Appeal from the Circuit Court of Cook County Honorable Stanley Sacks, Judge Presiding.
The opinion of the court was delivered by: Justice O'mara Frossard
The issue in this case is whether it was an abuse of discretion for the trial judge to refuse to instruct the jury on the lesser mitigated offense of second degree murder based on an unreasonable belief in justification (720 ILCS 5/9-2(a)(2) (West 1996)) for the charged offenses of intentional and knowing first degree murder (720 ILCS 5/ 9-1(a)(1), (2) (West 1996)) where the record reflected evidence that, in self-defense, defendant believed deadly force was justified, but such belief was unreasonable. Pursuant to the supreme court's supervisory order, we reconsider our original opinion in this case in light of People v. Morgan, 197 Ill. 2d 404 (2001). We review the trial court's refusal to instruct the jury on second degree murder under an abuse of discretion standard. People v. Kidd, 295 Ill. App. 3d 160, 167 (1998).
Although the trial judge recognized that competing theories supported by the evidence required instructing the jury on felony murder and self-defense, the trial judge refused a second degree murder instruction reasoning that second degree murder cannot be based on felony murder. That reasoning failed to recognize that while second degree murder cannot be based on felony murder, it can be based on intentional and knowing murder. We find that Morgan reaffirms the principle previously followed in our original opinion that competing theories supported by the evidence can require instructing the jury on second degree murder as to intentional and knowing murder, while also instructing the jury on felony murder.
Consistent with that principle, the committee note to Illinois Pattern Jury Instructions, Criminal, No. 7.06A (3d ed. Supp. 1996) (hereinafter IPI Criminal 3d No. 7.06A (Supp. 1996)) recognizes that there can be competing theories supported by conflicting evidence where both felony murder and second degree murder instructions are warranted when belief of justifiable use of force is an issue. Where required by the evidence it is proper to instruct on both felony murder with instruction 7.02A and on second degree murder-belief in justification with instruction 7.06A. IPI Criminal 3d No. 7.06A, Committee Note, at 68 (Supp. 1996).
We find sufficient evidence in the record to require instructing the jury on both felony murder and second degree murder. The record reflects sufficient evidence for the jury to find that, in self-defense, defendant believed deadly force was justified, but such belief was unreasonable. Defendant requested second degree murder instructions. Based on the evidence, second degree murder instructions should have been given on the charged offenses of intentional and knowing murder.
We reverse and remand for retrial. On remand, the jury should be instructed based on the evidence consistent with the Criminal Illinois Pattern Jury Instructions.
Frederick Luckett was charged with first degree murder, three counts of attempted first degree murder, and three counts of aggravated discharge of a firearm. Counts I and II charged defendant with first degree intentional and knowing murder (720 ILCS 5/9-1(a)(1), (2) (West 1994)); counts III, IV and V charged defendant with attempted murder (720 ILCS 5/8-4, 9-1(a) (West 1994)); counts VI, VII and VIII charged defendant with aggravated discharge of a firearm (720 ILCS 5/ 24-1.2(a)(2) (West 1994)). Co-defendants Robert Foster and Donald Toney, defendant's brother, were also charged with these crimes, but were tried in separate jury trials and are not involved in this appeal.
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 Street 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.
Within an hour of the shooting, based on information from Antoine and other people in the neighborhood, the police arrested Luckett and Foster. 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. However, at trial he denied any plan to kill Four Corner Hustlers and maintained he and Foster fired their weapons in self-defense in fear for their lives.
A forensic expert who examined the firearms evidence, including 15 fired cartridge casings, concluded the casings recovered from the scene were consistent with the two recovered weapons; however, three fired bullets, including a .38-caliber bullet from the body of Phillip Matthews, were not discharged from the two weapons fired by Luckett and Foster.
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: whether it was an abuse of discretion for the trial judge to refuse to instruct the jury on the lesser mitigated offense of second degree murder.
The judge refused to give instructions offered by defense counsel for the lesser mitigated offense of second degree murder based on the charged offenses of intentional and knowing first degree murder. However, the judge did give the jury a self-defense instruction. The State offered felony murder instructions. Although the indictment did not contain a felony murder count and felony murder had not been charged, the jury was given a felony murder instruction predicated on the offense of aggravated discharge of a firearm. Defendant, relying on People v. Maxwell, 148 Ill. 2d 116 (1992), recognized in his brief that "[t]he failure of an indictment charging knowing and intentional murder to specifically allege felony murder does not preclude submission to the jury of setting forth that additional theory of felony murder." Maxwell, 148 Ill. 2d at 137-39. Defendant does not challenge the felony murder instruction. Rather, defendant challenges the court's refusal to instruct the jury on second degree murder.
Defendant argues that limiting the jury instructions to felony murder precluded the jury from considering second degree murder where defendant had been charged with intentional and knowing murder and had presented sufficient evidence for the jury to find that, in self-defense, defendant believed deadly force was justified, but such belief was unreasonable. We note the trial judge gave a self-defense instruction, but refused to instruct the jury on the lesser mitigated offense of second degree murder as requested by defense counsel. 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 instruction is a matter of law. People v. Lockett, 82 Ill. 2d 546, 553 (1980).
A. Sufficiency of Evidence to Require Second Degree Murder Instructions
The United States Supreme Court has observed that "[a]s a general proposition[,] a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." Mathews v. United States, 485 U.S. 58, 63, 99 L. Ed. 2d 54, 61, 108 S. Ct. 883, 887 (1988). 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 1996).
In determining whether defendant was entitled to second degree murder instructions because there was sufficient evidence of an unreasonable belief that self-defense was justified, we may consider factors including, but not limited to, the following: the defendant's testimony, intent or motive, the type of wound suffered by the victim, any previous history of violence between defendant and victim, any physical contact between the defendant and victim, and the circumstances surrounding the incident. See People v. Everette, 141 Ill. 2d 147, 158 (1990). Applying those factors we determine whether based on the evidence it was an abuse of discretion for the trial judge to refuse defendant's second degree murder instructions.
We are also mindful that in the instant case, where the theory of self-defense is raised, evidence of the victim's aggressive or violent character is relevant for the following reasons: (1) to show that defendant's knowledge of the victim's behavior and tendencies affected his perception of, and reaction to, the victim's actions; and (2) to support the defendant's version of the facts where there are conflicting accounts of what happened. People v. Lynch, 104 Ill. 2d 194, 199-201 (1984).
The State and defense presented conflicting accounts of what happened. Luckett's testimony described a recent history of previous shooting incidents with the Four Corner Hustlers demonstrating the aggressive or violent character of the Harris brothers. Luckett portrayed the Harris brothers as the aggressors in this case. Luckett denied any plan to shoot rival gang members. Luckett indicated a belief that circumstances existed that justified his use of deadly force. Luckett's testimony repeatedly indicated fear for his life, contradicted the State's witnesses, and provided evidentiary support for a second degree murder instruction. The State contended that Luckett, Foster, and Toney were the aggressors and set into motion a course of felonious conduct resulting in the death of Phillip Matthews.
Section 7-4 of the Criminal Code of 1961 restricts the defenses available to a defendant who is an aggressor. 720 ILCS 5/7-4 (West 1996). A justification defense is not available to a defendant "attempting to commit, committing, or escaping after the commission of, a forcible felony." 720 ILCS 5/7-4(a) (West 1996). Therefore, a defendant cannot raise a justification defense if he or she sets into motion a course of felonious conduct. People v. Mills, 252 Ill. App. 3d 792, 799 (1993).
In the instant case, however, the record reflects a factual dispute as to whether Luckett, Foster, and Toney were the aggressors and set into motion a course of felonious conduct. It is the jury's duty to resolve factual disputes, including the factual issue of identifying the initial aggressor. People v. Johnson, 247 Ill. App. 3d 578, 585 (1993). Thus, when there is sufficient evidence to raise the issue of who initiated the violence and whether the killing occurred during the course of a forcible felony, the jury should be instructed on the defendant's justifiable defenses supported by the evidence. People v. Robinson, 163 Ill. App. 3d 754, 761 (1987). Such instruction enables the jury to use the applicable law in making a full and fair evaluation of the competing theories presented by the State and the defense.
Luckett, at trial, described the previous shooting incident from March 24, 1995. He was with his brother, Donald Toney, and a friend, Palmer Helm, in Four Corner Hustler territory near 123rd and Halsted Streets. Antoine Harris, Bobby Roberson, and another Harris brother threatened them by yelling "GDK," which means "Gangster Disciple Killer," and began to fire their weapons at them, shooting Palmer Helm in the chest. Bobby Roberson and Terrance Harris were charged in that shooting. Luckett, in addition to that incident, described another shooting incident that occurred four days before the shooting in this case. Luckett stated that ...