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May 11, 1994


Appeal from the Circuit Court of Lake County. No. 91-CF-1449. Honorable Gary G. Neddenriep, Judge, Presiding.

Released for Publication June 15, 1994.

Quetsch, Woodward, PECCARELLI

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

On July 17, 1991, defendant, Sterling Floyd, shot Tommy Stanton and Jamal Foster with a handgun. Stanton died as a result of his wounds, and Foster suffered serious injuries. Defendant was charged by indictment with two counts of first degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 9-1(a)(1), (a)(2) (now codified, as amended, at 720 ILCS 5/9-1(a)(1), (a)(2) (West 1992))) in connection with the death of Stanton, and with attempted first degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 8-4 (now codified, as amended, at 720 ILCS 5/8-4 (West 1992))) and armed violence predicated on aggravated battery (Ill. Rev. Stat 1991, ch. 38, par. 33A-2 (now 720 ILCS 5/33A-2 (West 1992))) in connection with the shooting of Foster. Following a jury trial in the circuit court of Lake County, defendant was found guilty of second degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9-2 (now 720 ILCS 5/9-2 (West 1992))) and armed violence and not guilty of attempted first degree murder. Defendant was sentenced to concurrent terms of imprisonment of 10 years for second degree murder and 8 years for armed violence. On appeal, defendant contends that the trial court erred in instructing the jury regarding the use of force by an initial aggressor. Defendant further contends that his conviction of armed violence must be vacated because he was motivated by a mitigated mental state when he shot Foster. For the reasons set forth below, we affirm.

The evidence adduced at trial establishes that on the evening of July 17, 1991, defendant had attended a birthday party for his friend, Nate, at an apartment in the Rolling Green apartment complex in North Chicago. Between 10 p.m. and 10:30 p.m. defendant and another friend, Alex Agee, had left the party and were walking in the courtyard of the complex. A hostile confrontation ensued, during which accusations about defendant's and Agee's gang affiliation were apparently made. Defendant walked away, returning briefly to the party, and then came back to the courtyard, armed with a handgun, and shot Foster and Stanton. Witnesses to the events of July 17 provided varying accounts of what occurred at each stage of the incident. A summary of the testimony of the principal witnesses follows.

Jamal Foster testified that he was not acquainted with defendant on July 17. When Foster saw Alex Agee (known to Foster by the nickname "City Folks") and defendant in the courtyard, Foster summoned Agee to speak with him. Joe Smith said, "Man, he ain'treal folks. He with that hook," meaning that Agee was not a real member of Foster's gang, the Black Gangster Disciples, because Agee was associating with defendant, whom Smith thought to be a member of a rival gang, the Vice Lords. Agee told Foster that defendant was his cousin, and Foster apologized, indicating that he meant no disrespect to defendant. According to Foster, defendant walked away across the courtyard. Shortly thereafter, defendant returned with several other people following him. Foster noticed a bulge resembling a gun in defendant's pants pocket. Foster said "I know you got something in your pocket, man. Leave that alone because I ain't going to let you do nothing to my own." At that point, defendant pulled the gun from his pocket and shot Foster in the face. Foster testified that he was unarmed at the time of the shooting, and he believed that Stanton and Smith were also unarmed.

According to Joe Smith's testimony, when defendant returned to where the group was assembled, after having left the first confrontation, defendant held the handgun pointed horizontally. Smith testified that Foster said to defendant, "you ain't tough 'cuz you got a gun." Smith started to back up around the side of a building, and he heard several gunshots. Shortly thereafter, Smith and a friend, Eric, encountered defendant near the entrance to the building where defendant's apartment was located. Eric asked defendant why he shot his friend. Defendant pointed the gun at them and pulled the trigger. The gun "clicked," but did not discharge.

James Pitts was attending Nate's birthday party, and he observed defendant, Bryant Jackson, and an individual named Kirby enter the apartment where the party was taking place immediately prior to the shooting. Defendant went straight to a back room, and Bryant Jackson went to speak with his brother, Jermaine Jackson, who was playing music for the party. Defendant, Kirby and Bryant and Jermaine Jackson walked outside. As they did so, Pitts observed the handle of a handgun protruding from defendant's pocket. Pitts followed the group outside and observed defendant approaching Foster, Stanton, and Smith in the courtyard. By this point, defendant had drawn the handgun. Foster said, "You bad 'cuz you got a gun now," and defendant shot him. Foster knelt down on one knee, and Stanton walked over to him. Stanton asked why defendant had shot Foster, and defendant then shot Stanton three times and walked away. Neither Foster nor Stanton appeared to have a weapon.

Jermaine Jackson also observed defendant enter the apartment just before the shooting. At that time, Jackson heard defendant say that "it was time to die." Defendant left the apartment, and Jackson and several other guests at the party followed him to see what washappening. Once outside, defendant approached Jamal Foster and Joe Smith. Defendant was apparently trying to get to Smith, but Foster stood in his way and said "you can't get to my folks." According to Jackson, when defendant tried to get to Smith, Foster would jump in front of him. Jamal was saying, "you can't be f in' with my folks." Jamal appeared to raise his hand, and at that point defendant turned, pulled out a handgun, and turned back to face Foster. In an angry tone of voice, Foster said he was not afraid of the gun. Then, according to Jackson, defendant and Foster were "cussing and arguing," and defendant shot Foster.

According to Jackson, Tommy Stanton was located in an automobile when Foster was shot and walked over to Foster after the shot was fired. Stanton squatted down next to Foster and held him and repeatedly said "you shot my mother f in' cousin" to defendant who was walking away in the direction of his apartment. Defendant then shot Stanton, who was still crouched over Foster. Defendant shot Stanton again as he was falling, and a third time while Stanton was on the ground. Defendant then walked away.

Bryant Jackson testified that when defendant briefly returned to the party immediately before the shooting, he said nothing. Bryant Jackson also testified that before defendant had pulled the handgun from his pocket, Jamal Foster was threatening defendant, saying "I'll kick your ass and take your gun" several times. Foster was physically blocking defendant's path. Defendant pulled the gun out and held it to his side while he continued trying to get around Foster. Foster raised his hand, and defendant told him to shut up and then shot him.

Defendant testified that he had grown up in Youngstown, Ohio, and had graduated from the Watkins Christian Academy in Youngstown. Defendant was spending the summer of 1991 with his mother at her apartment in the Rolling Green complex. Defendant's mother had moved from Ohio to North Chicago in order to take a nursing job. Defendant testified that he was not familiar with the details of gang rivalries in North Chicago and was also unfamiliar with gang terminology. Defendant was unacquainted with Jamal Foster, Tommy Stanton, and Joe Smith when he encountered them in the courtyard of the apartment complex. According to defendant one of those individuals called Agee over and shook his hand with what defendant thought to be a gang sign. Apparently seeking to identify defendant's gang allegiance, the individual asked defendant, "what is you?" Defendant responded that he did not understand what he was talking about, and the individual accused defendant of belonging to a rival gang. Agee told Foster, Stanton and Smith that defendant washis cousin and told them to leave him alone, but they responded that Agee was not a "real" member of their gang. Referring to defendant, Jamal Foster said "let's beat this punk's ass." Jamal approached defendant and said, "I'm going to kill this punk."

At that point defendant was scared, and he ran back to Nate's party. Defendant told Nate that people outside were going to kill him. Nate provided defendant with a handgun and told him that if he showed the gun to the people who were threatening him, he would be left alone. Defendant testified that he took the gun only to scare Foster, Stanton, and Smith. Defendant left the apartment with the gun in his pocket. Once outside, he was joined by his friend, Kirby. They walked over to Foster, Stanton and Smith. Foster saw the gun (still in defendant's pocket), but nonetheless threatened to "kick [defendant's] ass." Kirby told Foster to leave defendant alone, but Foster said "No, I'm going to kill this punk." At that point Foster started to reach back with his hand, while simultaneously advancing on defendant. Defendant thought that Foster was reaching ...

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