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06/22/95 PEOPLE STATE ILLINOIS v. ALYCE ARMSTRONG

June 22, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ALYCE ARMSTRONG, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Fred G. Suria, Judge Presiding.

As Corrected June 22, 1995.

The Honorable Justice Sheila M. O'brien delivered the opinion of the court: Cahill, J. and Theis, J. concur.

The opinion of the court was delivered by: O'brien

JUSTICE SHEILA M. O'BRIEN delivered the opinion of the court:

Defendant Alyce Armstrong was indicted for the first degree murder of Leon Thomas. Following a jury trial, she was convicted of second degree murder and sentenced to twelve years incarceration. On appeal, defendant contends the trial court erred in refusing to admit a certified copy of the victim's murder conviction where the jury received a self-defense instruction. We affirm.

Defendant sold $40 worth of crack cocaine to Shantay Coleman on credit on December 14, 1990. At trial, defendant admitted going to Coleman's apartment three times armed with a handgun to recover the debt. Defendant's third trip to Coleman's apartment was in the early morning hours of December 15, 1990. She was accompanied by Gwendolyn Williams and two other women. Upon arriving at Coleman's apartment, Williams knocked on the door. Leon Thomas, Coleman's fiance, opened the door and summoned Coleman. Coleman informed defendant she could not pay the debt. An argument ensued. Thomas offered defendant some frozen meat in repayment of the debt. The defendant declined and then either showed Coleman the gun or pulled it from her waistband. Coleman stated she was waiting for her father to arrive with the money and asked Williams to phone him. Defendant told Coleman that Williams would not make the call and ordered Coleman to wait with defendant downstairs for the money to arrive. Thomas intervened and stated, "You're not going anywhere." The testimony is conflicting as to whom he was intending to address with this statement: Coleman or defendant.

Coleman testified the statement was intended for her. She also testified the defendant threatened to "drop" both she and the victim. Coleman's testimony was substantially corroborated by Williams who stated defendant threatened to "smoke" Leon Thomas and by defendant who admitted telling him, "You can feel what [Coleman's] going to feel."

According to defendant's testimony, defendant believed Thomas was threatening her because he had backed her into a corner and was looking her in the eye. Defendant stated that while in the corner she continued to have "words" with Coleman then pulled the gun from her waistband to protect herself from Thomas. Defendant claimed the hammer cocked "accidentally", and as she fumbled with the gun trying to uncock it, the gun discharged.

Thomas received a fatal chest wound.

Defendant was charged with the first degree murder of Leon Thomas. At trial, defense counsel requested the victim's prior murder conviction be admitted into evidence in support of defendant's claim of self-defense. The trial court refused. The jury received the I.P.I. 24-25.06 and 25-26.09 self-defense instructions, as well as I.P.I. 7.05A, commonly known as the failed self-defense second degree murder instruction. Defendant was found guilty of second degree murder.

Defendant's only argument on appeal is that the trial court erred in refusing to admit a certified copy of the victim's murder conviction in a case where the jury received a self-defense instruction. In support of her argument, defendant relies entirely upon People v. Lynch (1984), 104 Ill. 2d 194, 470 N.E.2d 1018, 83 Ill. Dec. 598. In Lynch, the Illinois Supreme Court held that "when the theory of self-defense is raised, the victim's aggressive and violent character is relevant to show who was the aggressor, and the defendant may show it by appropriate evidence," which may include convictions for crimes of violence. 104 Ill. 2d 194, 470 N.E.2d at 1020-21.

We find defendant's reliance on Lynch misplaced. Lynch applies only where the theory of self-defense is properly raised. ( People v. Isbell (1988), 177 Ill. App. 3d 854, 532 N.E.2d 964, 971, 127 Ill. Dec. 135.) It is a question of law whether defendant has produced sufficient evidence to raise the issue of self-defense. People v. Everette (1990), 141 Ill. 2d 147, 565 N.E.2d 1295, 1299, 152 Ill. Dec. 377.

An initial aggressor is not entitled to use deadly force in self-defense unless he or she has completely withdrawn from the altercation such that the victim's actions constitute a separate aggression. Ill. Rev. Stat. ch. 38, par. 7-4, Committee Comments-1961, at 402-03 (Smith-Hurd 1989) (now 720 ILCS 5/7-4, Committee Comments-1961 at 347-48 (Smith-Hurd 1992).

By her own testimony, defendant was the initial aggressor. She testified she went to Coleman's apartment three times, armed with a handgun, to collect a $40 debt. On her third trip, defendant displayed ...


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