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May 20, 1994



Rehearing Denied June 15, 1994. Released for Publication July 14, 1994.

McNAMARA, Egan, Rakowski

The opinion of the court was delivered by: Mcnamara

JUSTICE McNAMARA delivered the opinion of the court:

Following a jury trial, defendant, Sharlene Wilburn, was convicted of the second degree murder of Maurice Johnson (Ill. Rev. Stat. 1989, ch. 38, par. 9-2), and was sentenced to the maximum term of 15 years. On appeal, defendant contends that: (1) the trial court erred by refusing to instruct the jury on the defense of justifiable use of force to prevent a forcible felony; (2) the State failed to disprove self-defense beyond a reasonable doubt; (3) the trial court erred in allowing testimony concerning weapons that were not connected to the murder; (4) she was deprived of a fair trial due to several improper remarks made by the prosecutor in closing argument; and (5) her sentence was excessive.

The relevant facts are as follows. On June 21, 1991, at approximately 11:30 p.m., defendant stabbed and killed the deceased inside the apartment building in Chicago where they both resided. The deceased was the boyfriend of Jocelyn Hindmon. The two lived together in a first-floor apartment. Jocelyn was the sister of Harold Hindmon, who was defendant's fiance. Defendant and Harold lived together, along with defendant's daughter, in an apartment on the third floor. Defendant had known Jocelyn and Harold for approximately 20 years, and the deceased for three or four years.

Jocelyn testified for the State that at approximately 6:00 p.m. on the date in question, her brother Harold came home with a case of beer and asked her and the deceased to his apartment for a drink. Jocelyn and the deceased went and began drinking beer and gin with Harold and defendant. A few hours later, Jocelyn and defendant started arguing and Harold intervened. Jocelyn began fighting with Harold, and at some point was "knocked out." When she awoke, shewas sitting on the living room floor in Harold's arms. Jocelyn arose, still dazed and slightly drunk, and went downstairs to her apartment where she found the front door open and the lights on. No one was inside. She went across the hall to an apartment occupied by Evelyn Davis. Jocelyn asked Davis where the deceased was, and Davis told her about the stabbing. Jocelyn had never seen the deceased carry a gun, nor did he keep one in their apartment.

On cross-examination, Jocelyn acknowledged having had the deceased arrested in 1989 for battery. On redirect examination, she testified that she had been arrested at the same time as the deceased on the same charge. Both cases were subsequently dismissed. According to Jocelyn, the deceased never hit her, her children, or defendant.

Harold testified for the State that he had known the deceased for four or five years. On the date in question, he came home with a case of beer, and the deceased and Jocelyn invited themselves to his and defendant's apartment. The four began drinking gin and beer. Harold denied that any arguments occurred, but stated that the deceased became upset with Jocelyn for refusing to leave the apartment. The deceased left and defendant then left and went to a friend's house.

Harold stated that the police came to the apartment twice that evening, and both times the four were present. Harold denied punching Jocelyn and knocking her unconscious, but stated that at some point he held her in his arms on the floor. Harold did not see the deceased with a gun or any other type of weapon on the evening in question. At some point that evening, Davis came to his door, and after four or five minutes left.

On cross-examination, Harold recalled arguing with Jocelyn about her moving to Michigan. According to Harold, the deceased and Jocelyn fought numerous times, and many of the fights were physical in nature. On one occasion, the deceased cut Jocelyn on her arm with a knife, and defendant, although not present during the fight, observed the wound.

Josef Hindmon, Jocelyn's 12-year old son, testified for the State that at approximately 8:00 p.m. he entered the apartment building and saw defendant carrying a five-inch long hatchet knife and an eight- or nine-inch-long butcher knife. Shortly thereafter, the police arrived and took the knives from defendant. Defendant and some of the police officers then went upstairs to her apartment. Josef followed the police to the apartment where he saw his mother lying on the floor and Harold trying to waken her. The apartment was "messed up," with pieces of wood and broken glass all over.

After the police left, Josef returned to his apartment on the firstfloor. He then went across the hall to Davis's apartment. Davis lived there with a man named Tommy Smith. Inside, the deceased was lying on a bed holding an icebag to a cut on his forehead. Josef did not see a gun in the deceased's waistband. Defendant then entered the back door of Davis's apartment, went into the kitchen and picked up a six- or seven-inch-long steak knife. Defendant left the apartment and about two minutes later returned. Defendant entered the apartment with the knife still in hand. Defendant "started making stab motions over [Smith's] head and she was saying [to the deceased], 'I'm going to kill your punk ass. Watch. I'm going to kill your punk ass.'" The deceased got up from the bed and said, "I'm tired of this bitch." He left through the back door and defendant left through the front door.

The next thing Josef heard was the deceased yell from the hallway, "Oh, she stabbed me." Josef ran into the hallway and saw the stab wound in the deceased's chest. The deceased did not have anything in his hands; Josef saw no gun in the vicinity. The deceased staggered over to Davis's apartment and pushed open the door. Defendant was not in the hallway. Josef then went outside and saw defendant standing with a woman named Debra. Josef heard defendant ask Debra for help, but Debra said no. Defendant was still carrying the steak knife, and Josef noticed blood on it. Defendant started running and when she neared Josef stated, "Shush, Josef. Don't say anything. Shush." Defendant was wiping the knife with her shirt as she ran.

On cross-examination, Josef stated that he did not tell the assistant State's Attorney immediately after the incident that defendant tried to stab the deceased from the doorway of Davis's apartment. Josef told the assistant State's Attorney that Smith talked to defendant in the hallway outside the apartment to keep her and the deceased from arguing. Josef was not in the hallway when defendant stabbed the deceased; he was inside the apartment with Davis and Smith.

Smith testified for the State that at approximately 8:30 p.m. on June 21 the deceased appeared at his back door, bleeding from the forehead. The deceased entered the apartment and Smith and Davis attended to the cut. The deceased then went to lie on the bed. At some point, Josef came over to the apartment, followed shortly thereafter by defendant, who was holding the steak knife. Defendant was upset and started yelling at the deceased. Smith moved defendant into the hallway and tried to calm her down. Defendant never got into the apartment. Smith tried to take the knife from defendant, but she pulled back and cut him on the finger. Defendant was angry.

The deceased then appeared at his doorway. According to Smith, "a few more words were passed, when they started heading towards each other." Defendant still had the knife in her hand. The deceased did not have anything in his hands. Smith attempted to stop defendant from going any further. At this point, Davis appeared and she and Smith went back into their apartment. A few moments later, the deceased stumbled into Smith's apartment bleeding from the chest. Smith did not see a gun in the deceased's waistband.

Davis testified that she tended to the deceased's head wound, and after placing him on the bed, went to defendant's and Harold's apartment for help. She saw Jocelyn on the floor with Harold holding her. On the way back to her apartment, Davis heard defendant and the deceased arguing in the hallway. She saw the deceased at his doorway with the door cracked; there was nothing in his hands. She walked past defendant and the deceased on the way to her apartment, and then turned around and saw defendant "lunge at [the deceased] with a sharp, shiny object," striking him in the chest. According to Davis, the deceased was still standing in his doorway when defendant came at him. Thinking the wound was not serious, Davis went into the apartment. Smith was pushing her to get in. Seconds later, the deceased stumbled to the apartment, bleeding from the chest.

Davis recalled that the deceased was "a little inebriated" on the evening in question. When he came to her apartment for assistance with the head wound, the deceased was not angry nor did he behave violently. At no time during the evening did Davis see anything in the deceased's hands.

Officer Sandra Napolitano testified for the State that she arrived at the apartment on the evening in question in response to a call and found the deceased leaning against the doorway to Davis's apartment, unconscious. The deceased had sustained a stab wound to his chest and a laceration on his forehead. The deceased had nothing in his hands or waistband, nor were there any objects in the immediate vicinity. Napolitano was informed by witnesses that defendant was the offender, and that she was still somewhere in the building. Subsequently, Napolitano responded to a call that defendant had been apprehended two blocks away. When the officer arrived at that location, she observed that defendant's clothes were spotted with blood. Defendant was then arrested. No knife was found on defendant.

On cross-examination, Napolitano acknowledged that the written police report stated that Davis had not seen the stabbing and that all Davis knew was that there was a knock on her door and the deceased fell into her apartment. Napolitano stated that none of the four witnesses she spoke with immediately after the stabbing, including Davis and Josef, claimed to have seen the stabbing.

Officer Mark Kooistra testified for the State that he apprehended defendant two blocks from the scene. Defendant was carrying no weapons. Kooistra noticed no bruises or other injuries to defendant's body, nor did defendant complain of any. ...

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