Appeal from the Circuit Court of Cook County No. 95CR0156 Honorable Ralph Reyna Judge Presiding
The opinion of the court was delivered by: Justice Tully
Following a jury trial, defendant, Kyle Edmondson, was convicted of two counts of first- degree murder and two counts of attempted first-degree murder. Defendant was sentenced to a term of natural life plus 30 years to be served concurrently in the Illinois Department of Corrections. It is from this judgment of conviction defendant now appeals pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, §6) and Supreme Court Rule 602 (155 Ill. 2d R. 602).
For the reasons which follow, we reverse and remand.
On November 29, 1994, Andrew Redmond, Vedal McGee and Charles Buford were shot at the corner of Kildare and Cermak Streets in Chicago. Redmond and McGee were killed. The day after the murders, defendant signed a written confession in which he admitted shooting Redmond, McGee and Buford. According to the statement, on the night of the murders, defendant and Anthony Hill (a co-defendant not a party to this appeal) were at Hill's house at 2227 South Kildare. The two donned dark clothing and ski masks, armed themselves with guns and went to the street corner where they knew members of the Gangster Disciple street gang were loitering. In the written statement, defendant admits that they wore dark clothing and ski masks so they would not be recognized because they were going to the corner of Kildare and Cermak to shoot Darnell (Harris) and Darnell's fellow gang members. Darnell Harris was a "regent," which means he was the leader of the Gangster Disciples in that area. The statement further states they were going to shoot Darnell and his Gangster Disciples because in the last few months, Darnell and his gang members had jumped defendant twice and had threatened Hill. Defendant's confession states that when he and Hill reached the corner of Kildare and Cermak, Hill began firing at the gang members. Defendant pulled out his gun and fired one shot. The statement says that defendant did not see any weapons in their hands.
At trial, defendant claimed he acted out of self-defense against the victims who were the actual aggressors in this case. In support of this defense, defendant presented a significant amount of testimony detailing the harassment and intimidation suffered by him at the hands of Gangster Disciple members, specifically, at the hands of Darnell Harris. He testified as to how he had been tormented and threatened over the course of several months by gang members because he wanted to leave the gang. Defendant testified that on November 29, 1994, he was preparing to attend a party when he learned Harris and other Gangster Disciples were hanging out at the corner. Defendant testified that he and Hill decided to meet Harris to discuss the situation and attempt to reach an agreement. Defendant admitted he carried a gun as a precaution. Defendant testified that as he approached the corner, two Gangster Disciples rushed toward them. Defendant stated he heard gunshots, turned around, and saw one of the gang members exiting a car with a gun. Defendant testified that he fired the weapon to defend himself.
The judge instructed the jury on the justified use of force as a defense to the charges of first degree murder. The judge denied defense counsel's tender of instructions on second degree murder based on an unreasonable belief in self-defense. Thereafter, the jury returned guilty verdicts as to the murder of Andrew Redmond and Videl McGee and the attempted murders of Charles Buford and Darnell Harris.
On appeal, defendant submits as error at the trial of this cause: (1) the trial court committed reversible error in refusing to tender the jury a second degree murder instruction; (2) the court should have suppressed evidence of drugs, custodial statements and lineup identification as defendant's fourth amendment rights were violated; (3) evidence that defendant was in possession of narcotics was irrelevant and prejudicial; (4) the court committed reversible error in refusing to suppress defendant's oral and written statements as Miranda violations; (5) the court committed reversible error in refusing to grant a mistrial for a Bruton error; (6) the court committed reversible error in excusing a juror for cause; and (7) defendant was denied a fair trial due to comments made by the State in closing argument. DISCUSSION Jury Instruction
Defendant first argues that the trial court erred in refusing to give an instruction for second degree murder where defendant presented evidence of self-defense and where the jury questioned the meaning of self-defense. We review the trial court's decision regarding jury instructions under an abuse of discretion standard. People v. Kidd, 295 Ill. App. 3d 160, 167, 692 N.E.2d 455 (1998).
The jury sent three questions to the trial court asking: (1) What constitutes justification/ intent? (2) What is the definition of imminent in this case? (3) What is the meaning/ justification of self-defense? Defendant maintains that pursuant to People v. Lockett, 82 Ill. 2d 546, 413 N.E.2d 378 (1980), an instruction for second degree murder should have been given when a self-defense instruction was given to the jury. We agree.
A person commits second degree murder when he commits the offense of first degree murder and at the time of the killing he believes the circumstances to be such that, if they exist, would justify the use of deadly force under the principles of self-defense, but his belief is unreasonable. 720 ILCS 5/9-2(a)(2) (West 1994).
Factors that we may consider in determining if a second degree murder instruction is justified include, but are not limited to, the defendant's testimony, intent or motive, the type of wound suffered by the victim, any previous history of violence, any physical contact between the defendant and victim, and the circumstances surrounding the incident. See People v. Everette, 141 Ill. 2d 147, 158, 565 N.E.2d 1295 (1990). Applying those factors in the present case, an instruction on second degree murder was warranted.
At trial, the defendant admitted to firing his gun; however, he asserted the affirmative defense of self-defense. The defendant described incidents with the Gangster Disciples in which various gang members threatened defendant during the two months prior to the murders. Defendant portrayed Darnell Harris as one of the aggressors in this case who chased the defendant on several occasions and instructed other gang members to attack the defendant. The defendant testified that Harris did not want him to leave the gang and was trying to force the ...