People v. Colunga - Corrected

2020 IL App (1st) 171874-U

• Court: Appellate Court of Illinois
• Decided: September 30, 2020
• Docket: 1-17-1874
• Status: Unpublished

Opinion

2020 IL App (1st) 171874-U No. 1-17-1874 Order filed September 30, 2020 Third Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 11 CR 7415 ) OSVALDO COLUNGA, ) ) Honorable Defendant-Appellant. ) Gregory Robert Ginex, ) Judge presiding.

JUSTICE BURKE delivered the judgment of the court. Presiding Justice Howse and Justice Ellis concurred in the judgment.

ORDER

¶1 Held: We affirm defendant’s convictions where there was sufficient evidence to support his attempted murder conviction, the trial court did not abuse its discretion in limiting evidence of the victim’s violent character, the State did not improperly question or comment on defendant’s post-arrest silence, defendant was not entitled to an instruction on imperfect self-defense, and the trial court did not abuse its discretion in sentencing defendant. However, we remand on the issue of presentence custody credit. No. 1-17-1874

¶2 Following a jury trial, defendant Osvaldo Colunga was found guilty of attempted murder,

aggravated battery with a firearm, and unlawful use of a weapon by a felon. After the trial court

merged his conviction for aggravated battery with a firearm into his conviction for attempted

murder, the court sentenced him to 35 years’ imprisonment for attempted murder and 4 years’

imprisonment for unlawful use of a weapon by a felon, to be served concurrently. On appeal,

defendant contends that: (1) there was insufficient evidence to support his attempted murder

conviction; (2) the trial court unconstitutionally infringed on his ability to present a defense in

limiting his evidence of the victim’s violent character; (3) the State violated his right to remain

silent following arrest in highlighting and commenting on his failure to assert his claim of self-

defense to police; (4) the State’s closing arguments denied defendant a fair trial by misstating the

law, exploiting defendant’s post-arrest silence, criticizing defendant’s exercise of his right to a

trial, and mischaracterizing his theory of self-defense; (5) his counsel provided deficient

representation in failing to request an instruction on imperfect self-defense; (6) his sentence should

be reduced due to insufficient evidence that the victim suffered permanent disfigurement and the

trial court failed to consider mitigating factors; (7) his mittimus should be amended to reflect the

correct number of days of presentence custody credit. For the reasons that follow, we affirm his

convictions but remand to the circuit court to allow defendant to pursue his issue regarding

presentence custody credit.

¶3 I. BACKGROUND

¶4 In case number 11 CR 7415, a grand jury indicted defendant with multiple counts of

attempted murder, aggravated battery with a firearm, and aggravated discharge of a firearm, all in

connection with the shooting of Alfonso Delatorre on April 15, 2011. Defendant was also charged

in case number 11 CR 7416 with multiple counts of unlawful use of a weapon by a felon. His two

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cases were joined prior to trial, and the State proceeded to trial against him in case number 11 CR

7415 on only Counts 6 and 7. Count 6 alleged that defendant committed attempted murder in that

he, without lawful justification and with the intent to kill, shot Alfonso while armed with a firearm,

and, during the commission of the offense, defendant personally discharged a firearm that

proximately caused permanent disfigurement to Alfonso. 1 Count 7 alleged that defendant

committed aggravated battery with a firearm in that he, while committing a battery, knowingly or

intentionally caused any injury to Alfonso by means of discharging a firearm. In case number 11

CR 7416, the State proceeded to trial against defendant on only Count 1, but that count is not

relevant to this appeal.

¶5 In defendant’s answer to discovery, he asserted that he might raise self-defense at trial.

Pursuant to this defense, defendant filed a motion to introduce evidence of prior bad acts

committed by Alfonso pursuant to People v. Lynch, 104 Ill. 2d 194 (1984); in particular, evidence

that Alfonso shot him in the stomach on June 1, 2010. To support his motion, defendant attached

a police report from June 1, 2010, written by Officer Genaro Manzo of the Melrose Park Police

Department. In the report, Officer Manzo stated that he spoke with Uriel Garcia, who recounted

that he and defendant were sitting in front of his house when a Ford Bronco drove up, its occupants

yelled something and then one passenger began shooting, which resulted in defendant and Garcia

being shot. Garcia stated that the shooter was known as “Fonzie,” who he “believed” to be Alfonso.

Behind the Ford Bronco, according to Garcia, was a Cadillac, which was occupied by Anthony

Delatorre, Alfonso’s brother, and Paolo Gennell. Officer Manzo noted in his report that he was

1 Because Alfonso’s brother, Anthony Delatorre, is also involved in this case, we will refer to each by their first name.

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unable to interview defendant, who was unresponsive upon reaching the hospital. The court

provisionally granted defendant’s motion, but noted that it would revisit the issue during trial.

¶6 A. The State’s Case

¶7 The evidence in the State’s case showed that Alfonso and Anthony knew defendant and

pinpointed defendant as a member of the Latin Kings street gang. Both Alfonso and Anthony

denied being members of the gang themselves; however, they acknowledged making statements

to the police that they were members of the Latin Kings and used to “gang bang” with defendant.

During trial, Alfonso also acknowledged that, in June 2010, the police investigated him as a suspect

in the shooting of defendant, but Alfonso denied shooting him and he was never charged with the

crime.

¶8 Anthony testified that on the afternoon of April 15, 2011, he drove his white Buick to a

house in Melrose Park to pick up Alfonso. Anthony’s girlfriend, Arianna Nardella, was sitting in

the front seat, their three-year-old son was in a car seat in the middle of the rear row, and Anthony

and Alfonso’s four-year-old godson was sitting in a car seat behind Nardella. Alfonso entered the

vehicle and sat behind Anthony. They drove to a gas station, and Anthony went inside for about

three minutes to get something to drink while everyone else stayed in the car. Once Anthony

returned, he drove toward a house of Alfonso’s friend located on the 1300 block of 19th Avenue

in Melrose Park. After arriving, Anthony pulled over and parked in a parking space on the side of

the street.

¶9 After they had been sitting there for only a few seconds, Alfonso heard a loud pop, felt a

burning sensation in his left forearm and then saw he was bleeding. He testified that he felt a

searing pain and observed a bullet hole in his arm. Alfonso identified photographs of the bullet

hole in his arm that were admitted into evidence at trial. Alfonso testified that after the gunshot,

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he looked at the children to make sure they were not hurt, then looked out the car window and

observed defendant with a firearm in his hand hanging out of a vehicle.

¶ 10 Anthony also heard a loud pop, and when he looked out his window, he observed

defendant, holding a firearm outside of a car window. Nardella likewise heard a loud pop, looked

out the driver’s side window and observed defendant halfway out of the window holding a gun in

his hand. At trial, Alfonso, Anthony and Nardella denied that anyone in their vehicle had a gun.

¶ 11 After defendant’s vehicle left the scene, Anthony drove to a nearby 7-Eleven where he

observed Melrose Park Police Officer Vito Migliore, who called paramedics. Officer Migliore saw

that Alfonso was bleeding from a hole in his left forearm. Officer Mark Loochtan, an evidence

technician who responded to the scene, testified that a bullet fragment was lodged inside Alfonso’s

jacket, and was able to extract the fragment. The paramedics arrived soon thereafter and

transported Alfonso to the hospital. Meanwhile, Officer Loochtan relocated to the 1300 block of

19th Avenue, where he observed a shell casing on the street and collected it.

¶ 12 At the hospital, Melrose Park Police Detective Sam Chiappetta talked to Alfonso about the

shooting. Detective Chiappetta knew Alfonso was a member of the Latin Kings street gang and

had multiple interactions with him previously. Alfonso informed Detective Chiappetta that

“BoBo” had shot him. Detective Chiappetta knew BoBo was defendant, and with this information,

Detective Chiappetta conducted surveillance on defendant’s residence. Detective Chiappetta

eventually observed defendant enter the front passenger seat of a vehicle with two other people

and drive away from his house. Detective Chiappetta pulled the vehicle over. As Detective

Chiappetta approached the vehicle, he observed defendant make a furtive movement toward the

glove box and slam it shut. Detective Chiappetta and his partner drew their weapons, ordered

everyone out of the vehicle and defendant was placed into custody. When Detective Chiappetta

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searched the vehicle, he found a semi-automatic handgun in the glove box with one live round in

the chamber and six rounds in a magazine.

¶ 13 Alfonso was treated and released from the hospital shortly after being admitted. Later that

night, police officers came to Nardella’s residence and had her view a photo array, where she

identified defendant as the shooter. The following day, Nardella, Anthony and Alfonso went to the

police station. Each separately viewed a lineup, and each identified defendant as the shooter. Both

Anthony and Alfonso told Melrose Park Police Detective Jeff Juan that they knew defendant

because all three of them were Latin Kings.

¶ 14 At the conclusion of its case, the State entered into evidence a certified copy of conviction

showing that defendant had previously been convicted of aggravated robbery.

¶ 15 B. The Defense’s Case

¶ 16 In the defense’s case, defendant and his brother, Manuel Colunga, testified. Defendant

testified that he had been a member of the Latin Kings since he was about 15 years old. In the

spring of 2008, when defendant was 19 years old, he had a child and tried to leave the gang because

of the child, but the gang would not let him leave. By the spring of 2010, defendant had been

admitted into a community college, and he no longer had time to “hang around with the Latin

Kings.” The Latin Kings made him choose either college or the gang, but told him that “they were

going to kill [him] if [he] picked college.” Defendant testified that in spite of this threat, he chose

not to associate with the gang any longer.

¶ 17 According to defendant, on June 1, 2010, defendant was hanging out with friends on Uriel

Garcia’s porch. While there, two vehicles full of Latin Kings from defendant’s neighborhood,

including Anthony and Alfonso, drove up to Garcia’s house. Anthony screamed at defendant and

told him to come to the car, but because defendant saw Alfonso with a firearm, he stayed on

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Garcia’s porch. Anthony and Alfonso began asking defendant questions, but because he was

scared, he did not respond. Suddenly, Alfonso began shooting his firearm. One of the bullets hit

defendant in his stomach. Defendant was hospitalized for over a month. Afterward, defendant

bought a firearm with a hair-pinned trigger from a friend for $200 to use as protection from the

Latin Kings. Though defendant did not have a Firearm Owner’s Identification Card nor a

concealed carry license, he carried the weapon with him most of the time because he lived in Latin

King territory. He acknowledged that guns can cause injuries and kill people. Additionally, the

parties stipulated that, if Manzo were called to testify, he would have stated that, on June 1, 2010,

he investigated a shooting and observed that defendant had been shot in the abdomen. 2

¶ 18 On the late afternoon of April 15, 2011, Manuel picked up defendant from his girlfriend’s

house in Franklin Park. Another brother of defendant’s, Alexander, also went with Manuel.

Defendant sat in the back passenger seat and Alexander sat in front of him. On the way back to

their house in Melrose Park, another brother called and asked if Manuel could pick up something

to drink, so Manuel drove to a gas station in Melrose Park. Alexander got out of the car and went

into the gas station’s convenience store.

2 When the trial court revisited defendant’s Lynch motion during trial, the court allowed defendant to testify about the June 1, 2010, incident. After defendant testified, defense counsel requested that Officer Manzo be allowed to testify about the incident, i.e., that he observed that defendant had been shot on June 1, 2010, that defendant had obvious injuries to his abdomen from the gunshots, and that Uriel Garcia identified the shooter as Alfonso. The court ruled that it would allow Manzo’s testimony that he observed that defendant had been shot and he observed the injuries, but he could not testify about the identification of the shooter. The trial court indicated that the problem was that defendant never identified the shooter, someone else did, and the proposed evidence was raising “a lot of collateral issues.” The trial court found that testimony that someone else identified Alfonso as the shooter was “beyond what we need to do” and irrelevant. Defense counsel and the State then reached a stipulation regarding Manzo’s testimony. Defense counsel also requested that he be allowed to call Garcia, who would testify that he was present when defendant was shot and Alfonso was the shooter, but the trial court denied this request for the same reason.

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¶ 19 While Manuel and defendant were sitting in the vehicle, defendant observed two vehicles

with members of the Latin Kings inside. In one of vehicles, there were two Latin Kings and one

individual defendant did not know. In the second vehicle, a white Buick, defendant noticed

Anthony and Alfonso. Seeing them concerned defendant because of what had occurred in June

2010. Defendant alerted Manuel to the situation and told Manuel to leave immediately, even

without Alexander. Manuel testified that defendant pointed out a group of people at the gas station

and stated that those were people he “has problems with” and told Manuel to “get out as fast as I

can.” But Manuel did not want to leave Alexander, who soon returned to the car.

¶ 20 Manuel then drove away from the gas station. Manuel evaded one car, a silver Isuzu

Trooper, but he ended up behind the other car, the white Buick with Alfonso and Anthony inside.

Manuel and defendant testified that they were stuck in slow-moving rush hour traffic and it was

also raining. Defendant raised his head a bit and told Manuel that they were right behind the vehicle

he wanted to get away from. Defendant testified that he pulled his gun out and held it on his lap

when he observed they were right behind the Buick because he “was terrified.” The Buick then

pulled over into the parking lane. Defendant testified that he was “ready” to shoot his gun in case

Alfonso tried to shoot him again and because he was “not going to let my little brothers get shot

like I got shot.” He testified that he was defending himself and his brothers. Defendant testified

that he did not observe that there were any children in the white Buick.

¶ 21 Manuel testified that as he drove up next to the white Buick, one of its windows lowered.

Manuel testified that someone in the Buick—he believed it was the driver—pulled out a firearm

and pointed it at his vehicle. Manuel stepped on his brakes and then heard a gunshot. After he

heard the gunshot, he maneuvered in between two cars and into the parking lane and then quickly

drove away. Manuel testified that he observed the white Buick following him and so he accelerated

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and “blew through” several stop signs. The Buick followed for about four blocks and then ceased

following them.

¶ 22 According to defendant, the white Buick had suddenly turned into the parking lane as if

the driver had lost control of the car. Defendant testified that one window was rolled down and he

observed Alfonso’s arm “was out the window and he had a blue semiautomatic, and he was

pointing it at my little brother.” Defendant testified that when he saw this, defendant “put my hand

out my window and I shot” one time. Manuel then maneuvered into oncoming traffic and “got us

out of there, and [Alfonso] was chasing us.” Defendant testified that he was in fear for his life

because he had previously been shot by Alfonso and Alfonso had a firearm.

¶ 23 Manuel then drove to their father’s house, where they remained until later that night, when

defendant asked Manuel to drive him to his girlfriend’s house. They did not contact the police

because when defendant had been shot in June 2010, the police did not help him. On the way to

his girlfriend’s house, the police stopped them and defendant was arrested.

¶ 24 After the incident, the police interviewed defendant and Manuel. Defendant acknowledged

during cross-examination that he spoke with Melrose Park police investigators after he was

arrested. He denied telling them that he never left his house on the night of the incident, that he

spent the entire night high on marijuana, or that none of the Latin Kings knew his real name. He

did not tell police that he had a gun. When asked if he told police that he was justified in shooting

Alfonso, defendant responded, “No. *** I remained [sic] my right to remain silent.”

¶ 25 Manuel testified that he was kept at the police station for about three days. He provided a

statement, which the police transcribed. Manuel testified that the statement indicated it was taken

on April 16, 2011, at 8:32 p.m. He read the statement and conceded that nowhere in it did it state

that someone in the white Buick pointed a gun out of the window. Manuel signed the statement

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and initialed corrections, but he testified that the police omitted things that he told them, threatened

to charge him as an accomplice and beat him, and did not give him any food. He was 18 years old

at the time. Manuel conceded that his transcribed statement did not include any details about

someone in a white Buick pointing a gun at his vehicle, though he asserted that he told the police

this information.

¶ 26 C. The State’s Rebuttal

¶ 27 In the State’s rebuttal case, Melrose Park Police Detective Giovincent Espinosa testified

that he interviewed Manuel on April 16, 2011, and before asking him questions, he advised Manuel

of his Miranda rights because Manuel was viewed as a possible suspect. Manuel indicated to

Detective Espinosa that understood his rights, agreed to talk, and signed a Miranda waiver form.

Detective Espinosa memorialized Manuel’s oral statement. He denied that he added things that

Manuel did not state or refused to add things that Manuel said. Manuel reviewed the statement,

made some corrections, and signed both pages of the two-page document, which was dated April

16, 2011, at 4:29 p.m. Detective Espinosa denied that he or anyone else in his presence threatened

Manuel, that he refused to give Manuel food, or that Manuel was kept at the police station for days.

Detective Espinosa acknowledged that Manuel told him that defendant alerted Manuel to people

being present at a gas station with whom he was having issues. Espinosa testified that nowhere in

the statement does Manuel indicate that Manuel observed an individual from the white Buick point

a gun at him.

¶ 28 Melrose Park Police Sergeant Michael Scudiero testified that he and a partner informed

defendant of his Miranda rights after he had been arrested around 11:30 p.m. on April 15, 2011.

Defendant told Sergeant Scudiero that he understood his rights, signed a Miranda waiver form at

1:30 a.m. (on April 16, 2011), and agreed to speak. However, Sergeant Scudiero did not

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immediately have a conversation with defendant. Later on April 16th, defendant, Sergeant

Scudiero, and his partner were again in an interview room together. Sergeant Scudiero once again

informed defendant of his Miranda rights. Defendant again stated he understood his rights, signed

another Miranda waiver form, and agreed to speak. Sergeant Scudiero asked defendant where he

was the previous night, and defendant stated that he never left the house, he watched movies, and

ingested marijuana. Defendant never told Sergeant Scudiero that he was at a gas station, that he

observed two vehicles full of Latin Kings, that he was afraid of the Latin Kings, that he had a

firearm, that Alfonso had a firearm outside of the window, that defendant shot into the white Buick,

or that he was protecting his brothers. Sergeant Scudiero did not memorialize defendant’s

statement in writing. Scudiero recorded what defendant told him in his case notes.

¶ 29 D. Closing Arguments

¶ 30 Regarding the charge of attempted murder, the State argued in closing that defendant took

several substantial steps toward the commission of killing Alfonso, including arming himself with

a loaded firearm as he left his house on April 15, 2011, having the weapon on his lap as his brother

drove behind the white Buick, pointing the weapon at Alfonso, and ultimately pulling the trigger.

In arguing that defendant had the intent to kill Alfonso, the State asserted that defendant’s actions

showed his intent to kill Alfonso because firearms are dangerous and “guns kill people”; the State

asserted that “[w]hen someone shoots at another human being, they are shooting to kill.” In

positing that defendant did not have lawful justification to shoot Alfonso, the State remarked that

defendant was not justified in carrying the gun outside his house, holding it on his lap, or in

shooting at Alfonso. The State asserted that the evidence showed that defendant personally

discharged the firearm in that he knowingly and intentionally fired the firearm, and that this caused

permanent disfigurement in that the bullet “blew a hole in Alfonso Delatorre’s arm.” The State

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further observed that “defendant did not take responsibility when he spoke to the police,” “didn’t

take responsibility with that bogus lawful justification argument,” and “did not take responsibility

for any of his actions on April 15, 2011.” The State asked the jury to make defendant responsible

for his actions that day and find him guilty.

¶ 31 In the defense’s closing argument, defense counsel urged that the only issue in dispute was

whether defendant was justified in firing his weapon toward Alfonso. Counsel argued that, based

on Alfonso previously shooting defendant and Alfonso’s actions on April 15, 2011, in pointing a

firearm outside his vehicle, defendant was in reasonable fear for his life that necessitated the use

of his own firearm. Counsel highlighted that defendant only shot his firearm once, positing that

this was evidence of self-defense rather than an intent to kill. Counsel argued that Alfonso was

lying about not having a gun on April 15, as Alfonso had lied about not being a Latin King or

knowing defendant because he was covering up the fact that the Latin Kings wanted to kill

defendant. Counsel argued that the white Buick would not have chased Manuel’s car after the

gunshot if no one in the Buick had been armed. Counsel asserted that Manuel gave a credible

account but omitted mention of anyone in the Buick being armed in his written statement because

he was interrogated by police for hours and was only 18 years old at the time and was threatened.

Counsel argued that unlike Alfonso and Anthony, defendant was candid about his prior gang

affiliation and the fact that he carried a gun for protection and that he shot the gun one time to

protect himself and his brothers. Although the State asserted that defendant told the police that he

was home all day on the day of the shooting, counsel asserted that defendant actually asserted his

right to remain silent and he was the only one who did not have a written statement and the police

had done nothing for him when he was shot previously.

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¶ 32 In rebuttal, the State contended that the law does not allow defendant to carry a loaded

weapon for 10 months after he was shot so he can be ready to shoot the person he believed shot

him, as this was not lawful justification or self-defense, but retaliation and “not taking

responsibility for your actions.” The State asserted that defendant’s testimony was a “spin of lies”

and he did not take responsibility for his actions when he spoke to the police or when he testified

and it was the jury’s “opportunity to take responsibility to find the defendant guilty, guilty for his

actions on April 15, 2011.”

¶ 33 D. Verdicts and Posttrial

¶ 34 Following argument, the jury found defendant guilty of attempted murder and found that,

during the commission of the offense, defendant was: (1) armed with a firearm; (2) personally

discharged a firearm; and (3) proximately caused permanent disfigurement to Alfonso. The jury

also found defendant guilty of aggravated battery with a firearm and unlawful possession of a

weapon by a felon.

¶ 35 Defendant unsuccessfully filed a motion for new trial and his case proceeded to sentencing.

Defendant’s presentence investigative report revealed that, when defendant committed the

offenses, he had just turned 20 years old. Defendant reported that his childhood was great until his

mother passed away when he was 10 years old. He was later expelled from high school and

convicted of aggravated robbery and domestic battery. The report further revealed that, in 2013,

defendant was diagnosed with bipolar disorder and schizophrenia, resulting in a brief hospital stay

and then treatment in a mental health center for one month. He then received outpatient mental

health treatment. Defendant had taken Lithium, Seroquel and Olanzapine at various times for his

treatment. At the time of the report, defendant had a girlfriend of three years with whom he had

one child, and two children from a previous relationship.

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¶ 36 At the sentencing hearing, in aggravation, the State argued that the evidence showed

defendant shot into a car with two small children present without any provocation and that there

was no evidence that defendant suffered from schizophrenia at the time of the shooting. The State

presented two victim impact statements from Alfonso and Nardella and noted defendant’s criminal

history.

¶ 37 In mitigation, defense counsel highlighted defendant’s mental health conditions. Defendant

testified about his mental health conditions and noted that he was not taking any medication at the

time of the shooting. Although defense counsel conceded the evidence of his mental health issues

were from two years after the shooting, counsel argued that schizophrenia “is not something that

just pops up on you” and that defendant had the mental health condition long before his actual date

of diagnosis, and therefore defendant acted “under the sudden passion” and “reacted mistakenly

to what he perceived as a threat to his life” on April 15, 2011. Counsel therefore requested that

defendant be sentenced to a Class 1 felony instead of a Class X felony.

¶ 38 The trial court had a lengthy discussion with defense counsel about defendant’s mental

health issues, but ultimately observed that all of the records relied upon by counsel were from “two

years after the incident.” As such, the court found it speculative that defendant was suffering from

a mental condition in April 2011. The trial court further found that based on the evidence, no one

in the white Buick had a gun. The court concluded that defendant failed to sufficiently prove he

was acting under a sudden and intense passion resulting from serious provocation. The court

therefore determined that it would sentence defendant for attempted murder as a Class X offense.

The court then merged defendant’s conviction for aggravated battery with a firearm into his

conviction for attempted murder and sentenced defendant to 35 years’ imprisonment for attempt

first-degree murder, with 10 years as the base sentence and a 25-year enhancement for personally

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discharging a firearm that proximately caused permanent disfigurement to Alfonso. The court also

sentenced defendant to four years’ imprisonment on his conviction for unlawful use of a weapon

by a felon, which was to be served concurrently to his sentence for attempt first-degree murder.

¶ 39 Defendant subsequently appealed.

¶ 40 II. ANALYSIS

¶ 41 A. Sufficiency of the Evidence

¶ 42 On appeal, defendant first argues that there was insufficient evidence to prove beyond a

reasonable doubt that he had the specific intent to kill Alfonso. Defendant contends that the mere

fact that he shot the gun once at Alfonso does not automatically prove intent to kill, and other

evidence showed he lacked such specific intent. Defendant emphasizes that he only shot the gun

one time despite it being loaded with six bullets, that he aimed at the middle of the car door and

not Alfonso’s head, and that the cars were not moving at the time and thus defendant had ample

opportunity to shoot multiple rounds at close range, but did not. Defendant emphasizes that, as

further evidence of his lack of intent, he did not make any specific threats to kill Alfonso and the

wound inflicted was not life-threatening.

¶ 43 In reviewing a challenge to the sufficiency of the evidence supporting a conviction, we

must view the evidence in the light most favorable to the State to determine whether a rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319 (1979); People v. Wheeler, 226 Ill. 2d 92, 114 (2007). We draw all

reasonable inferences in favor of the State. People v. White, 2017 IL App (1st) 142358, ¶ 14. We

also defer to the trier of fact to determine a witness’s credibility, what weight to give the evidence,

how to resolve conflicts in the evidence, and what inferences to draw from the evidence. People

v. Scott, 2020 IL App (1st) 180200, ¶ 39 (citing People v. Ortiz, 196 Ill. 2d 236, 259 (2001)). As

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such, “we will not overturn a conviction unless the evidence is so unreasonable, improbable, or

unsatisfactory that it raises a reasonable doubt of the defendant's guilt.” Id.

¶ 44 For the crime of attempted murder, “the State must prove beyond a reasonable doubt that

the defendant, with specific intent to commit murder, did any act that constituted a substantial step

toward the commission of murder.” In re T.G., 285 Ill. App. 3d 838, 843 (1996).

¶ 45 Defendant challenges the element of specific intent. A defendant’s intent to kill may be

inferred from “the character of the defendant's acts and the circumstances surrounding the

commission of the offense [citation], including the character of the assault, the nature and

seriousness of the injury [citation], and the use of a deadly weapon [citation].” In re T.G., 285 Ill.

App. 3d at 843. Intent may be inferred from “the firing of a gun at or towards another person with

either malice or a total disregard for human life.” (Internal quotation marks omitted.) People v.

Ephraim, 323 Ill. App. 3d 1097, 1110 (2001). “However, evidence that the defendant fired a gun,

coupled with nothing more, is generally not sufficient to prove a specific intent to kill.” Id. The

trier of fact may infer a specific intent to kill if surrounding circumstances demonstrate that

defendant “intended the willfully committed act, ‘the direct and natural tendency of which is to

destroy another's life.’ ” Id. (quoting People v. Migliore, 170 Ill. App. 3d 581, 586 (1988)). Indeed,

“ ‘[t]he very fact of firing a gun at a person supports the conclusion that the person doing so acted

with an intent to kill.’ ” Id. (quoting People v. Thorns, 62 Ill. App. 3d 1028, 1031 (1978)).

¶ 46 Here, when viewing the evidence in the light most favorable to the State, we find that ample

evidence established that defendant fired the gun at Alfonso with the intent to kill. The testimony

showed that defendant knew Alfonso was in the Buick in front of him. There was an existing feud

between Alfonso and defendant based on the prior shooting. Defendant drew his firearm from his

pocket in anticipation of using it. The undisputed testimony indicated that when the Buick pulled

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over to the parking lane and Manuel’s car drove near it, defendant stuck his firearm out of the

window, aimed it at the Buick, and fired into the Buick. Defendant admitted that he knew guns

could cause injuries and kill someone, that he had his weapon out and was ready to use it, and that

his firearm had a “hairpin” trigger. The bullet penetrated the car door and struck Alfonso in the

arm, and defendant’s car then sped away.

¶ 47 Although defendant claimed that Alfonso also had aimed a weapon out of the window of

the Buick, this claim was contradicted by three other witnesses – Nardella, Alfonso, and Anthony.

When Manuel spoke to the police shortly after the shooting, he did not state that Alfonso or any

other occupant of the Buick aimed a firearm out of the vehicle. Manuel then contradicted this at

trial. Moreover, the police found no weapon in the Buick shortly after the shooting occurred.

Additionally, Alfonso was struck in his forearm and the bullet lodged in his sleeve, a scenario

which is improbable if his arm had been extended out of the window and aiming a gun at the time.

As noted, we must make all reasonable inferences in favor of the prosecution and defer to the

jury’s assessment of the credibility of the witnesses. “It is the function of the trier of fact to

determine the existence of the requisite intent, and that determination will not be disturbed on

review unless it clearly appears there exists a reasonable doubt as to the defendant's

guilt.” (Internal quotation marks omitted). People v. Green, 339 Ill. App. 3d 443, 451 (2003).

¶ 48 Defendant argues that his lack of intent was shown by the fact that he only fired one shot,

he aimed at the car door, and he had ample time to take further shots and fire more bullets but did

not do so. However, our court has previously determined that firing a gun at a vehicle occupied by

people constitutes attempt to commit murder because the obvious natural tendency of firing upon

occupied vehicles is destruction of the occupants’ lives. People v. Garcia, 407 Ill. App. 3d 195,

201-02 (2011) (finding that the intent to kill can be “inferred from the act of firing two bullets in

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the direction of an occupied car and a crowded street.”). Despite defendant’s argument on appeal,

there was no testimony or evidence that defendant specifically aimed down at the car door instead

of directly at Alfonso. Our courts have repeatedly held that, where a defendant fails to strike an

individual, i.e., demonstrated poor marksmanship, this does not vitiate an intent to kill or amount

to a defense—it was the province of the jury to determine whether a defendant lacked intent to kill

or was simply a bad shot. “Poor marksmanship is not a defense to attempted murder, and it is a

question of fact for the jury to determine whether defendant lacked the intent to kill or whether

defendant was simply unskilled with his weapon and missed his targets.” People v. Teague, 2013

IL App (1st) 110349, ¶ 27 (finding evidence that defendant fired assault rifle at police officers

from 40 feet away sufficient to show intent to kill officers even if defendant failed to strike them;

poor marksmanship was not defense to attempted murder). See Green, 339 Ill. App. 3d at 451-52

(firing four to five times at an unmarked police car from a moving vehicle and fleeing were

sufficient to show intent to kill even though the defendant missed them at close range; although

the facts could reasonably support the opposite inference that the defendant lacked the intent to

kill when he failed to strike the officers, the trier of fact decides which competing inference to

draw); Ephraim, 323 Ill. App. 3d at 1110-11 (sufficient evidence for jury to reasonably infer an

intent to kill from defendant’s chase of a rival gang member’s car while firing shots at it after he

was ordered to do so by a fellow gang member).

¶ 49 It is not the function of this court to retry defendant on appeal or substitute our judgment

for that of the trier of fact. Scott, 2020 IL App (1st) 180200, ¶ 39. Defendant was free to argue his

alternative explanations to the jury. We defer to the trier of fact’s determinations regarding the

credibility of the witnesses and resolution of conflicting inferences to be drawn from the evidence.

Id. As in Teague and Green, the jury was free to reject defendant’s arguments; the decision as to

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which competing inference to draw from the evidence belonged to the trier of fact. Considering

the trial evidence here, it was not unreasonable for the jury to conclude that defendant fired at

Alfonso with the intent to kill or cause great bodily harm.

¶ 50 Defendant analogizes his case to People v. Mitchell, 105 Ill. 2d 1, 9-10 (1984), and People

v. Thomas, 127 Ill. App. 2d 444, 446-47 (1970), to support his contention that the State failed to

prove his intent to kill because defendant did not kill Alfonso despite having ample opportunity to

do so. In Mitchell, the supreme court found insufficient evidence of intent to kill where the

defendant beat her infant child with her hand and a belt multiple times over two days, but when

the child lost consciousness, the mother placed a cool cloth over her head and took her to the

hospital. Mitchell, 105 Ill. 2d at 9-10. In Thomas, 127 Ill. App. 2d at 455-56, the court sua sponte

reversed the defendant’s conviction for attempted murder because this conviction and his

aggravated battery conviction resulted from the same conduct and “the opportunity for murder was

such that there was insufficient proof that defendant intended or attempted to commit that crime”

where, over the course of 45 minutes, he stabbed the victim in the shoulder, beat her and threatened

her, raped her, robbed her, and then fled. We find both of these cases distinguishable. Each

involved prolonged contact with the victims during which time the defendants had complete

dominion and control over them, but either took actions inconsistent with an intent to kill, and/or

did not use their weapons in a manner calculated to inflict fatal injury. In contrast, defendant’s

confrontation with Alfonso was extremely brief, he had no dominion or control over him, and

quickly took advantage of the short span of time by aiming and firing his gun toward Alfonso

before fleeing.

¶ 51 Although defendant asserts that he made no verbal threat to kill Alfonso and did not inflict

a life-threatening injury, we observe that the State was not required to present medical evidence of

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a nearly fatal injury to prove attempted murder. Rather, the State need only show that the defendant

intended to kill and took a substantial step towards that end. In re T.G., 285 Ill. App. 3d at 843.

The jury was fully aware of alleged infirmities of the State’s case as asserted by defense counsel

in closing argument, and we will not substitute our judgment for that of the jury. We do not find

the evidence so unreasonable or improbable that it raises a reasonable doubt as to defendant’s guilt.

Scott, 2020 IL App (1st) 180200, ¶ 39.

¶ 52 B. People v. Lynch Evidence

¶ 53 Defendant next contends that the trial court improperly limited his ability to present

evidence of Alfonso’s violent character under People v. Lynch, 104 Ill. 2d 194 (1984), to support

defendant’s claim of self-defense, and this violated his constitutional right to present a defense.

Defendant contends that he offered this evidence under both prongs of Lynch to show his

knowledge of Alfonso’s violent tendencies and to show that Alfonso was the initial aggressor. The

trial court allowed defendant to testify that Alfonso shot him on June 1, 2010, and that Alfonso

was the first one to pull a gun on April 15, 2011. However, the trial court erred in not allowing

defendant to present the evidence of Garcia, who would have testified that Alfonso also shot him

during the June 1, 2010, incident, and Officer Manzo’s testimony that Garcia identified the shooter

as Alfonso. This prevented defendant from providing corroborating evidence. As defendant

preserved this issue for appeal, the State cannot show that it was harmless beyond a reasonable

doubt because the case essentially amounted to a credibility contest between the State’s witnesses

and defendant.

¶ 54 Defendant contends that we should employ a de novo standard of review of his claim that

his constitutional right to present a defense was improperly curtailed. However, “when a party

claims he was denied the constitutional right to present a complete defense due to improper

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evidentiary rulings, the standard of review is abuse of discretion.” People v. Burgess, 2015 IL App

(1st) 130657, ¶ 133. Evidentiary rulings fall within the sound discretion of the trial court and we

will not reverse such rulings unless the court abuses that discretion. People v. Reid, 179 Ill. 2d 297,

313 (1997). An abuse of discretion occurs when the trial court’s ruling is arbitrary, fanciful,

unreasonable, or where no reasonable person would take the view adopted by the trial court. People

v. Illgen, 145 Ill. 2d 353, 364 (1991).

¶ 55 Here, defendant raised a claim of self-defense, an affirmative defense that the State bears

the burden of disproving beyond a reasonable doubt. People v. Lee, 213 Ill. 2d 218, 224-25 (2004).

¶ 56 Pursuant to Lynch, “where a theory of self-defense is raised, evidence of a victim's violent

or aggressive character is relevant (1) to show that the defendant's knowledge of the victim's

behavior and tendencies affected the defendant's perceptions of and reactions to the victim's

actions, and (2) to support the defendant's version of events where there are conflicting accounts.”

People v. Morgan, 197 Ill. 2d 404, 454 (2001) (citing Lynch, 104 Ill. 2d at 199-201). See also Ill.

R. Evid. 405(b)(2) (eff. Jan. 1, 2011) (“In criminal homicide or battery cases when the accused

raises the theory of self-defense and there is conflicting evidence as to whether the alleged victim

was the aggressor, proof may also be made of specific instances of the alleged victim's prior violent

conduct.”). “Under the first approach, Lynch material is relevant and admissible only if the

defendant knew of the victim's violent acts that he seeks to introduce.” People v. Figueroa, 381

Ill. App. 3d 828, 844 (2008).

¶ 57 Evidence proffered under Lynch must also be relevant, that is, it tends to make the existence

of any consequential fact either more or less probable than it would be without the evidence.

Illgen, 145 Ill. 2d at 365-66. Such evidence may be excluded where its probative value

substantially outweighs the danger of unfair prejudice, risks confusing or misleading the jury, or

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raises concerns about undue delay or presenting cumulative evidence. People v. Martinez, 2019

IL App (2d) 170793, ¶ 9 (citing Ill. R. Evid. 403 (eff. Jan. 1, 2011)).

¶ 58 Here, the trial court allowed defendant to testify as to both types of Lynch evidence. That

is, defendant testified that he was aware of Alfonso’s violent tendencies because Alfonso

previously shot defendant on June 1, 2010. And, defendant testified that on April 15, 2011, Alfonso

was the initial aggressor because Alfonso was the first to pull a gun and defendant shot at him in

self-defense. Defendant also offed the stipulated testimony of Officer Manzo that he investigated

a shooting on June 1, 2010, and observed that defendant had been shot in the abdomen.

¶ 59 Defendant’s contentions regarding the excluded evidence relate to the first type of Lynch

evidence, that is, evidence of Alfonso’s violent or aggressive character “to show that the

defendant's knowledge of the victim's behavior and tendencies affected the defendant's perceptions

of and reactions to the victim's actions.” Morgan, 197 Ill. 2d at 454. The trial court prohibited

defendant from presenting the testimony of Garcia and limited the testimony of Officer Manzo.

According to Manzo’s police report, Garcia recounted to Manzo that he and defendant were sitting

in front of his house on June 1, 2010, when a Ford Bronco drove up, its occupants yelled something

and then one passenger began shooting, which resulted in defendant and Garcia being shot in the

stomach. Garcia identified Alfonso as the shooter. The trial court held that Officer Manzo could

testify that he observed that defendant had been shot and observed his injuries, but he could not

testify that Garcia identified the shooter as Alfonso. The trial court stated that the problem was

that defendant never identified the shooter and the proposed evidence raised “a lot of collateral

issues.” The trial court found that testimony that someone else identified Alfonso as the shooter

was “beyond what we need to do” and irrelevant. The trial court denied the request to present

Garcia’s testimony for the same reason.

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¶ 60 We find the trial court did not abuse its discretion in excluding testimony related to the

June 1, 2010, shooting incident. Manzo’s proposed testimony that Garcia identified the shooter as

Alfonso would have constituted hearsay. Generally, hearsay evidence which is “an out-of-court

statement offered to prove the truth of the matter asserted,” is inadmissible “unless it falls within

an exception to the hearsay rule,” because of its lack of reliability and the inability of the opposing

party to confront the declarant. (Internal quotation marks omitted). People v. Caffey, 205 Ill. 2d

52, 88 (2001). Our courts have found no abuse of discretion in excluding hearsay evidence even

when offered under Lynch. For example, in People v. Simon, 2011 IL App (1st) 091197, ¶¶ 71-74,

the court did not abuse its discretion in excluding proposed Lynch evidence as hearsay where the

witness would have testified to out-of-court statements that were being used to prove that the

victim had shot the defendant. As this court has stated, “a prior altercation or an arrest, without a

conviction, can be adequate proof of violent character when supported by firsthand testimony as

to the victim’s behavior.” (Emphasis added). People v. Cook, 352 Ill. App. 3d 108, 128 (2004).

See People v. Huddleston, 176 Ill. App. 3d 18, 28 (1988) (the victim could testify that the decedent

had struck her under Lynch, but a police officer who had not personally observed the incident could

not).

¶ 61 Here, Manzo did not witness the June 2010 shooting and had no first-hand knowledge

regarding whether Alfonso was the shooter. His knowledge came from investigating the case and

interviewing Garcia, who identified the shooter. Defendant did not identify Alfonso as the shooter.

The trial court did not abuse its discretion in limiting Manzo’s testimony to only what he observed,

that is, that he investigated a shooting and observed that defendant had been shot in the abdomen.

¶ 62 Defendant claims that Garcia’s testimony would have demonstrated to the jury Alfonso’s

violent tendencies by showing that there were two shootings. However, Garcia’s testimony did not

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indicate there was a separate, second shooting. Rather, his proposed testimony indicated that he

also happened to be shot, along with defendant, during the same June 2010 shooting incident where

Alfonso pulled up to Garcia’s house, yelled at defendant, and began firing multiple shots. That

they were shot contemporaneously during the same shooting incident would not have added

additional evidence with respect to Alfonso’s violent tendencies beyond what defendant had

already testified to. A trial court is permitted to exclude Lynch evidence where it is cumulative to

other evidence. A trial court has discretion to exclude proffered Lynch evidence where “other

factors involved indicate a lack of reliable foundation for this evidence” such as whether it is

cumulative, too general or indefinite, or too remote in time. Figueroa, 381 Ill. App. 3d at 846-47.

See People v. Nunn, 357 Ill. App. 3d 625, 632 (2005) (no abuse of discretion to exclude Lynch

evidence where it was cumulative of other evidence). Here, the trial court determined that allowing

the defense to present this testimony would raise collateral issues and was “beyond what we needed

to do” given that defendant had failed to identify the shooter. We cannot say that this ruling was

so arbitrary or fanciful as to constitute an abuse of discretion as defendant’s proposed evidence

relating what Garcia observed and knew would fail to demonstrate how “defendant’s knowledge

of the victim’s behavior and tendencies affected defendant’s perceptions and reactions to the

victim’s actions.” (Emphasis added). Morgan, 197 Ill. 2d at 454.

¶ 63 Defendant relies on People v. Hanson, 138 Ill. App. 3d 530 (1985), in asserting that the

defendant there was allowed to present several witnesses to corroborate his Lynch evidence, and

defendant thus should have been allowed to present his two witnesses here. However, we find

Hanson distinguishable. In that case, the defendant’s proposed witnesses would have testified to

two prior incidents where the victim pulled a knife and threatened them, and that defendant knew

of those prior acts. Id. at 536-38. The only evidence of the victim’s violent character up until that

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point had come from the victim himself, who presented a different version of the incidents and

admitted to pleading guilty to assault charges in connection therewith. Id. at 538. Due to this

disparity, the court found the defendant was prejudiced by exclusion of these other witnesses’

testimony. Id. Contrary to defendant’s argument, the Hanson court was not concerned with the

number of witnesses the defendant wished to present, but, rather, the type of evidence they

provided in light of the other evidence presented at trial. In contrast, here, Manzo would have only

been able to present hearsay testimony about the prior shooting incident, not a first-hand account.

¶ 64 Moreover, exclusion of some of defendant’s Lynch evidence did not affect the outcome in

light of the fact that there were three eyewitnesses—Alfonso, Nardella, and Anthony—who

testified that defendant was the aggressor and drew his gun and shot first during the April 15, 2011

incident. Defendant’s own statements following the incident omitted mention of any self-defense

claim, and Manuel presented contradictory statements at trial and to officers after the shooting as

to whether he saw a gun being pointed from the white vehicle. Moreover, no gun was recovered

from Alfonso or his vehicle and the location where he was shot on his arm suggests that his arm

was not outside his window at the time he was shot.

¶ 65 C. Defendant’s Post-Arrest Silence

¶ 66 Defendant next argues that the State improperly highlighted his post-arrest silence when,

during the State’s rebuttal case, it elicited testimony from a detective that defendant did not offer

his self-defense claim when questioned after his arrest, and then argued in closing that defendant

fabricated his claim of self-defense to fit the evidence. Defendant asserts that this constituted both

plain error and ineffective assistance of trial counsel in failing to object to the State’s questions

and arguments.

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¶ 67 Defendant did not object at trial or include this issue in a posttrial motion; he has therefore

not preserved it for appellate review. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Under the plain-

error doctrine, a reviewing court will overlook a forfeiture where a clear, obvious error occurred

and either (1) the evidence was closely balanced, or (2) the error was so grave that it impacted the

fairness of the trial and denigrated the integrity of the judicial process. People v. Sebby, 2017 IL

119445, ¶¶ 48-49.

¶ 68 Defendant also maintains that his trial counsel rendered constitutionally defective

assistance in failing to object and properly preserve this issue for appeal. A defendant has a

constitutional right to the effective assistance of counsel. People v. Banks, 2016 IL App (1st)

131009, ¶ 123 (citing U.S. Const. amends VI, XIV; Ill. Const. 1970, art. 1, § 8). To establish

ineffective assistance of counsel, a defendant must prove that (1) counsel's performance was

deficient in that it fell below an objective standard of reasonableness and (2) he suffered prejudice

as a result. Banks, 2016 IL App (1st) 131009, ¶ 123 (citing Strickland v. Washington, 466 U.S.

668, 687 (1984)). That is, defendant must demonstrate that he was prejudiced by the deficient

performance in that a reasonable probability exists that the outcome of the proceeding would have

been different. Id. A defendant must satisfy both prongs of the Strickland test to prevail on such a

claim. Id.

¶ 69 “Under Doyle v. Ohio, 426 U.S. 610, 619 (1976), it is error to comment on a

defendant's post-arrest silence or his request for counsel.” Banks, 2016 IL App (1st) 131009, ¶

132. “[A]fter a defendant has received his Miranda warnings, it is a due process violation for a

prosecutor to comment on a defendant's postarrest silence at trial for the purpose of impeaching

the defendant's testimony.” People v. Adams, 2012 IL 111168, ¶ 28. However, the court recognizes

two exceptions to this rule. “A defendant's postarrest silence may be used for impeachment

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purposes when the defendant testifies at trial that he gave an exculpatory statement to the police

when arrested or if the defendant made a prior inconsistent statement to the police after his arrest.”

People v. Simmons, 293 Ill. App. 3d 806, 811 (1998).

¶ 70 In the present case, defendant testified in his case-in-chief that on the evening of April 16,

2011, his brother picked him up from his girlfriend’s house, they went to a gas station and observed

some Latin Kings. Defendant and his brothers left, but found themselves stuck in traffic while

behind the white Buick. Defendant testified that he saw Alfonso point a gun at him and his brother,

and so defendant shot his gun at the other vehicle and they then drove to his father’s house. On

cross-examination, defendant conceded that he spoke with investigators following his arrest, but

he denied telling them that he never left his house on the night of the incident, that he spent the

entire night high on marijuana, or that none of the Latin Kings knew his real name. He did not tell

police that he had a gun. When asked if he told police that he was justified in shooting Alfonso,

defendant responded, “No. *** I remained [sic] my right to remain silent.”

¶ 71 In turn, the State then presented the rebuttal testimony of Scudiero, who testified that

defendant was twice informed of his Miranda rights after arrest, defendant indicated that he

understood his rights, he signed the Miranda waiver forms, and agreed to speak with the police

both times. Defendant then proceeded to tell Scudiero that on the night in question he never left

the house, he watched movies, and “got f*** up on weed.” Scudiero took notes but did not

memorialize his statement in writing. Defendant never told Scudiero that he was at a gas station,

that he observed two vehicles occupied by Latin Kings, that he was afraid of the Latin Kings, that

he had a firearm, that Alfonso had a firearm outside of the window, that defendant shot into the

white Buick, or that he was protecting his brothers.

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¶ 72 Based on the testimony presented, we find that no Doyle violation occurred here. The State

did not improperly present evidence of defendant’s post-arrest statements or impermissibly

comment on a defendant’s post-arrest silence at trial for the purpose of impeaching the defendant’s

trial testimony. Rather, defendant testified to a version of events on April 15, 2011, that was

inconsistent with his statements to investigators following his arrest (that he stayed in all evening

and ingested marijuana). Defendant then denied making such post-arrest statements to police, and

maintained that he had invoked his right to remain silent. This also contradicted evidence that

following his arrest, defendant was twice informed of his right to remain silent and agreed to speak

with investigators and signed the Miranda waiver of rights form twice. The rule in Doyle “applies

only when a defendant invokes his right to remain silent.” (Internal quotation marks omitted.)

Banks, 2016 IL App (1st) 131009, ¶ 132. “In Illinois, once a defendant makes a post-Miranda oral

statement, the introduction of evidence that the defendant subsequently refused to memorialize

that statement does not necessarily violate the fifth amendment or conflict with the Doyle opinion.”

Id. For example, in People v. Christiansen, 116 Ill. 2d 96, 120 (1987), the court held that where

the defendant failed to remain silent after being informed of his rights and instead made oral

statements, he had relinquished his fifth amendment rights and could not claim that testimony

indicating he was unwilling to subsequently memorialize his oral statements violated his right to

remain silent. Similarly, in People v. Adams, 2012 IL 111168, ¶¶ 28-29, the court found no Doyle

violation occurred where the prosecutor commented on how the defendant “had two and a half

years to come up with his story” where the defendant received his Miranda warnings and remained

silent after arrest, but testified at trial regarding his version of events, as the prosecutor’s comments

related to the defendant’s credibility as a witness and his opportunity to observe the trial and perfect

his account.

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¶ 73 Here, State did not run afoul of Doyle in its cross-examination of defendant or in presenting

Scudiero’s rebuttal testimony. The State properly exercised its ability to impeach a witness on

cross-examination with a prior inconsistent statement where the witness denies making the

statement when the State can prove that statement with extrinsic evidence. People v. Williams, 204

Ill. 2d 191, 211 (2003). Defendant’s alleged partial post arrest silence was subject to impeachment

because defendant made a prior inconsistent statement to the police following his arrest and

Miranda warnings. Simmons, 293 Ill. App. 3d at 811. Defendant’s statement to Scudiero that he

did not leave the house and was home all night on April 15, 2011, watching movies and ingesting

marijuana was not merely a “less detailed” account, as defendant claims. Rather, it was entirely

inconsistent with his trial testimony that his brother picked him up from his girlfriend’s house,

they went to a gas station where they observed Latin Kings in another vehicle, defendant had a

gun and placed it on his lap as they left the gas station and found themselves behind the Buick with

Latin Kings, and that he saw Alfonso point a gun and defendant shot into the Buick before his

brother sped away through traffic.

¶ 74 Although defendant relies on People v. Timmons, 114 Ill. App. 3d 861, 866-67 (1983), in

asserting that there was no manifest inconsistency between his statements to police and partial

post-arrest silence and his trial testimony, we find Timmons distinguishable. In that case, the

defendant testified that he did not deliver drugs on the date in question and testified about his

various activities that day and denied that a particular individual stopped by the house; the court

found that this testimony was not manifestly inconsistent with the defendant’s statements to the

police post-arrest—that he denied committing the offense of delivering drugs and denied any

involvement with that individual. Id. It was therefore error for the State to question the defendant

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on cross-examination about his failure to talk with police about his whereabouts or activities on

that date as it did not constitute impeachment. Id.

¶ 75 Here, in contrast, defendant specifically waived his Miranda rights twice after his arrest

and agreed to speak with police. He informed police about his activities and whereabouts on the

evening of April 15, 2011. This version of events conflicted with his subsequent trial testimony.

Even if, as defendant claims, he only related to police what he did “that night,” the two versions

were still inconsistent as defendant told police that he stayed in all night, but defendant testified

that he had his brother drive him to his girlfriend’s house (and he was arrested on the way). The

trial evidence indicated that the offense did not occur during the day, but rather, sometime after 4

p.m. We find that defendant’s trial testimony and his post-arrest statements to police were

manifestly inconsistent and a proper area of impeachment by the State. Defendant has not

established that any plain, obvious error occurred. Sebby, 2017 IL 119445, ¶¶ 48-49.

¶ 76 Because we have concluded that no error occurred, we similarly reject defendant’s claim

that his trial counsel rendered ineffective assistance in failing to object and properly preserve his

claims of error. Banks, 2016 IL App (1st) 131009, ¶ 123; Strickland, 466 U.S. at 687 (a defendant

must satisfy both prongs of the Strickland test to prevail on a claim of ineffective assistance).

¶ 77 In a related vein, defendant argues that the State exacerbated the Doyle violation by arguing

in closing that defendant fabricated his theory of self-defense to fit the evidence, which encouraged

the jury to hold his failure to assert his defense during police interrogation against him. However,

we will address this issue in section D, infra, in the context of defendant’s challenge to other claims

of prosecutorial error in closing arguments.

¶ 78 D. Prosecutorial Misconduct in Closing Arguments

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¶ 79 In his next claim of error, defendant asserts that the State denied him a fair trial due to

several objectionable statements during closing arguments. Defendant did not preserve his claims

of prosecutorial misconduct by objecting at trial and raising his claims in a posttrial motion, and

he has therefore forfeited them. People v. Guerrero, 2020 IL App (1st) 172156, ¶ 14 (citing Sebby,

2017 IL 119445, ¶ 48). Accordingly, we review these claims under the plain error doctrine, under

which, as stated, defendant must show that a plain, clear, or obvious error occurred and that either

the evidence was closely balanced or the error was so serious as to affect the fairness of the trial.

Id. (citing Sebby, 2017 IL 119445, ¶ 48). The first step in this analysis is to determine whether a

clear or obvious error occurred. Id. ¶ 15 (citing Sebby, 2017 IL 119445, ¶ 49).

¶ 80 Defendant did not object at trial or include this issue in a posttrial motion; he has therefore

not preserved it for appellate review. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Under the plain-

error doctrine, a reviewing court will overlook a forfeiture where a clear, obvious error occurred

and either (1) the evidence was closely balanced, or (2) the error was so grave that it impacted the

fairness of the trial and denigrated the integrity of the judicial process. People v. Sebby, 2017 IL

¶ 81 It is well-established that the State is afforded wide latitude in closing arguments. Wheeler,

226 Ill. 2d at 123. When reviewing closing arguments, we examine the arguments in their entirety

and view allegedly improper remarks in context. Id. at 122. To that end, the prosecution is free to

argue legitimate inferences drawn from the evidence. People v. Nicholas, 218 Ill. 2d 104, 121

(2005). The prosecution is also permitted to respond to comments made by the defense. People v.

McGee, 2015 IL App (1st) 130367, ¶ 56. Where the prosecutor’s statements exceed the bounds of

propriety, we will not disturb the fact finder’s verdict unless the remarks resulted in substantial

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prejudice, that is, the improper comments comprised a material factor in the defendant’s

conviction. Wheeler, 226 Ill. 2d at 123.

¶ 82 Defendant first contends that the prosecutor misstated the law in two instances during

closing arguments, which effectively lowered the State’s burden of proof. “A prosecutor may

not misstate the law during closing arguments, as it can be grounds for reversal.” People v. Moody,

2016 IL App (1st) 130071, ¶ 68. Defendant argues that the prosecutor misstated the element of

“intent to kill” when the prosecutor argued, “When someone shoots at another human being they

are shooting to kill. Guns kill.” However, this argument accurately reflects the law as discussed,

supra, that intent to kill may be inferred from firing a gun at another person. Ephraim, 323 Ill.

App. 3d at 1110. Moreover, the prosecutor’s argument must be viewed in their entirety. Wheeler,

226 Ill. 2d at 123. The prosecutor asserted that defendant’s “actions” that day demonstrated his

intent, emphasized the fact that guns are deadly weapons, and reviewed for the jury all of

defendant’s actions leading up to the shooting—placing a loaded gun in his pocket, then placing

the loaded gun on his lap, then pointing it and shooting it at Alfonso—and asserted that all of these

acts demonstrated his intent to kill. The prosecutor did not misstate the law or lower its burden of

proof. Even so, “[a] misstatement of the law during closing argument does not normally constitute

reversible error if the circuit court properly instructs the jury on the law.” People v. Lawler, 142

Ill. 2d 548, 564 (1991). Here, the trial court’s instruction on the law of intent would have cured

any minor improper statement by the prosecution.

¶ 83 Defendant also takes issue with the prosecutor’s comments regarding the concepts of self-

defense and lawful justification, arguing that the prosecutor conflated the concepts of lawful

possession of a firearm and justifiable use of force in discussing both the attempted murder and

aggravated battery charges.

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¶ 84 The prosecutor argued:

“The third proposition is that the defendant did so without lawful justification.

Osvaldo Colunga wasn't justified in carrying a gun outside of his house that day. He wasn't

justified to hold it in his jeans pocket. He wasn't justified to put it on his lap. He certainly

wasn't justified to put it in his hand. And he was not justified to point it in the direction of

another human being and shoot it. Alfonso Delatorre testified that he was on the side of a

road. He was on the side of 19th Avenue with his family. He had pulled over so he could

get out of the car and stop at a friend's house when this defendant drove by and shot him.

That is not lawful justification.”

¶ 85 We find that the prosecutor did not misstate the law or conflate the concepts of lawful

possession and justifiable use of force. As defendant observes, “[a] person is justified in the use of

force against another when and to the extent that he reasonably believes that such conduct is

necessary to defend himself or another against such other's imminent use of unlawful force.” 720

ILCS 5/7-1(a) (West 2010). An individual may be justified in using force that is “intended or likely

to cause death or great bodily harm only if he reasonably believes that such force is necessary to

prevent imminent death or great bodily harm to himself or another, or the commission of a forcible

felony.” Id.

¶ 86 When viewed in full context, the prosecutor’s comment focused on defendant’s lack of

justification in his use of force, that is, pointing the gun at Alfonso and shooting it, and not on

defendant’s mere lawful or unlawful possession of the gun. Defendant’s actions demonstrated a

certain amount of planning or premeditation that was out of proportion with what the

circumstances called for that day—in carrying the gun with him most of the time, moving the gun

onto his lap when he observed the vehicle of Latin Kings, and then pointing it out of the window

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and shooting at the Buick. The prosecutor’s surrounding comments demonstrate that this argument

was also based on the evidence that Alfonso did not have a gun or point one at defendant and no

gun was recovered from the Buick. In addition, any potential error was cured by the jury

instructions regarding lawful justification. Lawler, 142 Ill. 2d at 564.

¶ 87 Defendant next contends that the prosecutor committed misconduct in arguing during

opening close and in rebuttal that defendant “failed to take responsibility” for his actions and that

the jury should take responsibility by convicting him. Defendant asserts that this denied him a fair

trial because it called upon the jury to convict him because he failed to admit his guilt and save

them the trouble of a trial. He argues that it was improper for the prosecutor to argue that defendant

“failed to take responsibility” when speaking with police because he was not required to assert his

defense or say anything to the police. Further, defendant argues that the State could not cross-

examine defendant about his post-arrest failure to advance his defense because his statements were

not manifestly inconsistent with his trial testimony. Defendant argues that the State exacerbated

the problem by encouraging the jury to “send a message” to defendant by convicting him.

¶ 88 The State responds that when viewed as a whole, the prosecutor’s opening-close asserted

that defendant was responsible for his individual actions leading up to the shooting and the jury

should convict defendant because the evidence regarding his actions established his guilt.

Concerning rebuttal, the State argues that the prosecutor was responding to the defense’s argument

that Manuel and defendant were credible witnesses and focused on the evidence supporting the

State’s case and the inconsistencies in defendant’s evidence, and did not assert that defendant

should be held responsible because he chose to go to trial. The State asserts that the prosecutor

asked the jury to find defendant guilty based on the evidence and his actions, and not to “send a

message to defendant.”

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¶ 89 “Negative comments about a defendant's exercise of his or her constitutional rights are

improper because they penalize the defendant for the exercise of those rights.” People v. Libberton,

346 Ill. App. 3d 912, 923 (2003). However, a trial court can generally “correct any error by

sustaining an objection and instructing the jury to disregard the remark.” Id.

¶ 90 Here, the prosecutor extensively reviewed the trial evidence, including the testimonial

evidence from the State’s witnesses and the physical evidence presented, and reviewed the

elements of the offenses and how that evidence established each element. The prosecutor argued

that the evidence showed that defendant lacked legal justification for shooting at Alfonso and that

defendant

“was not justified in any of his actions that day. He wasn’t justified in carrying the gun; he

wasn’t justified in holding the gun; and definitely and certainly was not justified in shooting

the gun. Ladies and Gentlemen, [defendant] is responsible for carrying a gun on April 15,

2011; he is responsible for picking it up; he’s responsible for pointing at Alfonso Delatorre;

he responsible for shooting it; he responsible for that permanent disfigurement of his arm;

and it’s time that [defendant] took responsibility for his actions on April 15, 2011.”

¶ 91 In closing, the defense asserted that defendant was a credible witness and reasonably feared

for his life and the life of his brothers, and that the State’s witnesses were “liars” and were lying

about what occurred that day, including their claim that they did not have a gun that day. The

defense asserted that defendant did not tell police about his lawful defense because poor prior

interactions with the police and he remained silent after arrest.

¶ 92 In rebuttal, the State argued:

“when you read each and every one of these instructions, you will not find a law that says

this defendant, Osvaldo Colunga, can take a gun with him everywhere he goes for the next

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ten months, from June all the way through the summer, through the winter into April,

loaded, armed, ready to be shot at an individual who he thinks shot him. Ladies and

Gentlemen, is not the law. That is called revenge. That is called retaliation. That's called

not taking responsibility for your actions.”

¶ 93 The prosecutor characterized defendant’s testimony as a “spin of lies” and noted that after

he was arrested, he was given his Miranda warnings and agreed to speak to the police and told

them that he had been home all night watching a movie and ingesting marijuana, but did not tell

police that he “was justified because ten months ago you guys knew that Alfonso shot me.” The

prosecutor continued:

“The creative testifying that you heard from the defendant is five years in the

making. The evidence that the People have in this case is so overwhelming that he now has

to come up with a reason as to why he shot him. Because he knows that he is guilty as the

evidence points to him.”

¶ 94 The State encouraged the jury to assess defendant’s credibility as a witness and argued that

he had a motive to testify untruthfully and Manuel’s statement to police and testimony did not

support defendant’s theory of the case. The State reasoned that

“when you carry a gun and you follow behind another car and you raise that gun and you

put seven pounds of pressure on that trigger and you propel that bullet out of that gun and

shoot another individual, that is called attempt murder. *** Ladies and Gentlemen, the

evidence is overwhelming that that is what the defendant did on April 15, 2011. For a year

almost this defendant has been carrying a loaded gun in his pocket ***.”

¶ 95 The prosecutor argued that defendant did not dispute that he had a gun and fired it, and the

evidence showed that the bullet lodged in Alfonso’s sleeve and was a match to the gun. The State

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argued that defendant claimed he had lawful justification, but defendant could not carry a loaded

gun for ten months and shoot at Alfonso simply because he knew him to be dangerous, and the

evidence supported that he knew who was in the white Buick, he purposefully aimed and fired his

gun instead of calling the police. Further, the State argued:

“The defendant did not take responsibility when he spoke to the police. The

defendant didn't take responsibility with that bogus lawful justification argument. The

defendant did not take responsibility for any of his actions on April 15, 2011. Now, it's

your opportunity to take responsibility to find the defendant guilty, guilty for his actions

on April 15, 2011, by finding him guilty” of the charged offenses.

¶ 96 Viewing the State’s arguments in their entirety and in light of the defense’s closing, we

find that the State did not improperly call upon the jury to convict defendant because he failed to

admit his guilt and save the jury the trouble of a trial. Rather, the State’s remarks asked the jury to

hold defendant responsible for the charged offenses based on evidence of his actions. See, contra,

People v. Hawkins, 284 Ill. App. 3d 1011, 1018 (1996) (Prosecutor’s repeated references

connecting defendant’s failure to plead guilty to a failure to accept responsibility constituted error);

Further, the State’s comments also did not constitute an improper commentary on defendant’s right

to remain silent and failure to assert his defense. As previously discussed, defendant waived his

right to remain silent after his arrest and spoke to the police, and the State properly used this as

rebuttal evidence to impeach his trial testimony. See People v. Thompson, 2013 IL App (1st)

113105, ¶¶ 83-84 (reviewed in context, ASA’s comments to jury that “the case was about

‘accepting responsibility for your actions’ and that [the] defendant was ‘utterly unwilling to accept

responsibility for his actions’ ” and “[t]ell him he’s responsible for his actions,” were not improper

and “had no reference whatsoever to defendant’s choice not to testify”).

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¶ 97 Moreover, the State did not improperly encourage the jury to “send a message” to the

community at large by convicting defendant. Rather, the State properly urged the jury to hold

defendant responsible for his actions. See People v. Desantiago, 365 Ill. App. 3d 855, 865 (2006)

(Prosecutor’s comment that the jury should send a message to defendant and it was time for him

to take responsibility for what he did was not improper as it did not encourage jury to send a

message to the community at large); People v. Anderson, 2017 IL App (1st) 122640, ¶¶ 115-116

(No unfair prejudice to the defendant when the State argued in rebuttal that a guilty verdict was

the only way to make the defendant accept responsibility for what he did, where comments were

invited by the defense closing).

¶ 98 Along similar lines, we also do not agree with defendant that the State’s argument recited

above improperly “mischaracterized his defense” by “falsely claiming Colunga had argued that he

had the right to carry a gun around for a year and to fire it at Delatorre because he knew Delatorre

was dangerous.” The State’s argument recognized that defendant conceded that he possessed the

gun that day, and it did not assert that he should be found guilty merely because he possessed it

illegally. Rather, the State’s arguments were a fair response to defendant’s evidence and lawful

justification defense. The State’s arguments disputed the precise issue defendant advocated, that

is, that defendant knew Alfonso to be violent and that Alfonso was the initial aggressor on April

15, 2011. The State is “allowed a great deal of latitude in closing argument” and is permitted to

respond to the defendant’s closing argument in kind. Figueroa, 381 Ill. App. 3d at 849.

¶ 99 Because the State’s remarks all fell within the bounds of propriety, no substantial prejudice

to defendant or plain or obvious error occurred, and defendant’s claim of prosecutorial misconduct

must fail. Because we have found no prosecutorial error, we similarly find that defendant’s trial

counsel did not err in failing to object to the challenged comments, and defendant’s claim of

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ineffective assistance on that basis must also fail. Banks, 2016 IL App (1st) 131009, ¶ 123;

Strickland, 466 U.S. at 687 (a defendant must satisfy both prongs of the Strickland test to prevail

on a claim of ineffective assistance).

¶ 100 E. Ineffective Assistance

¶ 101 Defendant next asserts that his trial counsel was ineffective in failing to request an

instruction on unreasonable self-defense concerning the attempted murder charge, which he

contends he was entitled to under People v. Lopez, 166 Ill. 2d 441 (1995) and People v. Reagan,

99 Ill. 2d 238 (1983). Defendant argues that this court misread the legal principles set forth in

Logan and Reagan in People v. Guyton, 2014 IL App (1st) 110450, ¶¶ 45-46, which held that a

defendant acting in imperfect self-defense can still be convicted of attempted murder because the

legislature has not created the offense of attempted second-degree murder, and urges this court not

to follow Guyton.

¶ 102 As previously stated, to prevail on a claim of ineffective assistance of counsel, the

defendant must show that his counsel’s representation fell below an objective standard of

reasonableness and that he was prejudiced as a result. Banks, 2016 IL App (1st) 131009, ¶ 123

(citing Strickland, 466 U.S. at 687-88). To establish deficient performance, a defendant must

overcome the presumption that his counsel’s actions constituted sound trial strategy. Id. To show

prejudice, a defendant must show there is a reasonable probability that, but for counsel’s

insufficient performance, the result of the proceeding would have been different. Id. “Failure to

make the requisite showing of either deficient performance or sufficient prejudice defeats the

claim.” Id.

¶ 103 Generally, an attorney’s choice of jury instructions is a matter relegated to trial strategy.

People v. Sims, 374 Ill. App. 3d 231, 267 (2007). As such, counsel’s decisions regarding jury

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instructions “enjoy a strong presumption that they reflect sound trial strategy rather than

incompetence,” and are “generally immune from claims of ineffective assistance of

counsel.” People v. Enis, 194 Ill. 2d 361, 378 (2000).

¶ 104 The offense of attempted (first degree) murder requires “the specific intent to kill someone.

[Citations.] Mere intent to do great bodily harm, or even knowledge that one's acts may result in

great bodily harm or death, is insufficient.” People v. Cunningham, 376 Ill. App. 3d 298, 303

(2007). “A person commits the offense of attempt when, with intent to commit a specific offense,

he or she does any act that constitutes a substantial step toward the commission of that offense.”

720 ILCS 5/8-4 (West 2010). In turn, a defendant commits first degree murder when he kills

another without lawful justification and:

“in performing the acts which cause the death:

(1) he either intends to kill or do great bodily harm to that individual or another, or

knows that such acts will cause death to that individual or another; or

(2) he knows that such acts create a strong probability of death or great bodily harm

to that individual or another.” 720 ILCS 5/9-1 (West 2010).

¶ 105 A reasonable belief in the need for self-defense constitutes a defense to a charge of first

degree murder. That is, an individual is “justified in the use of force which is intended or likely to

cause death or great bodily harm only if he reasonably believes that such force is necessary to

prevent imminent death or great bodily harm to himself or another, or the commission of a forcible

felony.” 720 ILCS 5/7-1 (West 2010).

¶ 106 Defendant argues that his attorney should have requested an instruction on unreasonable

self-defense to the attempted murder charge because the jury could have found that he did not have

the intent to unlawfully kill or cause great bodily harm to Alfonso or the other occupants of the

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Buick because he had an unreasonable belief in the need to use deadly force in self-defense (or to

defend his brothers). He contends that because the legislature allows for mitigation from a first

degree murder charge to a second degree murder charge where there is evidence of an unreasonable

belief in the need to use deadly force in self-defense (720 ILCS 5/9-2(a)(2), (c) (West 2010)),3 he

should be allowed to mitigate attempted (first degree) murder to attempted (second degree)

murder, although Illinois does not recognize the offense of attempted (second degree) murder.

¶ 107 This court recently addressed the issue of unreasonable belief in the need for self-defense

in the attempted murder context in Guyton, 2014 IL App (1st) 110450. In Guyton, the defendant

was charged with first degree murder for killing one victim and attempted murder for shooting

another victim, and he raised his unreasonable belief in the need for deadly force as a defense at

trial. Id. ¶¶ 39-40. He was convicted of second degree murder and attempt (first degree) murder;

on appeal, the defendant argued that because he fired simultaneously at the two victims, it was

unreasonable to find that he did not have an unreasonable belief in his need for deadly force in

self-defense against the victim he did not kill. Id. However, the court found that imperfect self-

defense is not a defense to attempted (first degree) murder because no such crime as attempted

(second degree) murder exists. Id. ¶ 46.

¶ 108 Defendant claims this court’s Guyton decision is inconsistent with supreme court precedent

in Reagan and Lopez. In Reagan, our supreme court held that Illinois does not recognize the crime

of attempted voluntary manslaughter as a defendant “would have to specifically intend to kill with

3 An individual commits second degree murder where he commits the offense of first degree murder and one of two mitigating factors is present, that is, “at the time of the killing he or she believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his or her belief is unreasonable.” 720 ILCS 5/9-2(a)(2) (West 2010).

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an unreasonable belief in the need to use deadly force in self-defense,” but it is “impossible to

intend an unreasonable belief.” Reagan, 99 Ill. 2d at 240.

¶ 109 The court reaffirmed this holding in Lopez, where it held that the offense of attempted

(second degree) murder did not exist in Illinois because a defendant cannot have the specific intent

to commit second degree murder, i.e., the intent to kill without lawful justification and the intent

to have a mitigating circumstance be present (such as sudden and intense passion due to serious

provocation or the unreasonable belief in the need to use deadly force). Lopez, 166 Ill. 2d at 448-

49. The court observed that, as to imperfect self-defense, “one cannot intend to unlawfully kill

while at the same time intending to justifiably use deadly force.” Id.

¶ 110 We decline defendant’s invitation not to follow Guyton as we believe it is consistent with

our supreme court’s holdings in Reagan and Lopez. As the Guyton court observed, the legislature

has not amended the attempt statute, despite the passage of decades since Lopez and Reagan, in

order to allow for a defense of imperfect self-defense in mitigation, or created the crime of

attempted (second degree) murder. This is compelling especially considering that the legislature

amended the attempted murder statute to allow a defendant to prove at sentencing that the

mitigating factor of provocation was present to reduce the class of the offense. Guyton, 2014 IL

App (1st) 110450, ¶ 44 (citing 720 ILCS 5/8-4(c)(1)(E) (West 2010)). Accordingly, counsel’s

decision not to request an instruction on unreasonable belief in self-defense was not deficient

because there was no basis in the law to request such an instruction. Counsel’s failure to request

this instruction did not cause defendant any prejudice.

¶ 111 F. Sentencing

¶ 112 In his next issue on appeal, defendant contends that this court should reduce his sentence

for attempted murder because the State failed to prove that he caused permanent disfigurement to

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Alfonso, which subjected defendant to a 25-year enhancement. Defendant argues that the court

should vacate the 25-year enhancement and sentence him to a 20-year enhancement for

discharging a firearm with no finding of any permanent disfigurement. Defendant also argues that

his sentence was excessive because it did not adequately consider mitigating evidence such as his

age and the fact that he was diagnosed with schizophrenia in the years following the shooting.

¶ 113 “It is well settled that, to preserve a claim of sentencing error, both a contemporaneous

objection and a written postsentencing motion raising the issue are required.” People v. Hillier,

237 Ill. 2d 539, 544 (2010). Consequently, we may review defendant’s claims of error only if he

establishes plain error, that is, defendant bears the burden of showing that a clear or obvious error

occurred and that either “(1) the evidence at the sentencing hearing was closely balanced, or (2)

the error was so egregious as to deny the defendant a fair sentencing hearing.” Id. at 545.

¶ 114 “The trial court has broad discretionary powers in imposing a sentence, and its sentencing

decisions are entitled to great deference.” People v. Alexander, 239 Ill. 2d 205, 212 (2010). We

review a sentence within the statutory limits for an abuse of discretion. Id. “A sentence will be

deemed an abuse of discretion where the sentence is greatly at variance with the spirit and purpose

of the law, or manifestly disproportionate to the nature of the offense.” (Internal quotation marks

omitted). Id. We give great deference to the trial court’s sentencing determination because it was

in a superior position to observe the defendant and proceedings first-hand. Id. at 212-13. The trial

judge has a superior opportunity to evaluate and weigh such factors as a defendant’s credibility,

demeanor, character, moral capacity, social environment, age, and habits. Id. at 213. We will not

substitute our judgment for that of the trial court merely because we would have weighed various

factors differently. Id. Absent some affirmative indication otherwise, we presume that the trial

judge considered all mitigating factors in the record. People v. Perkins, 408 Ill. App. 3d 752, 762-

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63 (2011). The court is not required to give mitigating factors greater weight. Alexander, 239 Ill.

2d at 214.

¶ 115 Here, the State charged defendant with attempted murder alleging that he personally

discharged a firearm which caused permanent disfigurement to Alfonso. Attempted murder with a

finding that a defendant personally discharged a firearm causing permanent disfigurement requires

a 25-year sentencing enhancement. 720 ILCS 5/8-4(c)(1)(D) (2010). Attempted murder which

entails the discharge of a firearm but without any finding of permanent disfigurement calls for a

20-year add-on sentencing penalty. 720 ILCS 5/8-4(c)(1)(C) (2010). Defendant’s jury specifically

determined that in committing attempted murder, defendant discharged a firearm and, in doing so,

caused permanent disfigurement to Alfonso. On appeal, defendant asserts that there was

insufficient evidence to prove beyond a reasonable doubt that the gunshot wound caused

permanent disfigurement to Alfonso’s arm, and this court should therefore find the evidence was

insufficient as to this aggravating factor and reduce the add-on penalty to only 20 years for

discharging a firearm.

¶ 116 “Whether defendant has inflicted great bodily harm or permanent disfigurement is

generally a question of fact.” People v. Doran, 256 Ill. App. 3d 131, 136 (1993). “According to

Black's Legal Dictionary, disfigurement is that which ‘impairs or injures the beauty, symmetry, or

appearance of a person or thing; that which renders unsightly, misshapen, or imperfect, or deforms

in some manner.’ ” People v. Woods, 173 Ill. App. 3d 244, 249 (1988) (Black's Law Dictionary

420 (5th ed. 1979)).

¶ 117 Viewing the evidence in the light most favorable to the State and deferring to the jury’s

assessment of the evidence presented and what inferences to draw from this evidence, we find

there was sufficient evidence of permanent disfigurement such that we decline to overturn the

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jury’s determination. Jackson, 443 U.S. at 319; Wheeler, 226 Ill. 2d at 114. The jury was presented

with evidence of permanent disfigurement in the form of testimony by Alfonso and the responding

police officer who observed the gunshot wound immediately after the incident. It was not disputed

that the bullet fired by defendant traversed the metal car door and pierced and penetrated Alfonso’s

arm and exited out the other side and lodged in his jacket. The bullet caused a visible, bleeding

hole that required prompt medical attention at the hospital. The jury was also presented with

photographic exhibits of the injury in making its determination. We decline to second-guess the

jury’s determination on this factual issue. Doran, 256 Ill. App. 3d at 136. Based on the record, we

cannot say that defendant has shown that this evidence was so “unreasonable, improbable, or

unsatisfactory” that is raised a reasonable doubt about his guilt. Scott, 2020 IL App (1st) 180200,

¶ 39. Our courts have repeatedly held that determinations such as permanent disfigurement or great

bodily harm are factual questions belonging to the province of the trier of fact. Doran, 256 Ill.

App. 3d at 136. See People v. Newton, 7 Ill. App. 3d 445, 447 (1972) (sufficient evidence that

victim suffered permanent disfigurement or great bodily harm where the victim received six

stitches for a head wound and testified at trial five months later that there was a small scar covered

by hair); Doran, 256 Ill. App. 3d at 132-33 (sufficient evidence of permanent disfigurement where

the record contained pictures of the victim's injuries and the victim displayed a scar in the bridge

area of his forehead). In so holding, we are mindful that it is not the function of this court to retry

defendant on appeal or substitute our judgment for that of the jury. People v. Collins, 214 Ill. 2d

206, 217 (2005).

¶ 118 In defendant’s next claim of sentencing error, he contends that the trial court did not

adequately consider evidence in mitigation. Attempted murder is a Class X offense carrying a

sentencing range of 6 to 30 years in prison. 720 ILCS 5/8-1(c)(1) (West 2010); 730 ILCS 5/5-4.5-

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25(a) (West 2010). Defendant’s sentence of 10 years (not including the 25-year gun enhancement)

was at the low end of this range. However, defendant argues that the trial court should have

sentenced him to the very minimum of his range, 6 years’ imprisonment, in light of the mitigating

evidence.

¶ 119 He argues that his young age (20 years old) at the time of the shooting warranted a lower

sentence, citing the reasoning in Miller v. Alabama, 567 U.S. 460, 471-72 (2012), that juveniles

should be treated differently than adults for sentencing purposes as their “distinctive attributes”

such as “transient rashness, a proclivity for risk, and an inability to access consequences”

correspondingly “diminish the penological justifications for imposing the harshest sentences on

juvenile offenders.”

¶ 120 We find defendant’s citation to Miller unavailing as that case stands for the principle that

a mandatory life or de facto life sentencing scheme is unconstitutional in relation to juveniles as it

prevents courts from considering individual circumstances of a juvenile. Miller, 567 U.S. at 479.

In addition to the fact that defendant was not a juvenile, he also was not facing a mandatory or de

facto life sentence. The trial court here was free to exercise its discretion in selecting its sentence

within the applicable range and consider defendant’s age and attendance rehabilitative potential.

Indeed, it is notable that in sentencing defendant to 10 years’ imprisonment, the trial court

sentenced defendant to the lower end of the applicable sentencing range—within 4 years of the

minimum allowed sentence, and 20 years less than the maximum possible sentence. Moreover, the

record supports that the trial court thoroughly considered all of the relevant sentencing factors,

including defendant’s age, along with the nature of the offenses, defendant’s criminal and social

history, educational and employment background, family history, and observed his demeanor and

mentality at trial and during sentencing. Defendant had a prior conviction for aggravated robbery

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(2007), two battery convictions (2008), domestic battery (2010), and a probation violation. The

trial court had before it the presentence investigation report detailing this information along with

the evidence and arguments submitted by the parties at sentencing and trial. The trial court was in

a superior position to evaluate the impact of defendant’s age and weigh this factor among the other

factors in fashioning his sentence, and defendant has not established that its decision was at great

variance with the spirit and purpose of the law or manifestly disproportionate to the nature of his

offense. Alexander, 239 Ill. 2d at 212-13.

¶ 121 Additionally, defendant asserts that the trial court inadequately considered the fact that he

was diagnosed with schizophrenia two years after the shooting and he likely was suffering from

this condition at the time of the shooting. We similarly find no abuse of discretion in the trial

court’s sentence as it relates to defendant’s mental health issues. Alexander, 239 Ill. 2d at 212. The

record reflects that this issue was explored in depth during the sentencing hearing. The trial court

was presented with defendant’s mental health history and reports. Defendant’s presentence

investigative report showed that he was diagnosed with bipolar disorder and schizophrenia in 2013,

which led to a brief hospitalization and then treatment at a mental health center. He required

medication to treat his mental health conditions. Defendant’s counsel argued at length regarding

defendant’s mental health diagnosis and defendant testified concerning his mental health history.

Although defense counsel used the mental health information to argue that defendant should be

sentenced to a Class 1 felony instead of a Class X felony because he was acting in a sudden and

intense passion resulting from serious provocation, the trial court was nevertheless presented with

this information to consider in determining defendant’s ultimate sentence as a Class X offender.

After considering all of this evidence, the trial court ultimately determined that it was speculative

that defendant was suffering from a mental condition in April 2011. The trial court observed that

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all of defendant’s records were dated two years after the shooting and there was no indication in

the records that defendant “was acting under any psychosis or mental defect” at the time of the

incident.

¶ 122 Accordingly, on the record, defendant has not provided any affirmative indication that the

trial court failed to consider all mitigating factors, including his age and mental health conditions.

Perkins, 408 Ill. App. 3d at 762-63. The trial court, however, was not required to give these

mitigating factors greater weight than the factors in aggravation, such as defendant’s criminal

history and the facts of the shooting. Alexander, 239 Ill. 2d at 214. We therefore find the trial court

did not abuse its discretion in determining defendant’s sentence. Id. at 212. Defendant has also

failed to show that any clear or obvious error occurred with regarding to his sentencing. Hillier,

237 Ill. 2d at 544. Because no error occurred, defendant’s alternative claim that his counsel

rendered ineffective assistance in failing to file a motion to preserve his sentencing issues for

appeal must likewise fail. People v. Givens, 237 Ill. 2d 311, 331 (2010) (failure to file a futile

motion does not establish ineffective assistance of counsel).

¶ 123 G. Mittimus

¶ 124 In his final argument, defendant asserts that this court should amend his mittimus to reflect

the correct number of days that he spent in presentence custody. We observe that while this appeal

was pending, our supreme court adopted and then amended a new Illinois Supreme Court Rule

472 regarding the procedure in criminal cases for correcting sentencing errors such as calculation

of presentence custody credit. Ill. S. Ct. R. 472(a)(3) (eff. May 17, 2019). The rule provides that

“[n]o appeal may be taken” on the ground of any of the sentencing errors enumerated in the rule

unless that alleged error “has first been raised in the circuit court.” Ill. S. Ct. R. 472(c) (eff. May

17, 2019). Further, “[i]n all criminal cases pending on appeal as of March 1, 2019, or appeals filed

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thereafter in which a party has attempted to raise sentencing errors covered by this rule for the first

time on appeal, the reviewing court shall remand to the circuit court to allow the party to file a

motion pursuant to this rule.” Ill. S. Ct. R. 472(e) (eff. May 17, 2019). Accordingly, pursuant to

Rule 472, we remand to the circuit court to allow defendant to file a motion regarding his

presentence custody credit issue.

¶ 125 III. CONCLUSION

¶ 126 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County, but

remand as to the issue of presentence custody credit.

¶ 127 Affirmed; remanded as to presentence custody credit.

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