FIRST DIVISION August 23, 2010
No. 1-08-1383
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) ) v. ) No. 05 CR 26029 ) LAVELLE BILLUPS, ) The Honorable ) John P. Kirby, Defendant-Appellant. ) Judge Presiding.
JUSTICE GARCIA delivered the opinion of the court.
The defendant-appellant, Lavelle Billups, testified before a
jury that he shot and killed Charles Thompson during a robbery
attempt by Thompson after he won the struggle over Thompson's
gun. The State presented evidence that the defendant shot and
killed Thompson with a gun the defendant had concealed on his
person. The jury rejected the claim of self-defense and found
the defendant guilty of first degree murder. The defendant
contends Judge John P. Kirby abused his discretion by refusing to
instruct the jury on second degree murder after instructing on self-defense. Alternatively, the defendant contends the State
failed to negate his claim of self-defense beyond a reasonable
doubt. We hold Judge Kirby acted within his discretion in not
instructing the jury on second degree murder because the
defendant's subjective belief was not at issue; no evidence
exists upon which the jury could have found the defendant
believed circumstances existed that would justify his intentional
or knowing killing of Thompson, but that his belief was
unreasonable. In so holding, we follow People v. Anderson, 266
Ill. App. 3d 947, 641 N.E.2d 591 (1994), and distance ourselves
from the unfortunate characterization in People v. Washington,
399 Ill. App. 3d 664, 680, 926 N.E.2d 899 (2010), that the
Anderson decision is an "aberration." As in Anderson, this case
involves only a claim of perfect self-defense: the evidence
permitted only a conclusion of guilty of first degree murder or
not guilty by reason of self-defense. Additionally, we find the
State overcame the defendant's claim of justified use of deadly
force beyond a reasonable doubt. Accordingly, we affirm.
BACKGROUND
This case arose from the killing of Charles Thompson in the
early morning of October 18, 2005. Thompson was shot three times
and died in an alley running parallel to West 115th Street,
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between Yale and Princeton Avenues, in Chicago. He was last seen
alive during the late hours of the previous night, in the company
of the defendant and the defendant's brother, Dante Billups.
At trial, Dante was the key prosecution witness. According
to Dante, on October 17, 2005, he was with his girlfriend, Taiara
Koroma, when he received a phone call from the defendant
instructing Dante to "pick him up." Dante dropped Taiara off at
her apartment and drove her Dodge Caravan to meet the defendant
at 65th Street and King Drive. Dante testified he and the
defendant were driving on 117th Street near State Street when
Thompson, whom he had never seen before, flagged down the van.
Thompson and the defendant knew each other. Thompson asked Dante
if he had any cocaine. Dante said no, but agreed to take
Thompson to a friend that sold cocaine.
According to Dante, as the three men drove toward Dante's
friend's house, they stopped at a store to purchase liquor.
Shortly thereafter, the police stopped the van at the corner of
119th Street and Calumet Avenue. Officer Verlisher Syas would
later testify that she was involved in the traffic stop, which
occurred at approximately 10:50 p.m. She and other officers
searched all three men and the van. When they discovered an open
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beer bottle in the back of the van, they wrote Thompson a ticket
for possession of an open alcohol container. Additionally, the
officers wrote Dante tickets for an expired license plate and
city sticker. Although the officers did not issue the defendant
any citations, they gave the defendant a contact card describing
the nature of the stop.
Dante testified that he grew nervous after the traffic stop
so he decided against taking Thompson to his friend's house.
Instead, Dante drove to his mother's house to drop off the liquor
he had purchased. Dante and the defendant went inside the house
for 15 minutes while Thompson walked the street. Thereafter, all
three reentered the van and Dante agreed to drive Thompson to
95th Street. As Dante drove, Thompson and the defendant said
they had to urinate. Dante drove the van into the alley parallel
to 115th Street, between Yale and Princeton Avenues. The
defendant and Thompson walked behind the van, where Dante could
not see or hear them.
Approximately 20 seconds later, Dante heard gunshots and
"thought somebody was shooting at us." Dante's immediate
reaction was to drive away out of the alley, but he stopped at
the corner when he realized his brother was still in the alley.
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When the defendant reached the stopped van, he entered through
the rear sliding door, and "just said 'drive.' " Dante asked the
defendant what happened but got no answer. Dante drove the van
to Taiara's apartment. Once inside, Dante again asked the
defendant what happened. According to Dante, the defendant
answered, "he think he shot him." Dante asked the defendant
where he obtained a gun; the defendant claimed "he had it the
whole time."
Officer Syas testified that shortly after midnight on the
morning of October 18, 2005, she responded to a call of a man
shot in an alley. The decedent was killed by multiple gunshots
and was discovered in the alley lying facedown with his pants
halfway down and his boxers still up. The officers on the scene
recovered four cartridge cases, two near the decedent and two
underneath the decedent's body. Officer Syas identified the
decedent as Thompson, the same man involved in the traffic stop a
little more than an hour earlier. Officer Syas informed the
other officers at the scene that Thompson had been riding in a
Dodge Caravan with the defendant and Dante. Police officers
proceeded to Taiara's apartment, where the vehicle was
registered. There, they found Dante and the defendant. The
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officers recovered a handgun from a pair of the defendant's pants
and arrested both men. Officers also searched the Dodge Caravan,
but recovered no evidence; no blood was present in the van and it
had no bullet holes.
Dr. Nancy Jones, the Cook County medical examiner, testified
she recovered three bullets from Thompson's body during the
autopsy. The first two entered the right upper chest and the
front of the left hip, but did not appear to have been fired from
"close range," within 18 to 24 inches of the body. The third
bullet entered the back of Thompson's head, and based on a
muzzle-impression around the wound and gunpowder inside the
wound, Dr. Jones determined that the barrel of the gun was
touching Thompson's skull when that bullet was fired. Dr. Jones
added that because the head wound was "immediately
incapacitating" while the other two wounds were not, the shot to
Thompson's head was fired last.
The defendant offered only his own testimony in his defense.
According to the defendant, on October 17, 2005, at approximately
7 p.m., Dante drove the Dodge Caravan to the corner of 79th
Street and Ingleside to pick up the defendant. At 79th Street
and King Drive, Thompson, whom the defendant had known for a few
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months, flagged them down and asked for a ride to 116th Street
and Wentworth. Dante agreed. Thompson entered the van and the
three men drove to a liquor store. Dante then drove to his and
Dante's mother's house so Thompson could buy some crack cocaine
that Dante stored there. Dante entered the house while the
defendant remained near the van and Thompson walked about.
Fifteen minutes later, Dante emerged from the house. All
three men got in the van, and Dante drove into an alley about a
block away. Dante stopped the van in the alley and handed the
drugs to Thompson, who was seated in the front passenger seat.
The defendant, who was seated directly behind Thompson, opened
the sliding door, anticipating that Thompson would leave the van
after purchasing the drugs and the defendant would then move to
the front passenger seat.
According to the defendant, Thompson suddenly pointed a gun
at Dante and demanded the drugs and his money. On direct
examination, the defendant testified that Thompson got out of the
van and reentered the van through the open sliding door. This
forced the defendant to move to the seat directly behind the
driver's seat. With the gun in his right hand, Thompson patted
down the defendant with his left hand, removing $2 from him. At
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this point, the defendant began to wrestle with Thompson, during
which he managed to take the gun from Thompson. Thompson then
grabbed the hood of the defendant's sweatshirt, pulling it over
his head while forcing the defendant to his knees inside the van
with the defendant's face toward the floor. The defendant
testified he fired the gun in the direction of Thompson without
looking, although he was not sure how many times. The defendant
felt Thompson loosen his grip on the hood, which allowed the
defendant to look up and see Thompson fall to one knee just
outside the van. The defendant testified he then shot Thompson
once more on the top of his head. Dante then exited the driver's
seat and walked around the van to pat down Thompson for his drugs
and money. Dante got back into the driver's seat, the defendant
got into the passenger seat, and the two drove to Taiara's
apartment. Although the defendant and Dante discussed turning
themselves in, they did not because they knew the police would
locate them based on the recent traffic stop.
On cross-examination, the defendant admitted that following
his arrest, during his first interview at the police station, he
denied knowing anyone by the name of "Charlie." At trial, he
explained his denial: "I know Charles. I don't know Charlie."
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He also claimed to the interviewing officers that he and Dante
were alone in the van during the traffic stop. When asked during
the interview about the gun, the defendant answered, "What gun?"
The defendant acknowledged that the first time he claimed that a
shooting occurred during a drug deal between Dante and Thompson
was during his testimony at trial. At trial was also the first
time he said Dante got out of the van while it was parked in the
alley. The defendant admitted he never told the interviewing
officers that Thompson had pulled a gun on him. On cross-
examination, the defendant asserted that Thompson never reentered
the van after vacating the front passenger seat. Instead,
Thompson only leaned into the van from outside the sliding door
to pat down the defendant and take his $2. During his entire
testimony, the defendant maintained that he did not shoot
Thompson in the back of the head.
After the State's rebuttal case of three witnesses, both
sides rested. Judge Kirby then conducted a conference on jury
instructions. The defendant requested instructions on self-
defense and second degree murder. The State agreed to a self-
defense instruction, but objected to instructing the jury on
second degree murder. The defendant argued that under People v.
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Lockett, 82 Ill. 2d 546, 413 N.E.2d 378 (1980), the jury must be
given a second degree murder instruction whenever it is
instructed on self-defense. The State argued that the trial
evidence did not give rise to an unreasonable belief in the use
of deadly force and thus no second degree murder instruction was
required pursuant to Anderson. Judge Kirby agreed:
"[T]he proposition of law that was
initiated by the Supreme Court in 1980 in
Lockett was addressed here in Anderson. I
will apply the ruling of Anderson based on
the facts that was [sic] presented, based on
the defendant's testimony, based on the
doctor's testimony, and based on Dante's
testimony. The request for [a second-degree-
murder] instruction will be denied."
The jury found the defendant guilty of first degree murder.
Judge Kirby sentenced the defendant to life imprisonment. The
defendant timely appeals.
ANALYSIS
We first address the underlying issue of whether the holding
in People v. Anderson, 266 Ill. App. 3d 947, 951, 641 N.E.2d 591
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(1994), that the rule in People v. Lockett, 82 Ill. 2d 546, 413
N.E.2d 378 (1980), does not apply when the "subjective belief" of
the defendant is not at issue before the jury precluding an
instruction on second degree murder even though the jury is
instructed on self-defense, is an accurate statement of law. In
reversing, the Washington court adopted the defendant's argument
"that where sufficient evidence is present to support an
instruction for self-defense, a second degree murder instruction
is a mandatory counterpart." (Emphasis added.) Washington, 399
Ill. App. 3d at 676.
Subjective Belief
In Lockett, the supreme court noted the shared element of
"subjective belief" in the affirmative defense of self-defense
and in the offense of voluntary manslaughter, now known as second
degree murder. See People v. Jeffries, 164 Ill. 2d 104, 111, 646
N.E.2d 587 (1995) (effective July 1, 1987, the legislature
"abolished the offense of voluntary manslaughter, and substituted
for it the offense of second degree murder"); 720 ILCS 5/9-2(b)
(West 2006). The Lockett court illustrated the role of
subjective belief in self-defense, voluntary manslaughter, and
murder in its discussion of the three possible outcomes when a
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jury is called to assess a defendant's subjective belief.
"First, it could decide that the defendant
did not have a subjective belief that use of
force was necessary. In that case, the
verdict should be murder. Second, it could
determine that the defendant had the
subjective belief that use of force was
necessary and that subjective belief was
reasonable. In that event, the defendant's
use of force was justified and the verdict
should be not guilty. Third, a jury could
conclude that the defendant subjectively
believed that use of force was necessary, but
that this subjective belief was unreasonable
under the circumstances. This third
alternative is the precise situation in which
a verdict of voluntary manslaughter should be
reasoned under section 9-2(b)." (Emphasis
added.) Lockett, 82 Ill. 2d at 551-52.
While self-defense includes the element of subjective belief
that "a danger existed that required the use of the force
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applied," the essential showing to successfully claim self-
defense is that "the beliefs of the person threatened were
objectively reasonable." (Emphasis added.) People v. Lee, 213
Ill. 2d 218, 225, 821 N.E.2d 307 (2004). In other words, for a
verdict of not guilty by reason of self-defense, the element that
the defendant "subjectively believed a danger existed" is
equivalent to the element that "his beliefs were objectively
reasonable." Jeffries, 164 Ill. 2d at 128. Stated differently,
in the case of a successful self-defense claim under the second
alternative discussed in Lockett where "the verdict should be not
guilty," the beliefs subjectively held by the defendant and the
defendant's beliefs the jury should conclude are objectively
reasonable in finding self-defense must be one and the same.
Lockett, 82 Ill. 2d at 551 ("defendant had the subjective belief
that use of force was necessary and that subjective belief was
reasonable" (emphasis added)).
It is this distinction between a reasonable, subjective
belief to support a claim of self-defense and the unreasonable,
subjective belief involved in the offense of voluntary
manslaughter that the Lockett court acknowledged:
"The State correctly draws a distinction
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between a reasonable, mistaken belief under
section 7-1 (e.g., a reasonable belief that
the victim was coming at him with a gun when
the victim, in fact, had no gun) and an
unreasonable belief under section 9-2(b)
(e.g., a belief that the victim was coming at
him with a gun and that belief was
unreasonable). Lockett, 82 Ill. 2d at 550.
Based on a subjective belief that is unreasonable, the
voluntary manslaughter form at issue in Lockett (now second
degree murder) is often "referred to as imperfect self-defense."
Jeffries, 164 Ill. 2d at 113. The "imperfect" nature of the
self-defense claim for second degree murder is the
unreasonableness of the defendant's subjective belief that force
was justified. Jeffries, 164 Ill. 2d at 113 ("the defendant
believed he was acting in self-defense, but that belief is
objectively unreasonable").
The Lockett court made clear that a jury must be instructed
on second degree murder when the evidence places at issue before
the jury the subjective belief of the defendant. "Therefore, a
self-defense and a voluntary manslaughter instruction should be
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given when any evidence is presented showing the defendant's
subjective belief that use of force was necessary." (Emphasis
added.) Lockett, 82 Ill. 2d at 552.
In Anderson, Justice J. Gordon, writing for the fifth
division, determined that the rule in Lockett did not apply: "We
believe the holding in Lockett is inapplicable to the facts in
the instant case. In Lockett, the defendant's subjective belief
clearly was in question, and the jury had to decide whether the
defendant could reasonably believe the concealed object the
victim picked up before the defendant shot him was a gun, when it
was actually an empty whiskey bottle." Anderson, 266 Ill. App.
3d at 951.
It is no coincidence that the salient facts in this case
mirror the salient facts in Anderson. In his testimony,
defendant Anderson put the gun in the hands of the decedent.
"[T]he defendant's testimony was that Sutton [the victim] pointed
a gun at the defendant, that a struggle ensued, and that the gun
went off, fatally injuring Sutton." Anderson, 266 Ill. App. 3d
at 951. The prosecution witnesses testified, however, that the
defendant had the gun all along, walked over to the decedent and
shot him. Anderson, 266 Ill. App. 3d at 951. Based on the
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diametrically opposed versions of the salient facts, Justice J.
Gordon determined that "the defendant's subjective belief was not
in question." Anderson, 266 Ill. App. 3d at 951. "If the jury
disbelieved the defendant's testimony and believed the testimony
of the other witnesses, then there was no physical altercation
between Sutton and the defendant and, instead, the defendant was
the aggressor; had possession of the gun; walked over to Sutton;
and shot him." Anderson, 266 Ill. App. 3d at 951.
In the case before us, the defendant claimed that Thompson
had the gun, that Thompson attempted to rob the defendant and
Dante, and that the defendant acted in self-defense in killing
Thompson. That is, the shooting occurred while Thompson was
engaged in an armed robbery, which justified the defendant's
conduct "to prevent *** the commission of a forcible felony."
720 ILCS 5/7-1(a) (West 2006). The prosecution, on the other
hand, presented evidence that the defendant shot and killed
Thompson within 20 seconds after the two exited the van in an
alley to urinate. While Dante did not see the actual shooting,
he testified that the defendant admitted to having the gun used
in the shooting "the whole time," an apparent reference to the
failure of the Chicago police to discover the gun when they
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searched the defendant following the traffic stop.
The defense proposition, before the jury here and before the
Anderson jury, might best be described as a claim of perfect
self-defense. In the instant case, it is a claim of perfect
self-defense because if the jury believes the circumstances
existed as testified to by the defendant--that Thompson used his
own gun in an attempt to rob the defendant and Dante and, that in
the course of defending himself against a forcible felony, the
defendant killed Thompson--the verdict must be not guilty by
reason of self-defense. A similar claim of perfect self-defense
was presented in Anderson. "If the jury believed [the factual
scenario alleged by the defendant occurred], and that Sutton
instigated the altercation and threatened the defendant by
pointing a gun at him, then the jury could conclude that the
defendant could reasonably believe that the use of deadly force
was necessary to prevent imminent death or great bodily harm to
himself [citation]." Anderson, 266 Ill. App. 3d at 951.
The claim is one of perfect self-defense because, in effect,
each defendant implies that had the incident been videotaped, the
videotape would reveal the circumstances to be as each testified.
The same objective facts would be seen on the videotape. There
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is no overlap between the prosecution's version of the salient
facts and the defendant's. Each claim of self-defense was an
all-or-nothing proposition, prevail or be found guilty of first
degree murder.
By the same token, there was no issue regarding the
subjective belief of each defendant before the jury because each
defendant's claim was that the "facts" were such that the conduct
of each was objectively reasonable. In other words, the choice
for each jury was to find either objectively reasonable beliefs
on the part of each defendant or that each defendant "did not
have a subjective belief that use of force was necessary" and was
therefore guilty of first degree murder. Lockett, 82 Ill. 2d at
551. When a jury must choose between two irreconcilable versions
of the salient facts, such as in this case and in Anderson, the
third Lockett alternative that "a jury could conclude that the
defendant subjectively believed that the use of force was
necessary, but that this subjective belief was unreasonable under
the circumstances," is not possible. (Emphasis added.) Lockett,
82 Ill. 2d at 552. Stated in stark terms, the subjective belief
of each defendant was not at issue because, in order to reject
the claim of self-defense, the jury had to determine that each
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defendant's testimony placing the gun in the hands of the
decedent was a fabrication.
When a claim of perfect self-defense is made, the
dispositive question is not whether the use of force by the
defendant is reasonable or unreasonable under the circumstances
but, rather, which set of opposing circumstances presented by the
parties existed at the time of the incident based upon all of the
evidence: the one urged by the defendant that the decedent was
the aggressor or true criminal or the one urged by the
prosecution that the defendant killed the decedent in a senseless
act. The circumstances existed as the defendant testified or
they did not. The jury could conclude only one of two things:
either the circumstances were as the defendant testified, which
means his claim of self-defense is perfect, or the circumstances
were as the prosecution witnesses testified, which means the
defendant is guilty of first degree murder.
Though a case of perfect self-defense based on diametrically
opposed salient facts is uncommon, we understand the supreme
court to have acknowledged that such a case might arise. "The
State does not contend that the facts of this case would permit
only a conclusion of murder or not guilty by reason of self-
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defense." People v. Joyner, 50 Ill. 2d 302, 306, 278 N.E.2d 756
(1972). The trial judge below ruled that the diametrically
opposed salient facts presented by the prosecution and the
defendant's self-defense claim, which boiled down to who brought
the gun to the confrontation, permitted "only a conclusion of
murder or not guilty by reason of self-defense." Joyner, 52 Ill.
2d at 306. During the trial, the prosecution argued as much to
the jury: "As a matter of fact, ladies and gentlemen, in order to
find him not guilty, you have to believe [the defendant's]
story."
Based on the decision in Anderson, the trial judge properly
ruled that the polar-opposite facts allowed for only one of two
verdicts: if the defendant were believed, he must be found not
guilty by reason of self-defense; if the prosecution witnesses
were believed, the defendant was guilty of first degree murder.
As in Anderson, the defendant's subjective belief was not at
issue. In a case where a claim of perfect self-defense is made,
there is no room in the evidence for a finding of second degree
murder by the jury.
Exercise of Discretion
The Illinois Supreme Court in Lockett also reminded us that
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it is the record evidence that should drive the decision to
instruct the jury on second degree murder.
"It is the settled rule in murder cases that
if there is evidence in the record which, if
believed by a jury, would reduce the crime to
manslaughter, an instruction defining
manslaughter should be given. [Citations.]
It is equally well settled, however,
that such an instruction should not be given
if the evidence clearly demonstrates that the
crime was murder and there is no evidence
upon which a jury might find the defendant
guilty of manslaughter." (Emphasis added.)
Lockett, 82 Ill. 2d at 550-51.
We do not read Lockett to have changed well-settled law that
the exercise of sound discretion on the instructions to tender to
a jury turns on the trial judge's assessment of the evidence in
the record. The "clear guidelines" from the Illinois Supreme
Court direct a trial court to determine whether "some evidence"
exists that, if believed by the jury, would reduce a crime from
first degree murder to second degree murder. People v. Austin,
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133 Ill. 2d 118, 124, 549 N.E.2d 331 (1989). If some evidence
exists in the record, "a defendant's request for a [second degree
murder] instruction must be granted." (Emphasis added.) Austin,
133 Ill. 2d at 124-25. To be clear, a trial court abuses its
discretion when it makes an error of law by not instructing on
second degree murder. Washington, 399 Ill. App. 3d at 680. See
also Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d 392,
414, 116 S. Ct. 2035, 2047 (1996) (where the Supreme Court
explained that "[l]ittle turns *** on whether we label review of
this particular question abuse of discretion or de novo, for an
abuse-of-discretion standard does not mean a mistake of law is
beyond appellate correction").
Lockett did not establish, however, that a second degree
murder instruction is, by rote application, a "mandatory
counterpart" to a self-defense instruction.1 Washington, 399
1 The need to assess the evidence separately in deciding
whether to instruct on second degree murder when instructing on
self-defense has been previously noted. "I do not believe that a
finding that there are facts sufficient to require the giving of
an instruction on justifiable use of force, ipso facto, requires
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Ill. App. 3d at 676. We agree with Anderson. "We do not believe
that Lockett is so encompassing." Anderson, 266 Ill. App. 3d at
950.
In the case at bar, the jury instruction conference was held
after both sides had rested, which meant the trial judge had a
full understanding of the opposing theories put forth by the
parties. As demonstrated above, the parties presented
diametrically opposed explanations for the origin of the gun used
in the shooting, which removed the defendant's subjective belief
as an issue before the jury.
We agree with the Anderson court's determination that the
Lockett rule does not apply to cases where the defendant's
subjective belief is not at issue. Anderson, 266 Ill. App. 3d at
the giving of an instruction on voluntary manslaughter--the so-
called third alternative. *** I think there are two questions
of law involved, that is, are there sufficient facts to support
one (self-defense) and are there, again, sufficient facts, to
support the other (manslaughter)?" People v. Johnson, 1 Ill.
App. 3d 433, 435-36, 274 N.E.2d 168 (1971) (Smith, P.J.,
dissenting).
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951. It follows that in such cases, the trial court does not
abuse its discretion in failing to instruct on second degree
murder. It remains within the sound discretion of the trial
judge to assess the evidence and determine whether a second
degree murder instruction is warranted. Austin, 133 Ill. 2d at
124; Anderson, 266 Ill. App. 3d at 950-51.
To support his contention that the trial judge abused his
discretion in failing to instruct on second degree murder, the
defendant offers a single assertion in his main brief: "a jury
could have concluded that the third shot, which ultimately killed
Thompson, was unreasonable given the effect of the first two."
The defendant cites no authority for his implied contention that
the jury is free to parse one of three shots as being
unreasonable. Nor does the defendant argue that each of the
three shots constituted " 'separate and distinct acts' ***
capable of independently sustaining a complete criminal
conviction" as the supreme court discussed in People v. Crespo,
203 Ill. 2d 335, 340, 788 N.E.2d 1117 (2001). Accordingly, the
defendant's argument based on the claimed unreasonableness of the
third shot is forfeited. See 210 Ill. 2d R. 341(h)(7).
On its merits, the defendant's assertion is unpersuasive. A
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similar contention by the State to parse the acts of a defendant
into separate offenses was rejected by the Illinois Supreme Court
in Crespo. Unless the charging instrument evinces otherwise, the
State is barred from treating "the conduct of defendant as
multiple acts in order [to obtain] *** multiple convictions."
Crespo, 203 Ill. 2d at 345. We are unpersuaded that a different
rule should apply when it is the defendant that seeks to
apportion his beliefs among the various shots he fired at
Thompson.
The real question before us is whether "some evidence"
exists in the record to support a second degree murder
instruction. Austin, 133 Ill. 2d at 124-25. According to the
defendant, all three wounding shots were fired when he gained the
upper hand during the armed robbery attempt by Thompson. In
order to find the defendant guilty of second degree murder, the
jury would have to first find the State proved each proposition
for first degree murder beyond a reasonable doubt, including
"that the defendant was not justified in using the force which he
used." Illinois Pattern Jury Instructions (IPI), Criminal, No.
7.06 (2006). The burden would then fall on the defendant to
prove "by a preponderance of the evidence that [the] mitigating
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factor [of unreasonable belief] is present" to reduce the offense
to second degree murder. IPI, Criminal, No. 7.06 (2006). We
note, the State did not charge the defendant with first degree
murder based solely on the third and fatal shot. The defendant
fails to inform us of any facts in the record to support his
claim that the jury could find he was justified in shooting
Thompson twice, but he had the unreasonable subjective belief
that shooting Thompson for a third time was necessary. See
People v. Sample, 326 Ill. App. 3d 914, 928, 761 N.E.2d 1199
(2001) ("To parse the crimes out into bounded acts would
contradict the reality that these crimes were intertwined both
temporally and functionally"). It is telling that no "state of
mind" testimony to support such a claim was ever elicited from
the defendant. Cf. People v. Keefe, 209 Ill. App. 3d 744, 751,
567 N.E.2d 1052 (1991) (when the defendant's state of mind is
material to the issue of self-defense, he should be allowed to
testify "that he feared for his life or that he was in danger of
great bodily harm"). We find no basis to support the defendant's
claim that the jury should have been instructed on second degree
murder based on the third shot.
That rules apply equally to the prosecution and defense
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means that the exception to the Lockett rule first announced in
Anderson, that we apply here, may yet benefit a defendant under
different circumstances. When the prosecution and defense
present diametrically opposed circumstances of a shooting, with
credible evidence presented on behalf of the defendant, the
parties may well change sides on this issue. A case may arise
where the State requests the jury be instructed on second degree
murder, with the defendant objecting to the tender of such an
instruction. Such a defendant may object to a second degree
murder instruction because he or she wants the jury to choose
between the State's witnesses and the credible defense witnesses,
thereby avoiding the possibility of a compromise verdict. See
People v. Dixon, 58 Ill. App. 3d 557, 560, 374 N.E.2d 900 (1978)
(defendant claimed error when the jury was instructed on
voluntary manslaughter over his objection because "giving such
instructions relieved the jurors of the need to make this
decision by presenting them with an easier compromise verdict").
Under the holding in Anderson and the instant case, such a
maneuver by the prosecution when faced with a claim of perfect
self-defense should be rejected.
Based on the evidence presented, the trial judge here did
27 1-08-1383
not abuse his discretion in refusing to instruct the jury on
second degree murder. The jury could conclude only one of two
things: either the circumstances were as the defendant testified,
which means the defendant was not guilty by reason of self-
defense, or the circumstances were as the prosecution witnesses
testified, which means the defendant was guilty of first degree
murder. Anderson, 266 Ill. App. 3d at 951.
Self-Defense Claim
Having set out the diametrically opposed evidence presented
by the defendant and the prosecution in addressing the earlier
issues, we say little to reject the defendant's final contention
that the prosecution failed to overcome beyond a reasonable doubt
his claim of self-defense. It was for the jury to decide which
of the two opposing sets of circumstances it found credible. See
People v. Feyrer, 269 Ill. App. 3d 734, 743, 646 N.E.2d 1244
(1994) ("the jury was not required to accept defendant's
testimony and version of events as true").
CONCLUSION
The evidence below presented irreconcilable accounts of the
shooting death of Charles Thompson. Based on the State's
evidence, the defendant used his own gun to shoot and kill
28 1-08-1383
Thompson. In the defendant's account, it was Thompson who, while
armed with a gun, attempted to rob the defendant and his brother.
After wrestling the gun away from Thompson, the defendant shot
and killed Thompson. Although the facts before the jury
warranted a self-defense instruction based on the defendant's
version of the events, there is no evidence to support a middle
ground between guilty of murder and not guilty by reason of self-
defense. Judge Kirby did not err in not instructing on second
degree murder because no evidence existed that could reduce first
degree murder to second degree. Because no rational trier of
fact could find the defendant guilty of second degree murder, we
find no basis to grant the defendant a new trial.
Affirmed.
HALL, P.J., and PATTI, J., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT _________________________________________________________________
PEOPLE OF THE STATE OF ILLINOIS Plaintiff-Appellee,
v.
LAVELLE BILLUPS, Defendant-Appellant. ________________________________________________________________
Appellate Court of Illinois First District, First Division
Filed: August 23, 2010 _________________________________________________________________
HALL, P.J., and PATTI, J., concur. _________________________________________________________________
Appeal from the Circuit Court of Cook County Honorable John Kirby, Judge Presiding _________________________________________________________________
For PLAINTIFF- Anita Alvarez APPELLEE State's Attorney, County of Cook
Alan J. Spellberg Douglas P. Harvath Miles J. Keleher Assistant State's Attorneys, Of Counsel Richard J. Daley Center, Room 309 Chicago, IL 60602
For DEFENDANT- Paul E. Wojciciki APPELLANT Jason A. Higginbotham Segal McCambridge Singer & Mahoney, Ltd.
30 1-08-1383
Willis Tower 5500 233 South Wacker Drive Chicago, Illinois 60606