Appeal from the Circuit Court of Cook County. No. 01 CR 26366. Honorable Henry R. Simmons, Judge Presiding.
The opinion of the court was delivered by: Justice Gordon
After a bench trial, defendant, Dionta Thompson, was convicted of first degree murder and sentenced to 20 years in prison. The court further sentenced defendant to a consecutive 25-year prison term for personally discharging the firearm that caused the victim's death. On appeal, defendant contends that: (1) his conviction for first degree murder should be reduced to second degree murder because the evidence at trial established that at the time of the killing, he acted under a sudden and intense passion resulting from a serious provocation of mutual quarrel or combat; (2) his add-on sentence of 25 years should be vacated because the sentence-enhancing provision (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2002)), mandating the addition of 25 years to natural life to the sentence of any defendant convicted of first degree murder who personally discharges the weapon that causes severe injury or death to another person (sentence-enhancing provision), should be interpreted to apply only in cases where the basis for the enhancement is something other than the murder victim's death; (3) the sentence-enhancing provision is unconstitutional because it amounts to additional punishment for an element which is inherent in the offense itself-namely, causing death to another person-thus violating the prohibition against double enhancement; (4) the sentence-enhancing provision is unconstitutional because it does not bear a reasonable relationship to the public interest of punishing the risk that firearms pose to others when used during the commission of murder; and (5) the mittimus should be corrected to reflect one conviction for first degree murder where there was only one murder victim. For the reasons that follow, we affirm and order the mittimus corrected.
The record shows that in the early morning hours of September 29, 2001, in a public housing complex known as Rockwell Gardens, a series of arguments took place between defendant, age 18, and the murder victim, Deon Fleming, age 17. During the final confrontation, defendant drew a gun and shot Fleming twice.
Sometime before midnight on September 28, 2001, Fleming and his cousin, Huell Lamont Collier, age 28, drove to Rockwell Gardens. Collier testified as follows. While standing in the courtyard area behind one of the buildings, he and Fleming encountered defendant. After sharing some food and a brief conversation, defendant walked into the building, while Fleming and Collier walked to a store across the street to buy alcohol. Upon returning, they learned that Fleming's half-sister, Melissa Brown, was having a birthday party in her apartment on the ninth floor and went upstairs. Fleming went inside Brown's apartment, while Collier remained outside in the hallway, talking with defendant and another man. The door of the apartment was open, and Fleming went back and forth between the apartment and the hallway a few times. At some point, Fleming came out into the hallway, joined the men and began drinking with them. Soon defendant and Fleming began to argue and call each other names. Collier got between them, pushed them apart and told them to stop arguing. Collier and Fleming then left the building and went back to the store across the street to buy more alcohol. As noted below, defendant later admitted that he then left to get a gun and returned to the party.
Collier further testified that after he and Fleming left the store, he stopped to talk with friends, while Fleming went back into the building. A short time later, someone on the ninth floor yelled down to Collier to "come get [his] cousin." Collier ran upstairs and saw defendant and Fleming arguing again. According to Collier, both defendant and Fleming had been drinking. Although Fleming consumed more alcohol than defendant, both were "acting wild." Collier got between defendant and Fleming and attempted to calm them down. Defendant and Fleming kept calling each other names and then Fleming reached around Collier and punched defendant in the face. Defendant responded by drawing a revolver and shooting Fleming. Fleming fell to the floor. Collier grabbed at defendant and the gun and succeeded in pushing defendant away from Fleming. Collier stated that defendant then "stood over and shot [Fleming] again."
Brown testified that she heard the argument outside her apartment, went to the open door and looked out. Defendant was calling Fleming names, and Collier was standing between the two men, attempting to calm them down. Fleming then took a swing at defendant and hit him in the jaw. Defendant pulled out a gun. When she saw the gun, Brown closed the door of her apartment. She heard a gunshot and opened the door to find Fleming lying face down on the floor and Collier trying to push defendant away from Fleming. Defendant reached with his hand around Collier, shot Fleming again and fled.
After being arrested, brought to Area 4 police headquarters and given his Miranda rights, defendant gave several oral statements to Detectives Gregory Baiocchi and Joseph Botwinski and a videotaped confession to Assistant State's Attorney (ASA) Andrew Weisberg and Detective Biaocchi. The videotaped statement was introduced into evidence.
Detective Baiocchi testified that defendant told him that he first had a confrontation with Fleming when he bumped into him in the stairway. They exchanged words about one of the young women at the birthday party and shoved each other. Approximately 20 minutes later, on the ninth floor of the building, the two had a second confrontation. When Fleming and Collier left, defendant went to get a gun and returned to the ninth floor of the building. With respect to the final confrontation, defendant told Detective Baiocchi that he shot Fleming after seeing him make a move to his right side, as if to reach for a gun, and he shot Fleming the second time while he was falling. Defendant also told Detective Baiocchi that he heard that Collier had robbed a dice game in the building at gunpoint earlier that evening. Defendant later told Detective Botwinski that he made up his statements about seeing Fleming reach for the weapon and about Collier having a weapon because he thought it would help his case.
In his videotaped confession, defendant again stated that after Fleming and Collier left the party, he left in order to get a gun because he did not want Fleming or Collier to push him around. According to defendant, after Collier and Fleming returned to the hallway outside Brown's apartment, they came to stand on each side of defendant and began to talk "in [his] ear." Defendant was about to walk off, when Collier grabbed his arm and he and Collier started to wrestle. Defendant claimed he was able to break free, but then he turned and saw Fleming coming towards him. It was at this point that defendant pulled out the gun and shot Fleming in the stomach and, as Fleming fell back, shot him again.
At the bench trial, in addition to the foregoing testimony and statements, the parties introduced the report of a forensic pathologist that Fleming sustained two gunshot wounds to the back, one wound on his left side and one wound on his right side, with both bullets traveling from back to front and slightly upwards. A toxicology screen performed on Fleming's body was negative for cocaine and opiates, but positive for alcohol. The cause of death was multiple gunshot wounds and the manner of death was homicide.
The trial judge found defendant guilty of first degree murder and of personally discharging the firearm that caused the victim's death. The judge rejected defendant's assertions that the shooting was in self-defense or, at most, constituted second degree murder based upon an unreasonable belief in self-defense. After stating that he considered all the arguments in aggravation and mitigation, the judge sentenced defendant to 45 years of incarceration-20 years for first degree murder and 25 years for personally discharging the firearm that caused the death, to be served consecutively. During sentencing, the judge stated that he had no discretion to sentence defendant to a term of less than 45 years because the legislature mandated a minimum sentence of 45 years for first degree murder by the use of a firearm. Defendant now appeals from his conviction and sentence.
Defendant first contends that his conviction for first degree murder should be reduced to second degree murder because the evidence at trial established that, at the time of the killing, he was acting under a sudden and intense passion resulting from a serious provocation of mutual quarrel or combat.*fn1
To give proper context to the specifics of defendant's contention, an overview of the applicable statutory scheme is in order. Effective July 1, 1987, the legislature amended the Criminal Code of 1961 (Criminal Code) (now 720 ILCS 5/1-1 et seq. (West 2000)), in pertinent part, by renaming the offense of murder to first degree murder and abolishing the offense of voluntary manslaughter and substituting for it the offense of second degree murder.*fn2 See People v. Jeffries, 164 Ill. 2d 104, 111 (1995). What remained unchanged is the underlying view of what is now known as second degree murder, formerly voluntary manslaughter, as "[first degree] murder plus mitigation"-meaning that the presence of mitigating factors does not negate any element of first degree murder, but operates to reduce the seriousness of the offense and the severity of the punishment. (Emphasis omitted.) Jeffries, 164 Ill. 2d at 121. Our supreme court made it clear that first degree and second degree murder each require the same mental state, either intent or knowledge, and it is the presence of statutory mitigating factors that reduces an unlawful homicide from first degree to second degree murder, not the absence of an intent to kill. Jeffries, 164 Ill. 2d at 122.
The court, therefore, clarified that second degree murder is not a lesser included offense of first degree murder, but rather is more accurately described as a lesser mitigated offense of first degree murder. Jeffries, 164 Ill. 2d at 122. Still valid today is an earlier pronouncement by the supreme court that the offense now known as second degree murder is "an acknowledgement by the law of the mitigating effect of human weakness and intense passion in an otherwise unjustified homicide." People v. Leonard, 83 Ill. 2d 411, 420 (1980).
We now turn to the language of the current Criminal Code defining the offenses of first and second degree murder. Section 9-1 of the Criminal Code defines the offense of first degree murder, in pertinent part:
"(a) A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:
(1) he either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) he knows that such acts create a strong probability of death or great bodily harm to that ...