The opinion of the court was delivered by: Justice Wolfson
Appeal from the Circuit Court of Cook County. Honorable Kenneth J. Wajdas, Judge Presiding.
On April 12, 1998, outside a bar on the south side of Chicago, Guadalupe Rios (Rios) shot and killed Pablo Fernandez (Fernandez). Rios was charged with first degree murder. A jury found him guilty and he was sentenced to thirty years.
At trial, Rios did not deny firing the fatal shot. He contended he fired in self-defense. The trial judge agreed to instruct the jury on the law of self-defense, but he gave a first degree murder definition instruction that did not include the words "without lawful justification."
The defendant claims the omission of those three words from an otherwise correct set of instructions deprived him of a fair trial. We do not agree. We find no fatal error in the instructions or in the other issues raised by the defendant. We affirm his conviction and sentence.
Both the victim and defendant were drinking in a bar on the south side of Chicago just before the shooting. Laticia Martinez (Martinez) testified she was an employee of the bar and was working the night Fernandez was killed. Martinez said Fernandez was a regular customer at the bar. Martinez saw defendant argue with Fernandez before the shooting, and testified defendant threatened to "fuck up" Fernandez during that argument. Defendant left soon after the argument ended. Fernandez left a few minutes later.
After Fernandez left the bar, Martinez heard three or four gun shots. When she went outside, she saw Fernandez lying on the ground. Martinez identified defendant from a police lineup several days after the shooting as the man she saw arguing with the victim. She identified him again at trial.
Rosendo Garcia (Garcia) testified he and defendant worked for the same company prior to defendant's arrest. On April 17, 1998, Garcia was at work when he received a phone call from defendant. Defendant told him he was not coming to work because two of his brothers had been arrested. When Garcia asked defendant why they were arrested, defendant told him he shot two people.
Brian Mitchell (Mitchell), a forensic pathologist, testified he performed the autopsy on the victim. He said Fernandez died from two gunshot wounds, to the left abdomen and the left hip. Mitchell said the shots were not fired at close range.
Chicago police detective Thomas Cepeda (Cepeda) testified he and his partner were assigned to investigate Fernandez's death. They approached defendant on April 17, 1998. Defendant and his stepson were getting out of defendant's car in the alley behind their apartment. Cepeda told defendant he was a policeman and asked defendant his name. Defendant told him his name was "Manuel." Cepeda told him he knew him to be Guadalupe Rios, and defendant admitted that was his name. Cepeda asked defendant why he lied about his name and defendant said "he knew he was in trouble because he *** shot somebody the weekend before."
After Cepeda and his partner arrested defendant, Cepeda asked him why he shot Fernandez. Defendant told him Fernandez "had aggravated him." Cepeda asked him where the gun was hidden, and defendant told him he had thrown it away. Cepeda told defendant he knew he hadn't thrown away the gun, and defendant said the gun was in the house. He told Cepeda his wife could show the detectives where the gun was hidden. Cepeda's partner rode to the station with defendant while Cepeda went inside and spoke to defendant's wife. She showed him defendant's gun, which was hidden under the mattress of their bed.
Cepeda returned to the police station where he questioned defendant about the shooting. Defendant told him that after drinking all afternoon, he and his nephew went to the bar where Fernandez was shot. His nephew fell asleep at the bar, and defendant took him home. He then returned to the bar and ordered another beer. Defendant told Cepeda he must have bumped into someone while he was walking toward the pool table because "all of a sudden a guy started arguing with him." Defendant said he left the bar after arguing with the man for a few minutes. Defendant identified Fernandez from a photo as the man he argued with.
Defendant told Cepeda that Fernandez and another man followed him outside and started arguing with him again. Defendant told Cepeda they were standing about three feet from each other while they were arguing. As they were arguing, defendant saw another man come out of the tavern. Defendant said this man was carrying a knife. After the man with the knife walked outside and saw them arguing, he walked back inside the bar. Though Fernandez and the other man did not have weapons, defendant pulled out his gun and shot Fernandez three times. Defendant then got into his car and went home.
During cross-examination, Cepeda remembered defendant said that while he was arguing with Fernandez inside the bar, defendant told the victim, "If you don't shut up, I'm going to fuck you up." Cepeda also said defendant told him he shot Fernandez because he was afraid the man with the knife might come back out of the bar.
Curt Marcucci (Marcucci) testified as a witness for the defendant. He said he was standing at the bus stop across the street from the bar when the shooting occurred. Marcucci testified while he was waiting at the bus stop, he saw defendant park his car on the sidewalk in front of the bar. Defendant got out of the car alone and went into the bar. Approximately five minutes later, Marcucci saw defendant get back into his car and drive away. According to Marcucci, nobody was with defendant when he left.
Later, Marcucci saw defendant in front of the bar again. Three men were standing in front of defendant, close to the door of the bar. They stood about three feet from defendant. They were talking to defendant, but Marcucci could not hear the conversation. Marcucci saw defendant pull a gun out, aim it at the victim's groin, and fire three times. Marcucci ran to a gas station and called the police.
Defendant testified he shot Fernandez in self-defense. Defendant said Fernandez "came at" him after he accidentally brushed against him. He claimed Fernandez hit him in the chest and knocked him down while they were arguing. Defendant said he left the bar after the confrontation, but Fernandez and two other men followed him outside. Defendant testified once the men were outside the bar, they threatened to kill him.
According to defendant, one of the men was carrying a knife, though Fernandez was unarmed. When defendant saw the knife, he pulled out his gun and fired three times. Defendant said he did not intend to kill anyone when he fired the gun, and fired only because he was afraid.
After hearing the evidence, the jury found defendant guilty of first degree murder. Defendant filed a motion for a new trial, which the trial court denied. Defendant was sentenced to 30 years in prison. Though defendant failed to file a post-sentencing motion in the trial court, he now appeals both his conviction and sentence.
The jury instructions given by the trial court included Illinois Pattern Jury Instruction (IPI), Criminal, No. 7.01A(3d Ed. 1995)(IPI 7.01A), an instruction which defines first degree murder, as well as IPI, Criminal 3d No. 7.06A, which is a first and second degree murder issues instruction. The jury also was given IPI Criminal 3d No. 7.05A, an instruction which defines a mitigating factor for purposes of second degree murder, and IPI Criminal 3d No. 24-25.06, a self-defense instruction.
The definitional instruction for first degree murder did not include the phrase "without legal justification," despite defendant's self-defense argument. It simply read:
"A person commits the offense of first degree murder when he kills an individual if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual; or he knows that such acts will cause death to that individual; or he knows that such acts create a strong probability of death or great bodily harm to that individual." Illinois Pattern Jury Instruction, Criminal, No. 7.01A (3d Ed. 1992).
According to the IPI commentary for this instruction, if the jury is given a self-defense instruction, the words "without legal justification" should be inserted so that the instruction says:
"A person commits the offense of first degree murder when he kills an individual without lawful justification if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual; or he knows that such acts will cause death to that individual; or he knows that such acts create a strong probability of death or great bodily harm to that individual." (Emphasis added). IPI Criminal 3d No. 7.01A.
The issues instruction included the appropriate self-defense language. It said, in part:
"To sustain either the charge of first degree murder or the charge of second degree murder, the State must prove the following propositions:
First: That the defendant performed the acts which caused the death of Pablo Fernandez; and
Second: That when the defendant did so, he intended to kill or do great bodily harm to Pablo Fernandez; or he knew that such acts would cause death to Pablo Fernandez; or He knew that such acts created a strong probability of death or great bodily harm to Pablo Fernandez; and
Third: That the defendant was not justified in using the ...