APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE MATTHEW J. MORAN, PRESIDING.
Released for Publication July 14, 1994.
The opinion of the court was delivered by: Johnson
JUSTICE JOHNSON delivered the opinion of the court:
Defendant, Brian P. Foster, was charged by indictment with first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9-1), attempted first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 8-4), armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A-2), and aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12-4). Following a jury trial in the circuit court of Cook County, he was found guilty as charged and sentenced to concurrent prison terms of 28 years for murder and 12 years for attempted murder. Defendant appeals, alleging that (1) the trial court improperly failed to tender a second degree murder instruction; (2) he was not proved guilty beyond a reasonable doubt; and (3) his sentence is excessive and should be reduced.
The facts presented at trial reveal that on December 31, 1988, Donnie Derrick hosted a New Year's Eve party at the Ascot Hotel in Chicago. Approximately 80 guests attended the party including Derrick's friends, Kyle Lavalais, Ben Rivers, Tim Thorton and Victoria Wharton. Defendant and his friends, Rondell Davis and Brian Madson, were also present. At some point during the evening, a fight occurred between Derrick and his friends, and defendant and his friends. Thereafter, the police were summoned but no arrests were made.
On February 9, 1989, Wharton was celebrating her 21st birthday with Derrick, Lavalais, Rivers, and Thorton at the Godfather Lounge in Chicago. While there, Rivers recognized defendant, Davis, and Madson from the New Year's Eve altercation. When Rivers informed his friends that defendant and his friends were at the lounge, they decided to leave. As the group exited the lounge, defendant and his friends followed them. Once outside the lounge, defendant and his friends pulled out guns and began harassing Wharton and her friends. Wharton and Lavalais returned to the lounge and telephoned police.
Meanwhile, defendant and his friends continued to harass Derrick, Rivers and Thorton outside the lounge. At approximately 3:30 a.m., lounge security personnel broke up the crowd which began to form in front of the lounge. Defendant, Davis, and Madson left the lounge parking lot and entered a car which was parked down the street from the lounge. Moments later, the police arrived and after speaking with Wharton and her friends, they advised them to leave the area. Derrick and Thorton drove away in Thorton's car and were followed by Rivers, Wharton and Lavalais in Lavalais' car.
The two cars proceeded south on Stony Island Avenue to 95th Street and entered the left turning lane. When the two cars stopped at the traffic light, Rivers noticed that defendant and Madson, in a maroon Cadillac, had driven up behind Lavalais' car. After the maroon car stopped, Rivers saw defendant and Madson exit their vehicle. Rivers began to exit Lavalais' car and attempted to tell Thorton and Lavalais to drive away, but defendant and Madson began shooting. Rivers then re-entered Lavalais' car and Thorton and Lavalais began to drive away.
As Lavalais was driving away, Rivers looked out of the rear window and observed that defendant and Madson each had guns. At some point, Rivers saw the maroon car pull up beside Thorton's car. He also saw defendant hanging from the maroon car passenger side window, firing a gun at Thorton's car. Rivers then saw the maroon Cadillac speed past Thorton's car and pull up beside Lavalais' car. Rivers heard more shots fired from the Cadillac and, when he ducked, he heard the driver's window in Lavalais' car shatter. When he looked up, he noticed that Wharton was slumped down in the front seat. Rivers attempted to shake Wharton but noticed that she had been shot in the head. Lavalais immediately drove to the hospital where Wharton was pronounced dead. According to Rivers, neither he, Derrick, Lavalais, Wharton, or Thorton shot or aimed a gun at defendant, Madson, or Davis on February 9, 1989.
Thorton and Derrick both testified at trial that while Thorton was driving away from the intersection at 95th Street and Stony Island Avenue on February 9, 1989, defendant and Madson drove up beside Thorton's car. Derrick stated that he saw defendant hanging from the maroon car window with a gun in his hand. Several shots were fired from the maroon car into Thorton's car, one of which shattered Thorton's car window and struck Derrick in the mouth. Thorton drove Derrick home where his mother called the police. Paramedics were also summoned and Derrick was taken to the hospital where he underwent surgery for extensive damage to his mouth. He remained hospitalized for 5 days during which time he spoke to police and positively identified defendant as one of the shooters.
On February 11, 1989, Lavalais, Rivers and Thorton viewed a police line-up and each positively identified defendant as one of the shooters. Likewise on February 22, 1989, Derrick, Rivers and Thorton viewed a line-up at the police station. Each identified defendant as one of the persons who pulled a gun on them at the Godfather Lounge on February 9, 1989, and who also shot at them while driving later that morning.
At trial, defendant testified that on February 9, 1989, he was present at the Godfather Lounge with Madson and Davis. He stated that while there, he recognized Rivers and his friends from the New Year's Eve party where he was injured by Rivers. According to defendant, he and his friends were harassed by Rivers and his friends at the lounge. Defendant and his friends attempted to leave but were ...