Appeal from the Circuit Court of Cook County No. 05 C 441431Honorable Carol A. Kipperman, Judge Presiding.
The opinion of the court was delivered by: Justice Connors
JUSTICE CONNORS delivered the judgment of the court, with opinion. Justices Karnezis and Harris concurred in the judgment and opinion.
Defendant Javier Luna appeals following his conviction by a jury for second-degree murder. The trial court sentenced defendant to 20 years' incarceration. Defendant raises three issues on appeal: (1) whether he was entitled to a jury instruction on the lesser-included offense of involuntary manslaughter; (2) whether the trial court improperly considered an element of the offense as an aggravating factor in sentencing defendant or, alternatively, whether the 20-year sentence was excessive; and (3) whether the trial court correctly admonished the venire pursuant to Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). We affirm.
On November 23, 2005, defendant and several acquaintances spent most of the day drinking alcohol and using cocaine. The victim, Jose Alfredo Basilio Miranda, joined the group at some point and brought more beer. Late in the evening of November 23 or early in the morning of November 24, two men from the group got into a heated argument over a card game. One of the men retrieved a knife from his bedroom and stabbed the other man in the hand and stomach, although apparently the wounds were neither severe nor life-threatening. The attacker then threatened the other men in the room. Defendant armed himself with a knife from the kitchen, while several other men broke up the fight.
The foregoing facts are largely undisputed, but what happened next is not clear because most of the occupants of the apartment were focused on breaking up the fight and they did not witness the actual murder. According to one account, defendant declared that no one would be allowed to leave the apartment, and then, unprovoked, stabbed the victim in the chest. According to defendant, he was helping the man who had been stabbed when he "sensed" someone behind him and lashed out with his knife. Defendant later gave shifting reasons for his action, ranging from defending himself against a perceived violent attack to merely attempting to "scare away" the person by waving the knife.
Regardless, the subsequent facts are clear: defendant's knife punctured the victim's chest, killing him. Defendant was charged with first-degree murder. During voir dire, the trial court informed the entire venire of the following:
"[I]t is the burden of the State who has brought the charges to prove the defendant guilty beyond a reasonable doubt. What this means is that the defendant has no obligation to testify in his own behalf or to call any witnesses in his defense. He may simply sit here and rely upon what he and his attorneys perceive to be the inability of the State to present evidence to meet their burden.
Should that happen you will have to decide the case on the basis of the evidence presented by the prosecution. The fact the defendant does not testify must not be considered by you in any way in arriving at your verdict.
However, should the defendant elect to testify or should his attorneys present witnesses in his behalf, you are to consider that evidence in the same manner and by the same standards as evidence presented by the State's Attorneys.
The bottom line, however, is there is no burden upon the defendant to prove his innocence."
At trial, defendant asserted self-defense but testified somewhat inconsistently. Defendant testified that he was afraid for his life and, at different points in his testimony, stated that he intentionally stabbed the victim in order to save himself from a perceived violent attack or, alternatively, merely swung the knife in order to scare the victim away. However, the jury was also presented with previous statements by defendant to the effect that he was "doing a favor" for the man who had been stabbed in the fight when he stabbed the victim.
At the jury instructions conference, defendant sought an instruction for the lesser-included offense of manslaughter, based on his statement that he had only been trying to scare the victim away at the time that the victim was stabbed. The trial court declined to give the instruction. The jury ultimately convicted defendant of the lesser-included offense of second-degree murder based on imperfect self-defense.
At sentencing, the trial court made the following statement, which is reproduced here in full:
"All right. I presided over the trial. I heard all the facts of the case. I read the Presentence Investigation.
With regard to aggravation, one factor in aggravation is serious bodily harm. In this case it was extreme serious bodily harm in that the victim is dead.
Other factors which I would consider in pronouncing a sentence is a deterrence to others so that they will not commit the same offense, also, the protection of the public from this type of conduct.
You have a case here of a victim who is innocent. At the most, he may have had some alcohol in his system, but he didn't have a gun. He didn't have a knife. He wasn't doing anything, and he was stabbed in the chest and died from that.
Based upon the actions of the defendant, punishment has to be taken into account as well as the protection of the public and deterrence and the bodily ...