Court of Appeals of Illinois, First District, Fourth Division
Appeal from the Circuit Court of Cook County. No. 10 CR 14203. Honorable Vincent Gaughan, Judge Presiding.
Reversed and remanded.
In a prosecution for first-degree murder, attempted murder, aggravated battery with a firearm and aggravated discharge of a firearm where defendant raised a claim of self-defense and was only convicted of aggravated discharge of a firearm, the only charge on which the jury was not instructed that the State had to prove beyond a reasonable doubt that defendant was not justified in using force to defend himself, the conviction for aggravated discharge of a firearm was reversed and the cause was remanded for a new trial, since the failure to provide the jury with a self-defense instruction on the aggravated discharge of a firearm count was plain error and defendant's counsel was ineffective in acquiescing to the erroneous instructions.
For APPELLANT: OFFICE OF THE ILLINOIS STATE APPELLATE DEFENDER, Chicago, IL, Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Appellate Defender, David M. Berger, Assistant Appellate Defender.
For APPELLEE: OFFICE OF THE ILLINOIS STATE'S ATTORNEY, Chicago, IL, Anita Alvarez, State's Attorney, Alan J. Spellberg, Joan Frazier, Sheilah O'Grady-Krajniak, Assistant State's Attorneys.
JUSTICE ELLIS delivered the judgment of the court, with opinion.[*] Presiding Justice Fitzgerald Smith and Justice Epstein concurred in the judgment and opinion.
[¶1] During an altercation on February 2, 2010, defendant Quincy Getter shot and killed Eric Stephens and wounded Stephens' cousin, Ronald Funches. Teneshia Hooper, Stephens' mother, was present when defendant shot Stephens and Funches. The State charged defendant with first-degree murder with respect to Stephens, attempted murder and aggravated battery with a firearm with respect to Funches, and aggravated discharge of a firearm with respect to Hooper.
[¶2] At trial, defendant never denied firing the weapon and relied exclusively on a self-defense theory. In the issues instructions for three of the four offenses charged--first-degree murder, attempted murder, and aggravated battery--the jury was instructed that the State was required to prove beyond a reasonable doubt that defendant was not justified in using force to defend himself. In the fourth issues instruction, for aggravated discharge of a firearm, the jury received no such instruction. The jury acquitted defendant on the three charges for which it received a self-defense instruction and convicted him on the one count for which it did not receive that instruction.
[¶3] This appeal revolves around this missing self-defense instruction on the aggravated discharge count, couched both as an evidentiary error and as an ineffective-assistance-of-counsel argument, because defense counsel below failed to tender that instruction or object to its absence. We hold both that the failure to provide the jury with a self-defense instruction on the aggravated discharge count was plain error and that counsel was ineffective for acquiescing to the erroneous instructions. We reverse defendant's conviction for aggravated discharge of a firearm and remand for a new trial.
[¶4] I. BACKGROUND
[¶5] A. Evidence at Trial
[¶6] Teneshia Hooper testified that, shortly after noon on February 2, 2010,
she received a phone call from her son, Eric Stephens, asking her to pick him up from his friend's house at 8353 South Hermitage Avenue in Chicago. Hooper drove to the house and exited the car so that she could wipe snow off the back window. A few minutes later, Stephens and his cousin, Ronald Funches, came out of the house. Funches got in the backseat of the car. As Stephens was getting in the car, defendant approached him and said, " [C]heck it out." Stephens then went to talk with the defendant.
[¶7] Hooper testified that, while Stephens spoke with defendant, she continued wiping snow off the back window of the car. She heard them raise their voices and say something about walkie-talkies. Hooper testified that she never heard Stephens threaten defendant, she did not see him touch defendant, and she did not see him pull out a weapon.
[¶8] As Stephens started toward the car, Hooper heard Funches say, " Frankie, watch out." Hooper testified that she saw defendant pull a gun out of his pocket and shoot Stephens twice in the back. Stephens ran to the car and got in the front passenger's seat. Hooper testified that defendant then started shooting at her. Hooper jumped into the car and drove away as defendant continued firing. Hooper said that one of his shots went through the rear passenger's side window and struck Funches in the back.
[¶9] Funches testified that, around noon on February 2, 2010, Hooper arrived to pick him and Stephens up from 8353 South Hermitage. When Funches and Stephens left the house, defendant was outside. Funches had seen defendant two or three times before, but had never spoken with him. Funches testified that, prior to February 2, 2010, he had never been involved in any altercations or fights with defendant.
[¶10] Funches said that defendant approached Stephens as Stephens walked to Hooper's car. Funches got in the rear passenger's seat of the car and rolled down the window so that he could hear their conversation. He heard defendant ask Stephens whether Stephens was the one " that broke in one of their guy's house [ sic ]." Stephens said he was not and defendant asked, " Why you break in, why did you break in folks' crib, man?" Stephens replied that he did not have anything to do with the break-in. Funches testified that he did not see Stephens with a gun. He also did not see Stephens threaten defendant in any way or move toward him.
[¶11] After the conversation, Stephens turned toward Hooper's car. Funches testified that he saw defendant draw a .32-caliber revolver from his right jacket pocket and shoot Stephens in the back. Stephens fell into the front passenger's seat of the car. Defendant then aimed and fired toward the back of the car, where Funches was sitting. He shot out the back window and hit Funches in the back of his shoulder. He also aimed and fired at Hooper, who was still standing outside of the car. Hooper got in the car and drove away.
[¶12] The State's final occurrence witness, Lawrence Kennedy, testified that he resided at 8353 South Hermitage. On February 2, 2010, Stephens and Funches were at his house visiting his fiancee's nephew. Stephens and Funches left at around 1 p.m. About 10 seconds after they left, Kennedy walked to the front door, because he also planned to leave. Through the glass window of his front door, he saw Hooper's car. Hooper, Stephens, and defendant were standing nearby, and Funches was sitting in the car.
[¶13] Kennedy testified that he saw Stephens have a brief conversation with defendant and then attempt to enter the car.
While Stephens had his back turned, defendant pulled a gun out of his jacket pocket and fired at Stephens. Kennedy testified that defendant also fired at Hooper, who was still outside the car, and at Funches, who was in the backseat of the car. The car drove away, and Kennedy saw defendant flee on foot. In total, Kennedy heard defendant fire five or six shots. Kennedy said that he did not see Stephens physically attack defendant and did not see anyone pull a gun on defendant.
[¶14] Officer James Nichols of the Chicago police department testified that, at 1 p.m. on February 2, 2010, he responded to a call that a man had been shot. Nichols arrived at 7900 South Hermitage Avenue, where he saw Stephens in Hooper's car, unresponsive. Funches, who had also been shot, stood outside the car. Both Stephens and Funches were taken to the hospital, where Stephens was pronounced dead.
[¶15] Defendant took the stand in his own defense. He testified that, in January 2010, someone broke into his cousin's house. Various items were stolen, including some walkie-talkies. Defendant viewed security camera footage of the thief exiting the house and recognized the thief as Stephens.
[¶16] Defendant stated that, about a week after the burglary, Stephens and Funches attacked him as he left a store. Stephens asked defendant why defendant had accused him of burglarizing defendant's cousin's house. Defendant replied that he had seen Stephens on the surveillance footage. Stephens said, " You and your cousin going [ sic ] to get fucked up if you keep sayin' [ sic ] my name." Defendant testified that Stephens punched him in the face. Funches grabbed defendant from behind and slammed him to the ground, dislocating his shoulder.
[¶17] After the fight, defendant went home. He testified that he waited until the next morning to go to the hospital because he thought that Stephens and Funches might still be outside. When defendant returned from the hospital, two friends told him that Stephens and Funches had driven by earlier that day looking for him. His friends said that Stephens had a pistol in his lap. After hearing this, defendant borrowed a pistol from a friend for protection.
[¶18] Defendant testified that, on February 1, 2010, he was on the porch of the house at 8353 South Hermitage when Stephens and Funches pulled up in a car. Stephens lowered his window and said, " I know you ain't scared." Defendant, fearing that they would start shooting, went inside.
[¶19] The next day, February 2, 2010, defendant was on the sidewalk outside 8353 South Hermitage when he saw Stephens and Hooper get out of a nearby parked car. Defendant testified that Stephens walked toward him and said, " Y'all [ sic ] bitch ass, steady putting my name *** out there, putting my name and shit. What you all gonna [ sic ] do?" Stephens had his hands in his pockets but defendant could see the handle of a gun in Stephens' hand.
[¶20] Defendant testified that he drew his own gun and began firing because he was afraid that Stephens would shoot him. Because his arm was dislocated, he could not lift and aim the gun, so he was " shooting wild." Defendant asserted that he " wasn't aiming at [Stephens]" as he fired. Defendant testified, " I was trying to get him up off of me so I could, you know what I'm sayin' [ sic ], run away." As defendant fired, Stephens ducked, turned, and tried to run behind the car. Defendant continued firing while backing away. When defendant reached the corner, he ran. At
the time, defendant did not think he had shot anyone.
[¶21] Defendant testified that, as he fled, he saw his friend Cal in a car. Defendant jumped in Cal's car and Cal brought defendant to his house in De Kalb County. Defendant explained that he did not call the police after the incident because he was on parole and was not allowed to have a gun. He also did not think that the police would believe his account of events. Defendant asserted that he did not go to De Kalb County to evade the ...