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08/30/89 the People of the State of v. Donald Everette

August 30, 1989





543 N.E.2d 1040, 187 Ill. App. 3d 1063, 135 Ill. Dec. 472

Appeal from the Circuit Court of Cook County; the Hon. Fred G. Suria, Jr., Judge, presiding. 1989.IL.1344


PRESIDING JUSTICE FREEMAN delivered the opinion of the court. RIZZI, J., concurs. JUSTICE McNAMARA, Dissenting.*


Defendant, Donald Everette, was convicted by a jury of murder in the circuit court of Cook County. The trial court sentenced him to 24 years' imprisonment. He appeals.

At defendant's trial, Edward Jeffries testified to the following when called as a witness for the State. On November 1, 1985, at approximately 10 p.m., Jeffries, the victim, Johnny Island, and an individual named Donnell were drinking a six-pack of beer near the mailboxes on the first floor of a public housing building at 3835 South Federal in Chicago. While the three men were near the mailboxes, defendant approached the building and went to the mailbox area. When defendant did so, the victim moved away from him to the other side of the mailboxes. When he moved away, Island teased defendant about a "prior incident that happened to him." Defendant then told Island that, if defendant wanted to, he could get Island. Island then walked up and called defendant a name. Defendant ignored Island and walked away toward a ramp leading to apartments in the project.

Approximately five minutes later, defendant came down the ramp and started running toward the three men. Jeffries told Island that defendant was coming and Island started to run away. When defendant reached the area of the mailboxes and while Island was still running away, defendant pulled out a black revolver. Island slipped while turning the corner of the wall containing the mailboxes and Jeffries heard a shot. When Island slipped, he was 7 to 10 feet away from defendant. When defendant fired the gun, he had both arms straight out in front of him pointing at Island's back. After defendant had fired the shot, Jeffries asked him why he had shot at Island. Without responding, defendant walked past Jeffries and Donnell toward the ramp.

Defendant testified on his own behalf. He testified that he went to his mailbox upon arriving at his building on the night of the shooting. At that time, he heard Jeffries say, "There he is." After closing his mailbox and removing three letters, defendant heard Island say, "We aren't going to start nothing, cause that is over with." Defendant knew what Island was talking about. Defendant testified that, in June 1985, Island hit him over the head with a Coca-Cola bottle when defendant attempted to intercede in an argument between Island and the stepdaughters of a friend of defendant. Defendant also testified that, in August 1985, he was waiting for a bus when Island walked up to him and apologized in a sarcastic tone for hitting him in June. While apologizing, Island circled defendant with a gallon wine container in his hand.

Defendant further testified that when he started toward his apartment after getting his mail, he was met by Island, Jeffries and a third person. Defendant continued toward his apartment while the three men attempted to go through his pockets. After defendant got into his apartment, he noticed that two of the three letters were not for him. Eventually, defendant decided to go out for something to eat. Before leaving his apartment with the two misdirected letters, defendant decided to take his pistol with him because the three men might still be downstairs.

When defendant arrived downstairs, he went to the mailbox to deposit the two letters. At that time, Jeffries said "here he is again," and Island asked in a loud tone, "What are you doing back down here?" Defendant turned in Island's direction. Defendant saw the silhouette of a person he identified as Island from the voice. Island had his arm in a striking position, i.e., slightly behind the body at about a 45-degree angle and at waist height, while holding a can or other object. Defendant believed that Island was going to strike him. Defendant formed this belief because of Island's conduct toward him, Jeffries saying "Hit him, hit him," and because Island had struck him in the past. At that point, defendant pulled out his pistol, pointed in Island's direction and cocked it. Defendant denied any intent to shoot Island at that time, stated that he pulled the pistol because he was "frightened and scared," and claimed that he pulled it "just to scare" Island. Defendant further testified that as he cocked the pistol, he took two steps back. As he took the first step back, he saw Island turn. As he took the second step back, his right shoulder bumped the mailboxes, which caused the pistol to go off.

On cross-examination, defendant characterized his first encounter with Island and Jeffries as a "brief argument." He further claimed that he pulled the gun on Island because of fear for his life.

The State also introduced evidence of a question and answer statement which defendant made to an assistant State's Attorney after the shooting. The statement substantially corroborated defendant's testimony regarding the sequence of events leading up to the shooting of Island. However, there was no mention in the statement of the fact that defendant left his apartment to buy something to eat, in addition to returning two misdirected letters to his mailbox. Nor was there any mention in the statement that defendant took his pistol with him for his protection. Finally, there was no mention in the statement that defendant shot Island accidentally. In addition to introducing the statement in its case in chief, the State used the statement to impeach defendant's testimony on these three latter points.

On appeal, defendant first contends he was not proved guilty beyond a reasonable doubt. Specifically, he asserts that the testimony of Jeffries, the State's only occurrence witness, was incredible because the facts "suggest" that Jeffries was intoxicated at the time of the shooting. Defendant further likens Jeffries to a narcotics addict, whose testimony must be closely scrutinized. See, e.g., People v. Galloway (1974), 59 Ill. 2d 158, 319 N.E.2d 498.

We find the "suggestion" in the record of Jeffries' intoxication at the time of the shooting wholly insufficient to render his testimony incredible and, therefore, to raise a reasonable doubt of defendant's guilt. Nor is there any evidence in the record that Jeffries habitually used or abused alcohol. As such, there is no record basis for defendant's comparison of Jeffries to a narcotics addict. Thus, neither the trial court nor jury was required to scrutinize his testimony as closely as that of a narcotics addict.

Defendant also asserts that he was not proved guilty beyond a reasonable doubt because the State improperly introduced into evidence a gun which was similar to the one used by defendant. The gun actually used in the incident had been inadvertently destroyed by the State.

We do not agree. People v. Seals (1987), 153 Ill. App. 3d 417, 505 N.E.2d 1107, dealing with exactly the same issue, is dispositive of defendant's claim. Therein the court stated:

"Demonstrative evidence can be used to make other testimony more understandable. [Citation.] If it provides a visual aid for the jury, it should be used for factual explanation, not dramatic effect. [Citation.] The use of demonstrative evidence is within the discretion of the trial court." Seals, 153 Ill. App. 3d at 423.

Like the Seals defendant, defendant here admitted firing the gun that caused the death and his defense was based on a theory of self-defense. Also, as in Seals, the jury was told that the gun demonstrated at trial was not the gun used in the shooting. Comparably to Seals, the gun was used briefly during the testimony of a police officer and by the prosecutor in closing argument but was not permitted to go to the jury. In view of the limited use of the similar gun, we cannot say that the trial court abused its discretion in admitting it into evidence. Seals, 153 Ill. App. 3d at 424.

Defendant next asserts that the State did not prove him guilty beyond a reasonable doubt because it did not disprove beyond such a doubt that he shot Island accidentally while acting in self-defense. After reviewing the record, we find that the evidence adduced at trial was sufficient to support defendant's conviction for murder. As such, defendant is not entitled to an outright reversal of his conviction. Moreover, because the evidence was sufficient to support a finding of guilty of murder, granting defendant a new trial would not subject him to double jeopardy. See Burks v. United States (1978), 437 U.S. 1, 11, 57 L. Ed. 2d 1, 9, 98 S. Ct. 2141, 2147.

Although we find that the evidence was sufficient to support defendant's conviction, we cannot say that it was so clear and convincing that the jury could not reasonably have acquitted defendant. As such, we find dispositive the error which defendant next raises, viz., the trial court's error in refusing to instruct the jury on the defense of self-defense. See People v. McCurrie (1929), 337 Ill. 290, 299, 169 N.E. 214; People v. Jones (1979), 81 Ill. 2d 1, 9, 405 N.E.2d 343.

Relying on People v. Robinson (1987), 163 Ill. App. 3d 754, 516 N.E.2d 1292, defendant contends that the trial court erred in refusing tendered instructions, on self-defense and voluntary manslaughter, on the ground that defendant's claim that he accidentally shot Island precluded him from asserting the affirmative defense of self-defense.

The defense of self-defense is statutorily codified in section 7 -- 1 of the Criminal Code of 1961 (the Code), which 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 . . . 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 . . .." (Ill. Rev. Stat. 1985, ch. 38, par. 7-1.)

Self-defense, as provided for under section 7 -- 1, is an affirmative defense which, once raised, the State must disprove beyond a reasonable doubt. (People v. Estes (1984), 127 Ill. App. 3d 642, 651, 469 N.E.2d 275.) Even a slight amount of evidence raises the self-defense issue and justifies an instruction thereon. People v. Robinson (1987), 163 Ill. App. 3d 754, 761, 516 N.E.2d 1292.

In Robinson, the trial court refused to instruct the jury on self-defense and voluntary and involuntary manslaughter. The trial court held that the defendant's defense that the shooting was accidental precluded a claim of voluntary manslaughter and self-defense. In a thoroughly researched opinion, the Robinson court found that the trial court erred. The court first noted the split of authority over the propriety of self-defense instructions when a defendant testifies that a homicide or battery was accidental. The court noted that courts that rejected self-defense instructions, where the defendant claimed accident, did so partly on the basis of a conflict between the two defenses. However, the court found that in those cases no self-defense was actually shown on the facts, thus justifying no instruction thereon that could contradict an accident theory in the first place. Robinson, 163 Ill. App. 3d at 762.

The court reasoned that the split of authority could be explained by differences among the cases as to whether the defendants claimed: (1) that all of their acts immediately preceding the injury at issue were accidental or nonforcible; or (2) that the acts preceding the injury inflicted were intentionally forcible and self-defensive but that the injury was accidental. The court termed cases of the first group cases of accident but no self-defense. In those cases, the defendants had not shown self-defense since intent or force prior to the injury was lacking. As such, instructions on that issue had been properly denied, regardless of any inconsistency with the defense of accident. The court termed cases of the second group as cases of self-defense plus accident. Those cases involved "intentional self-defense though unintended result." Therein, intentional acts were the basis for self-defense theories and instructions, but only to support ultimate defenses of accident as to the injury for which the defendants were tried. In other words, the defendants in those cases relied on accident theories as to the injury inflicted and self-defense theories as to their acts preceding the injury. Robinson, 163 Ill. App. 3d at 762, 768.

The crux of this case is thus in determining within which group this case falls. That is, did defendant's evidence reveal intentional acts of self-defense immediately preceding an allegedly accidental injury or merely an allegedly accidental injury not preceded by any acts of self-defense? Stated differently, the issue here is whether defendant was engaged in intentionally self-defensive acts immediately prior to the shooting of Island, thus entitling him to have the jury instructed on self-defense. After considering the differences between the two groups of cases, as outlined in Robinson, we find that defendant's evidence revealed intentional acts of self-defense and that he was thus entitled to have the jury instructed on that defense.

The Robinson court classified each of the cases the State relies upon here, and in which self-defense instructions were held properly refused, as cases of accident but no self-defense. It classified the cases defendant relies upon, in which such instructions were held properly given, as cases of self-defense plus accident.

Specifically, the Robinson court found that in People v. Shelton (1985), 140 Ill. App. 3d 886, 489 N.E.2d 879, the defendant never affirmatively used force against anyone but merely, without intending to stab, extended a knife into which the victim ran. Thus, the Robinson court concluded that the Shelton defendant did not initiate any use of force constituting self-defense under the statutory definition of the term, and entitling him to self-defense instructions.

In People v. Purrazzo (1981), 95 Ill. App. 3d 886, 420 N.E.2d 461, cert. denied (1982), 455 U.S. 948, 71 L. Ed. 2d 661, 102 S. Ct. 1448, the defendant testified that: (1) he struggled with his wife when she pointed a gun at him; (2) during the struggle, one shot, which defendant did not think struck his wife, was fired; (3) he got the gun from his wife; and (4) while he held it, his dog jumped at his arm, causing other shots to be fired. The Robinson court reasoned that, based on the Purrazzo defendant's own testimony, when the shots which hit his wife were fired, any acts of self-defense had been completed since he then possessed the gun and his wife was sitting on the couch. The court therefore concluded that the Purrazzo defendant was indeed relying on an accident theory and had failed to show that he was engaged in any intentional self-defensive acts when the shots, which indisputably hit his wife, were fired.

In People v. Dzambazovic (1978), 61 Ill. App. 3d 703, 377 N.E.2d 1077, the defendant testified that the victim produced a gun and threatened to kill him and herself if the defendant drove to meet her boyfriend; he struggled with the victim for the gun; the gun went off accidentally while the victim was holding it; and he did not shoot her with an intent to kill her. The Robinson court said that no self-defense justifying an instruction thereon was shown in Dzambazovic. The court relied on the fact that the force threatened by the victim was not imminent, since it was conditioned upon the defendant's driving to meet the victim's boyfriend, and that the defendant did not testify that he initiated the struggle from a motive of self-defense.

The State asserts that this case is indistinguishable from Shelton, Purrazzo, and Dzambazovic. Specifically, the State asserts that, as in those cases, there was no evidence of an intentional or justifiable use of force by defendant. In so arguing, the State relies upon defendant's testimony that he had the gun because he was afraid of Island and wanted to frighten him, that Island had turned away from him, and that the gun discharged when his shoulder bumped against the mailboxes. That the defendant acted to protect himself, the State argues, was insufficient to raise the issue of self-defense in view of his lack of intent to harm the victim, citing People v. Tanthorey (1949), 404 Ill. 520, 89 N.E.2d 403.

We believe that the State's reliance on Tanthorey is misplaced. We further believe that its argument that defendant did not engage in an intentional use of force against Island, as required under section 7 -- 1 for a self-defense instruction (People v. Whitelow (1987), 162 Ill. App. 3d 626, 515 N.E.2d 1327), is incorrect.

In Tanthorey, the defendant testified that a gun he was about to discard discharged while he was struggling with the victim, who had accosted him in an alley, and that he did not intend to shoot. In classifying Tanthorey as a case of accident but no self-defense, the Robinson court reasoned that, according to his own testimony, the Tanthorey defendant never affirmatively used force against anyone, but merely raised his arm to ward off any force that might be directed at him. The court thus concluded that self-defense instructions had been properly refused in Tanthorey because self-defense, in terms of an affirmative use of force against someone, had not been shown.

Here, in contrast to Tanthorey and contrary to the State's assertion, defendant's act of pulling and pointing a gun at Island after perceiving that Island was holding a beer can or other object in a striking position was an ...

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