approaching for trouble?

[DEFENDANT]: Yeah, I definitely believe that. At the time I did.

[PROSECUTOR]: I'm going to object to all the leading again.

THE COURT: Sustained.

[DEFENSE COUNSEL]: How did you feel as you saw them moving towards you?

DEFENDANT: Like I said, I was nervous at first."

¶ 117 The above objection to leading occurred during trial testimony cited by defendant as the

first area where the court improperly limited defendant's testimony concerning his state of mind.

This was the second objection based on leading the witness. We find no impropriety in the

court's ruling, as defense counsel was indeed leading defendant. As the above excerpt from the

record of proceedings indicates, counsel was then permitted to continue the line of questioning

without leading defendant.

¶ 118 The second sustained objection to leading that defendant contends is error occurred on

redirect:

-45- 1-12-2345

"[DEFENSE COUNSEL]: Could you see London Clark's whole body when you fired

your gun?

[DEFENDANT]: When I – see, like I said, I don't remember seeing his whole body. I

kind of – I just don't remember seeing his whole body.

[DEFENSE COUNSEL]: Did you know London Clark was unarmed at the time you

fired?

[DEFENDANT]: No, I didn't. Not at the time I fired, no.

[DEFENSE COUNSEL]: Did you believe he was armed?

[DEFENDANT]: Yes.

[PROSECUTOR]: Objection, leading.

THE COURT: Sustained."

¶ 119 This objection was based on leading and occurred only after defendant had already

substantially testified regarding his state of mind. The trial court sustained the State's other

objections only a few times, and also only after defendant had already testified regarding his

state of mind. We find that the trial court did not abuse its discretion because defendant was not

in fact barred from testifying concerning his state of mind. Any additional state of mind

testimony would have been cumulative. Even if there was any error in sustaining the few

objections, it was harmless.

¶ 120 V. Sentencing Errors

¶ 121 Finally, defendant argues that the trial court committed three sentencing errors in

considering improper factors during sentencing: (1) improperly considered factors inherent in the

crime itself as factors in aggravation at sentencing; (2) made improper comments regarding John

-46- 1-12-2345

Wayne Gacy and Jeffrey Dahmer in response to the mitigating factor of defendant's work

history; and (3) made improper comments concerning the death penalty during sentencing.

¶ 122 Defendant argues that the standard of review is de novo where a person's constitutional

rights turn on a legal conclusion arising from undisputed facts, citing to People v. Clark,

(1986), but the correct standard of review is abuse of discretion. A sentence within the

statutory limits is reviewed on an abuse of discretion standard, so that we may alter a sentence

only when it varies greatly from the spirit and purpose of the law or is manifestly

disproportionate to the nature of the offense. People v. Alexander,

(2010). So

long as the trial court does not consider incompetent evidence or improper aggravating factors,

or ignore pertinent mitigating factors, it has wide latitude in sentencing a defendant to any term

within the applicable statutory range. People v. Perkins,

(2011).

Great deference is given to the trial court's sentencing determination as the trial court is in the

best position to determine the appropriate sentence. People v. Reed,

(2007). This broad discretion means that we cannot substitute our judgment simply because we

may weigh the sentencing factors differently. Alexander,

. Absent an abuse

of that discretion, the sentence of the trial court may not be altered upon review. People v.

Perruquet,

(1977); see also People v. McAfee,

(2002) (reviewing the consideration of an improper factor in aggravation for abuse of discretion).

¶ 123 "Relevant factors in determining an appropriate sentence include the nature of the crime,

protection of the public, deterrence, and punishment, as well as the defendant's rehabilitative

prospects and youth." People v. Starnes,

(2007). A trial court must

base its sentencing determination on the particular circumstances of each case, considering such

factors as the defendant's credibility, demeanor, general moral character, mentality, social

-47- 1-12-2345

environment, habits, and age.

Because the most important sentencing factor is the seriousness

of the offense, the court is not required to give greater weight to mitigating factors than to the

seriousness of the offense, nor does the presence of mitigating factors either require a minimum

sentence or preclude a maximum sentence. Alexander,

; People v. Flores,

(2010).

¶ 124 Although a trial court has broad discretion in imposing a sentence, it is well established

that a court may not consider a factor inherent in the offense as an aggravating factor in

sentencing. People v. Phelps,

(2004). A sentence based upon an improper

aggravating factor violates a defendant's "fundamental right to liberty" and unjustly affects the

right to be sentenced on proper factors. People v. James,

(1993). The

sentencing court may not consider "the end result of defendant's conduct, a result which is

implicit in every murder." People v. Joe,

(1991). As the legislature

already considered all inherent factors when determining an appropriate sentencing range for the

offense, considering the factor again when sentencing results in an improper double

enhancement. People v. Conover,

(1981).

¶ 125 However, " '[t]he rule that a court may not consider a factor inherent in the offense is not

meant to be applied rigidly, because sound public policy dictates that a sentence be varied in

accordance with the circumstances of the offense.' " People v. Spicer,

(2007) (quoting People v. Cain,

(1991)). "In determining whether the

trial court based the sentence on proper aggravating and mitigating factors, a court of review

should consider the record as a whole, rather than focusing on a few words or statements by the

trial court." People v. Dowding,

(2009). " 'An isolated remark made in

passing, even though improper, does not necessarily require that defendant be resentenced.' "

-48- 1-12-2345

People v. Reed,

(2007) (quoting People v. Fort,

(1992)).

¶ 126 Defendant argues that the court improperly considered factors inherent in the crime itself

as factors in aggravation, made improper comments regarding John Wayne Gacy and Jeffrey

Dahmer in response to the mitigating factor of defendant's work history, and made improper

comments concerning the death penalty during sentencing, such that defendant did not receive a

fair sentencing hearing.

¶ 127 A. Consideration of the Nature of the Crime

¶ 128 First, regarding alleged improper consideration of elements of the offense in aggravation,

contrary to defendant's argument, the nature of the crime is an appropriate factor to consider. See

Starnes,

. See also People v. Tolliver,

(1981).

While consideration of serious harm as an aggravating factor in sentencing a defendant for

murder is improper, since serious harm is inherent in the offense, the sentencing court "may, of

course, consider the force employed and the manner in which the victim's death is brought

about." People v. Joe,

(1991) (citing People v. Saldivar,

(1986)). The prohibition is only "against the use of a single factor both as an element of

a defendant's crime and as an aggravating factor justifying the imposition of a harsher sentence

than might otherwise have been imposed." (Emphasis in original.) People v. Gonzalez,

(1992).

¶ 129 The court then stated the following, in relevant part, during its weighing of all factors:

"I certainly have to take into consideration the facts and circumstances in this

particular case and the way that London Clark's death was caused. I did prior to the State

– and I think they pointed out the appropriate paragraphs in the statute because I had

-49- 1-12-2345

already taken those into consideration and certainly taken into consideration that the acts

of Mr. Harmon did, in fact, cause serious harm, that being the death of London Clark,

take into consideration that the defendant does, in fact, have prior history of criminal

activity. And this is something that I have been thinking about a lot."

¶ 130 Although defendant cites to two more instances in the record where the court allegedly

improperly focused on the end result of the crime that is inherent in the crime itself, we find only

one more instance, and it was in the context of discussing defendant's lack of remorse:

"[Defendant] took the stand in his own case, and even in his testimony I did not

denote any remorse. It was always an excuse for why he behaved the way he behaved.

Not even on the stand did he ever say, you know what, maybe I acted too quickly. I'm

really sorry for what I did. Not one time. Even today he didn't say he was sorry. He says

God bless the victim's family. God bless my family. Never, ever said, I am so sorry for

what I did. Not one time has he said that.

I think it's quite unfortunate. I think it's unfortunate because even here today I'm not

seeing anything coming from [defendant] that shows that he in some way is sorry for

what he did. I don't know how you can sleep at night if you took somebody's life. *** It's

about I took somebody's life. I ended another human being's life."

¶ 131 The court discussed many other mitigating and aggravating factors at length. These were

the only two instances where the court made any mention of the fact that the crime was murder.

It is clear from the record that the court did not consider the nature of the crime in aggravation,

but only appropriately in the context of the nature of the crime and defendant's lack of any

remorse and did not unduly focus on that factor as defendant argues.

¶ 132 B. Comments Concerning Serial Killers

-50- 1-12-2345

¶ 133 Second, defendant argues that the court erred in comparing defendant to the serial killers

John Wayne Gacy and Jeffrey Dahmer and committed error by relying on his own personal

knowledge regarding those serial killers, outside of evidence at the sentencing hearing. However,

the court did not in fact compare defendant to these serial killers. Defense counsel argued at the

sentencing hearing:

"If you have read his presentence investigation you will note he had been

maintaining some form of employment for many years, since he was approximately age

13. That's more industrious and more reflective of initiative than a lot of other people

take.

***

He had the ability to be a functioning, contributing member to society. And he was on

that path."

¶ 134 In response, the trial court stated the following:

"You know, [defendant] worked. Wake-up call. John Wayne Gacy worked. Scott

Peterson worked. Dahmer worked. The fact that you worked does not make you a good

person. These are some of – Dahmer and Gacy – some of the worst serial killers in the

nation in history [sic], they worked. How does that make you a better person because you

had a job?"

¶ 135 The court did not specifically compare defendant to these serial killers but, rather, made a

point that a work history was not much of a mitigating factor and did not mean defendant was a

better member of society. An employment history is a factor in mitigation at sentencing. People

v. Taylor,

(1972). Defendant's case in support, People v. Dameron,

(2001), is distinguishable because there the court spoke at length about social science

-51- 1-12-2345

statistics and the court's own generalizations about crime that he discovered in a treatise through

its own investigation.

. Unlike Dameron, here the court did not rely on any

information or its own investigation outside the record. Rather, the court merely commented that

even the worst serial killers had a work history and so the court did not feel that defendant's work

history was a strong mitigating factor. Placed in context, the court's comments were not

prejudicial.

¶ 136 C. Comments Regarding the Death Penalty Moratorium

¶ 137 Finally, it is apparent from the record that the trial court's comments regarding the death

penalty were in direct response to defense counsel's argument regarding the death penalty

moratorium. Defense counsel argued for leniency to not punish defendant to the maximum and

not take a life for a life, using the example that the death penalty was abolished. The trial court's

comments regarding the death penalty moratorium were in direct response to defense counsel's

argument:

"I've heard a lot about Mr. Harmon being a member of the church, part of the church.

And that video that I looked at doesn't reflect who he really is. Well, his actions when he

first got arrested with a gun reflected who he was. He's a guy out there selling drugs with

weapons on him. The video that I saw of his statement with the police department I think

does, in fact, reflect who he is. *** [H]is language was horrible, MF this, F this, so forth,

so on. That's the way he communicates with authority. That tells me that's the kind of guy

that he is.

The defense argues that we don't live in a society where, well, just because he took

somebody's life we should take his life. And I beg to differ. That's exactly – up until

recently this State was a death penalty state. That's exactly what we did. You took

-52- 1-12-2345

somebody's life. We took your life. And that's not retribution. That's punishment. We

don't have the death penalty anymore, but not because of your logic. Far from that logic.

We don't have the death penalty anymore in this state because if there are situations

where it is absolutely uncertain that we could be *** killing the right person, you don't

want to kill the wrong person for somebody else's acts.

The moratorium was on for a long period of time before finally the state repealed the

death penalty. And it's just a way of ensuring that we don't, in fact, kill someone who

maybe somehow in the system was found guilty and, in fact, shouldn’t have been found

guilty.

45 years is the minimum that I can give [defendant], because that's what the statute

says. The most that I can give him is life. One thing for sure is that he will be locked

away for a very, very long time. I don't believe that even at 45 years minimum that he is

going to be in much of a position to go back and work on the west side as a mentor

because this is a 100 percent service. Murder you do 100 percent of the time. There's no

doubt about it."

¶ 138 The trial court's comments were immediately preceded by the court's consideration of

mitigating evidence of the defendant's church involvement and potential for rehabilitation,

contrasted with defendant's behavior captured on one of the videotaped interviews with the

police and total lack of expressed remorse. The court then specifically stated it was addressing

defense counsel's argument concerning the death penalty moratorium in argument for leniency in

sentencing defendant, to clarify that the moratorium was not instituted as a progression away

from punishment. The very next thing the court discussed is the appropriate punishment for

defendant. The court then carefully weighed the minimum sentence and defendant's potential for

-53- 1-12-2345

rehabilitation and specifically stated that it did not feel defendant would be rehabilitated with a

lenient sentence. The court did not, however, sentence defendant to the maximum, life in prison.

Taking the record as a whole, we conclude that the court did not abuse its discretion in imposing

a sentence of 65 years' imprisonment, a mid-range sentence given defendant's age. We thus

affirm defendant's sentence as well.

¶ 139 CONCLUSION

¶ 140 We hold that defendant failed to demonstrate that the State failed to prove beyond a

reasonable doubt that defendant was not acting in self-defense or defense of others from death or

great bodily harm. We further hold that simple battery on a public way, elevated to aggravated

battery under section 12-4(b)(8) (720 ILCS 5/12-4(b)(8) (West 2008)), does not suffice to satisfy

section 2-8 to constitute a forcible felony of the type that would justify using deadly force under

section 7-1(a) for justified use of deadly force (720 ILCS 5/7-1(a) (West 2008)). Section 2-8

clearly limits aggravated battery as a forcible felony to "aggravated battery resulting in great

bodily harm or permanent disability or disfigurement" (720 ILCS 5/2-8 (West 2008)).

¶ 141 Defendant has also failed to demonstrate the mitigating factors for reduction of his

conviction to second degree murder. Defendant's testimony was incredible, and there was no

other evidence, that defendant had even an unreasonable belief in self-defense or defense of

others. Defendant's claim acting under sudden and intense passion resulting from provocation

also finds no support in the evidence.

¶ 142 Although the State confesses error where the trial court did not allow any questioning of

Jason regarding potential bias stemming from any hope of a deal with the State for his pending

criminal charges, the testimony of the other witnesses in the case corroborated Jason's testimony

-54- 1-12-2345

and the State's case was strong overall, and thus this error was harmless beyond a reasonable

doubt and did not contribute to defendant's conviction.

¶ 143 Defendant also has not shown any reversible error in sustaining several objections to

defense counsel's questions concerning what defendant thought would happen, as the majority of

the objections were on valid grounds, only one objection specifically concerned what defendant

thought would happen, and defendant indeed did testify comprehensively to his state of mind.

¶ 144 Defendant further has not shown any reversible error in sentencing. Taking the record as

a whole, we conclude that the court considered all relevant mitigating and aggravating factors

and did not abuse its discretion in imposing a sentence of 65 years' imprisonment.

¶ 145 The State asks us to grant it costs incorporated as part of our judgment and order a fee of

$100 for defendant this appeal, pursuant to People v. Nicholls,

(1978) (holding that

State's attorney fee for defending unsuccessful appeal by convicted criminal defendant could be

assessed as costs), section 110-7(h) of the Illinois Code of Criminal Procedure of 1963 (725

ILCS 5/110-7(h) (West 2012)), section 13 of the Criminal Jurisprudence Act (725 ILCS 130/13

(West 2012)), and section 4-2002.1 of the Counties Code (55 ILCS 5/4-2002.1 (West 2012)

(providing for an award of costs to the State in defending an appeal)). As oral argument was not

heard in this case, we do not address the State's additional request for costs for oral argument.

¶ 146 Section 110-7(h) of the Illinois Code of Criminal Procedure of 1963 pertains to bail

deposit pending appeal. See 725 ILCS 5/110-7(h) (West 2012). Section 13 of the Criminal

Jurisprudence Act was repealed by Public Act 89-234. Pub. Act 89-234, art. 10, § 10-5 (eff. Jan.

1, 1996).

¶ 147 Since we are upholding defendant's conviction, under the authority of section 4-2002.1(a)

of the Counties Code (55 ILCS 5/4-2002.1(a) (West 2012)) and Nicholls,

, we

-55- 1-12-2345

assess defendant $100 in costs for the State's defense of this appeal and hereby incorporate it as

part of this judgment.

¶ 148 Affirmed; costs assessed.

¶ 149 PRESIDING JUSTICE MASON, specially concurring.

¶ 150 I concur in the result.

-56-