Appeal from the Circuit Court of Cook County, Illinois. No. 07 CR 19393 Honorable Jorge Luis Alonso, Judge Presiding.
The opinion of the court was delivered by: Justice William Taylor
JUSTICE WILLIAM TAYLOR delivered the judgment of the court, with opinion. Presiding Justice McBride and Justice Palmer concurred in the judgment and opinion.
¶ 1 Following a bench trial, defendant Orlando Lewis was found guilty of the second degree murder of Robert Thompkins and sentenced to eighteen years' imprisonment. On appeal, defendant contends that the State failed to prove beyond a reasonable doubt that he did not act in self-defense when Thompkins walked toward him after defendant displayed a gun. Defendant further contends that his sentence was excessive and that his mittimus should be reduced to reflect 1,032 days spent in presentencing custody. The State agrees that his mittimus should be corrected to 1,033 days. As to all other claims, the State disagrees.
¶ 3 The record shows that defendant was charged with six counts of
first degree murder in
connection with an incident which occurred on October
14, 2006, on the south side of Chicago. At trial, the State called
four occurrence witnesses, namely, Lateaccahe Temple, Sylvester
Johnson, Fania Morrow and Cameron Wordlaw, who testified consistently.
All four witnesses stated that the defendant and Thompkins had known
each other for 15 years. Temple, Morrow and Johnson testified that in
the evening of October 13, 2006, they had gone to the hospital, along
with defendant, his brother Jeremy, and Thompkins, to visit a young
man who was being treated for a gunshot wound suffered during a
robbery. At the hospital, Thompkins told Jeremy that he was a "bitch"
for sending the young man to commit that robbery instead of doing it
himself. According to those witnesses, Thompkins then told Jeremy that
they would handle that dispute "on the block," referring to 106th
Street and Wabash in the city of Chicago.
¶ 4 According to all four occurrence witnesses, the group, which included Jeremy and Thompkins, as well as Morrow, Johnson and Wordlaw, gathered at or about 1 a.m. in an alley and vacant lot just south of 10641 South Wabash, where Temple resided. Thompkins and Jeremy began to argue in the street, and when the fight turned physical, they moved onto the sidewalk. At that time, defendant came running from his house and tried to break up the fight. The four witnesses stated that defendant pulled a gun and pointed it to Thompkins, who was unarmed and standing two to four feet away from defendant. They all testified that Thompkins then told defendant that if he pulled out that gun, he better kill Thompkins, at which point defendant fired the gun at Thompkins at least twice before he fell on the ground, then shot Thompkins in the head while standing over him.
¶ 5 Temple, who observed the incident from her front porch about 20
feet away, stated that
when defendant approached Thompkins and Jeremy,
Thompkins walked away from the two brothers, and had his back to
defendant when the defendant pulled out the gun and fired it at
Thompkins. According to Temple, the first shot spun Thompkins around
toward defendant, who shot Thompkins again, then knelt over him on the
ground and shot him in the back of the head. Johnson, who saw the
fight between Jeremy and Thompkins from 15 to 20 feet away, testified
that when defendant ran to the scene, others had already separated
Jeremy and Thompkins, but after Jeremy briefly spoke to defendant, the
two began fighting again. According to Johnson, defendant got in the
middle of the fight and Thompkins struck him twice before he pulled
out the gun. Johnson stated, however, that Thompkins tried to run from
defendant after the third or fourth shot, before falling to the
ground. Similarly to Johnson's testimony, Morrow stated that Jeremy
was backing off Thompkins when defendant arrived, but became more
aggressive once defendant whispered something to him. According to
Morrow, Thompkins then told defendant and Jeremy that he would beat
them both, but she did not see Thompkins strike defendant. Wordlaw,
who was playing chess at the alley about 15 feet away, testified that
the fight turned physical after Thompkins took a swing at Jeremy, and
that when defendant arrived, defendant tried to break up the ongoing
fight. Wordlaw stated that Thompkins took a swing at defendant, who
then took out his gun, and that Thompkins walked toward him with open
palms and did not back down as defendant shot him several times. He
further explained that everyone on the scene, including defendant,
Thompkins and Jeremy, were friends who often engaged in fist fights
without fear of anything worse.
¶ 6 Temple, Johnson and Wordlaw testified that after the shooting,
Jeremy warned everyone
at the scene not to report the incident or they would be
killed as well. Jeremy, who testified for the defense, admitted that
he and defendant fled to Windsor, Canada, shortly after the incident
and did not return to Chicago until July of 2007.
¶ 7 William Dunigan, a forensic investigator, testified that he recovered a spent bullet near Thompkins' body, and that both Thompkins' hands tested positive for gunshot residue. Scott Rochowicz, a forensic scientist, explained that those results meant that Thompkins had either discharged a firearm or was in close proximity when it was discharged. Rochowicz further stated that gun smoke can be transferred from one person to another, and can travel up to 10 feet. Dr. Nancy Jones, who performed an autopsy on Thompkins, testified that she recovered three bullets from his body: one from the right side of his head, one from his right buttock and one from the area near his right armpit and upper back. Her exam of the body revealed corresponding gunshot wounds on the left side of the back of his head, his right hip and the inside of his right arm at the elbow. Dr. Jones further stated that the bullet recovered from Thompkins' head traveled through his brain, from the back of his head toward the front.
¶ 8 Defendant, who testified on his own behalf, stated at trial that he had known Thompkins from the block for about 15 years, and they were both members of the Four Corner Hustlers street gang. He admitted that until the night in question, he had never been afraid of Thompkins. While defendant acknowledged that he had a gun that night, he explained that he had taken it from a group of younger men who were about to use it to resolve a dispute. Defendant stated that he still had that gun when he saw Jeremy and Thompkins fighting and ran to the scene to break up the fight. Defendant explained that once he separated Jeremy and Thompkins, and told Jeremy to go home, Thompkins grabbed defendant and began choking him. When defendant broke free, Thompkins punched him in the face. According to defendant, he then tried walking away, but Thompkins advanced toward him, at which time defendant pulled out his gun and pointed it at Thompkins, stating "we can do this a better way." Defendant stated that Thompkins kept walking toward him and responded with comments such as "bitch, you better kill me." He testified that Thompkins then "lunged" at him and tried to take the gun, and defendant fired the gun at Thompkins three or four times. Defendant denied shooting Thompkins once he was lying on the ground.
¶ 9 On cross-examination, defendant admitted that he knew that Thompkins did not have a gun, but stated that he was still afraid to turn and leave the area after he separated Thompkins and Jeremy. He also acknowledged disposing of the gun shortly after the shooting and leaving for Windsor with Jeremy.
¶ 10 In addition, defendant related four incidents in which he observed Thompkins strike other individuals. According to defendant, in 1999 or 2000, he saw Thompkins beat a man over money, and in 2002 or 2003, he saw Thompkins hit a man who tried to sell him a chain. Further, in 2005, defendant saw Thompkins attack a man who won money from him gambling, and in an unrelated incident, Thompkins struck another man in the head with a gun. However, he admitted that ...