The opinion of the court was delivered by: Presiding Justice O'mara Frossard
Appeal from the Circuit Court of Cook County
Honorable Stanley Sacks, Judge Presiding.
Frederick Luckett was charged with first degree murder, three counts of attempted first degree murder and three counts of aggravated discharge of a firearm. Co-defendants Robert Foster and Donald Toney were also charged with these crimes, but were tried in separate jury trials and are not involved in this appeal.
The jury found Luckett guilty of first degree murder of Phillip Matthews, aggravated discharge of a firearm and attempted first degree murder of Bobby Roberson, and aggravated discharge of a firearm of Antoine Harris. The jury found defendant not guilty of attempted murder of Antoine and Terrance Harris and not guilty of aggravated discharge of a firearm of Terrance Harris. Luckett was sentenced to 28 years in prison for the first degree murder conviction to run consecutive with three concurrent 10-year sentences for the attempted first degree murder and aggravated discharge of a firearm convictions.
Luckett raises only one issue on appeal. Luckett contends the Judge erred by failing to instruct the jury on the charged offenses of intentional and knowing murder and on the lesser mitigated offense of second degree murder. We find sufficient evidence in the record to require the jury be instructed on second degree murder. We reverse and remand for retrial.
At approximately 7 p.m. on the evening of October 10, 1995, 9 or 10 members of the Four Corner Hustlers street gang, including Antoine Harris and his brother Terrance Harris, observed a car drive east past Halsted on 123rd Street. Antoine recognized the driver of the car as Toney. Toney and his passengers, Foster and Luckett, were members of the Gangster Disciples street gang. A confrontation occurred during which at some point threats were yelled, Antoine threw a bottle at Toney's vehicle and shots were fired. Foster and Luckett fired their weapons, a 9 millimeter handgun and a rifle. While Bobby Roberson, Antoine and Terrance were not injured, Phillip Matthews died from gunshot wounds. Antoine gave Chicago police officers information that led them to 123rd and Carpenter, where Toney lived and where the officers eventually discovered Toney's vehicle, which matched the description of the vehicle involved in the shooting. A neighbor told the officers that the vehicle belonged to the boys from 12320 South Carpenter.
As Officer Kane approached 12320 South Carpenter he saw an individual who matched the description of one of the offenders and arrested him. This individual was later identified as Luckett. Luckett is Toney's younger brother. Officer Kane told Luckett's mother that he noticed two individuals run into the house at 12320 South Carpenter. She went into the house and returned first with Foster, and then with Toney, and both were arrested. Police officers accompanied by Luckett later recovered the two guns. A forensic expert who examined 15 fired cartridge casings concluded the casings recovered from the scene were consistent with the two recovered weapons; however, the three fired bullets, including one .38-caliber bullet recovered from the body of Phillip Matthews, could not have been fired from the two recovered weapons. Luckett first told the police he was not involved in the shooting, but after being identified in a lineup by Antoine he admitted his involvement. He stated that he and Foster went with Toney to see Toney's girlfriend, who lived in Four Corner Hustler territory. Luckett stated that Toney recently "got into it" with some Four Corner Hustlers while in his girlfriend's neighborhood. Before getting into Toney's car, Luckett stated that he went into his house and obtained a rifle and a 9 millimeter handgun.
Luckett in his statement to the police further stated that, near the corner of Halsted and 123rd, he heard people yelling "GDK," which means "Gangster Disciple Killers," and the group threw a few bottles at the car. Luckett said that he and the other defendants were "mad" about the group of Four Corner Hustlers yelling and throwing bottles, so they stopped the car, took the guns, and exited the vehicle. When Luckett looked in the direction of where the bottle had come from, he saw two Four Corner Hustlers who had shot at Toney the previous week. Luckett stated that Foster shot the 9 millimeter handgun in the direction of the group, and Luckett tried to shoot the rifle, but was unable to remove the safety. He said that he and Foster then switched guns, and Foster shot at the group with the rifle. Toney brought Foster and Luckett along for protection, and Toney knew Luckett and Foster brought guns with them. Luckett said he saw Foster take several shots with the rifle back toward 123rd Street and saw a man fall down. Luckett then jumped over a fence and Foster handed him both guns. Luckett later accompanied Detective McDermott to the house in which he had placed the guns. The detective found the two guns under the mattress.
At trial Luckett denied any plan to kill Four Corner Hustlers and maintained he and Foster fired their weapons in self-defense. Luckett described two previous confrontations with the Harris brothers. Luckett testified that, in March of 1995, he was with his brother Toney, Foster and his friend Palmer Helm, when Antoine, Antoine's brother, and Bobby Roberson confronted them. Luckett stated that Antoine, Antoine's brother and Bobby Roberson shouted "GDK" at them and Antoine shot Palmer Helm, who went to the hospital. Luckett testified about a second confrontation. He stated that on October 6, 1995, Toney told him that, after visiting with his girlfriend, he was chased by Antoine Harris. Antoine shot at Toney and Toney went to the hospital.
Luckett testified that on October 10, 1995, he, Foster and Toney were going to Toney's girlfriend's house. They armed themselves with guns because of past confrontations with the Four Corner Hustlers and because they were afraid the Harris brothers might shoot at them. Near Halsted and 123rd Streets, a mob of 10 or more men began to threaten them by yelling "GDK." A Harris brother threw a bottle that broke out the driver's side window of Toney's car. Luckett stated that the car stopped and he exited the vehicle with the rifle because he was scared he would be shot. Luckett stated that while the Harris brothers and eight other men were coming at him and Foster, he saw the Harris brothers reach into their coats for their guns. Luckett aimed the rifle into the air to scare the mob away, but the rifle failed to fire. Luckett thought that the Harris brothers were going to kill him and Foster. Luckett then heard several shots, and he and Foster ran away from the mob. Luckett testified that the mob chased and shot at him and Foster and he feared for his life. Foster returned fire until they jumped a fence and fled the area.
On cross-examination, Luckett admitted he never told the police or the assistant State's Attorney about the Harris brothers reaching for weapons. Luckett further admitted he later learned Toney had not been shot in the previous altercation.
On appeal, Luckett contends that the trial court's failure to instruct the jury on the charged offense of first degree murder precluded the jury from receiving a second degree murder instruction and thereby denied him a fair trial. Defense counsel offered instructions on the charged offense of first degree murder and on second degree murder. Although felony murder had not been charged, the jury was given a felony murder instruction and a self-defense instruction. The jury was not given an instruction for the charged offense of intentional, knowing murder or for the lesser mitigated offense of second degree murder. The offense of aggravated discharge of a firearm served as the predicate felony for the felony murder instruction. The prosecution maintains there was no evidence to support an instruction for second degree murder. The question as to whether a defendant has met the evidentiary minimum for such an ...