Defendant’s convictions for felony murder and unlawful possession of a firearm by a felon were upheld over his contentions that the trial court erred in refusing to give instructions on self-defense or second degree murder and in allowing the State to impeach defendant with a prior conviction, since any error in refusing the instructions was harmless beyond a reasonable doubt and defendant waived his objection to the impeachment, the evidence of his guilt was overwhelming, and the evidence of the prior conviction was not outcome determinative; however, certain fees and fines were modified to comply with the applicable statutes.
Decision Under Appeal from the Circuit Court of Peoria County, No. 09-CF-1336; the Review Hon. Stephen Kouri, Judge, presiding. Judgment Affirmed as modified.
Counsel on Sean Conley (argued), of State Appellate Defender's Office, of Ottawa, Appeal for appellant.
Jerry Brady, State's Attorney, of Peoria (Terry A. Mertel and Richard T. Leonard (argued), both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Panel JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Holdridge and McDade concurred in the judgment and opinion.
¶ 1 Following trial, a jury found defendant, David Brown, guilty of armed robbery, unlawful possession of a firearm by a felon, intentional murder, and felony murder. The circuit court of Peoria County entered judgment on the felony murder count, as well as the unlawful possession of a firearm by a felon count, sentencing him to natural life for the former and 14 years in prison for the latter. Defendant appeals, claiming the trial court erred: (1) in refusing to instruct the jury as to self-defense; (2) in allowing the State to impeach defendant with a prior conviction; and (3) in assessing $2, 444.50 in fees. We affirm defendant's convictions, but modify the assessment of certain fines and fees.
¶ 2 BACKGROUND
¶ 3 Defendant shot and killed Johnny Whitehead on December 1, 2009. When police officersarrived on the scene, he shot at the officers and attempted to flee. Following his apprehension, the State indicted defendant for numerous crimes associated with the incident.
¶ 4 The seven-count indictment, filed December 8, 2009, accuses defendant of: (1) felony murder (720 ILCS 5/9-1(a)(3) (West 2008)) for killing Johnny Whitehead without legal justification during the commission of armed robbery (720 ILCS 5/18-2(a)(2) (West 2008)); (2) first degree murder for shooting Johnny Whitehead with the intent to kill (720 ILCS 5/9-1(a)(1) (West 2008)); (3) aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(3) (West 2008)) for discharging a firearm in the direction of a peace officer; (4) armed robbery (720 ILCS 5/18-2(a)(2) (West 2008)) for taking currency from Johnny Whitehead by threatening the imminent use of force while armed with a handgun; (5) armed robbery (720 ILCS 5/18-2(a)(2) (West 2008)) for taking currency from Daisy Whitehead by threatening the imminent use of force while armed with a handgun; (6) home invasion (720 ILCS 5/12-11(a)(3) (West 2008)) for intentionally using force, which caused great bodily harm against Johnny Whitehead after entering his dwelling while armed with a handgun and having reason to know someone was present; and (7) unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2008)).
¶ 5 Prior to trial, defendant indicated that he wanted to represent himself. The trial court granted defendant's request to proceed pro se and the trial commenced.
¶ 6 Daisy Whitehead testified that on December 1, 2009, she lived with her son, Johnny, and grandson. She left their apartment around 8 a.m., but realized she forgot her phone in the apartment. Walking out of her apartment after retrieving her phone, she was struck in the stomach and told to go back into the apartment by defendant. She took defendant into a bedroom where Johnny was talking on the phone. Defendant, armed with a handgun, ordered Johnny to hang up the phone and demanded money while threatening to kill Daisy. Defendant then took an unspecified amount of money from Johnny, as well as Daisy's coin purse, which contained approximately $100. Someone knocked on the door. Johnny told defendant it was the police knocking. Defendant went to answer the door. Once he left the bedroom, Johnny closed the door and told Daisy to get a phone, but she could not find one. Daisy then heard six gunshots. Johnny then fell through the bedroom door, knocking it off its hinges. Daisy then heard four more gunshots, followed by defendant's reentry into the bedroom. Defendant ran across the bedroom and jumped out the window. Daisy walked out the front door, passing Johnny, who was facedown, bleeding and unresponsive. Once outside, Daisy observed defendant come around a corner of the building and she heard more gunshots.
¶ 7 The defendant began his cross-examination of Daisy by informing her that he "can't begin to express the amount of regret" he has for the incident. During cross-examination, Daisy reiterated that the shots, which killed her son, came through the closed bedroom door.
¶ 8 Angela Blue testified that she was Johnny's fiancée; she was on the phone with him when she heard a male's voice tell Johnny to put his hands up. She heard Johnny tell the man not to shoot and to take whatever he wanted. She asked Johnny to tell her whom he was talking to, but Johnny did not answer. She then called 911 and rushed over to the apartment with her son. She knocked on the door to the apartment, but received no response.
¶ 9 Angela stated that she witnessed two officers approach, so she explained what she knew. One of the officers knocked on the door and stepped up a short flight of stairs to one side. A voice answered "Who is it?" then defendant opened the door holding a gun. Defendant pointed the gun at Angela and ordered her into the apartment. The officer told defendant to "Freeze, don't move, " but defendant lifted his gun. The officer fired shots at defendant. Defendant fired shots back at the officer. Angela, her son, and a second officer ran back into the parking lot. While running, she heard four more shots.
¶ 10 Angela then called 911 for a second time from the parking lot to tell the operator about the shooting. More police arrived shortly and she observed defendant come around the side of the apartment building. She yelled, "That's him." Nearby officers ordered defendant to freeze, but defendant fired at them.
¶ 11 Officer Calvin Jones testified that he was dispatched to the apartment complex for a suspected home invasion in progress. The original address given was incorrect. Upon arrival, he made contact with Angela, who led him to the correct apartment. When defendant answered the door, Jones yelled "Gun." Defendant fired twice filling the breezeway with smoke.
¶ 12 Officer Jones then alerted Officer Hill to the scenario, after which time Hill took a defensive position atop the breezeway stairs. Jones heard two to three more shots inside the apartment, then he witnessed defendant come around the side of the building with gun still in hand. Defendant raised his gun; Jones fired at defendant; defendant retreated around the side of the building.
¶ 13 Officer Hill testified that he and Officer Jones were dispatched to the building for a home invasion in progress. Hill's testimony substantially mirrored Jones's testimony. Hill also observed defendant ...