2021 IL App (1st) 190192-U
SECOND DIVISION May 4, 2021
No. 1-19-0192
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent 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 Cook County. Plaintiff-Appellee, ) ) v. ) No. 16 CR 3088 ) SHAMAR McGEE, ) The Honorable ) Carl B. Boyd, Defendant-Appellant. ) Judge Presiding.
____________________________________________________________________________
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Lavin and Cobbs concurred in the judgment.
ORDER
HELD: Defendant’s conviction for felony murder affirmed where claim of self- defense could not stand, as it was negated by the State beyond a reasonable doubt based on evidence demonstrating force was not threatened against him, he was the aggressor, he was not in imminent danger, the use of force was not necessary, he did not believe he was in danger, and such belief was not objectively reasonable. Correction to mittimus required. No. 1-19-0192
¶1 Following a bench trial, defendant-appellant Shamar McGee (defendant) was convicted
of three counts of felony murder and one count of aggravated discharge of a firearm. Counts
were merged, and he was sentenced to 20 years for the felony murder convictions and 4 years
for the aggravated discharge of a firearm conviction, to run consecutively, for a total of 24
years in prison. He appeals, contending that the State failed to prove beyond a reasonable
doubt that he acted without legal justification. He insists that the testimony and evidence at
trial supported his theory of self-defense and defense of others, and that the State did not
present sufficient evidence to dispute these. He asks that we reverse his conviction outright.
Alternatively, he asks that if we do not grant him the relief requested, we must nonetheless
correct his mittimus to reflect only one conviction for felony murder. For the following
reasons, we affirm, with a correction to defendant’s mittimus.
¶2 BACKGROUND
¶3 Defendant was charged with multiple counts of felony murder, attempted murder, and
aggravated discharge of a firearm in relation to events that occurred on the night of January
28, 2016. That evening, defendant was hosting a party for his birthday at his home, which
was relatively intimate in size and consisted of approximately 10 to 15 attendees. The events
at issue resulted in the injury of Anthony Evans and in the death of Troy Thompson.
¶4 Marcus Washington testified that he and defendant had a good relationship and were
friends. He stated that Evans, his cousin, had a similarly good relationship with defendant,
until recently when Evans stole defendant’s gun. On the morning of the party, the group’s
friend in common, Johnny Tyra, told him it was defendant’s birthday. Washington averred
that he called defendant on the phone to wish him a happy birthday, whereupon defendant
2 No. 1-19-0192
invited him to his house that evening for the party. At about 9 p.m., Washington went to the
party with Evans. Washington was unarmed, but Evans brought a gun with him; Washington
explained that this was part of the “lifestyle” they led. The two walked into the party and
saw defendant with several other people, including Johnny, his wife Britani, Quinn Davis,
and Thompson. Washington averred that upon his and Evans’ arrival, defendant stood up
and told them to leave, saying “[y]ou stole from me.” Washington turned around and walked
out the front door, while Evan walked out backwards, facing defendant until he was outside.
Washington averred that he and Evans remained calmed and did not act disrespectfully in
any way as they left. At that moment, another partygoer, EJ, arrived; defendant let him
inside and then the front door of the home was closed and locked.
¶5 Washington further testified that once outside, he and Evans began to walk down the
driveway to leave. Washington then heard a gunshot from behind them. Evans pushed
Washington to the ground, and Washington crawled under a parked truck, believing he had
been shot. Washington stated he did not see who shot the gun, but he knew it came from
behind him and from the house or near it. Washington then saw Evans pull out his gun and
shoot one time toward the house. At this point, Johnny came out of the house, along with
Davis and Thompson, to check on Washington, and as they were helping him up from the
ground, Washington discovered that he had not been shot. Evans was now in the middle of
the street, and Washington then saw defendant run toward them holding a gun; Washington
described that defendant’s gun had a 50-round extended magazine and was equipped with a
red laser, which was on. Defendant fired five shots at Evans, and Evans returned fire and ran
3 No. 1-19-0192
down the street. Washington heard Johnny say that Thompson had been hit. Later,
Washington called Evans on his phone and Evans told Washington he had been shot.
¶6 Evans corroborated much of Washington’s testimony. He stated that he and defendant
were not on good terms at the time of the incident because he had stolen defendant’s gun and,
following a mediation they had with friends, Evans had promised to pay defendant $500 for
it and to stay away from him, but he had not yet paid defendant. Evans averred that he
thought there would be no problem if he attended defendant’s party, as he had had a drink
with defendant since the mediation, and because Johnny had invited him. Evans went with
Washington to the party armed, with his gun concealed in the left pocket of the hoodie he
wore under his jacket, and he was let into the party by Johnny. When defendant saw them,
he told them to get out. Evans stated that he and Washington were not disrespectful and they
left, with him walking out the front door backwards, facing defendant until he was outside.
Evans saw defendant grab a gun from Thompson’s waist and cock it, telling EJ, who had just
arrived, to punch Evans on his way out. EJ did not do so, but walked into the house,
whereupon the front door was shut and locked.
¶7 Evans further testified that, as he and Washington were walking down the driveway and
away from the house, he saw defendant shoot at him from the side of a garbage can on the
side of the house. Evans pushed Washington to the ground and pulled out his gun; he saw
defendant running toward the back door with his gun and Evans fired one shot, which hit the
front storm door and shattered its glass. As defendant ran to the back of the house, Johnny,
Thompson, and Davis ran outside the front door and checked on Washington, who was on
the ground near a parked truck. Evans stated that after about three minutes, he saw defendant
4 No. 1-19-0192
rise from a crouched position, point his gun with its red laser, and fire at him again. Evans
returned fire, firing three shots and running. Evans then heard one last shot from defendant’s
direction at the house, and he noticed he had been shot in the left foot.
¶8 Britani testified that she and her husband Johnny were friends with defendant and that
Evans was Johnny’s nephew, but she did not know Washington very well. She
acknowledged that it was known among the group of friends that Evans and defendant were
on bad terms because Evans had stolen defendant’s gun. When Evans arrived that evening at
the party with Washington, she was shocked to see them enter, as Evans was not welcome.
Britani stated that upon their entry, defendant asked Washington and Evans to leave and,
when they did not do so immediately, defendant became upset and raised his voice, telling
them to get out. Britani confirmed that Washington and Evans remained calm, said nothing
disrespectful, and left.
¶9 Britani further testified that she observed defendant becoming more upset and pacing in
the house following Washington and Evans’ departure. She then saw defendant run out the
back door. About 40 seconds later, Britani heard multiple gunshots from two distinct guns
outside the house; she believed they came from the front of the home. Following the shots,
defendant ran back inside the house through the back door, and Britani saw that he was
holding a black gun equipped with a red laser. When Johnny, Davis, and Thompson went
outside through the front door, Britani saw defendant go outside through the back door again,
holding his gun. Britani remained inside and, after about 30 seconds, she heard five more
shots outside. Thompson then came back into the house, and when he stood against the wall
and tried to catch his breath, he fell and slid down the wall to the floor; he had been shot.
5 No. 1-19-0192
Johnny and Davis, who were now also inside the house, rushed to aid Thompson and Britani
called 911. Britani stated that she never went outside during the incident and did not see the
shooting.
¶ 10 Detective Judith Powe testified that she and her partner investigated the incident that
evening and spoke to Johnny, Britani, and Washington, but not defendant, who, by the time
she arrived at the house, could not be located. Defendant eventually surrendered himself to
police on January 31, 2016, whereupon he gave a video statement. This video was played in
court during Detective Powe’s testimony. In the statement, defendant claimed he stayed
inside during the entire incident, that he never shot a gun that night, and that he did not see
Washington or Evans with a gun at his house. Additionally, Detective Powe noted that
defendant did not say anything with respect to whether he had a gun, whether he went
outside after hearing the gunshots, whether he felt threatened at any time that night, or
whether he believed he shot in self-defense.
¶ 11 Forensic evidence was also presented at trial. It is undisputed that Thompson died from a
gunshot wound to the right arm and torso, and that he was shot with a .380 or 9 mm bullet.
An evidence technician testified that the glass storm door on the front of the house had been
shattered, a Buick parked in the driveway had a bullet hole, an SUV in the driveway had a
strike mark, and the mailbox had bullet holes. He recovered three .40 caliber casings in the
street in front of the house, one .40 caliber casing on the driveway near the SUV, a bullet
from the Buick, and the bullet from Thompson’s body. A ballistics expert testified that the
four .40 caliber casings belonged to bullets fired from the same gun, which belonged to
defendant. The bullet from the Buick and the bullet from Thompson were also both fired
6 No. 1-19-0192
from the same .380 or 9 mm gun, which belonged to Evans. Thus, there is no dispute that the
bullet that struck and killed Thompson came from Evans’ gun, as Thompson stood in
between the gunfire exchanged between defendant near the house and Evans in the street.
¶ 12 Defendant presented the testimony of two witnesses on his behalf, Johnny and himself.
Relevant to the issues in this cause, Johnny testified that he did not invite Washington or
Evans to the party.
¶ 13 Defendant testified that he, Thompson, Washington, and Evans were all friends until
Evans stole his gun. He did not invite either Washington or Evans to his party. He averred
that when they arrived that evening, he asked them to leave repeatedly, and when they did
not, he asked Johnny to tell them to leave. At that point, Washington and Evans started to
leave. According to defendant, as they did so, he saw Washington mouth the words, “We’ll
light this b*tch up,” and he saw Evans “kind of flash[]” the black handle and silver part of a
gun he had on his person. Defendant averred that he did not see Evans holding the gun, but
he had his hands in his pockets the whole time. Defendant testified he felt threatened by this,
and after Washington and Evans walked out the front door, he slammed and locked it.
¶ 14 Defendant further testified that, again, although Evans was not holding a gun, he believed
he and his friends were in danger, so he grabbed his .40 caliber gun from the house and went
out the back door. As he stepped outside, Evans opened fire. Defendant averred that he
returned fire and took cover on the side of a truck; he stated he fired only because Evans fired
first. Then, Johnny, Davis, and Thompson came outside and defendant, along with the three
of them, approached Washington, who was laying on the ground. Defendant claimed that as
they were checking on Washington, Evans, who by this time was standing in the street, fired
7 No. 1-19-0192
two more shots at him. Defendant returned fire again, but when his gun jammed, he ran
inside the house; he then saw Thompson enter the house after him.
¶ 15 Finally, defendant testified that he hid his gun outside after the shooting because he
believed his bullet had hit Thompson, and he did not surrender to police until several days
later. He admitted that he lied to police in several respects, including denying to them that he
ever left his house during the gunfight, that he had a gun that night, and that he fired a gun.
While he maintained to police that Washington and Evans were the aggressors, he admitted
that he did not tell police that he felt threatened by them in any way. He further admitted that
he lied to police because he wanted to avoid being charged with murder, and that he did,
indeed, own a .40 caliber gun with a red laser. Additionally, defendant testified that no one
forced him to go outside and he did not chase Evans to the street.
¶ 16 At the close of the evidence, the trial court found defendant guilty. The court
acknowledged defendant’s theory on the case, namely, that he was not the initial aggressor,
that he did not fire the first shot during either round of the shootings, that it was Evans who
did so, and that he went outside that evening to protect his house and his guests. However,
the court stated that it was called upon to make credibility determinations in this regard and
that, after “consider[ing] the weight of the testimony and the credibility of the parties,” it
found defendant’s testimony in this regard to be “incredible” and “lack[ing in] veracity * * *
[and] truthfulness.” The court went on to examine both exchanges of gunfire as separate
instances. With respect to the first, the court noted that defendant exited the house with a
firearm and fired the first shot at Washington and Evans and, thus, that he “initiated this
particular series of events.” The court declared that while it did not believe defendant
8 No. 1-19-0192
intended to shoot Washington, “[w]ithout a doubt, he intended to shoot Anthony Evans.”
Next, the court noted that defendant retreated back into the house and exited a second time
with a gun and “again, fired the first shot.” The court found that this “dispels any notion of
self-defense.” Ultimately acknowledging that it was Evans’ bullet that killed Thompson, the
court nonetheless concluded that “it was all initiated by” defendant and, thus, his theory of
self-defense could not stand.
¶ 17 Defendant filed a motion for a new trial. Upon its consideration, the trial court again
affirmed that, in its view of the evidence, “the testimony indicated that [defendant] was not
only the initial aggressor in this case, he was the person who shot first,” and, accordingly, he
“certainly cannot claim self-defense.” The court sentenced defendant to 3 concurrent terms
of 20 years based on 3 felony murder convictions and 4 years for aggravated discharge of a
firearm, to run consecutively, for a total of 24 years in prison.
¶ 18 ANALYSIS
¶ 19 On appeal, defendant contends that we must reverse his convictions outright because the
State did not prove beyond a reasonable doubt that he acted without legal justification. He
asserts that he was justified in using force to defend himself and his guests that night and that
the evidence showed Washington and Evans were the aggressors and became objective
threats. He further argues that the evidence showed Evans, not he, fired first, placing him
and his guests in imminent danger of serious harm. He concludes that his actions provided a
“reasonable response to the situation” and, thus, his conviction was improper. We disagree.
¶ 20 When a criminal defendant challenges the sufficiency of the evidence used to convict
him, the standard of review is whether, when viewing the evidence in the light most
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favorable to the State, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. See People v. Smith, 185 Ill. 2d 532, 542 (1999); People v.
Hunley, 313 Ill. App. 3d 16, 20 (2000). Courts of appeal will not retry the defendant. See
People v. Digirolamo, 179 Ill. 2d 24, 43 (1997). Instead, the trial court, as the trier of fact in
a bench trial, hears and sees the witnesses and, thus, has the responsibility to adjudge their
credibility, resolve any inconsistencies, determine the weight to afford their testimony and
draw reasonable inferences from all the evidence presented. See People v. Steidl, 142 Ill. 2d
204, 226 (1991); Hunley, 313 Ill. App. 3d at 21. This is true even with respect to testimony
provided by a defendant on his own behalf; the trial court is not required to accept his version
of events over competing versions or other evidence presented at trial. See People v. Bobo,
2020 IL App (1st) 182628, ¶ 46, citing People v. Ortiz, 196 Ill. 2d 236, 267 (2001); see also
People v. Villarreal, 198 Ill. 2d 209, 231 (2001) (trier of fact is entitled to choose among
conflicting versions of events).
¶ 21 We further note that conflicts and inconsistencies in the testimony of witnesses do not
create reasonable doubt, especially if those inconsistencies are minor. See People v. Adams,
109 Ill. 2d 102, 115 (1985) ("[m]inor inconsistencies in the testimonies do not, of
themselves, create a reasonable doubt"); People v. Bennet, 329 Ill. App. 3d 502, 513 (2002)
("[i]nconsistency between certain eyewitnesses' testimony does not necessarily establish
reasonable doubt"). Such discrepancies go only to the weight that is to be afforded to their
testimony (see People v. Hruza, 312 Ill. App. 3d 319, 326 (2000)), which is for the trial court
here as the trier of fact to determine, not the reviewing court (see People v. Vasquez, 313 Ill.
App. 3d 82, 103 (2000)). See People v. Robinson, 30 Ill. 2d 437, 440 (1964) ("minor
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variations *** pointed to by defendant at most affect the credibility of the witnesses, a matter
for the trial court's determination" in a bench trial); People v. McPherson, 306 Ill. App. 3d
758, 766 (1999) (judgment will not be reversed on appeal where testimony is merely
conflicting); see also People v. Deleon, 227 Ill. 2d 322, 332 (2008) and People v. Simon,
2011 IL App (1st) 091197, ¶ 94 (it is in trial court's direct purview to adjudge credibility and
resolve these inconsistencies, and a reviewing court may not substitute its judgement in this
regard). Moreover, absent any affirmative indication in the record to the contrary, it is
presumed that the trial court considered only competent evidence in reaching its verdict. See
People v. Gilbert, 68 Ill. 2d 252, 258-59 (1977) (this is rebutted only with affirmative
evidence in record); accord Simon, 2011 IL App (1st) 091197, ¶ 91. A conviction will not be
overturned unless the evidence is so improbable or unsatisfactory as to create a reasonable
doubt of guilt. See People v. Brown, 185 Ill. 2d 229, 247 (1998).
¶ 22 Justifiable use of force, to protect either oneself or others, is, of course, an affirmative
defense. See 720 ILCS 5/7-14, 1(a) (West 2018). Pursuant to statute, a person is justified in
using force against another when, and to the extent that he reasonably believes, such conduct
is necessary to defend himself or others against another’s imminent use of unlawful force.
See 720 ILCS 5/7-1(a) (West 2018). In a situation, such as the instant cause, where a
defendant uses force which is intended or likely to cause death or great bodily harm, he is
justified in doing so “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(a) (West 2018).
11 No. 1-19-0192
¶ 23 Accordingly, the elements of self-defense are: (1) unlawful force threatened against the
defendant, (2) the defendant was not the aggressor, (3) the danger of harm was imminent, (4)
the use of force was necessary, (5) the defendant actually and subjectively believed a danger
existed that required the use of the force applied, and (6) the beliefs of the defendant were
objectively reasonable. See People v. Gray, 2017 IL 120958, ¶ 50, citing People v. Lee, 213
Ill. 2d 218, 225 (2004). In self-defense cases, all the surrounding circumstances are relevant
in assessing whether the defendant’s beliefs were reasonable. See, e.g., People v. Morris,
162 Ill. App. 3d 1046, 1052 (1987); People v. Florey, 153 Ill. App. 3d 530, 536 (1987).
Reasonable belief encompasses a defendant, acting as a reasonable man, believing that the
described facts exist. See People v. Harmon, 2015 IL App (1st) 122345, ¶ 55. While the
defendant need not exercise “ ‘infallible judgment’ ” in reacting to the circumstances
presented to employ self-defense, he ultimately must use “ ‘reasonable judgment under the
existing circumstances.’ ” Harmon, 2015 IL App (1st) 122345, ¶ 55, quoting People v.
Evans, 259 Ill. App. 3d 195, 210 (1994). The use of deadly force is not justified as self-
defense if the defendant uses more force than he reasonably believes is necessary to avert the
danger. See People v. Washington, 2012 IL 110283, ¶ 35. And, a claim of self-defense
cannot be argued when the defendant was the aggressor. See 720 ILCS 5/7-1 (West 2018);
People v. Jeffries, 164 Ill. 2d 104, 127 (1995).
¶ 24 Once self-defense is raised as an affirmative defense to the offense charged, the State has
the burden of proving beyond a reasonable doubt that the defendant did not act in self-
defense, in addition to proving the elements of the offense charged. See Gray, 2017 IL
120958, ¶ 50; Lee, 213 Ill. 2d at 224; accord Harmon, 2015 IL App (1st) 122345, ¶ 50
12 No. 1-19-0192
(burden of disproving the defendant’s assertion of the existence of justification belongs to the
State, which must do so beyond a reasonable doubt). Just as with the elements of the charged
offense, it is the function of the trial court, as the trier of fact in a bench trial, when deciding
a claim of self-defense, to assess the credibility of the witnesses (including the defendant),
the weight to be given their testimony, and the inferences to be drawn from the evidence,
along with resolving any conflicts or inconsistencies presented. See Gray, 2017 IL 120958, ¶
51; Lee, 213 Ill. 2d at 225. And, the same standard of review applies: whether, after
considering the evidence in the light most favorable to the State, any rational trier of fact
could have found beyond a reasonable doubt that the defendant did not act in self-defense.
See Gray, 2017 IL 120958, ¶ 51; Lee, 213 Ill. 2d at 225. Critically, if the State negates any
one of the enumerated elements of self-defense, the defendant’s claim of self-defense cannot
stand. See Gray, 2017 IL 120958, ¶ 50; Lee, 213 Ill. 2d at 225.
¶ 25 Based on the record before us, we hold that the defendant’s claim cannot stand, as the
State clearly negated the elements of self-defense under the circumstances presented beyond
a reasonable doubt.
¶ 26 Most significantly here, the trial court specifically found that defendant’s testimony
regarding what occurred and his belief that he properly used self-defense to protect himself
and his party guests—namely, that force was threatened against them, he was not the
aggressor, the danger was imminent, his use of force was necessary, and he actually believed
a danger existed—was “incredible” and lacked any sort of “veracity” or “truthfulness.” As
the trier of fact here, this was undeniably within its purview to do, and the evidence presented
supports its determination that defendant was not acting in self-defense.
13 No. 1-19-0192
¶ 27 Washington testified that he and Evans left the party when they were told to do so by
defendant. They walked out the front door of the house and down the driveway, when
Washington heard the first gunshot coming from behind him, i.e., from the house they had
just left. Accordingly, Washington’s testimony was that defendant fired first, making him
the aggressor and not Evans, who pushed Washington to the ground to protect him and then
fired one time in response, hitting the glass storm door. The shooting stopped for a few
moments as Johnny, Davis, and Thompson ran outside to check on Washington. However,
Washington testified that the shooting started again, as this time, he watched defendant fire
five more shots at Evans, who had moved to the street. Washington’s testimony made clear
that defendant was the aggressor.
¶ 28 Evans corroborated Washington’s testimony. He testified that, although he was armed,
he left the party upon defendant’s request. He walked outside with Washington and down
the driveway to leave when he saw defendant on the side of the house by some garbage cans
with a gun. He stated that defendant fired one shot from that point at him; Evans pushed
Washington to the ground, returned fire with one shot that hit the front storm door, and saw
defendant run into the house via the back door. Johnny, Davis, and Thompson came outside
to check on Washington and, after a few minutes, Evans saw defendant rise from a crouched
position, point his gun with its red laser, and fire at him again. Evans returned fire and ran.
Just as Washington, Evans’ testimony made clear that defendant was the aggressor.
¶ 29 This testimony was further corroborated by Britani and the forensic evidence presented.
Britani testified that Washington and Evans left the party when defendant ordered them to,
and that they did so calmly and without saying anything threatening or disrespectful. Britani
14 No. 1-19-0192
described that after they left, defendant remained very upset and agitated about the situation,
and she saw him run out the back door. Although she was not outside and did not see the
shootings, Britani testified that only seconds after defendant left the house, she heard
gunshots from two distinct guns and then saw defendant run back into the house through the
back door holding a gun equipped with a red laser. After Johnny, Davis, and Thompson
went outside through the front door, Britani saw defendant go outside through the back door
once again, holding his gun. And again, seconds later, she heard five more shots.
Forensically, four .40 shell casings were recovered from the scene, one from the driveway
and three more from the street, all having been shot from defendant’s gun. This indicates
that during the incident, defendant moved from the area near the house where he must have
exited to the street, pursuing Evans, who testified that was where he moved to after the first
shooting exchange.
¶ 30 Defendant’s testimony, meanwhile, does little to support his contention of self-defense,
particularly when considered along with the testimony of Detective Powe. Detective Powe,
who investigated the shootings and spoke with defendant only a few days later, testified that
defendant told her he stayed inside all evening, never shot a gun, and never saw Washington
or Evans with a gun at his house. Additionally, he never mentioned to her that he ever felt
threatened that night or that he shot in self-defense. This, confirmed by defendant’s own
video statement after the shooting and presented to the court, negates any consideration that
defendant was threatened or in imminent danger, or actually or subjectively believed he was
threatened or in imminent danger, thereby requiring the use of force as self-defense.
15 No. 1-19-0192
¶ 31 The crux of defendant’s argument on appeal is his citation to what he considers to be
contradictions in the evidence presented which he claims demonstrate he was not the
aggressor and he was in imminent danger from Washington and Evans, and in his conclusion
that his response to the situation, i.e., his actions of going outside and continuing to follow
Evans after he left the house and driveway and ran down the street, was “reasonable” so that
he could be “apprised of his whereabouts” in order to protect his guests.
¶ 32 First, the discrepancies defendant cites are menial, if even considerable, in light of the
evidence presented, and they certainly do not warrant the outright reversal of his conviction.
For example, he argues that the contradiction between Washington and Evans’ testimony that
Johnny invited them to defendant’s party and Johnny’s testimony that he did not do so proves
that Washington and Evans, and not he, were the initial aggressors. He also claims that his
own testimony that Washington mouthed the words, “We’ll light this b*tch up,” and that he
saw Evans “kind of flash[]” the black handle and silver part of a gun further proves he was
not the aggressor, and that once shots were fired, the situation “was fluid” so as to reasonably
support a belief that Evans was a continuing imminent threat of harm. We fail to see how
these “inconsistences” regarding how Washington and Evans came to be at the party or what
they did before they left, which defendant admits they did without question, had any
relevance to what happened once the shooting began outside. Moreover, we have already
discussed at length that the trial court found defendant’s testimony to be not credible and,
frankly, untrue. We cannot, and most especially will not in this situation, disturb that
finding.
16 No. 1-19-0192
¶ 33 Furthermore, there is simply no evidence here compatible with defendant’s assertion of
self-defense—not even his own testimony. Defendant verified during his testimony that
when Evans was in the house, he was not holding a gun. He also testified that Washington
and Evans did, in fact, leave when he told them to, and that he slammed and locked the front
door as soon as they did. That should have been the end of this encounter.
¶ 34 Defendant, however, chose to pursue the situation by grabbing his .40 caliber gun
equipped with a laser and going outside the back door to follow Washington and Evans as
they were leaving down the driveway. Again, defendant admitted that Evans was not holding
a gun. Yet, he testified that he somehow believed at this point—in a locked house, with the
alleged threat having left the premises and walking away down the driveway—he and his
friends were in danger, and that is why he went outside, armed. It is clear to us that the
situation, however contentious or threatening it may or may not have been inside the house,
had certainly deescalated the moment Washington and Evans left and defendant locked the
door. The fact that defendant pursued them by going outside the back door with his gun not
once, but then came back inside and went out again a second time while armed—after any
conceived threat had departed—cannot support a claim of self-defense.
¶ 35 What is more, even if defendant’s use of force could somehow be justified here, which it
simply cannot, it certainly was not reasonable for him to believe that firing multiple gunshots
at Washington and Evans was necessary to avert the “danger” they posed in his view. That
the situation became “fluid,” as defendant states, is a complete mischaracterization. The
situation was over when he shut and locked the door; he chose to go outside after growing
more upset and agitated. We understand defendant’s point that one exercising self-defense
17 No. 1-19-0192
need not do so with “infallible judgment” in reaction to the circumstances presented. But,
self-defense does require that a defendant act as a reasonable man, and that, in turn, requires
the use of reasonable judgment under the existing circumstances. See Harmon, 2015 IL App
(1st) 122345, ¶ 55, quoting Evans, 259 Ill. App. 3d at 210. Even were we to believe
defendant acted as a reasonable man (which we do not), he most certainly used more force
than was reasonably necessary to avert the danger he (may have) perceived. Even were we
to believe his claim that he was not the aggressor (which, again, we do not), this, alone,
renders his use of deadly force in this situation unjustifiable as self-defense.
¶ 36 In sum, the evidence demonstrates that defendant did not act with an objectively
reasonable belief in the need for self-defense when he shot at Washington and Evans outside
after they left the party, and again a second time after going inside and returning outside and
shooting at Evans, who by this time had moved away from the house and was down the
street. After viewing the evidence in the light most favorable to the State, we conclude that a
rational trier of fact could have found beyond a reasonable doubt that defendant did not act in
self-defense where his use of deadly force against Evans was not objectively reasonable.
¶ 37 Finally, defendant asserts an alternative argument on appeal, namely, that if we do not
reverse his conviction outright, we should nonetheless correct his mittimus to reflect only one
count of felony murder, pursuant to the one-act, one-crime doctrine. The State, for its part,
concedes this point.
¶ 38 Briefly, multiple convictions are improper if they are based on precisely the same
physical act and our courts have made clear that a defendant may not be convicted of
multiple offenses based on the same act. See People v. Johnson, 237 Ill. 2d 81, 97 (2010);
18 No. 1-19-0192
People v. Crespo, 203 Ill. 2d 335, 342-43 (2010); accord People v. Burney, 2011 IL App
(4th) 100343, ¶ 86 (where a single act is involved, multiple convictions are improper); see
also People v. Miller, 238 Ill. 2d 161, 165 (2010). Most significantly with respect to the
instant cause, when a murder is involved, “[w]here but one person has been murdered, then
there can be but one conviction of murder.” People v. Cardona, 158 Ill. 2d 403, 411 (1994).
¶ 39 The trial court here found defendant guilty of felony murder in relation to the death of
Thompson. It is undisputed that only one death occurred. However, defendant’s mittimus
lists three felony murder convictions. By all accounts, this is improper. Accordingly, we
correct defendant’s mittimus to reflect one conviction for felony murder with a sentence of
20 years in prison, and we do not disturb his conviction and sentence for aggravated
discharge of a firearm.
¶ 40 CONCLUSION
¶ 41 For all the foregoing reasons, we affirm the judgment of the trial court, with a correction
to the mittimus as directed herein.
¶ 42 Affirmed, mittimus corrected.