Appeal from the Circuit Court of Cook County. Honorable Thomas Hett, Judge Presiding.
Released for Publication August 29, 1996.
The Honorable Justice 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 O'BRIEN delivered the opinion of the court:
Following a jury trial, defendant, William Flores, was found guilty of first-degree murder and sentenced to 50 years in prison. On appeal, defendant contends: (1) the trial court erred by failing to instruct the jury as to the defense of justifiable use of force to prevent a forcible felony; (2) the trial court erred by refusing his tendered instruction on second-degree murder based on provocation; (3) his trial counsel rendered ineffective assistance; and (4) the trial court abused its discretion by sentencing him to 50 years in prison. We affirm.
At trial, Jose Conde testified that sometime in October or November 1989, defendant walked into the store where Conde worked, ordered a sandwich, and asked to use the telephone. Conde told defendant he could not use the telephone, and defendant said "forget about the sandwich" and left.
Conde testified that at about 8 p.m. on December 8, 1989, he was standing on the northeast corner of Montrose and Hamlin when he saw defendant come out of a beauty shop located across Hamlin. Defendant walked up to Conde, cursed him, and punched him in the chin and chest. Defendant then pulled out a knife and said he was going to kill Conde. Conde took a step back, and Billy Howard came over and pushed defendant away in order to separate them. Billy did not have a knife or anything else in his hands.
Conde testified he saw defendant stab Billy three or four times. While defendant was stabbing Billy, Conde ran into a store and told a woman to call the police. Conde grabbed a knife from the store and ran back outside, where he saw defendant stabbing Billy in the neck. When defendant saw Conde had a knife, defendant told Conde he had a gun and would kill him.
The police arrived and told Conde to put the knife down. Conde told the police that defendant had killed someone, and the police arrested defendant.
Lourdes Cepero testified she was the owner of the beauty shop defendant walked into around 7:30 or 8 p.m. on December 8, 1989. Defendant asked to make an appointment, then "yelled out for someone" and ran out of the store. She looked out a window and saw defendant arguing with Conde, who was unarmed. She saw defendant punch Conde in the chin, after which defendant "pulled out something," but she could not see what it was.
Cepero testified she saw Billy Howard try to separate defendant and Conde. She observed defendant hold Billy's shoulder while making a pumping motion with his right hand. Conde ran into a store and came out with a "big knife." Conde began to chase defendant and she could hear defendant say he was going to shoot Conde. The police arrived and arrested defendant.
Edward Abbas testified that on December 8, 1989, he owned a store on the corner of Hamlin and Montrose. Around 8 p.m. that evening, he saw Conde and another man (hereinafter second man) fighting outside his store. A third man came between Conde and the second man, and the second man stabbed the third man, who was unarmed. Abbas testified he never saw the third man punch Conde or the second man.
Officer Nancy Hartigan testified that at approximately 8 p.m. on December 8, 1989, she and her partner observed defendant and Conde at the intersection of Montrose and Hamlin. Defendant was standing by a vehicle on the southwest corner of Montrose, and Conde was standing on the northwest corner with a knife in his hand.
Officer Hartigan testified she ordered Conde to put down the knife, which he did. Conde then rushed up to her and repeatedly stated that defendant had stabbed someone. Officer Hartigan's partner conducted a pat-down search of defendant and found a knife covered with blood.
Officer Hartigan stated she walked to the northeast corner of Montrose and Hamlin, where she saw pools of blood on the sidewalk. She found no weapons near the pools of blood, nor did she see a body. After sending a flash message of a possible stabbing victim, Officer Hartigan arrested defendant for battery against Conde and drove him to the 17th District police station. Defendant was not bleeding and she observed no open cuts ...