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People v. Romero

January 14, 2009

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOHNATHAN J. ROMERO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County. No. 04-CF-3278, Honorable Richard W. Vidal, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Zenoff

Modified on Denial of Rehearing

Defendant, Johnathan Romero, appeals his conviction of first degree murder (720 ILCS 5/9--1(a)(2) (West 2004)) and his subsequent sentence of 50 years' imprisonment in connection with an incident in which he fatally stabbed another young man, Eric Flynn, at a bonfire party. On appeal, defendant argues that (1) the evidence that defendant acted under an unreasonable belief in the necessity of deadly force in self-defense warrants our reducing his conviction to second degree murder; (2) his conviction should be reversed and the cause remanded for retrial due to the prosecutor's allegedly improper statements during closing rebuttal argument; (3) his sentence was excessive; and (4) the judgment must be corrected to reflect the three years of mandatory supervised release (MSR) statutorily authorized instead of the four years actually imposed. The State concedes the latter point. For the reasons that follow, we affirm as modified.

Defendant's trial took place between November 18 and November 29, 2005. The State's first witness, Flynn's mother, testified that Flynn came home from work on October 2, 2004, shortly after 9 p.m. but left home again at approximately 10:30 or 10:45 p.m. When he left he was wearing blue jeans and a gray sweatshirt.

John Peppers testified next for the State. He testified that October 2 was the night of Auburn High School's homecoming dance and that his younger brother Jeff was planning a bonfire party for that night. Shortly after 10 p.m., after the party had started and after John, who was 21 years old at the time, purchased some alcohol, he picked Flynn up and drove him to the party. When they arrived at John's house, they discovered that John's parents were breaking up the party. The group decided to join another bonfire party at the home of Eric Ellis.

Though there were no streetlights in the area and the pathway leading up to the bonfire area was dark, the bonfire clearing was "pretty bright," and, "as soon as you got into the clearing, *** you could definitely see." John recognized most of the people at the Ellis party as either friends or "friend[s] of friend[s]" whom he had met that night, but he did not know defendant and did not see him at the party. Even though the majority of the partygoers were high school students, most of them were drinking. John stayed at the bonfire for approximately one hour before leaving to meet another friend and also to purchase more alcohol for the party. Flynn remained at the party during John's absence. When John eventually returned to the party, the atmosphere was "panicked," and "[t]here were a lot of cars kinda speeding away." John was informed by the partygoers that Flynn had been stabbed.

Chris Peppers, John's younger brother, testified that he arrived at the Ellis party at approximately 11 p.m. on October 2, after his parents had broken up his party, which had included his friend Mitch Heaslip and some of Heaslip's friends from Wisconsin. Chris drank five beers over the course of the night, but, though there were "a lot of people" using marijuana at the Ellis party, Chris testified that he did not take any drugs that night. Chris saw his brother John leave after approximately one-half hour in order to purchase more beer, and, after two more of his friends left the party 15 minutes later, Chris wandered away from the bonfire and toward the road. There, he saw an acquaintance named Christina and a person he recognized named Adan arrive with a small group of one girl and three boys whom Chris did not recognize. Chris followed the group back to the bonfire, but he was suspicious of the unknown boys because they were not interacting with the other partygoers but were instead standing to the side of the party.

A short time later, Chris again walked away from the bonfire and toward the road. While he was away, he "started hearing a bunch of noise, yelling and screaming." He ran back to the bonfire and saw what "looked like fifteen people *** just in a big brawl." Chris could not identify any specific people in the brawl, but he noted that the group of unknown boys was no longer standing where he had last seen them. On cross-examination, Chris recalled that, during the fight, he saw Ryan Hatfield standing on a spool, with a six-foot-long metal pole in his hand.

Chris joined a group of people sitting behind some nearby cars and observed the fight from a safe distance. At some point, the group of unknown boys came rushing toward Chris, "screaming and yelling, saying 'We gotta get out of here.' " Chris ran and jumped into a nearby ditch, and from there he saw two cars leave. According to Chris, his brother John arrived at the party within a minute thereafter.

Peter Miller testified next for the State. On October 2, 2004, he and several friends had traveled from Wisconsin to visit Mitch Heaslip, who took them first to the Peppers party and, after that party was broken up, to the Ellis party. At some point during the Ellis party, a group of people with whom Miller was not familiar arrived; the group did not mingle with the other partygoers. Miller "decide[d] to socialize with them," and thus approached them. Then, "this black dude asked [Miller] what [his] colors were *** or asked [him] what [his] problem was." When Miller attempted to respond with a joke, it did not appear that the stranger "took it as a joke," and "a confrontation happened." One of the boys in the group of strangers "flicked" Miller's hat off into the fire, and Miller shoved him. Miller exchanged cross words with the group as his friends from Wisconsin and some people from Rockford rushed in to break up the fight. Miller and the group reconciled, but, a short time later, he saw a "verbal" argument break out between "the guy in the hoodie and that group." Some people were pulling back the "guy in the hoodie," who Miller later learned was Eric Flynn, when the group "kinda bull rushed him." (When asked what it meant when someone "gets bull rushed," Miller answered, "Self-defense, running back, trying to protect himself, he's in the defensive.") A large fight, involving what Miller estimated on cross-examination as "fifteen, twenty people," broke out. The next time Miller saw Eric Flynn was "[w]hen he *** pulled his hand off of his shirt and said *** 'help' or something" before falling to the ground, bleeding. Miller "could hear him breathing hard and *** could see blood squirting out."

Eric Stone, another partygoer from Wisconsin, was the next witness for the State. He testified that, after Miller's confrontation with the group that was not interacting with the other partygoers, he saw Flynn "standing there" when a "chair [was] thrown right by him and a Mexican started rushing after him, and he was kinda running backwards and stuff." Stone later testified that two people approached Flynn--one wearing an orange shirt and one wearing a gray shirt. Stone testified that the confrontation was "about fifteen, twenty feet away," and that he could "pretty much see" or could see "pretty clearly." When Flynn was being rushed, he was "rushing backwards," and Stone's imitation of his hand movements was described as follows: "his palms are up at sort of shoulder height with the palms facing out." During redirect examination, Stone indicated that Flynn swung at the two adversaries with the palms of his hands up and his elbows in front of his face. It appeared as if one of Flynn's assailants, who was wearing a gray shirt and gray pants, was punching him in an "awkward," "downward sideways motion" while Flynn "struck out with his fists, probably to block them, trying to get them off of him." Stone was distracted by noises behind him, and, when he turned back around, he saw Flynn, who was on the ground, get up, "take[] like four or five steps *** and fall[] on his face." On cross-examination, Stone agreed that he was intoxicated at the time of the altercations. He also agreed on cross-examination that he never saw a knife.

Brian Coy, another Wisconsin partygoer, testified that he saw the confrontation between Miller and the group of strangers during the Ellis party and that he "kind of stepped forward, [to] make sure nothing was going to happen." When he turned around, he saw "someone stand on [a nearby wooden spool] with a gray sweatshirt on saying everyone needs to respect everybody." Then, "[s]omeone pushed the spool over and he fell down," and three people began "kicking him, beating him up" while he was on the ground. Though he testified that he was not intoxicated at the time of the incident, Coy stated that he could not "really see" who was involved in the altercations that followed, because it was dark and the three people had their backs turned to him. When next he saw the person in the gray sweatshirt (which he also described as a hooded sweatshirt) approximately 10 minutes later, the person "stumbled over by [him] and fell over by [his] feet."

John Gillitzer, yet another partygoer from Wisconsin, testified that he met Flynn, who was wearing a gray hooded sweatshirt, that night at the Ellis party. After Miller's confrontation with the group of strangers, Gillitzer saw someone yelling at the group, " 'Don't disrespect me, we're here to have fun.' " Gillitzer testified that he then saw two of the strangers push someone off the wooden spool, but he could not tell who was pushed off the spool. On cross-examination, Gillitzer stated that Flynn was not the person who was pushed off the spool but was the person who told others not to disrespect him. Gillitzer did not see Flynn during the altercations that followed, and, the next time Gillitzer saw Flynn, he saw a Hispanic male wearing an orange shirt "hit him in the face and then that same guy came back and hit him in the chest." Gillitzer looked away, and Flynn came up to him "gasping for air."

One of Flynn's friends, Ryan Hatfield, testified that Flynn was wearing a dark gray hooded sweatshirt at the Ellis party on October 2, 2004. Hatfield recalled that, during the Ellis party, a group of strangers arrived with a person he knew named Adan, and the group did not interact with the remaining partygoers. At some point during the party, Hatfield saw Flynn arguing with the group, and Hatfield tried to remove Flynn from the argument. Hatfield recalled that, "as [they] were walking [away from the confrontation,] the group of people came after [him] and [Flynn]." Hatfield was punched in the nose during the encounter. Hatfield recalled that, "[a]fter everybody scattered away from that [,] [Hatfield] walked back over by the fire and Adan grabbed [Hatfield] and threw [him] into the trees and had [him] around by [his] neck, and then one of [Adan's] buddies came and grabbed [Adan] off [Hatfield] and said *** ['] we got to go[.']" Hatfield recalled under cross-examination that he grabbed a nearby metal pole after Adan had been pulled off of him. Also on cross-examination, Hatfield estimated that his encounter with Adan likely lasted less than one minute. Once Adan and Hatfield were separated, the strangers left, and Hatfield saw Flynn being lifted onto a truck to be taken to the hospital. Hatfield stated that he had stood atop a wooden spool at one point during the party and that he did not see anyone else on the wooden spool during the party.

After the testimony of the police officer who collected physical evidence related to the case, the State called Daniel Romero, defendant's brother, to testify. He recalled that he and defendant, along with two girls and four other boys, went to a bonfire party on the night of October 2, 2004. Daniel wore gray pants and a gray T-shirt to the party. Daniel testified that someone wearing a strange hat approached his group to ask for drugs, and an argument between Adan and the person ensued. According to Daniel's testimony, a fight between defendant and another boy broke out at that point, but Daniel did not see any of that fight because his attention was directed toward Adan. Under further questioning, Daniel agreed that he had told police that the other boy had gotten in defendant's face, that Daniel had tried to keep the two apart using his arms, and that defendant took out a knife for protection, but Daniel asserted that he was "just agreeing" to those statements because they were what the police were telling him. When asked if he told police that defendant cut him while he was trying to keep the two people apart, Daniel answered that "[t]hat's what the police said." However, upon being shown pictures of him and of his clothing from that night, Daniel agreed that he had an injury on his arm and that his clothes had blood on them. Daniel testified later that he did not know how he got the injury to his arm. Later under direct examination, Daniel agreed when asked if he was "the only person that stepped between [defendant] and the [Flynn]." Daniel also agreed that, while he was standing between defendant and Flynn, Flynn did not have anything in his hands and did not hit defendant. Daniel recalled seeing blood on defendant's butterfly knife once they had returned to their car to leave the party. On cross-examination, Daniel stated that during the car ride home defendant said that he stabbed the other person "because they were jumping him."

Detective Vincent Lindberg, who questioned Daniel on the day after the incident, testified next for the State. He testified that Daniel at first said that he had been asleep by 8 p.m. the previous night, but, when Lindberg confronted Daniel by indicating that he knew about Daniel's whereabouts the previous night, Daniel told Lindberg that Flynn had gotten "in his brother's face," that he tried to separate the two, that defendant pulled out a butterfly knife and stabbed Flynn, and that defendant cut him as he was trying to separate Flynn and defendant. Lindberg took two written statements from Daniel. Both statements were consistent with Lindberg's testimony regarding Daniel's responses during questioning, but, in the second statement, Daniel added that, though none of the other partygoers appeared to have any weapons, defendant may have wielded his knife because he anticipated that two other people would join Flynn in fighting him. Lindberg testified that, though he and not Daniel handwrote the first statement and typed the second, Daniel confirmed the accuracy of the statements.

After testimony from a police officer who went with a prosecutor to speak with Daniel, an officer who collected a DNA swab from Daniel, and the court reporter who transcribed Daniel's grand jury testimony, the State called Officer Frank Ingardona of the Rockford police department to testify. Ingardona testified regarding his extensive training in martial arts, and he stated that he was familiar with butterfly knives. Ingardona said that one would not be able to open a butterfly knife safely with one hand without practice and that it took him "quite awhile" to learn how to do so himself.

After the testimony of a crime scene technician, the State elicited testimony from three forensics specialists and entered a stipulation regarding the testimony of another. One of the specialists, a pathologist, testified that Flynn suffered up to five stab wounds (one of Flynn's wounds might have been made during medical treatment), including a through-and-through knife wound that produced two cuts on Flynn's left arm, a fatal knife wound that pierced "all the way through the left ventrical [sic] and *** through the posterior portion of the heart," and a potentially fatal knife wound to the lung. The pathologist stated that the heart wound was inflicted by "a deliberate force," akin to the force required to stab a knife through a roast. The pathologist also testified that Flynn died with a blood alcohol level of 0.081. After the pathologist's testimony, the State rested its case.

Defendant's first witness, David Cruz, testified that, on October 2, 2004, he and a group of six other boys, including defendant and defendant's brother, and some girls went together to a bonfire party. Cruz stated that nobody in the group was wearing an orange shirt and that defendant was wearing blue jeans and a blue plaid shirt. When they arrived at the party, Flynn walked up to the group and, in a tone that struck Cruz as "upset," asked them who they were. Once the girls introduced their group, "everything was fine." The girls from the group mingled, but the boys in the group stayed to themselves until someone approached the group to ask for drugs and one of the group members "smacked" the hat off his head. After that, Cruz saw fights break out, but he did not see Flynn during the fighting.

Danielle Zobal, one of the girls who traveled to the party with defendant, testified that she was talking to someone when she looked over and saw someone retrieving his hat from the bonfire after it had been knocked off his head. Zobal recalled that "everything was fine for a couple minutes" afterwards. She walked with Cruz away from the crowd, and, when they returned, "everybody was arguing, and then after that everybody just started fighting." She did not see defendant or Flynn fighting, but she did see Flynn lying on the ground with a stab wound shortly thereafter. As she and her group drove away from the party, Zobal saw that "all of them" had "bruises an [sic] scrapes" and the corduroy sweatshirt defendant was wearing was torn. She also recalled seeing scratches on defendant's hands.

After the testimony of a private investigator for the defense who had difficulty obtaining an interview with a prosecution witness, Travis Triplett testified for the defense. Triplett was another member of the group that accompanied defendant to the Ellis party. Fifteen minutes after the group arrived at the party, one of the partygoers approached Triplett to try to acquire drugs, and "somebody proceeded to knock his hat off his head and throw it into the bonfire." Just when tempers cooled, Triplett saw Flynn standing atop a wooden spool, yelling that the group needed to watch what they were doing and not disrespect him or the party. According to Triplett, Flynn told the group, " [']you don't know what we can do to you, we're going to basically fuck you up.['] " One of Flynn's friends grabbed him to remove him in order to ease tensions, but Triplett heard Flynn say, " [']You heard what I said, get out or you're going to get your ass whooped.['] " Then, Triplett recalled, "the guys that were in our group go running towards all the guys in their group." Triplett tried to break up the ensuing fights and leave with his group. As he was leaving, he saw Flynn fall to the ground. Triplett stayed to help Flynn while the rest of his group left.

Defendant next testified on his own behalf. He testified that, on October 2, his brother Daniel and a friend picked him up at his house. Defendant was wearing blue jeans and a flannel plaid shirt; he did not recall anyone from their group wearing anything orange. When he entered the car, he had in his pocket a butterfly knife, which Daniel had bought him, that he had been "playing around with" and "[o]pening" and "flipping" earlier in the day. They went to Adan Ibarra's house, where they met Adan, David Cruz, and three girls, including Danielle Zobal. They left for the bonfire party and picked up Travis Triplett on the way. When they arrived at the party, a "[c]ouple guys came up and told [them] to come on in the party [sic] after they were talking to some of the girls." Defendant and his group had been at the party for approximately 20 or 25 minutes when someone walked up to the group to ask for drugs and a member of the group knocked off that person's hat. Defendant recalled that Adan then began yelling at the person who asked for drugs, because Adan believed him to be a "snitch," "[a]nd then Adan started getting into it with [Flynn]." As Adan and Flynn argued, Daniel joined a group of people trying to separate the two, and defendant tried to "grab [Daniel] to get away." Defendant continued: "They started walking away, and everybody somehow moved toward the other side of the bonfire and another fight started going on." According to defendant, the next thing he remembered was "looking over and [his] brother was getting jumped by two guys." Defendant "went over, pushed [those] guys off of [his] brother." Defendant stated that Flynn was one of Daniel's two adversaries. After defendant pushed Flynn off of Daniel, Flynn started "coming after [defendant]" and "raised his fist." Defendant "pulled out the knife and then [Flynn] struck [defendant]" "in the face area." Defendant stated that he pulled out the knife because two people were coming at him and he "thought [he] was going to get hurt." Defendant "tr[ied] to get away from him" by "sticking him with the knife" "[t]wo or three" times. Though defendant believed that stabbing Flynn would cause him harm, defendant was not trying to kill Flynn. When defendant stabbed Flynn, the altercation stopped, and defendant and his group left to return to Adan's house. Defendant threw the knife into a river and returned home later that night.

Police arrived at defendant's house the next morning and took him to the police department for questioning. At trial, defendant admitted that he initially lied to police about whether he stabbed Flynn, even after police confronted him with Daniel's statement that defendant had stabbed Flynn, but defendant eventually told police that he had stabbed Flynn and gave them a statement to that effect.

On cross-examination, defendant agreed that he had played with the butterfly knife a number of times before that night, that he did not cut himself at all when he was playing with the weapon, that he had no problem flipping it open, and that he could bounce it off of his hand "pretty easily." He also agreed that his mother had implored him and his brother not to carry knives with them, but defendant asserted that the advice was directed more toward his brother, who "always collected knives." Defendant further agreed that, when he saw Flynn raise his hand or fist, he did not see anything in Flynn's hand, but defendant said that he did not know if Flynn had anything in his hand, because it was dark. Defendant agreed that there was no apparent injury to his face as a result of Flynn's punching him. Defendant acknowledged that, in his written statement to police, he indicated that one of the two people who attacked him "took off" when he drew his knife. Defendant testified that he thought the second person took off, because he did not know where the person was afterwards, but defendant asserted that he "didn't know for sure if [the person] kept on coming at [him]."

The defense rested after defendant's testimony, and, after the testimony of three rebuttal witnesses regarding statements made to the police (including testimony that defendant did not mention in interviews just after the incident that he had acted in self-defense or that he had been struck before stabbing Flynn), both sides presented closing arguments. The jury found defendant guilty of first degree murder, and the trial court subsequently sentenced him to 50 years' imprisonment and a 4-year term of MSR. Defendant timely appeals.

Defendant's first argument is that his conviction must be reduced to a conviction of second degree murder because the evidence showed that he acted with an unreasonable belief that there were circumstances present to justify his use of deadly force against Flynn. Pursuant to section 9--2 of the Criminal Code of 1961 (Code):

"(a) A person commits the offense of second degree murder when he commits the offense of first degree murder *** and either of the following mitigating factors are present:

***

(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing [as self-defense], but his belief is unreasonable. ***

(c) When a defendant is on trial for first degree murder and evidence of either of the mitigating factors *** has been presented, the burden of proof is on the defendant to prove either mitigating factor by a preponderance of the evidence ***. However, the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of first degree murder and, when appropriately raised, the absence of circumstances at the time of the killing that would justify or exonerate the killing under the principles stated in Article 7 of this Code. In a jury trial for first degree murder in which evidence of either of the mitigating factors *** has been presented and the defendant has requested that the jury be given the option of finding the defendant guilty of second degree murder, the jury must be instructed that it may not consider whether the defendant has met his burden of proof with regard to second degree murder until and unless it has first determined that the State has proven beyond a reasonable doubt each of the elements of first degree murder." 720 ILCS 5/9--2 (West 2004).

The parties disagree as to the standard of appellate review applicable to defendant's claim that the trier of fact erred in finding him guilty of first degree murder rather than second degree murder. Defendant argues that, while we normally review the sufficiency of the evidence to support a criminal convictionby determining whether any rational trier of fact could have found the elements of the crime proven beyond a reasonable doubt, we should employ the manifest-weight-of-the-evidence standard to review the jury's finding that defendant's guilt should not be mitigated to second, rather than first, degree murder. The State initially disputeddefendant's position and insisted that "a defendant's conviction for first-degree murder should not be modified to second-degree murder unless a rational trier of fact, after viewing the evidence in the light most favorable to the prosecution, could not have found the elements of first-degree murder and could not have found, beyond a reasonable doubt, that defendant did not act in self defense. People v. Lee, 213 Ill. 2d 218, 224 [(2004)]." However, at oral argument, the State conceded that defendant is correct on this point. We disagree.

For its original position, the State relied on Lee, a case in which the supreme court articulated the standard of review for a jury's determination that the defendant did not act in self-defense under section 7--1 of the Code. See Lee, 213 Ill. 2d at 225, citing 720 ILCS 5/7--1 (West 1998). Here, however, the question is not whether defendant acted in self-defense so as to justify his actions. The question is whether he possessed an unreasonable belief that self-defense was justified, so as to mitigate his guilt but not "justify or exonerate the killing." The difference in this context is that lack of self-defense, when self-defense is raised, is an element of first or second degree murder. See 720 ILCS 5/7--14 (West 2004) ("A defense of justifiable use of force *** is an affirmative defense"); 720 ILCS 5/3--2(b) (West 2004) (where affirmative defense is raised, "the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to [the affirmative defense] together with all the other elements of the offense"). By contrast, the presence of a mitigating factor is not an element of second degree murder--it mitigates culpability on the already established elements of first degree murder. Or, as stated in People v. Jerome, 206 Ill. App. 3d 428, 436 (1990):

"When a defendant is charged with first-degree murder, the State is required to prove death, causation and intent ***. [Citation.] The defendant then has the opportunity to prove provocation or unreasonable belief in justification to reduce the offense to second-degree murder. [Citation.] The existence of provocation or an unreasonable belief in justification, however, will not diminish or negate any of the proved elements of first-degree murder. The mitigating factor is a separate issue the existence of which the State is willing to recognize as a circumstance affecting the degree of culpability or the severity of punishment." While due process requires that the State bear the burden of proving beyond a reasonable doubt all of the elements of a crime in order to obtain a conviction (In re Winship, 397 U.S. 358, 364, 25 L.Ed. 2d 368, 375, 90 S.Ct. 1068, 1073 (1970)), due process does not require that the State disprove mitigating factors beyond a reasonable doubt where their absence is not an element of the crime. Patterson v. New York, 432 U.S. 207, 53 L.Ed. 2d 281, 97 S.Ct. 2319 (1977).*fn1 Nor does Illinois law. Once the State has met its burden to prove the elements of first degree murder, the burden shifts to the defendant wishing to mitigate the offense to second degree murder to prove the existence of one of the statutory mitigating factors by a preponderance of the evidence. Lopez, 166 Ill. 2d at 447; see 720 ILCS 5/9--2(c) (West 2004).

Our research has uncovered published Illinois decisions that support the notion that the State bears the burden to disprove any mitigating circumstances beyond a reasonable doubt in order to obtain a conviction of first, rather than second, degree murder. SeePeople v. Thompson, 354 Ill. App. 3d 579, 586 (2004) ("Once the defendant carries his burden of proving any of the factors in mitigation, the burden shifts back to the State to prove the absence of the implicated mitigating factors beyond a reasonable doubt"); People v. Izquierdo-Flores, 332 Ill. App. 3d 632, 638 (2002) ("If the defendant meets [the burden to prove the presence of a mitigating factor by a preponderance of the evidence], then the State must disprove beyond a reasonable doubt any mitigating factor that the defendant has raised"); People v. Golden, 244 Ill. App. 3d 908, 919 (1993) (if the defendant presents mitigating evidence, "the State must disprove those factors beyond a reasonable doubt"); People v. Buckner, 203 Ill. App. 3d 525, 534 (1990) (if the trier of fact finds that the defendant has established a mitigating factor by a preponderance of the evidence, "the State must disprove such factor(s) by proof beyond a reasonable doubt"). These cases misstate the law. Illinois's statutory scheme nowhere provides that the State must disprove a mitigating factor beyond a reasonable doubt after a defendant has established a mitigating factor by a preponderance of the evidence. Section 9--2(c) provides that the State must disprove "the absence of circumstances at the time of the killing that would justify or exonerate the killing under the principles stated in Article 7 of this Code" (720 ILCS 5/9--2(c) (West 2004)), but it does not say the same for circumstances that would mitigate an offense from first degree murder to second degree murder. Instead, section 9--2(c) provides that "the burden of proof is on the defendant to prove either mitigating factor by a preponderance of the evidence before the defendant can be found guilty of second degree murder." 720 ILCS 5/9--2(c) (West 2004). In fact, section 9--2(c) has withstood numerous constitutional challenges raised precisely because it shifts the burden to the defendant to prove the existence of a mitigating factor instead of requiring the State to disprove it beyond a reasonable doubt. See People v. Jeffries, 164 Ill. 2d 104, 114-19 (1995); People v. Hooker, 249 Ill. App. 3d 394, 406 (1993) (collecting cases); People v. Guidry, 220 Ill. App. 3d 406, 412 (1991) (collecting cases); People v. Cook, 217 Ill. App. 3d 299, 301-05 (1991); People v. Brown, 218 Ill. App. 3d 890, 895-97 (1991); Buckner, 203 Ill. App. 3d at 529-34.*fn2

Further, the approach specified in Izquierdo-Flores and Buckner, which both state that the State must disprove mitigating circumstances beyond a reasonable doubt after the defendant establishes them by a preponderance of the evidence, does not reflect current practice. In a jury trial, the way to determine if mitigating factors had been proven by a preponderance of the evidence would be to submit the question to the jury. Thus, under Izquierdo-Flores and Buckner, all second degree murder trials would be bifurcated so that the jury would return a verdict of guilty (with mitigating circumstances proven by a preponderance of the evidence), and then proofs would be reopened for the State to make its case to disprove the mitigating factors beyond a reasonable doubt. Again, this is not the law.

In an appeal challenging a factual determination that no mitigating factor was present, the question presented is not whether a reasonable fact finder could have found that the State disproved the mitigating factor beyond a reasonable doubt but, rather, whether the fact finder correctly concluded that the defendant did not prove the existence of a mitigating factor by a preponderance of the evidence. The question of whether a defendant's actions were committed under mitigating circumstances--here, the question of whether defendant unreasonably believed that circumstances justifying the use of lethal force were present--presents a question of fact. Cf. People v. Urdiales, 225 Ill. 2d 354, 428 (2007) ("As is the case when a defendant raises a defense of insanity, for which a defendant also bears the burden of proof, the existence of 'mental illness' *** is a question of fact"). Normally, we would not overturn the decision of the trier of fact on such a factual issue unless the finding is against the manifest weight of the evidence. See Urdiales, 225 Ill. 2d at 428 (invoking manifest weight review where defendant challenged a finding that he did not prove his mental illness by a preponderance of the evidence); People v. Johnson, 146 Ill. 2d 109, 128-29 (1991) (same for insanity). However, in two more recent cases, our supreme court has applied the standard that, where a defendant argues that he presented sufficient evidence to prove a mitigating factor in a first or second degree murder case, the reviewing court must consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the mitigating factors were not present." People v. Blackwell, 171 Ill. 2d 338, 358 (1996); see also People v. Reid, 179 Ill. 2d 297, 308 (1997) (citing Blackwell for the same proposition). We must follow our supreme court's most recent pronouncements on the issue, and we therefore apply the standard articulated in Blackwell and continued in Reid.

In pressing his argument that the evidence established that he acted with an unreasonable belief that circumstances existed to justify his use of force, defendant emphasizes evidence that there was brawling at the party and that Flynn had threatened defendant's group. He also points to testimony that two boys, including Flynn, attacked his brother and later attacked him, and he notes that the testimony that it was dark outside at the time of the incident lends credence to his claim that he could not see if Flynn was brandishing a weapon. Finally, defendant relies on his relative youth and the rapid nature of the encounter as factors that limited his ability to fully and rationally consider the situation before reacting. We agree with defendant that all of the above evidence could be interpreted to support his claim of unreasonable self-defense. However, contrary to defendant's argument, there was also evidence to negate his claim of unreasonable self-defense. Miller testified that defendant's group "bull rushed" Flynn while Flynn was being pulled back and was "in the defensive." Stone testified that two people from defendant's group "rush[ed] after" Flynn while Flynn was "running backwards" and in a defensive position. Though he did not witness the stabbing, Hatfield testified that defendant's group was the aggressor in the confrontation with Flynn. Triplett testified that people from defendant's group went "running towards" other partygoers.

Defendant disputes this evidence by emphasizing that no witness directly stated that he was among the group who rushed toward Flynn. However, even without testimony directly identifying defendant as being among the initial aggressors, the evidence nevertheless presented the strong implication that defendant was among the group. Defendant also observes that Stone described the clothing of the people he saw rush Flynn and that neither of his descriptions matched other witnesses' descriptions of defendant's clothing that night. (Stone recalled that the two partygoers who approached Flynn were wearing an orange shirt and a gray shirt; other testimony indicated that defendant was wearing a blue shirt.) However, much of the testimony describing the events surrounding the stabbing was either hazy or irreconcilable with other witnesses' accounts. In attempting to sort the testimony, the jury could reasonably have discarded Stone's recollection of the details of the combatants' attire. In sum, while defendant presented some testimony to support his assertion that he acted in unreasonable self-defense (and while he highlights some evidence that could be seen to undercut the State's position), there was also testimony to support the State's position that he did not act in unreasonable self-defense.

It is the responsibility of the trier of fact to determine the credibility of witnesses, the weight to be given to their testimony, and the reasonable inferences to be drawn from the evidence. People v. Brisbon, 106 Ill. 2d 342, 360 (1985). Thus, it was within the province of the jury to find the testimony of the above witnesses more credible than the testimony of defendant. Indeed, the record reveals several reasons the jury may have reasonably discredited defendant's testimony. Defendant testified that he stabbed Flynn in part because he thought he was going to be "jumped" by two people. However, defendant's written statement indicated that the person standing next to Flynn ran away as soon as defendant drew his knife. Defendant testified that Flynn had hit him in the face, yet defendant bore no physical indicia of such a blow immediately after the incident. The jury could have interpreted this evidence as discrediting defendant's claim that Flynn punched him. Or, on the contrary, defendant testified that he thought Flynn's raised hand may have carried a weapon, but defendant did not stab Flynn until after Flynn punched him. The jury could have inferred that Flynn punched defendant but that Flynn's punching defendant would ...


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