APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
544 N.E.2d 64, 188 Ill. App. 3d 172, 135 Ill. Dec. 707 1989.IL.1339
Appeal from the Circuit Court of St. Clair County; the Hon. Lloyd Karmeier, Judge, presiding.
JUSTICE CHAPMAN delivered the opinion of the court. WELCH, P.J., and HARRISON, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CHAPMAN
The defendant, Scott Timberson, was charged with first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9-1) in St. Clair County, Illinois. After a jury trial the defendant was found guilty of second degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9-2) and was sentenced to 12 years' imprisonment. On appeal the defendant claims: (1) that the trial court erred in refusing to instruct the jury on the issue of self-defense; and (2) that the trial court abused its discretion in sentencing defendant. We reverse and remand for a new trial.
The evidence adduced at trial showed that on July 5, 1987, the defendant, then 16 years old, was walking with his younger brother Michael and a friend, Edwin Mumford, to a skating rink located in East St. Louis, Illinois. A passing car stopped and two men got out and accused Michael of beating up their brother. Michael denied any knowledge of the incident and the men eventually left. The boys then decided that they needed some protection, so they went to the defendant's house, where the defendant obtained a gun that he had purchased some weeks earlier from someone on the street. The three then continued on to the skating rink, where the defendant hid the gun in a nearby alley before entering the rink. While inside the skating rink, the boys met the defendant's sisters, Gloria and Crystal, and DeAndre Jackson, and they all left the skating rink when it closed and began to walk home. In the meantime, Mumford had retrieved the gun from the alley and was carrying it in his waistband.
While the group was walking home, a car passed them and someone in the car shouted an obscene remark, apparently directed at Jackson. Jackson responded with a similar remark. The car then stopped, and the victim, Ray Manuel, got out of the car and approached the group. The area was dark and both Mumford and the defendant testified that they did not know the victim, although Mumford later recognized Manuel as an acquaintance from school. Manuel approached the group asking, "What's up?" and, according to the witnesses, acting in an aggressive manner. The defendant and several other witnesses testified that the victim reached into the waistband of his trousers, and they believed he was reaching for a gun. The defendant took his pistol from Mumford and fired a shot "to scare" the victim. Although the defendant and several witnesses testified that Manuel was facing the group when the shot was fired, he was struck in the back of the neck and subsequently died from the gunshot wound. The defendant, along with Mumford and Michael Timberson, ran from the scene of the shooting. After the police investigation of the shooting implicated the defendant, they asked him, on July 7, to come to the station for questioning. He did so, accompanied by his mother, and after initially denying involvement in the shooting, the defendant confessed.
At the jury instruction conference the defendant's attorney tendered a self-defense instruction (Illinois Pattern Jury Instructions, Criminal, No. 24--25.06 (2d ed. 1981) (hereinafter IPI Criminal 2d No. 24--25.06)) which was refused by the trial court. IPI Criminal 2d No. 24--25.06 states:
"A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.
However, 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."
The jury was instructed, however, concerning belief of justification as a mitigating factor in reducing the offense from first degree murder to second degree murder (Illinois Pattern Jury Instructions, Criminal, Nos. 7.05A, 7.06A (2d ed. Supp. 1989)). The jury found the defendant guilty of second degree murder. The defendant's post-trial motion was denied and he was sentenced to 12 years in prison.
The defendant's initial contention is that the trial court erred in refusing to instruct the jury on the issue of self-defense. The defendant argues that the testimony of DeAndre Jackson, Gloria Timberson, Edwin Mumford, and Michael Timberson that they believed Ray Manuel was reaching for a gun, as well as the defendant's testimony to the same effect, was sufficient to raise the issue of self-defense. In addition, the defendant notes that the earlier confrontation with the two men in the car also contributed to his fear when he was approached by another unknown figure (the victim) also alighting from a car.
The State argues that there was insufficient evidence presented at trial to warrant an instruction on self-defense. The State notes that the victim was shot in the back of the neck, and that the uncontradicted testimony of the pathologist established that it was impossible for the victim to be shot in such a manner if he were facing the defendant. The State also points out that several of the witnesses, in their initial statements to the police, stated that the victim turned back towards the car before he was ...