The opinion of the court was delivered by: Justice Garman
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.
¶ 1 Defendant, Malvin Washington, was convicted of two counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2002)) of Marquis Reed and one count of aggravated battery with a firearm (720 ILCS 5/12-4.2 (West 2002)) of Ronald Lee. The circuit court of Cook County merged the counts of first degree murder and sentenced defendant to a term of 55 years in prison on the murder conviction and a consecutive term of 10 years in prison on the conviction for aggravated battery with a firearm. Following the close of evidence and relevant to this appeal, the circuit court instructed the jury on the justifiable use of force in self-defense (720 ILCS 5/7-1 (West 2002)). The court rejected defense counsel's request to also instruct the jury on second degree murder (720 ILCS 5/9-2(a)(2) (West 2002)) and involuntary manslaughter (720 ILCS 5/9-3(a) (West 2002)). Defendant appealed and the appellate court reversed and remanded for a new trial, holding that where the evidence supports the giving of a self-defense instruction, it was an abuse of discretion for the trial court to refuse a defendant's request for a second degree murder instruction. 399 Ill. App. 3d 664. We granted the State leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).
¶ 3 On March 21, 2004, Antonio Washington was visiting his cousin, Topeka Washington, who was defendant's sister. Antonio was driving a car that belonged to Sharlene Parker, defendant's girlfriend. As Antonio backed out of his parking space, the car was struck by a car driven by Antoine Lee. Both men got out of their cars. Phone calls were made to members of both men's families and soon several people converged on the accident scene. Present were Antoine's mother, Angela Lee; her sister, Yvette Reed; her brother, Donald Lee; and Yvette's son, Marquis Reed. Another group of Antoine's family members arrived separately, including Antoine's uncle, Ronald Lee; LaTanya McGhee; LaTanya's mother, Wanda Cook; and Victor Lovelace, who was a friend of Ronald. Topeka called defendant's girlfriend to tell her of the accident. Defendant answered the phone and he went to the accident scene. Defendant and Antoine began to argue. At some point, defendant went to his girlfriend's car and retrieved a gun, as he did not want the police to find it. He put the gun in the pocket of his green and black Milwaukee Bucks jacket. Ronald Lee walked up to the two men. Antoine testified that Ronald told defendant to "get the f*** away from my nephew." Topeka joined in the argument. Antoine testified that he decided that he and Ronald should leave because too many people had arrived. Ronald told Antoine, "F*** this s***, let's go." According to Antoine, as they were walking away, he heard two or three gunshots. He turned around and saw fire coming from defendant's pocket.
¶ 4 Antonio Washington claimed that he was dazed after the accident.
He claimed a lack of memory concerning the salient events. However, in a statement to police and in his grand jury testimony, Antonio stated that defendant arrived on the scene and demanded that someone pay for the damage to his girlfriend's car. Antonio also stated that the atmosphere was calm, but that the situation escalated. At that point, Topeka "got crazy." Antonio stated that he heard several gunshots.
¶ 5 Ronald Lee testified that he and his family were driving in the area and happened to come upon the accident. He got out of his car and approached defendant and Antoine. Defendant was yelling and "fussing" at Antoine, who appeared frightened. When neither man responded to Ronald's question as to what was going on, Ronald told Antoine to get in his car, that they would leave and call the police about the accident from home. Ronald testified that he pushed Antoine and defendant apart to prevent them from fighting and he and Antoine started to walk away. Ronald testified that Topeka followed them, yelling something about people minding their own business. Ronald told her that this was his business because it involved his nephew. As Ronald continued to walk to his car, he heard shouts of, "He's got a gun," and Ronald turned around to see defendant pointing a gun at him. Ronald tried to run away, but was shot three times. Ronald denied having a gun that day and he also denied telling defendant to "get the f*** away from my nephew" when he first walked up to defendant and Antoine.
¶ 6 Angela Lee testified that when she approached the scene of the accident, defendant and Antoine appeared to be talking calmly. She saw Ronald walk up to them and ask what was going on. Defendant asked Ronald in a normal tone of voice, "Who the f*** are you?" Ronald stated that he was talking to his nephew, not to defendant. When Ronald and Antoine started to leave, Angela saw defendant shoot a gun in their direction. She ducked and fell to the ground. She did not see anyone other than defendant with a gun. Angela testified that there was no physical confrontation between defendant and Ronald prior to the shooting.
¶ 7 Donald Lee testified that he saw Antoine arguing with a man who was pushing Antoine with his body. Ronald walked up and stepped between Antoine and the man and pushed them apart. Ronald became involved in the argument, which was "very heated." Donald did not see any weapon in Ronald's hands. He saw the man pull a gun from his side. Donald ran when he heard gunshots; he did not have a gun but would have used it if he had. Later, Donald saw his sister, Yvette, sitting on the curb, holding her son Marquis, who was bleeding.
¶ 8 Yvette Reed testified that she was at Angela's home when Angela got a call from Antoine about a car accident. She, Angela, Donald, and Marquis left to go to the accident scene. She stayed in the car, while the others got out to see what was happening. Yvette heard gunshots. She got out of the car and saw Marquis coming toward her with blood on his mouth.
¶ 9 LaTanya McGhee was with Ronald when he walked up to
Antoine and defendant. Defendant was yelling at Antoine. Ronald told Antoine to get in the car and call the police. Defendant began to argue with Ronald. LaTanya denied seeing Ronald push or choke defendant or hear him say, "Get the f*** away from my nephew." A woman approached Ronald and told him to mind his own business. Ronald told the woman that this was his business. LaTanya saw defendant remove a gun from his pocket and shoot three times at Ronald. Everyone was running and screaming.
¶ 10 Wanda Cook saw that a crowd had gathered at the accident scene and that people were arguing. Ronald was arguing with a man in a black hoodie. The man pulled out a gun. Ronald ran away and she heard three or four gunshots. Ronald fell to the ground at the door of their car. Wanda stated that Ronald did not have a gun.
¶ 11 Forensics testing showed that all bullets and casings recovered from the scene were fired from the same gun. The bullet that killed Marquis had passed through another object or person before hitting Marquis.
¶ 12 Topeka testified for the defense that when defendant initially arrived on the scene he was calm. Both he and Antoine went to their cars. When they came back, Ronald walked up. Ronald was angry and things got out of hand. Ronald asked defendant if he was "F-ing" with his nephew. Defendant stated that he was not. Ronald charged at defendant and pushed him. Topeka asked Ronald why he was acting like that and Ronald told her to shut up or he would slap her. Angela Lee grabbed Ronald to try to calm him down. Ronald broke free and charged at defendant, trying to choke him. Topeka heard a gunshot. She ran and when she looked back, she saw Donald Lee running just behind her with a gun that appeared to be jammed. She did not know if Donald fired any shots. Topeka testified that she did not talk to the police at any time in connection with the incident.
¶ 13 Finola Horad testified that she was at her neighbor's house when she heard between three and five gunshots. At first, she dropped to the floor but quickly got up and went to the door because her daughters were walking home from the store. She saw a man standing in the street with a gun in his hand. She could not see his face and could not tell his race or age. He was wearing a black hoodie and jeans. A man was lying on the ground near him.
¶ 14 Defendant testified in his own behalf. After he retrieved his gun from the car, he started to tell Topeka that he was going to put the gun in her house. Ronald came up behind him, grabbed him by the neck and pushed him. According to defendant Ronald told him to get the "f***" away from Antoine. Defendant told Ronald not to put his hands on him. Ronald started shouting and cursing. According to defendant, Topeka tried to calm the situation and Angela Lee was trying to hold Ronald back. However, Ronald broke loose and grabbed defendant by the neck and they wrestled with each other. After defendant pushed Ronald back, defendant saw Ronald reach for his waistband and pull out a gun. Defendant described the gun as a revolver with a wooden handle. Defendant testified that he was afraid for his life and had no time to think. He reached for his gun and shot at Ronald. Ronald lunged at him again and defendant shot him twice more. Defendant stated he heard more gunshots from across the street and he started to run away. While doing so, defendant saw Donald Lee chasing him with a gun. It appeared the gun had jammed. Defendant ran to a friend's house. He was arrested six months later.
¶ 15 At the jury instruction conference, defense counsel requested an instruction on self-defense. The trial court denied counsel's request for instructions on second degree murder and involuntary manslaughter. The court determined that a question must exist as to whether the defendant's subjective belief in the need for the use of force is reasonable and that there was no evidence in the instant case that defendant had an unreasonable belief. As stated, the jury convicted defendant.
¶ 16 Defendant appealed, arguing, inter alia, that the trial court erred in refusing to give the jury an instruction on second degree murder. The appellate court reversed and remanded for a new trial, finding that the trial court abused its discretion in refusing the tendered instruction.