APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
515 N.E.2d 228, 161 Ill. App. 3d 634, 113 Ill. Dec. 419
Appeal from the Circuit Court of Cook County; the Hon. Joseph J. Urso, Judge, presiding. 1987.IL.1403
JUSTICE HARTMAN delivered the opinion of the court. SCARIANO, P.J., and BILANDIC, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN
Defendant appeals his murder conviction by a jury and resultant sentence of 35 years' imprisonment. He raises as issues whether the circuit court: (1) erred by refusing to give defense instructions concerning the use of force in self-defense; (2) erred in instructing the jury on an aggressor's justifiable use of force; (3) improperly limited defendant in cross-examination of the arresting police officer; and (4) failed to consider defendant's rehabilitative potential when imposing sentence.
On May 18, 1984, at approximately 6:30 p.m., defendant, Melvin Santiago, then age 17, affiliated with the Spanish Cobras gang, fired six shots from a revolver and killed 14-year-old Tyrone Ellis, a member of the Vice Lords. The shooting took place in Wicker Park, the turf of a group of gangs collectively known as the "People," including the Vice Lords, the Latin Kings, and the Insane Unknowns. The Spanish Cobras are part of a rival group of gangs known as the "Folks."
Five occurrence witnesses who testified at trial all had gang affiliations; Ricky Hill, a member of the Vice Lords; Jessie Arroyo, a former Latin King who associated with the Kings; Lionel Watson, a Vice Lord at the time of the shooting; Nathaniel Hoskins, a Vice Lord; and Ramon Maldonado, a member of the Insane Unknowns. According to these witnesses, after playing basketball, Ellis and a group of friends were walking to a doughnut shop. Suddenly, out of an alley, a group of from three to seven people appeared. Defendant, one of the group from the alley, shouted slogans, such as "KK" (meaning King killer) and "VLK" (meaning Vice Lord killer), and made gang signals with his hands, insulting the Latin Kings. Ellis and his friends froze. Defendant then drew a gun from his waist and fired shots; afterwards, Ellis lay on the ground bleeding from his head. Ellis died at St. Elizabeth's Hospital the next day from a gunshot wound to the head. Defendant had aimed the gun and had clasped it with both hands when he fired.
There was evidence that Ellis and his companions possessed no bottles or other weapons and did not advance upon defendant before the shooting began. The witnesses could not give good descriptions of the group from the alley, but some believed they recognized a person they knew as defendant's cousin.
Defendant provided a number of different accounts of these events. First, he asserted someone else was the shooter; the shooter passed him the weapon afterwards and he threw the gun in an alley. Next, he claimed that, while another person did the shooting, he and a group had sought out Latin Kings to pay them back for earlier chasing him and a friend and scratching the friend's face. His written confession stated that he bought the gun that day and went to the Kings' neighborhood to retaliate, after the Latin Kings had chased him and a friend. Defendant was accompanied by another friend who did not know what would happen. When they encountered Latin Kings, both sides shouted gang slogans, the Kings ran towards him and he fired six shots. Defendant later told his brother-in-law, Ephraim Sanchez, that he had shot a King, but was really unsure if he had.
At trial, defendant claimed that he decided to buy a gun in April, paid $100 for it that month, but did not receive the gun until May 18. He denied being chased by Latin Kings on May 18; instead, he spent the day at the lake with his sister-in-law and her friends, then visited his grandmother's house before returning home. His sister Sonia then gave him the gun, left for him while he was out. After loading the gun because he would be in hostile territory, he went out to buy a greeting card. He saw a Latin King and then heard a bottle crash while at Milwaukee and Evergreen. Defendant saw a group running up Evergreen towards him shouting gang slogans and then saw another bottle thrown at him. Surprised and scared, defendant opened fire without aiming and shot six times. The Kings ran away, he ran away, and then tried to damage his gun before throwing it onto a viaduct. Defendant testified he had no intention to use a gun or kill the victim. Defendant agreed this was the first time he had mentioned bottles being thrown. In his confession he just told the assistant State's Attorney what the latter wanted to hear.
Defendant had been affiliated with the Spanish Cobras since age 11. He stopped being a Cobra at the end of the summer of 1983, when his family moved out of Wicker Park. He got along with Latin Kings in his new neighborhood, but his family returned to Wicker Park in February 1984. After that he was chased by three Latin Kings once and trapped in a store by Latin Kings another time. He identified Lionel Watson, one of the witnesses, as a Latin King who had harassed him. Latin Kings had shot at him and his family.
With the help of four witnesses, Detective Edward Dickinson located Sanchez and defendant. At lineups that night at the police station, Hill, Arroyo, and Watson identified defendant as the gunman. After being advised of his rights, defendant provided several accounts of the shooting. Later, an assistant State's Attorney talked with Sanchez, defendant finally admitted being the shooter and agreed to make a statement for the court reporter. On May 29, 1984, defendant was indicted on two counts of murder and one count of armed violence. Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), (a)(2), 33A-2.
At the jury instruction conference, the court agreed to give Illinois Pattern Jury Instructions, Criminal, Nos. 24 -- 25.09 and 24 -- 25.11 (2d ed. 1981) (hereinafter IPI Criminal 2d) relating to an aggressor's use of force, over defendant's objections. The court rejected two non-IPI instructions tendered by defendant concerning justification, after the State successfully objected that those instructions were argumentative. The State ...