APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
523 N.E.2d 992, 169 Ill. App. 3d 618, 120 Ill. Dec. 81 1988.IL.603
Appeal from the Circuit Court of Cook County; the Hon. Arthur J. Cieslik, Judge, presiding.
JUSTICE BILANDIC delivered the opinion of the court. HARTMAN, P.J., and SCARIANO, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC, Defendant, Edwin Garcia, was tried by a jury and convicted of murder. He was sentenced to the Illinois Department of Corrections for a period of 30 years.
On July 4, 1984, defendant, a 41-year-old, self-employed auto mechanic, was visiting a friend at 1713 North Kedzie, Chicago, Illinois. A group of four or five teenagers, including Raphael Figuera, age 16, was sitting on the front stairs of the building. Raphael testified that as defendant went down the stairs, "[he] like tapped me on my leg and I told him why did he step on my leg . . . and he went down the stairs and he ignored me." Defendant's brother, Israel Hernandez, who was next door at 1711 North Kedzie, ran over to 1713, grabbed Raphael and started arguing with him. Defendant hit Raphael while his brother held him. Raphael broke loose, went home, and returned with a broken baseball bat. Raphael's mother followed him and tried to get him to come back into the house. Before she could grab the bat from the hands of her son, Raphael hit Israel's leg with the bat. Dolores Martinez, Raphael's mother, testified that the bat used by her son was 18 to 20 inches long. She thought her son hit defendant with the bat, but could not tell for sure.
Defendant's car was parked at the curb. He went inside his car, took out a gun, and pointed it at Raphael. Raphael ran about three houses down, hid behind a van and yelled that defendant had a gun.
At this point Ruben Torres, a 30-year-old neighbor of Raphael, was coming on the scene. Raphael heard two shots. Because he was hiding behind the van, he could not see who fired the shots he heard. Later, he saw his neighbor, Ruben Torres, on the ground next to defendant's car.
Israel testified that he observed a disturbance between the defendant, his brother, and Ruben Torres, the victim. While Israel tried to break up the disturbance, Torres hit him and he fell to the ground. He saw Raphael and another person on top of his brother. Then he heard shots.
Defendant testified that he was grabbed and beaten by three people while he was beside his car. First Torres, the victim, struck defendant's brother, Israel. Then Torres frisked and hit defendant. While falling back on his car, defendant reached for his revolver and shot Torres. Torres died as a result of the shooting. I
Defendant contends that the trial court committed reversible error when it refused to read IPI Criminal 2d No. 4.05 to the jury. (Illinois Pattern Jury Instructions, Criminal, No. 4.05 (2d ed. 1981).) That instruction would have advised the jury that a person is permitted to use force that is likely to cause death, not only if he believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, but also if it is necessary to prevent the commission of a forcible felony. Ill. Rev. Stat. 1985, ch. 38, par. 7-1.
If there is the slightest amount of evidence in the record to justify an underlying theory, the instruction must be given. (People v. Pietryzk (1987), 153 Ill. App. 3d 428, 436, 505 N.E.2d 1228, appeal denied (1987), 115 Ill. 2d 547; People v. Sykes (1977), 45 Ill. App. 3d 674, 678, 359 N.E.2d 897.) The underlying theory asserted here is justification to prevent a forcible felony. The definition of a forcible felony includes aggravated battery. (Ill. Rev. Stat. 1985, ch. 38, par. 2-8.) Any battery is an aggravated battery if the person who committed the battery:
There is evidence in the record that defendant was on a public way when he was allegedly battered by Torres. Likewise, there is evidence that the victim, Torres, was also on or about a public way when he committed the alleged battery on defendant. Therefore, any alleged battery is an aggravated battery as defined in section 12-4(8).
Failure to give this instruction, when tendered by the defendant, deprived the defendant of a defense that existed under the law. This resulting denial of due process ...