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March 21, 1995


Appeal from the Circuit Court of Cook County. Honorable John W. Crilly, Judge Presiding.

As Modified on Denial of Rehearing May 23, 1995. Rehearing Denied May 10, 1995. Released for Publication May 26, 1995.

The Honorable Justice Hartman delivered the modified opinion of the court upon denial of rehearing: McCORMICK, J., concurs. DiVITO, J., concurs in part and dissents in part.

The opinion of the court was delivered by: Hartman

JUSTICE HARTMAN delivered the modified opinion of the court upon denial of rehearing:

Defendant, Terence Cross, appeals his conviction for second degree murder, contending that (1) the circuit court erred in sustaining hearsay objections to his attempts to testify to his state of mind prior to the shooting; (2) the verdict forms given to the jury improperly denied him a fair trial; (3) the second degree murder statute is unconstitutional; (4) the prosecutor's comments during closing argument improperly denied him a fair trial; and (5) his sentence was excessive.

Defendant shot and killed John Mack Connor. The State charged him with first degree murder; he claimed that he acted in self-defense.

At trial, Baten Prince Phillips testified that in the evening of April 16, 1991, he and four friends drove to the home of his girlfriend, Cathy Stewart, at 72nd and Yates in Chicago. He wanted to talk to her about an incident that occurred the previous day, which involved a scuffle in which defendant's girlfriend, Michelle Randle, fought with Stewart and her two friends. Defendant had broken up the fight.

When they arrived at 72nd and Yates, Phillips learned that defendant was standing across the street, and he approached him. He had never met defendant before. Defendant told Phillips that he knew who he was. Phillips told defendant that there was no need for him to get involved in their two girlfriends' fight.

The discussion became heated. Phillips noticed that his friends had crossed the street and were about ten feet away from him. Subsequently, defendant pushed Phillips, who pushed him back. Phillips testified that defendant pulled out a gun and that everyone began to run. Phillips ran, heard two shots, and then noticed that his friend John Mack Connor had been shot. Defendant meanwhile ran away. Phillips ran back to Connor, who was fatally wounded. Phillips previously pled guilty to auto theft and received 30 months probation.

Jonathan Boston and Antoine Land, two of Phillips' friends who accompanied him in the car on the night in question, also testified. Boston asserted that they all alighted at 72nd and Yates. Boston and Land both testified that after Phillips crossed the street to talk to defendant, the others also went across the street because one of them had seen an old friend. They saw defendant push Phillips and Phillips push back. Phillips said that defendant had a gun and started running towards his friends. Boston saw defendant fire two shots in their direction. Boston and Land then saw that Connor had been shot. Boston had four prior convictions for possession of a controlled substance and had a fifth possession case pending.

Chicago police officer Robin McKenzie, the responding officer at the scene of the shooting, interviewed several people and began touring the area in search of defendant, whom she found later that evening. He surrendered himself to her custody.

Defendant testified that on April 15, 1991, he broke up a fight between Stewart and his girlfriend, Randle. As he went to pick up Randle from the police station that evening, he was told that Stewart's boyfriend, Phillips, had learned of the fight, and that "they had a bullet with my name on it when I come down Yates."

When defendant was asked why he was carrying a gun on the night in question, the circuit court sustained the State's objection. The defense made an offer of proof that defendant was carrying a gun because he believed his life was in danger, and that defendant was informed Phillips was coming after him to "beat him to a bloody pulp or kill him." The court ruled that whatever defendant may have thought was irrelevant and sustained the objection.

Defendant testified that the next day, as he was walking down the steps of a friend's home at 7158 South Yates, Phillips and Land, who he both knew, approached him. Phillips asked defendant if he was Randle's boyfriend and why he hit Stewart. Phillips and Land stood in front of defendant and called three men who defendant did not know. They crossed the street and surrounded defendant. One man was 6 feet 5 inches in height and weighed 265 pounds. There was no avenue of escape, and defendant feared for his life. They then started hitting him from the back and jumping on him. As defendant went down, he saw Land pull out a gun. Defendant then pulled out his gun and shot it. Defendant heard Phillips say "pop him, pop him now," so he ran from the scene. As he was running, he heard about twelve shots and saw four people chasing him. He threw his gun in the lake because he was afraid that if the police saw him with it they would shoot him.

Defendant then went to a friend's house and called some of his relatives to tell them what had happened. He learned that the police were looking for him and arranged for his friend to call the police and tell them where to pick him up, which they did.

At the police station, he was questioned by a detective and an assistant State's Attorney, to whom he told substantially the same story as that which he told at trial. The assistant State's Attorney presented defendant with a written statement, which defendant did not write, that said that defendant did not see any of the people surrounding him with a weapon. At trial, defendant denied making that statement and reiterated that Land had a gun.

During cross-examination, defendant acknowledged that he read the statement, signed each page and initialled corrections, but made no changes to it. He was given a physical examination, but did not tell anyone that he was beaten. Defendant further acknowledged that he had previously pled guilty to armed violence in another case and received a six-year sentence.

In rebuttal, the State presented several witnesses. Valencia Smith, a paramedic who examined defendant when he was admitted to the Cook County jail on April 17, 1991, testified that defendant reported no injuries and that she saw no bruising or swelling on defendant. Officer McKenzie testified that defendant never told her that he was struck or that he was chased and shot at.

Detective George Carey testified that defendant told him that he was beaten by a group of men and that one of them had a gun. Assistant State's Attorney Jonathan Lustig testified that he spoke with defendant at the police station on the evening of April 17, 1991. Defendant gave an oral statement and agreed to have Lustig summarize it in writing. Defendant then read the written statement and was told that he may make changes to it. Defendant signed it.

Lustig was permitted to read defendant's statement to the jury. In the statement, defendant asserted that on April 15, 1991, he broke up a fight between Randle and Stewart. When he went to get Randle out of jail, he learned that Phillips, Stewart's boyfriend, intended to harm him. The next day, defendant went to visit a friend who lived in the area where Stewart lived and thought he would try to straighten things out with Phillips. Defendant brought a gun with him for protection. When defendant exited his friend's building, Phillips and another man approached him. Phillips accused him of hurting Phillips' girlfriend. An argument ensued and Phillips called three men, from across the street, who encircled defendant. No one of them displayed a weapon. Someone struck him from behind. Defendant removed his gun, fired twice at Phillips, and ran towards the lake.

The issues concerning closing argument, and jury instructions and verdict forms will be considered under parts II and IV of this opinion.

The jury found defendant guilty of second degree murder. The circuit court sentenced defendant to thirteen years' imprisonment, to run consecutively to the prior six-year sentence.

This court granted defendant's petition to file a late notice of appeal.


Defendant first contends that the circuit court erred in sustaining objections to questions concerning threats made against him and to questions regarding his state of mind at the time of the offense. Defendant failed to raise this issue in his motion for a new trial.

Failure to raise an issue in a written motion for a new trial results in a waiver of that issue on appeal ( People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 119 Ill. Dec. 265), except where plain errors or defects affect substantial rights. ( People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461.) The exception applies only when the question of guilt is close and the evidence in question might have affected the outcome of the case significantly, or where the error alleged is so substantial as to reflect adversely on the fairness or impartiality of the trial regardless of how closely balanced the evidence is. ( People v. Sanders (1983), 99 Ill. 2d 262, 273, 457 N.E.2d 1241, 75 Ill. Dec. 682.) Although defendant's post-trial motion states generally that he was denied due process and deprived of a fair trial, it lacks the specificity that is required to bring objections to the attention of the circuit court. (See People v. Smith (1985), 139 Ill. App. 3d 21, 31-32, 486 N.E.2d 1347, 93 Ill. Dec. 512.) Nevertheless, we find plain error as to this issue.

An individual is justified in using deadly force if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself. (Ill. Rev. Stat. 1991, ch. 38, par. 7-1 (now 720 ILCS 5/7-1 (West 1992)).) In criminal cases where the intention, motive, or belief of the accused is material to the issue of his or her guilt, he or she has a right to testify directly to that fact. ( People v. Keefe (1991), 209 Ill. App. 3d 744, 751, 567 N.E.2d 1052, 153 Ill. Dec. 825.) Self-defense necessarily involves the question of whether defendant subjectively believed, at the time of the incident, that the force exercised against the victim was necessary. ( Keefe, 209 Ill. App. 3d at 751.) Improper exclusion of state-of-mind testimony by an accused which is essential to his or her self-defense claim ordinarily constitutes reversible error unless other sufficient evidence of his intent is admitted at trial. Keefe, 209 Ill. App. 3d at 752.

The evidence in this case was closely balanced. The record shows that on April 15, 1991, Randle and Stewart got into a fight, which defendant broke up. Phillips went to 72nd and Yates the following day to tell defendant that he should not be involved in their girlfriend's affairs. Phillips brought four friends with him who crossed the street to where defendant was standing and stood within ten feet of Phillips and defendant as they argued and pushed each other. Boston and Land maintain that they were talking to an old friend while the two argued. Phillips claimed that after defendant pushed him, defendant pulled out a gun and shot twice.

Defendant testified that when he picked up Randle from the police station, he learned that there was a "bullet with [his] name on it" and that information about the fight had been passed on to Phillips. The following day he was approached by Phillips and Land after visiting a friend. Phillips asked defendant why he had hit Stewart and called his three friends over, who then surrounded defendant. Phillips' friends began hitting and jumping on defendant. ...

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