People v. Smith

609 N.E.2d 857, 242 Ill. App. 3d 344, 182 Ill. Dec. 323, 1993 Ill. App. LEXIS 63
CourtAppellate Court of Illinois
DecidedJanuary 25, 1993
Docket1-90-1500
StatusPublished
Cited by10 cases

This text of 609 N.E.2d 857 (People v. Smith) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Smith, 609 N.E.2d 857, 242 Ill. App. 3d 344, 182 Ill. Dec. 323, 1993 Ill. App. LEXIS 63 (Ill. Ct. App. 1993).

Opinion

JUSTICE O’CONNOR

delivered the opinion of the court:

On April 6, 1988, defendant, Brian Smith, shot and killed Ronald Kucera, as defendant fled the scene of a home invasion and armed robbery in which he was one of four participants.

Kucera was the manager of an apartment building located at 5129 South Harper in Chicago. On the date of the incident, Tommy Gentry was in apartment 514 of the building, visiting with its occupants, Bruce Johnson and Larue Cooper. At 6:30 p.m., defendant and three cohorts gained entry to that fifth-floor apartment and, at gunpoint, robbed Gentry, Johnson and Cooper of both money and jewelry. Eventually, Cooper escaped from the apartment and ran hysterically to Kucera’s ground-floor apartment, shouting “Ron, they are sticking my cousins up, they got guns, get your gun.” Kucera called police and then instructed Cooper to remain in Kucera’s apartment. At the same time, defendant and his colleagues had just descended the back stairway to the ground floor and were attempting to flee the building through the back door. Discovering that the door was locked, they began to go back upstairs. Kucera, with gun in hand, walked to the stairway and told them to “Hold it right there, you are going to wait for the police to get here, don’t move.” Defendant then reached for his gun, hidden in his waistband, and fired three shots at Kucera, striking him in the neck and chest. Defendant and his associates then fled the scene.

Eventually, defendant was apprehended, charged, and tried before a jury, which convicted him of the home invasion of both Cooper and Johnson, the armed robberies of Cooper, Johnson, and Gentry, and the murder of Kucera. Defendant was sentenced to concurrent terms of 20 years in the custody of the Department of Corrections for the armed robberies, in addition to a 60-year term for the murder, with the murder sentence to run consecutively to the armed robbery sentence. Defendant appeals both the convictions and sentence.

We affirm.

Defendant initially contends that the jury instructions in the present case improperly failed to indicate that a felon’s right of self-defense is “reinstated after a complete withdrawal, followed by a new encounter initiated by the other person.”

The State responds that defendant has waived this issue by failing to object to the omission at trial and by failing to include the issue in the post-trial motion. Indeed, the failure to object at trial to an error in jury instructions or the failure to raise the issue in the post-trial motion precludes argument of the issue on appeal. (People v. Thurman (1984), 104 Ill. 2d 326, 329, 472 N.E.2d 414; People v. Berry (1984), 99 Ill. 2d 499, 503, 460 N.E.2d 742.) Although this court, under the plain error doctrine, may excuse the waiver in a closely balanced case or to cure “substantial defects” (People v. Sowinski (1986), 148 Ill. App. 3d 231, 241-42, 498 N.E.2d 650; see also People v. Lyons (1967), 36 Ill. 2d 336, 223 N.E.2d 99), we do not believe that the present case warrants the application of the doctrine.

The circuit court, here, instructed the jury that

“[a] person is justified in the use of force when and to the extent that he reasonably believed that such conduct is necessary to defend himself against the imminent use of unlawful force.
However, a person 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 in [sic] necessary to prevent the imminent death or great bodily harm to himself.”

The court further instructed the jury that

“[a] person is not justified in the use of force if he is escaping after the commission of a forcible felony.”

The instructions given to the jury correctly stated the law in this area. A fleeing felon is afforded no right to self-defense in Illinois. (111. Rev. Stat. 1989, ch. 38, par. 7 — 4(a). See also People v. Salazar (1988), 126 Ill. 2d 424, 535 N.E.2d 766, cert. denied (1990), 497 U.S. 1051, 111 L. Ed. 2d 797, 110 S. Ct. 3288; People v. Bell (1989), 191 Ill. App. 3d 877, 548 N.E.2d 397, appeal denied (1990), 131 Ill. 2d 561, 553 N.E.2d 397; People v. Gates (1977), 47 Ill. App. 3d 109, 361 N.E.2d 809.) As noted in the Committee Comments to article 7 of the Criminal Code of 1961 (111. Rev. Stat. 1989, ch. 38, par. 7 — 1 et seq.), the fleeing felon exception to self-defense does not permit the “right of retreat short of complete withdrawal such that the victim’s subsequent use of force initiates a new conflict: if the situation is such that either the aggressor or the victim must suffer harm or even death, the victim clearly is the one entitled to such protection as the law affords.” 111. Ann. Stat., ch. 38, par. 7 — 4, Committee Comments — 1961, at 402 (Smith-Hurd 1989).

Defendant, however, maintains that the jury might have concluded, legitimately, that defendant had withdrawn from the armed robbery because he had released Gentry and Johnson from the apartment and had left the fifth-floor apartment. We find this argument rather specious as the record clearly established that Johnson and Gentry escaped from the apartment only when a neighbor knocked on the door, asking if everything was all right. Johnson testified that, when defendant opened the door, Johnson rushed at it and pushed Gentry into the apartment across the hallway. Defendant, therefore, did not “release” his captives in the manner he suggests on appeal. Moreover, after Gentry and Johnson made their escape, defendant and his cohorts attempted to flee from the building, and they encountered Kucera, to whom one of the robbery victims turned for help. Kucera told them to “hold it” and “wait” for the police to arrive. In response, defendant fired three shots at Kucera, two of which struck him. Clearly, defendant fired upon Kucera in an effort to facilitate his escape. Contrary to defendant’s assertions, there was no evidence presented that Kucera fired at defendant first. A bystander who witnessed the shooting, Lewis Jackson, stated that he saw defendant fire three shots at Kucera. Jackson then heard a shot fired by Kucera, apparently taken in self-defense as he was struck.

The cases cited by defendant in support of his argument of a complete withdrawal are factually distinguishable from the present case and, as a result, are unpersuasive. In People v. Forte (1915), 269 111. 505, 110 N.E. 47, the defendant fired a shot at the victim and ran away. The victim, however, subsequently pursued the defendant and attempted to strangle her. This attempt to strangle, the court ruled, revived the defendant’s right to defend herself. (People v. Forte, 269 111. at 512.) In People v. Fort (1970), 119 111. App. 2d 350, 256 N.E.2d 63

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Cite This Page — Counsel Stack

Bluebook (online)
609 N.E.2d 857, 242 Ill. App. 3d 344, 182 Ill. Dec. 323, 1993 Ill. App. LEXIS 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-smith-illappct-1993.