The opinion of the court was delivered by: Presiding Justice Cahill
Appeal from the Circuit Court of Cook County
Honorable William Pendergast, Judge Presiding.
After a jury trial, defendant Willie Trotter was convicted of first degree murder and sentenced to 36 years in prison. On appeal defendant argues: (1) that the trial court erred by refusing to instruct the jury on battery as a lesser included offense of murder; and (2) defendant's counsel was ineffective because he did not tender jury instructions on withdrawal from the crime. We affirm.
The evidence at trial established the following. At about 8:15 p.m. on August 25, 1995, gunshots were heard near Percy Julian Junior High School in Oak Park, Illinois. Shortly after, Marcus Mance, Kevin Wilson and Lonnie Mance got off a bus near the school. A crowd of people began chasing them. Witness estimates of the number of people in the crowd ranged from 15 to 50. Kevin Wilson testified that he broke away and ran to a friend's house.
Martin Johnson testified that he saw the group chase Marcus and Lonnie Mance on Madison Street. Johnson identified defendant as one of the people in the group. The group caught up with Marcus and Lonnie at a gas station at Howard and Madison Streets. Martin saw defendant hit Marcus in the face. Marcus then ran across the street toward a police station. The crowd followed. The crowd then split in two. One group of about 10 chased Lonnie down a ramp that led to the police station. The other group encircled Marcus on the ramp. That group beat Marcus with their fists and legs for three or four minutes. Martin testified that defendant was a part of this group.
Lonnie Mance testified that he, too, saw defendant hit Marcus at the gas station. Lonnie testified that he was chased and was beaten. He lost consciousness near the police station. When he regained consciousness, he went into the police station and told someone at the front desk what happened. He and Marcus were taken to the hospital. Marcus died on September 11, 1995.
Defendant testified. He said that he and several others were playing basketball on the second floor at Percy Julian Junior High School in Oak Park on August 25, 1995. They heard gunshots fired from the street. The group then went outside and gathered on the school parking lot. Defendant soon left the school with several others.
Defendant denied that he was originally part of the group chasing Marcus or that he continued to chase Marcus from the gas station to the police station. He testified that he was on Madison Street when he saw a crowd of about 50 chasing Marcus. Defendant crossed the street and caught up with Marcus. Defendant told Marcus to stop, asked him why he was running, and hit him in the face. Marcus swung back, but missed. Marcus then ran across the street. Defendant testified that he left the gas station, crossed Madison Street and walked back toward the school. Two other defense witnesses testified that they were with defendant and that defendant did not chase Marcus to the police station with the others.
At the jury instructions conference, defendant asked that the jury be instructed on battery as a lesser included offense of murder. The trial court denied defendant's motion.
The jury found defendant guilty of first degree murder. Defendant's subsequent motion for a new trial was denied.
We first address defendant's argument that he was entitled to a lesser included offense instruction. Defendant contends that the trial court erred by finding that battery is not a lesser included offense of murder.
A lesser included offense is one that is established by proof of the same or less than all of the facts needed to establish the offense charged. See People v. Novak, 163 Ill. 2d 93, 105-06, 643 N.E.2d 762 (1994). We must look to the "charging instrument" to determine when one crime is a lesser included offense of another. See Novak, 163 Ill. 2d 93, 643 N.E.2d 762. Under the "charging instruments" approach, an offense is a lesser included offense if it is described in the charging instrument. Novak, 163 Ill. 2d at 107.
The trial court ruled that "battery is not an included offense" of first degree murder. We agree with defendant that this finding is error. See People v. Balls, 95 Ill. App. 3d 70, 74-75, 419 N.E.2d 571 (1981). The charging instrument outlined one incident where defendant and two others "punched, kicked and killed Marcus Mance." But the trial court's finding was harmless error. As defendant acknowledges, identifying a lesser included offense in the abstract does not resolve the separate issue of whether ...