FIFTH DIVISION May 27, 2016

No. 1-13-3389

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 97 CR 1833 ) GIOVANNI SPILLER, ) Honorable ) James Michael Obbish, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE Burke delivered the judgment of the court. Justice Gordon and Justice Lampkin concurred in the judgment.

OPINION

¶1 The undisputed evidence in this case showed that on November 29, 1996, defendant,

Giovanni Spiller, shot and killed Roberto Castillo on West Montrose Avenue, in Chicago,

Illinois. Immediately after the shooting, defendant fled the jurisdiction for several weeks. Prior to

turning himself in to the police, defendant consulted with a criminal defense attorney, who gave

defendant his opinion that defendant had a winning case. The state charged defendant by

indictment with two counts of first degree murder. Defendant posted bond ($200,000), with a 1-13-3389

condition of 24 hour electronic monitoring/home confinement. He cut off the monitoring bracelet

and again fled the jurisdiction. He was captured in California 15 years later on March 13, 2012.

Following a bench trial, Judge Michael Obbish found defendant guilty of first degree murder and

sentenced him to 35 years in the Illinois Department of Corrections (IDOC).

¶2 Defendant alleges on appeal that the State failed to disprove his affirmative defense that

he acted in self-defense and that he received ineffective assistance of counsel because his

attorney did not assert to the judge that he was guilty of the lesser mitigated offense of second

degree murder. For the following reasons, the trial court's judgment and sentence are affirmed.

¶3 I. BACKGROUND

¶4 On November 29, 1996, an eyewitness to the shooting, Leona Minassian, was sitting in

her parked vehicle outside her family's pool hall, Marie's Golden Cue, on West Montrose in

Chicago, Illinois. The victim, Roberto Castillo, knocked on her car and waved to her on his way

into the pool hall. She knew the victim as a regular customer at the pool hall. The pool hall had

plate glass windows across the front, which allowed a view from the front of the hall, all the way

to the back. After he went inside, the victim spoke to the man working at the counter and some

of his friends. Less than a minute later, the victim ran out of the pool hall, with defendant

chasing him. Minassian knew defendant since she was a child. Like the victim, he was also a

regular patron at the pool hall.

¶5 As the victim ran toward her, she heard two gunshots and "it looked like [the victim]

would have tripped, but as he fell, [the victim] turned around and ended up like facing the

windows." Defendant then fired an additional 3 shots, one shot for each step he took in the

direction of the victim. Minassian testified at trial that the shooting occurred directly in front of

her parked car, where she was sitting. She estimated that the length of the car hood was the

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distance between her and the victim, about 4 ½ feet, when he was shot. She observed that

defendant used a chrome .45-caliber gun, during the shooting. She was sure of the caliber of the

gun because she had just completed a ballistics class. Minassian did not observe any weapons in

the victim's hands either before he went into the pool hall or after he came out. Minassian called

the police and an ambulance as defendant drove away in a dark green SUV. She provided the

operator with the license plate number of defendant's vehicle. A few weeks later, Minassian

identified defendant in a police line-up.

¶6 Attorney Robert Christie testified that he was playing pool at Marie's Golden Cue at the

time of the shooting. Shortly after 6:00p.m., he heard a gunshot. He looked out the window and

observed a man leaning forward with something shiny in his hand, with his arm out at a 45

degree angle pointed towards the ground. Christie then heard three more gunshots in succession.

Christie believed that the shiny object in the man's hand was a gun. Every time he observed the

man's hand jerk, he heard a simultaneous shot. He observed the shooter turn around and run

eastward.

¶7 Chicago police investigator Gurtowski recovered three .45-caliber fired cartridge cases:

from the sidewalk, one on top of the curb, and one from the street, near the curb. Medical

personnel at Illinois Masonic Hospital gave Chicago Police Officer 1 Valenzano one fired bullet

that was recovered from the victim's body.

¶8 It was stipulated by the parties that Deputy Cook County Medical Examiner Dr. Larry

Sims would testify that he conducted an autopsy on the victim on November 30, 1996. The

stipulated testimony was as follows: the victim suffered from five gunshot wounds: 1) a through-

and-through gunshot wound which entered the right lower back and exited the left lower back; 2)

1 The Chicago police witnesses' first names are unknown.

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a gunshot wound to the left posterolateral thigh that partially exited at the top of the victim's left

buttocks; 3) a gunshot wound of entrance to the victim's left lower chest; 4) a through-and-

through gunshot wound which entered the victim's left upper abdomen and exited through the

right lower back; and 5) a graze wound to the victim's left inner forearm. One bullet was

recovered from the partial exit wound located at the top of the victim's left buttocks and another

bullet associated with the wound to the victim's left lower chest was recovered in the right flank.

All tests for ethanol, opiates and cocaine were negative. The coroner listed the cause of death as

multiple gunshot wounds and the manner of death as a homicide.

¶9 Firearms identification expert John Sanchez examined the two fired bullets recovered

during the autopsy and at the hospital, as well as the fired cartridge cases recovered from the

scene of the shooting. The parties stipulated that Sanchez would testify that the three recovered

bullets, as well as the three fired cartridge cases, were .45-caliber and all three of the cartridge

cases were fired from the same gun.

¶ 10 Defendant testified that the victim had previously physically harmed him and had

previously threatened him. He never called the police after these incidents. On the day of the

shooting, the victim entered the pool hall and called defendant a slang Filipino word which

meant "you are stupid." Defendant tried to avoid the victim and only left the pool hall when he

believed that the victim had left the area. When defendant exited the pool hall, he observed the

victim step out of a doorway further down the street. The victim struggled to remove a gun from

his waistband. As he was struggling with the gun, the victim told defendant that he was going to

kill him. Defendant reached for his gun and shot the victim numerous times.

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¶ 11 Defendant claimed that after the victim fell to the ground, the victim's friend, Boxer 2,

picked up something and left. Defendant did not know what Boxer picked up. No weapon of any

kind was recovered from the victim's person or from the surrounding area. Defendant ran to his

SUV and drove off. He dismantled the gun he had used to shoot the victim and threw it away.

Defendant admitted that he bought a .45-caliber gun in the street 3 or 4 years prior to this

incident. He carried this gun for protection while in the bookmaking business, but he never had

a license for it.

¶ 12 After defendant consulted with a criminal defense attorney, he turned himself in to the

police several weeks after the shooting. Defendant was placed on electronic home monitoring,

but he cut off his electronic monitoring bracelet and fled the jurisdiction. Defendant testified that

he did this because he believed people were after him and might kill him.

¶ 13 The defense expert, Dr. Nancy Jones, a forensic pathologist, testified that the victim had

to be "in at least separate positions" at the time the five gunshot wounds were inflicted because

the wounds were located in three distinctly separate areas of the body. The victim sustained two

gunshot wounds in the front of his body, consistent with the victim being in a vertical position or

slightly leaning forward. Jones testified that the wounds were not consistent with the victim

being shot while lying on the ground while the shooter stood over him. She stated that the

gunshot wound to the back of his left thigh could only have occurred if the victim's back was to

the weapon as it was being fired.

¶ 14 The trial court found defendant guilty of first degree murder and specifically found that

the State proved beyond a reasonable doubt that defendant was not acting in self-defense when

2 Full name unknown.

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he shot the unarmed victim after chasing him from the pool hall. The trial court sentenced

defendant to 35 years in the IDOC. This appeal followed.

¶ 15 II. ANALYSIS

¶ 16 A. EVIDENCE SUFFICIENTLY PROVED DEFENDANT GUILTY OF FIRST DEGREE MURDER BEYOND A REASONABLE DOUBT AND SUFFICIENTLY DISPROVED HIS AFFIRMATIVE DEFENSE OF SELF-DEFENSE.

¶ 17 Defendant admits to repeatedly shooting the victim. The issue raised by the defendant is

whether the State disproved whether he, reasonably or unreasonably, acted in self-defense.

¶ 18 In a challenge to the sufficiency of the evidence supporting a conviction, we view the

evidence in the light most favorable to the prosecution to determine whether a rational trier of

fact could have found that the essential elements of the offense were proven beyond a reasonable

doubt. People v. Collins,

(2005). "A criminal conviction will not be set aside

unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt of the

defendant's guilt."

. "[T]he State carries the burden of proving beyond a reasonable

doubt each element of an offense." People v. Siguenza-Brito,

(2009)

(citing Jackson v. Virginia,

(1979)).

¶ 19 Initially, we answer the question of whether the State sufficiently proved the charge of

first degree murder. To prevail on a charge of first degree murder, the State must prove beyond a

reasonable doubt: (1) that defendant performed the acts which caused the death of the victim;

and (2) that when defendant did so, he intended to kill or do great bodily harm to the victim or he

knew that his acts would cause death to the victim. See 720 ILCS 5/9–1(a)(1), (a)(2) (West

2004); Illinois Pattern Jury Instructions, Criminal, Nos. 7.01, 7.02 (4th ed. 2000).

¶ 20 In the present case, two eyewitnesses testified that defendant shot the unarmed victim

repeatedly. Minassian testified that she knew both defendant and the victim. She was less than 4

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½ feet away when defendant chased the victim out of the pool hall, and repeatedly shot the

victim as the victim attempted to run away. He continued firing at the victim even after he fell to

the ground. Christie viewed the same events from inside the pool hall. He testified that he heard

several gunshots and observed a man's arm pointed toward the ground at a 45 degree angle

holding something shiny in his hand, which he believed was a gun. He observed the man's arm

jerk several times. At the same time as he viewed the arm motions, he heard gunshots. The

testimony of the coroner and the firearms expert corroborated the eyewitness testimony. The

coroner recovered two bullets from the victim's body, one from the right flank and one from the

rear buttocks area. In addition to those gunshot wounds, there were two through-and-through

wounds and one bullet recovered by Illinois Masonic Hospital personnel. Three spent cartridges

were recovered from the scene.

¶ 21 Clearly, there was a sufficient basis to find defendant guilty of murder. However, when a

murder defendant asserts self-defense, "the State must prove more than the three elements of first

degree murder. The State must also prove that the murder was not carried out in self-defense, and

that the defendant's use of force was not legally justified." People v. Jeffries,

(1995). Section 7–1 of the Criminal Code provides in relevant part:

“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 himself or

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

1996).

¶ 22 Defendant asserts that the State failed to disprove his affirmative defense of self-defense.

"Once an affirmative defense is raised, the State has the burden of proving the defendant guilty

beyond a reasonable doubt as to that issue together with all the other elements of the offense."

Jeffries,

. In order to raise the defense of self-defense, the defendant must

establish some evidence of each of the following elements:

"(1) force is threatened against a person; (2) the person threatened is not the

aggressor; (3) the danger of harm was imminent; (4) the threatened force was

unlawful; (5) he actually and subjectively believed a danger existed which

required the use of the force applied; and (6) his beliefs were objectively

reasonable." Jeffries,

(citing People v. Anderson,

(1992); People v. Willis,

(1991)).

¶ 23 Defendant argues that Minassian's testimony was so filled with inconsistencies that it

should have been disregarded. If her testimony is disregarded, then defendant contends that the

State failed to disprove that defendant acted in self defense. We find this argument unpersuasive.

¶ 24 The trial court correctly found that Minassian's account of the shooting was, in almost all

respects, consistent and credible. The points which defendant asserts render Minassian's entire

account unreliable are minor and do not call into question her ability to recall the events as they

occurred over 15 years prior. Defendant points to Minassian's testimony that the victim

exchanged pleasantries with her before entering the pool hall as opposed to an officer's account

that she stated that they did not have a conversation, but this discrepancy is minor.

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¶ 25 Likewise, defendant points out that Minassian previously stated that the victim never

entered the pool hall, but, rather, that he turned and started running with defendant in pursuit. At

trial, she testified that the victim entered the pool hall and spoke to people inside before running

out. Defendant also testified that the victim actually came into the pool hall, rather than just came

to the front door. Neither of these differences would cause a reasonable person to disregard her

entire testimony. The applicable standard of review fully recognizes that it is the trier of fact's

responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. People v. Jackson,

(2009). The trial court found both of these inconsistencies minor, and we will not disturb that

determination.

¶ 26 The only evidence presented which supported defendant's self-defense claim was

defendant's own testimony. Defendant claimed that the victim threatened him two months prior

to the shooting. Defendant testified that the victim demanded that defendant give the victim a

"cut of the profits" from defendant's illegal bookmaking business. Defendant refused and the

victim told him that if he did not give him the money, the victim would kill defendant. The

victim then punched defendant in the eye and kicked him repeatedly, which required defendant

to seek medical attention at a hospital. According to defendant, on the night of the shooting, the

victim came into the pool hall and started calling defendant "names". The victim then stared at

defendant for three to five minutes before the victim left the pool hall. As defendant left the pool

hall, the defendant claimed that the victim called to him. As defendant turned, he observed the

victim reaching for a gun in his waistband, but he was unable to pull the gun out. Defendant

drew his own gun and fired four times.

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¶ 27 Defendant's version was completely contradicted by Minassian's testimony, which the

trial court found credible. She never observed the victim with a gun. As the trial court found, if

the victim had a gun, he would not have been running away. Defendant maintained that he

observed the victim pulling out a gun, but the victim did not already have a gun in his hand.

Additionally, Minassian corroborated the type of gun defendant possessed and used to shoot the

victim, i.e., a .45-caliber. The trial court also found defendant's claim that the victim's friend,

Boxer, reached down and picked up a gun left by the victim unbelievable, considering that

defendant was standing near the victim's body, having just shot the victim five times. The trial

judge did not find defendant's testimony credible that he acted in self-defense. Neither do we. As

our courts have previously held, "[w]hether a killing is justified under the law of self-defense is a

question of fact, and the fact finder is not required to accept as true the defendant's evidence in

support of that defense. Instead, the trier of fact is obliged to consider the probability or

improbability of the evidence, the circumstances surrounding the event, and all of the witnesses'

testimony." People v. Garcia,

(2011) (quoting People v.

Huddleston,

(1993)).

¶ 28 This court, as the reviewing court, will not retry a defendant, we determine whether the

evidence was sufficient to find defendant guilty of first degree murder beyond a reasonable

doubt. People v. Austin M.,

. Determinations of witness credibility, the

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

the responsibilities of the trier of fact, not the reviewing court. People v. Jimerson,

(1989). After considering all of the evidence presented at defendant's trial and viewing that

evidence in the light most favorable to the State, we find that the evidence was sufficient to

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prove beyond a reasonable doubt that defendant was guilty of the first degree murder of Ricardo

Castillo. Jackson,

.

¶ 29 We now turn to the issue of whether the trial court should have found defendant guilty of

second degree murder instead of first degree murder.

"If the State negates any one of the self-defense elements, the defendant's

claim of self-defense must fail. The trier of fact must then find the defendant

guilty of either first or second degree murder. Therefore, the defendant's

unreasonable belief is not necessarily an element the State must disprove in

defeating a claim of self-defense. Rather, it is only one of the six enumerated

factors which the State may choose to attack to rebut a claim of self-defense.

Indeed, the State could also defeat a self-defense claim by proving the absence

of any threat of force against the defendant, that the defendant was the

aggressor, the absence of a danger of imminent harm, or a lack of unlawful

force." Jeffries,

.

¶ 30 As set forth in Jeffries,

, "[w]here evidence of both first and second

degree murder is presented and the defendant advances a claim of self-defense, the statute

expressly states that the State bears the burden of proving beyond a reasonable doubt not only the

elements of first degree murder, but also that the defendant was not justified in using the force

that he used." If a defendant is convicted of second degree murder, it indicates that the trier of

fact has essentially concluded that:

"the evidence that the defendant has offered was not sufficient to support his

claim of self-defense. The defendant, however, has proven by a

preponderance of the evidence the existence of a mitigating factor sufficient to

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reduce the offense of murder to second degree murder. The defendant is not

compelled to show that he had an unreasonable belief in the necessity for the

use of force to obtain a second degree murder conviction. Rather, after the

defendant has presented the best evidence for his defense, the trier of fact has

concluded that the evidence only supports a finding of second degree murder

and not absolute justification for the defendant's actions." Jeffries,

.

¶ 31 In the present case, the trial court found that there was no belief, reasonable or

unreasonable, that defendant was acting in self-defense. There was no credible evidence that

defendant was threatened by the victim or that the victim had a weapon. The evidence

established that defendant chased the victim, shot him as he attempted to run away, and

continued to shoot him after he fell to the ground.

¶ 32 Here, taking the evidence in the light most favorable to the State as we must, we conclude

that a reasonable finder of fact would find defendant guilty of first degree murder. In sum, this

case presented a credibility contest between defendant and Minassian, Christie, the coroner and

the firearms examiner. We do not find the court's weighing of credibility to be so unreasonable,

improbable, or unsatisfactory that a reasonable doubt of defendant's guilt remains. Collins,

.

¶ 33 B. TRIAL COUNSEL WAS NOT INEFFECTIVE FOR EMPLOYING TRIAL

STRATEGY

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¶ 34 Defendant contends that his counsel was ineffective for arguing to the trial judge in a

bench trial "there is no compromise. There is no second degree in this case." Defendant contends

that this defense was based on a misapprehension of the law.

¶ 35 Defendant correctly states that second degree murder is properly characterized as a lesser

mitigated offense rather than a lesser-included offense of first degree murder. Jeffries,

. The trial court may also convict a defendant of second degree murder sua sponte.

People v. Rogers,

, 829–30 (1997) (upholding the trial court's sua sponte

finding that the defendant was guilty of the uncharged lesser mitigated offense of second degree

murder even though the defendant, at trial, denied any involvement in the shooting). Here,

defendant waived his right to a jury. In a bench trial, the judge determines from the evidence

whether the defendant is guilty of murder or of some lesser-included offense. People v. Turner,

(2003).

¶ 36 To establish a claim of ineffective assistance of counsel, a defendant must satisfy the

familiar Strickland test. See Strickland v. Washington,

(1984). The test is

composed of two prongs: deficiency and prejudice. Strickland,

; People v.

Brisbon,

(1995). First, the defendant must prove that counsel made errors

so serious, and that counsel's performance was so deficient, that counsel was not functioning as

the “counsel” guaranteed by the sixth amendment. A court measures counsel's performance by an

objective standard of competence under prevailing professional norms. To establish deficiency,

the defendant must overcome the strong presumption that the challenged action or inaction might

have been the product of sound trial strategy. People v. Evans,

(1999); People

v. Hampton,

(1992).

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¶ 37 Second, the defendant must establish prejudice. The defendant must prove that there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome. The prejudice prong of Strickland entails more than an “outcome-

determinative” test. The defendant must show that counsel's deficient performance rendered the

result of the proceeding unreliable or fundamentally unfair. Evans,

; People v.

Mahaffey,

(1995). A defendant must satisfy both prongs of the Strickland

test. Therefore, “failure to establish either proposition will be fatal to the claim.” People v.

Sanchez,

(1996); accord People v. Guest,

(1995).

¶ 38 Defendant cannot prevail under the first prong. Counsel's decision to pursue the all or

nothing defense of self-defense is a valid trial strategy. Although defendant contends that the

case of People v. Walton,

(2007), was "poorly reasoned" and factually

distinguishable, Walton directly addresses and controls the outcome of defendant's argument.

The defendant in Walton argued that a criminal defendant in a bench trial for murder had the

exclusive right to determine whether to pursue the lesser offense of second degree murder and

that a trial court must inquire whether defendant agrees with his counsel's "all-or-nothing"

defense.

. The court found that the defendant's argument overlooked

"an important distinction between jury trials and bench trials as well as the

rationale for the aforementioned rule. In a jury trial, unless a lesser-included

offense instruction is tendered, the jury does not have the option to convict the

defendant of an uncharged lesser-included offense; rather, the jury will be

forced to decide either to convict or acquit him. This avoids the possibility of

a compromise verdict where the 'jury may be induced to find defendant guilty

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of the lesser offense rather than to continue the debate as to his innocence.'

People v. Benford,

(2004). In contrast, a judge

presiding over a bench trial may convict a criminal defendant of an uncharged

lesser-included offense sua sponte." Walton,

.

¶ 39 The Walton court held that the defendant's counsel did not "usurp" the defendant's

fundamental rights or render ineffective assistance and the trial court did not violate due process

in failing to inquire into counsel's trial strategy.

. Instead, the court held that the

defendant's argument essentially challenged counsel's trial strategy, which is "'virtually

unchallengeable' and will generally not support an ineffective assistance of counsel claim."

at

589 (citing People v. Palmer,

(1994)). "Counsel's decision to advance an

'all-or-nothing defense' has been recognized as a valid trial strategy ([Citations]) and is generally

not unreasonable unless that strategy is based upon counsel's misapprehension of the law."

The court found that defense counsel "adopted a valid trial strategy when he argued that

defendant was acting in self-defense. The mere fact that this strategy proved unsuccessful does

not mean counsel performed unreasonably and rendered ineffective assistance."

¶ 40 Based on Walton, we similarly conclude in this case that counsel did not render

ineffective assistance in making the strategic choice to pursue an "all-or-nothing" defense. The

record does not support defendant's contention that counsel misapprehended the law. Rather,

counsel's statements ("there is no compromise. There is no second degree in this case.") indicate

that he considered, but rejected, such a dual strategy. Moreover, counsel cannot be found

ineffective for failing to request that the trial court consider second degree murder, as the trial

court was empowered to consider this lesser offense regardless of counsel's arguments.

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¶ 41 Further, we also conclude that defendant suffered no prejudice. It is clear from the record

that the trial court did, in fact, consider and reject any contention that defendant had a reasonable

or unreasonable belief in self-defense. There is no reasonable probability that, had counsel

argued in favor of a second degree murder conviction, the trial result would have differed.

Accordingly, because counsel did not act unreasonably and defendant suffered no prejudice, his

ineffective assistance of counsel claim has no merit.

¶ 42 III. CONCLUSION

¶ 43 We affirm the circuit court in finding defendant guilty of murder and the sentence of 35

years in the Illinois Department of Corrections.

¶ 44 Affirmed.

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