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June 28, 1994


Appeal from the Circuit Court of Cook County. Honorable Thomas J. Maloney, Judge Presiding.

McCORMICK, Hartman, Scariano

The opinion of the court was delivered by: Mccormick

JUSTICE McCORMICK delivered the opinion of the court:

Defendant, Larry L. Sims, was convicted of first degree murder of the victim, Dartagnan Young, and sentenced to 40 years' imprisonment. Defendant appeals contending (1) that he was denied the opportunity to prove that he acted in self-defense due to the trial court's exclusion of evidence; (2) that the prosecutor's statements during closing argument denied him due process and a right to a fair trial; (3) that the trial court erred in failing to allow his proposed jury instruction on self-defense; (4) that the trial court erred in denying his motion to suppress oral statements; (5) that the trial court sentence was based on an erroneous interpretation of the statute; and (6) that the trial court abused its discretion in sentencing him to 40 years' imprisonment because of the trial court's misapprehension of the state of the law at the time of sentencing. For the reasons stated below, we affirm defendant's conviction and remand for a new sentencing hearing.

On October 14, 1987, the victim, Dartagnan Young, a 15-year-old freshman at DuSable High School died of multiple gunshot wounds after he was involved in an argument with defendant on the third floor of the school building. Jamillah Clark, Latonda Hughes and Bernard Collins, students at DuSable and witnesses to the shooting, testified that defendant told the victim that he would "whip [the victim's] butt" to which the victim responded that defendant wouldn't do anything to him. Collins testified that defendant also said that he "didn't have to take no shit" from the victim because "I'm a Black Gangster Disciple." According to Collins, the victim replied, "F*** Black Gangster Disciples, Cobra Stones and all those gangs." Defendant then pulled a handgun from his waistband area and pointed it at the victim's head. The victim was unarmed and had his back to defendant. The gun clicked twice before firing three times. Two of the bullets hit the victim. One bullet went through the victim's left arm; the other entered the left side of the victim's back and lodged on the right front chest cavity area. After he was shot, the victim ran down the stairwell to the first floor of the building where he collapsed and died.

First, defendant argues that the trial court improperly excluded his testimony of a conversation he had with his sister the day before the shooting on the basis of hearsay. In that conversation, defendant's sister, Keysha, told defendant that she had seen the victim draw a gun during an incident involving other students. Defendant argues that this testimony was relevant to his state of mind on the day of the shooting and supports his theory of self-defense.

In Illinois, a person is justified in using force 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 * * *." (Ill. Rev. Stat. 1991, ch. 38, par. 7-1.) A defendant's reasonable belief that such force was necessary is an essential element of his self-defense claim ( People v. Kline (1980), 90 Ill. App. 3d 1008, 1014, 414 N.E.2d 141, 46 Ill. Dec. 419), and thus, a defendant's state of mind at the time of the occurrence is relevant and material ( People v. Currie (1980), 84 Ill. App. 3d 1056, 1059, 405 N.E.2d 1142, 40 Ill. Dec. 50).

In this case, defendant's conversation with his sister the day before the shooting is hearsay if it was offered to prove the truth of the matter asserted. ( People v. Lawler (1991), 142 Ill. 2d 548, 557, 568 N.E.2d 895, 154 Ill. Dec. 674.) Hearsay is generally inadmissible unless it falls within a designated exception. ( Lawler, 142 Ill. 2d 548, 154 Ill. Dec. 674, 568 N.E.2d 895.) Where a defendant claims that he acted in self-defense, he may be allowed to testify to out-of-court statements which are probative of his state of mind at the time of the occurrence; such testimony is generally excepted from the rule against hearsay. People v. Ortiz (1980), 65 Ill. App. 3d 525, 533, 382 N.E.2d 303, 21 Ill. Dec. 939.

At trial, the State objected to defendant's testimony about the conversation with his sister. In sustaining the objection, the court found that the conversation amounted to "rank hearsay." Defense counsel proposed a "less favored alternative" in which the trial court allowed him to ask three questions: (1) Did you have that conversation with Keysha on the afternoon of the 13th; (2) Was it about Dartagnan [the victim]; and (3) Were guns involved. The trial court allowed defense counsel to pose those three questions to defendant. No further testimony with respect to defendant's conversation with his sister as it related to the victim was allowed.

Defendant argues that because his testimony was restricted, he was not allowed to establish that the victim carried and pulled out a gun the day before the shooting involved in this case. Hence, defendant contends, he was not allowed to establish his state of mind that he believed the victim carried a gun.

It was error for the trial court to restrict defendant's testimony about his conversation with his sister as it related to the victim and a gun. The alleged fact that the victim carried a gun and pulled it out during a confrontation is probative of defendant's state of mind. An out-of-court statement offered to prove the effect of the words on the listener's state of mind is relevant and admissible as non-hearsay. People v. Kline (1980), 90 Ill. App. 3d 1008, 1012, 414 N.E.2d 141, 46 Ill. Dec. 419.

We find, however, that the error was harmless. An error will be deemed harmless if no prejudice to the defendant resulted from the error. ( People v. Jamison (1991), 207 Ill. App. 3d 565, 568, 566 N.E.2d 58, 152 Ill. Dec. 530.) In determining whether an accused has been prejudiced by the rejection or exclusion of evidence, so as to require a reversal of the judgment, a reviewing court "looks to the entire record to see if the rejected evidence could have reasonably affected the verdict, and will refuse to disturb the judgment where guilt is shown beyond a reasonable doubt or where, upon the evidence, a different result could not have been reached." People v. Hoddenbach (1983), 116 Ill. App. 3d 57, 60, 452 N.E.2d 32, 72 Ill. Dec. 100, citing to People v. Wolff (1960), 19 Ill. 2d 318, 167 N.E.2d 197.

After reviewing the record in this case, we find that the excluded evidence of which defendant complains could not have reasonably affected the jury's verdict, and that defendant's guilt was proven beyond a reasonable doubt.

At trial, defendant provided the jury with a detailed account as to his state of mind and the circumstances which led to the shooting. On direct examination, defendant testified that when he arrived at school on the morning of October 14, 1987, he met a group of his friends. Defendant and his friends proceeded to the second floor of the school where they found the victim and another of defendant's friends, Dion Allison, engaged in an argument. Defendant and his friends asked Dion to accompany them to division class on the third floor.

Before leaving the second floor, Dion stopped at his locker and retrieved a gun. Defendant took the gun from Dion "because Dion was arguing with [the victim] and * * * he [Dion] was upset." Defendant then proceeded to his locker on the third floor, but was unable to place the gun in his locker because the division bell had rung. The victim ran up behind defendant and his friends calling them "marks" and asking them what they wanted to do. Defendant testified that he did not respond to this challenge and turned to walk away. Defendant and his friends continued to walk down the hall while the victim followed, calling defendant a "punk" and a "mark." The victim then told defendant that he had better watch his back. At that, a teacher, Earl Shavers, told them both to go to class and pushed defendant forward. Defendant stated that as he walked to his class he turned around and saw the victim reach into his clothes. His state of mind at that moment was that he feared for his life. Defendant thought the victim was reaching for a gun; so defendant pulled out his gun and started firing.

Defendant's testimony was juxtaposed with that of four eyewitnesses who related virtually identical accounts of the incident. Those accounts overwhelmingly contradicted defendant's claim of self-defense.

Earl Shavers further testified that he personally separated defendant and the victim during the argument, placing his body between the two of them. Defendant, however, spun around Shavers and went towards the victim. Contrary to defendant's version in which another of defendant's friend, Percy, supposedly argued with the victim moments before the shooting, by Shavers' account it was Percy who tried to dissuade defendant from his course of action. Percy, according to Shavers, tried to pull defendant away from the scene, telling defendant that "it ain't even worth it."

The witnesses testified that defendant pulled a handgun from his waistband area and pointed it at the victim. By all accounts, the victim was unarmed, had his back to defendant and was retreating when defendant drew his gun and aimed it at the victim's head. The gun did not immediately fire, but clicked twice before firing three times. The physical evidence revealed that the victim was shot in the back.

This evidence notwithstanding, defendant's testimony was also contradicted by the rebuttal testimony of Dion Allison, defendant's fellow gang member who, contrary to defendant's testimony, stated that he was not engaged in an argument with the victim on the day of the shooting and that he did not give defendant, whose nickname was "Larry G.," his gun to place in defendant's locker.

In this case, the evidence of defendant's guilt was overwhelming. Defendant was seen by no less than four people attacking the unarmed victim, even after the two were separated. The facts here do not suggest that the jury would have reached a different result had defendant been allowed to elaborate on his conversation with his sister. In light of the foregoing, we find that defendant was not prejudiced by the trial court's refusal to allow defendant to testify in detail about his conversation with his sister the day before the shooting.

Defendant's second argument with respect to his self-defense claim is that the trial court improperly restricted defense counsel's cross-examination of Assistant State's Attorney Raymond Brogan. Brogan was the assistant State's Attorney who reviewed defendant's case after defendant was arrested.

It is within the trial court's discretion to regulate the extent of inquiry on cross-examination. ( People v. Sandoval (1990), 135 Ill. 2d 159, 552 N.E.2d 726, 142 Ill. Dec. 135.) A reviewing court will not reverse the trial court's limitation on cross-examination absent an abuse of discretion which results in manifest prejudice to the defendant. The latitude permitted on cross-examination is within the sound discretion of the trial court. Sandoval, 135 Ill. 2d at 194.

Brogan was called by the State as a rebuttal witness. On cross-examination, defense counsel ...

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