Appeal from the Circuit Court of Cook County No. 98 CR 26003 The Honorable Daniel J. Kelley, Judge Presiding.
The opinion of the court was delivered by: Justice Cousins.
Defendant-appellant, Fabian Eason, was convicted of first degree murder for the shooting death of Lakesha Walker. He was sentenced to 45 years' imprisonment. The issues upon appeal are: (1) whether the court properly denied defendant's request for a second degree murder instruction; and (2) whether the court properly denied defendant's request for an involuntary manslaughter instruction.
Before the jury was selected for defendant's trial, the State moved to nol-pros Counts III, IV, and V against defendant. The State proceeded on the first degree charges provided in Counts I and II only.
At trial, the State published defendant's written statement, which was taken on September 5, 1998. Defendant's mother was present while defendant's written statement was taken. That written statement provided the following account of events. On the morning of September 4, 1998, defendant went to Lincoln Park High School, where he was a sophomore. He was wearing a red and blue striped shirt and black pants. He brought an automatic handgun with him to school. The gun was black and contained seven rounds. The gun had been hidden outside his house.
When defendant left school that day, he was with Michael Jones, Aaron Frelix, Grayland Holmes, and Sedrick Pace. Defendant is a member of the P-Stones gang. As defendant and his friends walked on the east side of Larrabee, a group of Gangster Disciple gang members (G.D.s) were walking on the west side of the street. Defendant saw approximately nine G.D.s and five girls walking behind them. The G.D.s were "flashing their gang signs" and yelling "Stone killer," which is a term of disrespect to defendant's gang. Defendant did not see any guns, knives, or any other weapons with any of the G.D.s or the girls. The G.D.s were "throwing up the 'forks'" and "throwing down" defendant's gang sign.
Defendant's statement to police further provided:
"Fabian states when they reached Blackhawk, he started to walk east. Fabian states he then turned around and ran back to the corner. Fabian states he then pulled out the gun. Fabian states he pointed the gun at the group and then fired seven (7) shots. Fabian states when he started firing, the group started running. Fabian states after he fired the gun, he put it back into his pocket and ran."
Defendant ran to his apartment, changed his clothes, and left the apartment. He left the clothes that he wore to school on the floor in his room. He put the gun in his right pocket.
Outside, someone told defendant that the police were looking for him. He went to the Laundromat for about five minutes. Defendant then saw his mother and police officers standing outside. Defendant went to "Sunshine's" house. While at Sunshine's house, defendant spoke to Dennis Booth on the telephone. Booth picked up defendant on Hudson Street and drove him to Clybourn and Diversey. Defendant threw the gun into the river.
At trial, Theresa Simmons testified that she and Lakesha Walker, the victim, were walking north on Larrabee Street with a group that included five or six boys and three girls. She saw defendant walking in the same direction on the opposite side of the street with a group that included four boys. Theresa testified that the two groups were walking from school on opposite sides of the street for 20 to 25 minutes before the shooting occurred. She noted that the boys walking with her were "throwing up" gang signs and demonstrating their gang affiliation. She could see defendant in the other group across the street "until he cut, like out up between Orchard and then cut back through the alley." When he reappeared, Theresa saw defendant pull out a gun. When defendant pulled the gun out, the rest of his group "sort of walked off" except for the "dark skinned boy." She and the victim began running. Theresa heard six or seven shots fired.
On cross-examination, Theresa stated that the five or six boys that she was walking with starting making comments to the boys across the street "saying they should beat them punk niggers." She stated that the boys with her were not making hand gestures or "throwing up the gang sign, nothing like that. They was just talking." Contrary to her direct examination testimony, Simmons testified that neither group of boys represented their gangs or used gang words.
Tasha Simmons testified that on September 4, 1998, at about 3:15 p.m., she and a friend were walking north on the west side of Larrabee near Near North High School. The west side of Larrabee is G.D. territory. As they walked, four boys and seven girls, including the victim, were walking toward them. The victim is Tasha Simmons' cousin. Tasha came within 12 to 15 feet of the group walking toward her. Defendant was on the other side of Larrabee, standing on the corner across the street. Tasha saw him "throwing down the fork." The "fork" is the G.D.s gang sign and "throwing it down" means "G.D. killer." After defendant threw down the fork two or three times, he pulled out a black gun from his right side and pointed it toward the group that the victim was walking in. Tasha did not see anyone else with a gun. The groups started running. Tasha saw somebody fall as she ran. She saw the victim's group for four or five minutes before she heard shots fired. During this time, she never heard the G.D.s say anything to the people across the street. Sedrick Pace testified that on September 4, 1998, at about 3:15 p.m., he was walking home from school with three classmates, including defendant. They were walking on Orchard toward Larrabee. He saw about nine people across the street. Once Pace and his friends reached the corner of Blackhawk and Larrabee, defendant went into the street about 8 to 10 feet. Pace then saw defendant argue for a while and then he "[d]ropped the fork." The boys on the other side started to walk over, but they never walked into the street. Defendant pulled out a black gun from his right pocket and fired six or seven times. The people on the other side of the street scattered. Sedrick did not see a weapon in anyone else's hands. On cross-examination, Pace testified that the other group "threw down a five," which meant disrespect to defendant's gang. He also heard someone say to defendant and his friends, "We are going to beat your ass." Pace heard one of the girls with the G.D.s across the street say, "[I]t is only a couple of them, why don't y'all go over there and beat them up?"
Detective Brian Killacky testified that on September 4, 1998, at approximately 3:50 p.m., he received a call indicating that a girl had been shot on the property of Near North High School. Killacky proceeded to the hospital and spoke to the physician attending to the victim. The doctor informed the detective that the victim died from the gunshot wound. Killacky then went to the intersection of Blackhawk and Larrabee. At the scene, he observed six bullet casings lying on the ground, which indicated to him that six shots had been fired from a semi-automatic gun. At the station, Killacky interviewed several witnesses to the shooting. Theresa Simmons was interviewed and she identified defendant as the shooter.
Melissa Rapoza testified that she was traveling westbound on Blackhawk at about 3:30 p.m. on September 4, 1998. She stated that as she attempted to turn down an alley she "heard two pops" coming from the west that she thought to be gunfire. As she slowed her vehicle, she "saw a young man walking, eventually running with his arm pointing west" in front of her car. Rapoza immediately stopped. She noticed "like a sulfur smell" in the air. She saw a handgun in the young man's hand. She could see his face. Rapoza saw him put the gun into the right front pocket of his pants. She recalled that he was wearing dark pants, navy to black in color, and he was wearing a shirt with wide, horizontal red and dark stripes. Days after the incident, Rapoza identified the photograph of the young man she saw with the handgun. In court, Rapoza identified defendant as the person that she saw holding the handgun.
Officer Loren Stenson testified for the State that on September 4, 1998, while working as a plainclothes patrolman in the Cabrini Green area, at approximately 3:15 p.m., he heard gunfire coming from the 1500 block of North Larrabee. Stenson and two other officers proceeded in the direction of the shots. As they were driving, they saw a teenage African-American female who was crying and breathing hard. The girl told the officers that her friend had just been shot and that "Fabian had shot her." He went to defendant's residence. Debra Eason's fiancé, Stanley Thomas, answered the door. He indicated to the officers that defendant was not home. The officers retrieved a red and black striped shirt, black jeans, and defendant's school identification card.
Detective Lawrence Aikin testified that, pursuant to the investigation of the shooting, he interviewed Michael Jones. At about 4:30 p.m. on September 5, 1998, defendant was brought into the Area 3 Violent Crimes office. Detective Aikin testified that defendant was placed in a lineup room, but did not participate in a lineup. Defendant was not in handcuffs. Aikin stated that because defendant was 16 years old, defendant's mother was contacted. Defendant's mother arrived at about 5:15 p.m. While at the station, defendant gave a written statement of his involvement in the presence of his mother and an assistant State's Attorney.
Debra Eason testified on behalf of the defendant. On September 4, 1998, Ms. Eason saw her son, the defendant, in the courtyard of her apartment complex with his friend Michael. Ms. Eason went to a local convenience store and the Laundromat. When she returned home, she learned that the police were looking for her son. Defendant was not in their apartment, so the officers searched for him in the apartments that he was known to visit. Ms. Eason was not able to find her son that evening. The following day, on September 5, 1998, she received a phone call from the police station indicating that they arrested defendant. Ms. Eason went to the police station. Eventually, an officer brought defendant into the same room as Ms. Eason.
Ms. Eason testified that she knew that at some time her son belonged to the Blackstone street gang. She never saw defendant with a gun in September 1998. Ms. Eason recalled that during police questioning, defendant said that the other group was "trying to kill him and he wasn't trying to kill nobody." She was aware that defendant had trouble with the G.D.s previously. She testified that the G.D.s shot at defendant on the first day of school and a few days after that, but she did not report the incidents to the police "because they didn't care."
The State presented the testimony of Officer Marie Murphy in rebuttal. Officer Murphy testified that on September 5, 1998, she was present during the questioning of defendant. She stated that she did not hear the defendant state that the G.D.s were trying to kill him or that he didn't want to kill anyone.
Defendant testified at trial that he told his mother that he had been shot at while walking home from school, but he never told the police or any school officials about the alleged shootings. He testified that he placed the gun outside his home in the garbage the night before taking it to school with him on September 4, 1998. He stated that he did not carry that gun to school everyday. Once at school on September 4, 1998, defendant put the gun in his locker.
As he walked home from school on September 4, 1998, he noticed some boys and girls on the other side of Larrabee, some of whom he knew from high school. Defendant testified that some of the boys in the other group started throwing up gang signs when his group got to the corner of Larrabee and Blackhawk. His group went down an alley and came out during the walk. He testified that the boys in the other group came off the curb and came into the street about 5 or 10 feet. Additionally, he testified as follows:
"Q: They didn't have anything in their hands, did they?
Q: You didn't see a knife?
Q: The young ladies didn't come off of the curb, did they?
Q: Lakesha Walker didn't come off of the ...