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08/14/97 PEOPLE STATE ILLINOIS v. DONNELL NOLAN

August 14, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DONNELL NOLAN, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE MICHAEL B. BOLAN, JUDGE PRESIDING.

Released for Publication October 9, 1997.

Presiding Justice Wolfson delivered the opinion of the court. Cerda and Burke, JJ., concur.

The opinion of the court was delivered by: Wolfson

PRESIDING JUSTICE WOLFSON delivered the opinion of the court:

On the morning of December 8, 1989, Donnell Nolan (Nolan) entered the Pershing Food and Liquor Store at 857 East 39th Street, to purchase a bottle of pop. The proprietor, Zaki Fakhoury (Fakhoury), accused Nolan of shoplifting. During an altercation, Nolan pulled a loaded gun from his pocket, then shot and killed Fakhoury. The question for the jury to resolve was whether Nolan's actions constituted first degree murder, second degree murder, involuntary manslaughter, or no crime at all.

In his first jury trial, Nolan was found guilty of first degree murder and sentenced to 40 years imprisonment. That conviction was overturned, because of an instructions error, in a Rule 23 order issued on December 24, 1992. In his second jury trial, Nolan was found guilty of second degree murder and sentenced to 30 years imprisonment. It is from this judgment that he now appeals. We affirm the defendant's conviction, but we reduce his sentence to 15 years.

FACTS

Two months after the shooting, on February 8, 1990, Nolan turned himself in to the police. He gave a signed statement to the assistant State's Attorney in which he admitted shooting Fakhoury. Nolan was positively identified in a line-up and at trial by an occurrence witness, Mrs. Willingham. The gun used to shoot Fakhoury was recovered from the home of Nolan's friend, Calvin Brown, who testified at trial.

At trial, the controversy was not whether Nolan shot Fakhoury, but how the shooting occurred.

Mrs. Ann Willingham testified that she was standing in the check-out line in Fakhoury's store at 8:30 a.m. on December 8, 1989, waiting to make her purchases. Nolan entered the store and walked to the back, where the coolers are located. While Nolan was walking down the aisle and looking at the merchandise, Fakhoury watched Nolan in a mirror. Fakhoury spoke to another worker in Arabic and gestured toward Nolan. It was Mrs. Willingham's perception that Fakhoury thought Nolan was shoplifting.

Nolan came to the front of the store and stood in line with a bottle of pop in his hand. Fakhoury came around from behind the counter and began to shout at Nolan, demanding that he "give me what you got." Nolan replied, "I don't have anything." Fakhoury kept advancing toward Nolan while Nolan kept backing up, telling Fakhoury "back off" and "don't keep walking up on me because I don't have nothing."

Fakhoury was not about to give up. He continued to shout at Nolan and grabbed his wrist, trying to draw him toward the front of the store. Nolan tried to pull away from Fakhoury's grasp and said, "Let go of me, let go of me, I told you I didn't have anything."

Mrs. Willingham said she turned away from this confrontation and attempted to finish her transaction. While her back was turned she heard a gunshot. She turned back to see Fakhoury falling to the floor and Nolan walking backwards.

The other store clerk had locked the front door. But, after the shooting, Nolan "jogged to the door" and shook it until it opened. Nolan left the store with the gun still in his hand.

On cross-examination, Mrs. Willingham said she never saw Fakhoury try to reach into Nolan's pockets. She said that Fakhoury was just "grabbing -- snatching, tugging" at Nolan while Nolan was trying to get loose.

In a written statement given to Assistant State's Attorney (ASA) Holmes, Nolan said he entered the store with two loaded handguns in his jacket pockets. He got a bottle of pop out of the cooler in the back of the store and then came to the front check-out. Fakhoury came up to him, grabbed his left arm, and started to shout at him, "Give it back." Nolan said Fakhoury would not let go of his arm and was trying to search his pockets. Nolan pulled a .38 caliber snub nose out of his right pocket and shot the man one time in the chest. Nolan also told ASA Holmes he "wanted the ...


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