The opinion of the court was delivered by: Presiding Justice Quinn
Not released for publication.
Appeal from the Circuit Court of Cook County Honorable Ralph Reyna, Judge Presiding.
Defendant, Nigel Pinkney, was convicted at a jury trial of first degree murder for the beating death of George Colton. Defendant was subsequently sentenced to 45 years' imprisonment. Defendant now appeals.
On appeal, defendant argues that (1) he was deprived of his right to a fair jury trial when the trial court gave a nonpattern jury instruction that misrepresented the law of accountability to the jury; (2) he was deprived of his right to a fair jury trial by the trial court's refusal to instruct the jury on the affirmative defense of self-defense and on second degree murder based on unreasonable self-defense; (3) his conviction of first degree murder should be reduced to second degree murder; (4) he was deprived of effective assistance of counsel; (5) he was denied a fair trial where the prosecutor made improper remarks in rebuttal closing argument; and (6) his 45-year sentence for first degree murder was excessive.
We reverse the judgment of the trial court and remand the cause for a new trial, based on the two issues involving jury instructions for those issues are dispositive. Thus, we find that it is not necessary to address the other four issues.
Latonya Colton testified that on January 24, 1997, at approximately 3:45 p.m., she arrived at her grandmother's home at 6928 S. Loomis in Chicago. Her uncle, the victim George Murray Colton, also lived there and was present. After she arrived at the house, Latonya spoke with the victim about an altercation that had taken place between the victim, defendant, and Marlon Hammond earlier that afternoon. Latonya had known defendant for approximately five years. She had only known Marlon for a few months.
Latonya testified that at approximately 4:15 p.m., defendant came into the house to use the telephone. While defendant was on the telephone, the victim said that he was going to pay defendant the money that he owed defendant and that he was going to be "through with him" and was going to "get him."
At this time, Marlon came to the door and the victim told him that he could not come inside. Defendant hung up the telephone, walked to the door, and told Marlon that he could come in. The victim followed defendant to the door and an argument ensued regarding whether Marlon would be allowed into the house. The victim struck defendant in the face with a closed fist, knocking off defendant's glasses and breaking them. A physical struggle ensued. Latonya testified that she could not see everything that happened next, but she did see that the victim's shirt was up and his back was exposed, as if he were being pulled out the front door.
Latonya testified that the next time she saw the victim, he was lying on his stomach on the concrete at the bottom of the seven stairs leading to the front door, with one of his legs caught in the staircase railing. She saw defendant and Marlon begin to kick and stomp on the victim as he lay on the ground. She stated that defendant and Marlon, both wearing boots, repeatedly kicked and stomped on the victim's back and head. She further stated that the victim was unarmed and lay motionless on the ground during the beating.
Latonya testified that, after about two minutes, defendant went back up the stairs and threw his glasses into the house, stating, "So who in the hell is supposed to pay for my glasses." Latonya then watched as defendant walked back outside, walked down two steps, and jumped the remaining distance, landing on the victim's back. As defendant landed on the victim's back, Latonya saw blood coming out of the victim's mouth. She stated that defendant and Marlon then kicked and stomped on the victim again for two or three more minutes before they walked outside of the gated yard area. A few moments later, defendant and Marlon returned to the yard, kicking and shoving the victim with their feet as they told him to get up and that nothing was wrong with him. Defendant and Marlon then left the yard again, got into defendant's car and drove away. Sheila Thornton, a neighbor and friend of the victim's, also testified for the State. Sheila testified that she arrived home, across the street from the victim's house, at approximately 4:15 p.m. on January 24, 1997. She stated that she heard the victim talking loudly, as he was known to do. Sheila said that she next heard the sound of wrestling coming from the victim's house. Sheila then turned and looked across the street to see what was happening.
Sheila saw the victim wrestling in the open doorway with defendant, whom she did not know by name at that time. Sheila saw the victim slip and fall, landing on his stomach on the concrete at the bottom of the stairs with his face toward his house. Sheila testified that she then saw defendant begin to kick and jump on the victim's back. After defendant began to kick the victim, she saw another man, who was standing outside the gate and whom Sheila did not know, enter the yard and also begin to jump on and kick the victim. Sheila observed defendant kicking the victim in the back, jumping onto his back, and stepping on his back several times. Sheila testified that defendant, while wearing boots, kicked the victim between 10 and 15 times. Sheila also stated that the victim did not have any weapons or canes in his hand at that time.
Next, Sheila stated that she saw defendant enter the house and say something that she could not hear, while the second man continued to kick, step on, and jump on the victim. Defendant then exited the house, walked down two stairs and jumped, landing on the victim's back. After defendant landed on the victim's back, he and the other man continued to jump on and step on the victim before leaving the yard together. Sheila testified that defendant and the other man turned to look at the victim, who was not moving. The men went back inside the yard and kicked and stepped on the victim again as they told him to get up and that nothing was wrong with him. Sheila observed both men leave the yard, get into a car, and drive away. Sheila then went to check the victim. Sheila testified that the victim was bleeding badly from his nose and mouth and that his face was swollen. She stated that victim was unable to talk and that he was not moving.
Doctor John Denton, a forensic pathologist and a deputy medical examiner for the Cook County medical examiner's office testified that he conducted an autopsy on the victim. He learned that the victim had been treated at Christ Hospital and was pronounced dead on January 26, 1997. Toxicology testing conducted by the hospital upon the victim's admission revealed that the victim had a blood-alcohol level of .166 mg/dl, and that cocaine and another Valium-like drug were present in his system. Dr. Denton described the victim's external injuries as abrasions on the face, right arm and right leg, and bruises on the shoulders. The victim's internal injuries included hemorrhaging in the brain and near the thyroid, fracture of the hyoid bone, contusions on the heart muscle, a laceration and hematoma on the liver, and hematomas on the spleen.
Dr. Denton testified that a severe amount of force was necessary to cause the victim's injuries. He testified that the injuries were consistent with the victim having been repeatedly kicked or struck or jumped upon. Upon cross-examination, Dr. Denton stated that it was possible that the injuries to the liver and spleen were caused by falling down stairs. Dr. Denton also said that some of the victim's head injuries were consistent with a fall. However, Dr. Denton testified that the fatal chest and head injuries were caused by a beating.
The defendant was the only witness presented by the defense. Defendant was the father of two children by the victim's niece. Defendant stated that he had previously lived at 6928 S. Loomis for a little less than two years and had known the victim for eight years. Defendant claimed that the victim was like an uncle or a brother to him. Defendant stated that the victim used cocaine and alcohol.
Defendant testified that on January 24, 1997, he dropped his children off at their grandmother's house, 6928 S. Loomis, at approximately 3:15 p.m. According to defendant, when he arrived at the house, he saw that the victim had drug dealers selling drugs from the porch. Defendant testified that he asked the victim to "kindly move them guys from off the porch" because his children were in the house. Defendant stated that the victim swore at him and told him to take the children out of the house because he would do what he wanted to. Defendant and the victim then began to argue. Defendant claimed that the victim pushed him, so he pushed the victim back, causing the victim to hit his foot against the curb and fall backward. The victim was not injured and defendant went inside to use the telephone. After speaking on the phone and visiting with his children, defendant stated that he left with Marlon.
Defendant returned to the house a short time later. He observed the victim standing in front of the house drinking a bottle of whiskey. Defendant stated that he told the victim, "We don't need to be fighting. I got my kids over here and I don't need enemies around because I come around too much." According to defendant, the victim responded, "I'm going to pay your money and I'm going to deal with you later." However, defendant testified that he did not interpret the victim's remark as a threat. Defendant then went into the house and left again with Marlon a short time later.
Defendant testified that he returned to the house with Marlon at approximately 4 p.m. Defendant went inside to use the telephone and as he made his call, he heard the victim speaking to him. According to defendant, the victim said, "I'm going to get you ***. I'm going to get you[.] [A]fter I get you, I'm going to *** you up. My brother's going to come over here and I'm going to get you." Defendant testified that he ignored the victim's comments. Marlon then tried to come into the house and the victim walked over and slammed the door in his face. Defendant opened the door and told Marlon that he could come in. Defendant testified that the victim protested and attempted to grab his mother's cane to come after him.
According to defendant, the victim pushed him in the face and punched him. Defendant testified that the victim's punch caused him to black out for a second. Defendant stated that while standing near the front door the victim was bent over and had defendant's head in a headlock, from which defendant was trying to free himself. Defendant testified that the victim hit his own head on the railing and let go of defendant. Then, both defendant and the victim fell down the stairs.
Defendant testified that the victim fell to the bottom of the stairs, while defendant fell to the middle of the stairs, pulled himself up, and went down the stairs behind the victim. Defendant admitted that once he reached the bottom of the stairs, he kicked the victim in the lower part of his body approximately six or seven times. According to defendant, he was in a dreamlike state at the time and just reacted because he was attacked. Defendant stated that he stopped kicking the victim when he heard Latonya say, "You all going to kill him." Defendant denied jumping on the victim, stomping on him, kicking him in the head or stepping on his neck.
Defendant stated that he then went into the house, determined that his glasses were crushed and said, "Who the hell going to pay for my glasses?" Defendant admitted that he was angry that his glasses were broken. After he received no response, defendant threw his glasses down and went out the door. Defendant asserted that when he came outside again, he saw Marlon stomping on the victim's head with the heel of his foot. Defendant explained that the victim, who was lying on the pathway between the stairs and the gate, was blocking his path so defendant either had to walk over him or jump, so he chose to jump. Defendant walked down to the second step from the top and jumped, landing on the victim's back. Defendant explained that he did not intend to jump on the victim's back but the stairs were slippery due to the snow and ice. In addition, defendant commented that if he had jumped in the bushes instead of on the victim, he would have "messed [himself] up even more." Defendant testified that after he landed on the victim, he and Marlon left. Defendant denied kicking or stomping on the victim prior to his departure.
Defendant testified that when he spoke with the victim's niece two days later, he learned that the victim was dead. After speaking with his mother, defendant stated that he contacted the police because he wanted to prove his innocence. Accompanied by Detective Bunch, defendant turned himself in to police.
Defendant testified that his only intent was to defend himself. Defendant denied that he intentionally or knowingly beat, kicked, and killed the victim. He also denied that he kicked and killed the victim knowing that such a beating and kicking would cause a strong probability of death or great bodily harm to the victim.
In rebuttal, the victim's mother testified that she was present in the house during the altercation and her son ...