THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL R. RUSSELL, Defendant-Appellant.
No. 2-20-0119
APPELLATE COURT OF ILLINOIS SECOND DISTRICT
January 18, 2022
2022 IL App (2d) 200119-U
JUSTICE HUDSON delivered the judgment of the court. Justices Schostok and Birkett concurred in the judgment.
Order filed January 18, 2022. NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of De Kalb County. No. 17-CF-462. Honorable Philip G. Montgomery, Judge, Presiding.
¶ 1 Held: (1) Trial counsel was not ineffective for failing to request an instruction on the unreasonable belief in self-defense concerning attempt (first-degree murder) charges; (2) the trial court did not abuse its discretion when it refused to instruct the jury on use of force in defense of a dwelling; and (3) defendant‘s 45-year sentence for attempt (first-degree murder) was not excessive.
¶ 2 Following a jury trial in the circuit court of De Kalb County, defendant, Carl R. Russell, was convicted of four counts of attempt (first-degree murder) (
I. BACKGROUND
¶ 3 ¶ 4 Defendant‘s convictions stem from an incident occurring in Sandwich, Illinois, in the early morning hours of July 2, 2017, during which Eric Peterson was shot. A bullet pierced the upper right side of Peterson‘s head, travelled through his brain, and exited the back of his skull. As a result of the shooting, Peterson lost his right eye and half of his skull. In addition, Peterson is paralyzed on the left side of his body, is bound to a wheelchair, has cognitive deficits and short-term memory problems, suffers from diabetes insipidus, is prone to seizures, and requires continuous care. Defendant was initially charged by information with various offenses related to the shooting. On July 21, 2017, a grand jury returned an indictment against defendant, charging him with four counts of attempt (first-degree murder) (
¶ 5 ¶ 6 Prior to trial, defendant filed a notice of intent to rely upon the affirmative defense of justifiable use of force in defense of a person pursuant to section 7-1(a) of the Criminal Code of 2012 (Code) (
¶ 7 Defendant resided in a four-plex on Lillian Lane in Sandwich. Defendant‘s unit shared a common wall with a unit in which Dallas Schroeder and Emma Belmore resided with their infant son. Schroeder testified that he and Belmore moved to their unit late in June 2017. On July 1, 2017, Peterson and Lorena Melendez, Peterson‘s girlfriend, were at Schroeder‘s and Belmore‘s home to help them finish moving in. Peterson and Melendez also had a baby and brought her with them that day. The group finished the move at approximately 3 p.m.
¶ 8 Between 4 and 5 p.m., Schroeder went outside to smoke and met defendant for the first time. Schroeder introduced himself to defendant, and the two visited in Schroeder‘s garage before Peterson came out and joined them. Schroeder, Peterson, and defendant hung out in Schroeder‘s garage and drank together for a while. At one point, Schroeder and defendant gave a tour of their respective homes to each other while Peterson accompanied them. While the three men were in defendant‘s home, defendant showed Schroeder and Peterson his guns, which included a shotgun, an AR rifle, an AK rifle, and a sniper rifle. Schroeder testified that he did not own any guns. At around 9 p.m., the three men returned to Schroeder‘s garage to hang out some more and drink. There had been no issues or arguments up to this point.
¶ 10 After the group went back inside, defendant continued to bang on Schroeder‘s garage door. Schroeder testified that he did not want to call the police on a neighbor that he had just met, so he called his cousin, Jared Imel. Imel, accompanied by Ian Millz, drove to Schroeder‘s house in one car and arrived shortly after midnight on July 2, 2017. When Imel and Millz arrived, Schroeder opened his garage door and went out to his driveway to meet them. Peterson followed Schroeder out of his garage and walked towards defendant‘s unit. Defendant‘s garage door was open, and defendant was standing on the “inside edge” of the garage. The only cars parked in Schroeder‘s driveway were his car and Belmore‘s car, which were parked side by side just outside Schroeder‘s garage door, and the car driven by Imel, which was parked behind Schroeder‘s car. Schroeder stated that it was not unusual in the neighborhood to see numerous vehicles in people‘s driveways.
¶ 11 As Schroeder spoke with Imel and Millz by their car, he observed Peterson talking to defendant at his open garage door. Schroeder estimated that Peterson was about 5‘9” tall and weighed about 120 pounds. Peterson and defendant were about two feet from each other.
¶ 12 Melendez, Peterson‘s girlfriend at the time and the mother of their child, was 20 years of age in July 2017. Melendez testified that prior to the shooting, Peterson had limited mobility of his right arm due to an injury the year before that required plates in his elbow.
¶ 13 Regarding the events leading to the shooting, Melendez testified that on the morning of July 1, 2017, Belmore picked up her and her six-month-old child so that she could help Belmore and Schroeder move into their new home. Schroeder picked up Peterson later in the day. The group spent the day unpacking, visiting, and going in and out of the house and garage. Schroeder and Peterson drank alcohol at various points that day, and Melendez occasionally joined them in the garage to smoke cigarettes and marijuana. Melendez stated that she had her first drink later in the evening, about 45 minutes prior to the shooting, but only had about five sips of alcohol. Melendez claimed that she was not high or intoxicated on the night of the shooting.
¶ 15 Melendez testified that defendant‘s offensive conduct reached a peak about 30 or 40 minutes before the shooting. At that time, Melendez and Belmore were sitting on the hood of Belmore‘s car. Defendant approached and touched Belmore‘s shoulder and chest and then brushed his hand against Melendez‘s knee. As defendant got closer, he told Melendez she was beautiful. Peterson then came out of Schroeder‘s house and went into the garage. At that point, defendant walked into the garage and told Peterson, “[Y]ou don‘t know the nasty things that I would do to her if you weren‘t here.” Peterson laughed off the comment, which made Melendez angry. Melendez yelled at Peterson for not sticking up for her and told defendant that he was “gross” because of their 20-year age difference. Melendez stated that she was also upset that defendant was hitting on her in front of her boyfriend and that Peterson did not confront defendant about it. Shortly later, Melendez, Belmore, Schroeder, and Peterson went inside and closed the garage door. Afterwards, defendant returned and started banging on the garage door, wanting to talk. The group ignored defendant. Schroeder then called Imel and Millz to come to the house.
¶ 16 When Imel and Millz arrived, Schroeder and Belmore walked out the front door to greet them. Peterson then opened the garage door and walked out. Melendez followed Peterson into the
¶ 17 On cross-examination, Melendez testified that she gave a statement to the police shortly after the shooting. In her statement, she told the police that Schroeder called Imel and Millz because defendant was “threatening to call up his boys.” Melendez stated that this information was related to her by Belmore. However, prior to the shooting, Melendez was not personally aware of any threats made by defendant towards Peterson or Schroeder.
¶ 18 Belmore corroborated the testimony of the other witnesses about the beginning of the day. Belmore further recounted that after she and Melendez got their babies to sleep, they went outside and sat on the hood of her car while Schroeder went to talk to one of the other neighbors. Peterson was standing inside Schroeder‘s garage, and defendant was standing in front of Belmore and Melendez. At one point, defendant got very close to Belmore, which made her feel uncomfortable. Defendant also said some “disrespectful things,” most of which were directed at Melendez. For instance, defendant told Melendez that if Peterson were not around, he would “do dirty things to her.” Belmore stated that defendant‘s comments made Melendez very angry. Melendez yelled at both defendant and Peterson, who was present when defendant made some of the remarks. Belmore summoned Schroeder and informed him what was going on. Melendez and Peterson went
¶ 19 When Belmore returned outside, she observed Schroeder standing in front of defendant trying to calm him down. Defendant was leaning against the back of a car parked in his garage, which had the door open. Defendant was agitated, holding a phone up to his ear and threatening to “call people over.” According to Belmore, defendant indicated that he was “calling his boys” because “he didn‘t do anything wrong” and he did not like that he was being told that his actions were disrespectful. Schroeder explained to defendant that he just wanted defendant to leave his house. Belmore and Schroeder then returned to their unit through the garage, closing the garage door behind them. After some discussion about what had just happened, Belmore, Schroeder, Peterson, and Melendez went back to the garage to smoke, but left the garage door closed. Shortly thereafter, defendant started knocking on the garage door. Schroeder told defendant to go home and to stop knocking on his garage door.
¶ 20 Belmore, Schroeder, Peterson, and Melendez then went back inside. Belmore wanted to call the police, but the others urged her not to. At some point, Imel and Millz came to the house. When Imel and Millz arrived, Belmore went out her front door to greet them while Schroeder opened the garage door and walked through the garage to meet them. When Belmore got to the end of the sidewalk, Schroeder was already in the driveway by his and Belmore‘s cars. Imel and Millz had just exited their car. Belmore turned towards Imel and noticed Peterson and defendant talking, but could not hear what they were saying. Defendant was leaning up against his car which was parked in his garage. Peterson, who was dressed in only a pair of shorts, was standing two feet in front of defendant. There was no yelling between Peterson and defendant, and Peterson was not
¶ 21 Just as Belmore was ushering everyone inside, she heard a gunshot and then saw Peterson lying on the ground. Belmore testified that defendant just stood there, staring at Peterson‘s body on the ground while holding a gun at his side. Prior to the shooting, no one threatened defendant, said anything to him, or made any movements towards him. Moreover, Belmore testified that neither she nor Schroeder own a gun and that she did not see anyone in their group with a gun or any other type of weapon that night. Immediately after the shooting, everyone ran inside. Belmore and Melendez grabbed the babies, locked themselves in the bathroom, and called the police.
¶ 22 Imel testified that on July 1, 2017, he received a call from Schroeder. Schroeder sounded concerned over the phone. In response, Imel drove himself and Millz to Schroeder‘s house in Millz‘s car. When they arrived, there were two cars parked side-by-side in Schroeder‘s driveway. Imel parked Millz‘s car behind the car on the left side of Schroeder‘s driveway. After Imel and Millz exited the car, they began talking to Schroeder in the driveway. As they were making their way towards Schroeder‘s house, Imel saw Peterson talking to defendant in front of defendant‘s garage. Peterson was about five feet away from defendant. Imel did not hear any yelling or shouting between the two men. Less than a minute later, Imel heard a noise that sounded like fireworks. Imel looked to his right and saw Peterson lying on the ground. Defendant was standing by his garage. Imel, Millz, Schroeder, and Belmore rushed inside Schroeder‘s house, where someone called the police. According to Imel, no one ever threatened defendant or made any movements towards him before he shot Peterson. Further, Imel did not see anyone with a gun or any other type of weapon. Imel testified that he went to the house because Schroeder sounded concerned over the phone, not to fight.
¶ 24 Peterson was 23 years old in July 2017 and was living with Melendez, his then girlfriend, and their infant daughter. Peterson remembered only bits and pieces of what happened on the day of the shooting. He recalled that he went to visit his friends, Schroeder and Belmore, at their home. Melendez was angry and yelled at him for not sticking up for her because of the way defendant was treating her. At one point, Peterson got tired of Melendez yelling at him, so he left Schroeder‘s house and went to speak to defendant, who was in his driveway. Peterson did not have a gun or any other type of weapon with him. The only thing Peterson said to defendant was that he “didn‘t really appreciate the sexual remarks that [defendant] was making to [Melendez].” That was the last thing Peterson recalled about that night. Peterson did not remember if defendant said anything in response, and he did not see a gun. Peterson testified that he was shot in the right eye. The bullet travelled through the right side of his brain. Due to the injuries he sustained in the shooting, Peterson is unable to voluntarily move his left arm or left leg. In addition, he is unable to walk, he is confined to a wheelchair, and he has a glass right eye. At the time of trial, Peterson was living with his mother and siblings.
¶ 25 Officer Keith Rominski of the Sandwich Police Department testified that he and Officers Marcellis and Russell responded to the shooting at around 12:30 a.m. on July 2, 2017. The officers arrived in separate cars, turned off their lights as they got close, and parked a short distance away from defendant‘s residence. The officers walked up to defendant‘s driveway looking for a house
¶ 26 Rominski discovered Peterson‘s body on the ground just outside defendant‘s garage. Rominski testified that he almost tripped over Peterson‘s body looking for the right house number. Peterson was laying with his feet towards the garage and his head towards the street. Peterson had a golf-ball-sized lump to his right eye. There was a pool of blood around Peterson‘s head. Both defendant‘s and Schroeder‘s garage doors were open when the officers arrived. Rominski and his partners saw defendant moving around in his unit just inside the storm door leading from his unit to the garage. Rominski and his partners announced their office several times as they moved closer to defendant‘s storm door. Defendant then came out of his unit and met the officers. Defendant told the officers that everything was okay and that he shot Peterson. As the officers attempted to handcuff defendant, he resisted and stated that he was “defending himself” and that somebody called “20 gangbangers to come jump [him].” Defendant elaborated that “four cars rolled up, 20 deep, and they were Mexican gangbangers that came to jump him and break into his house.” Defendant was taken into custody, and the police began processing the crime scene.
¶ 27 Rominski stated that he and Officer Marcellis arrived at the scene within three minutes of the dispatch. Upon his arrival, Rominski did not see carloads of people leaving or “20 Mexican gangbangers.” On cross-examination, Rominski acknowledged that if a vehicle had left the premises prior to his arrival, he would have no way of knowing about it.
¶ 28 Jason Weiss testified that in July 2017, he lived on Lillian Lane in Sandwich. In the late evening hours of July 1, 2017, and the early morning hours of July 2, 2017, Weiss was in his driveway cleaning up fireworks. Around midnight, Weiss heard what sounded like someone banging on a garage door followed by male voices talking. At some point, Weiss looked over and
¶ 29 Officer Jackie Hill, a detective with the De Kalb County Sheriff‘s Department, testified that in the early morning hours of July 2, 2017, she was dispatched to a shooting on Lillian Lane in Sandwich. Hill‘s task was to collect the evidence. Hill found biological matter on defendant‘s driveway near where Peterson‘s body was found, on the passenger sides of Belmore‘s and Millz‘s cars, and at the end of defendant‘s driveway. Hill recovered the bullet that went through Peterson‘s head from the exterior garage wall of a house across the street from defendant‘s residence.
¶ 30 Christina Davison, a forensic scientist employed by the Illinois State Police and specializing in firearms identification, testified that the bullet collected by Hill matched a 9 mm Glock that was recovered from defendant‘s kitchen counter after his arrest.
¶ 31 The parties stipulated that Peterson was treated in the emergency room at Valley West Hospital for a gunshot wound near his right eye. Peterson also had a large open wound on the back of his scalp with large amounts of gray matter protruding therefrom. When he arrived at Valley
¶ 32 The sole witness for the defense was Officer Jennifer Marcellis of the Sandwich Police Department. Marcellis was one of the officers who first responded to the shooting. Marcellis related that defendant complied with instructions to come out of his house and was cooperative after that. On cross-examination, Marcellis testified that when she approached defendant‘s residence, there was a body lying on the driveway outside of defendant‘s garage. The body was later identified as that of Peterson. Peterson was barefoot. He was wearing red basketball shorts but no shirt. Marcellis did not see any weapons on or near Peterson‘s body. There was a pool of blood around Peterson‘s head. His right eye socket was purple and swollen. Moreover, the wound to Peterson‘s head was leaking a combination of blood and brain matter. Following Marcellis‘s testimony, the defense rested.
¶ 33 During the instructions conference, defendant asked that the jury be instructed on the use of force in defense of a dwelling in accordance with Illinois Pattern Jury Instructions, Criminal, No. 24-25.07 (hereinafter IPI Criminal No. 24-25.07). As tendered, defendant‘s proposed instruction read:
“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to prevent another‘s unlawful entry into a dwelling. However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if the entry is made or attempted in a violent, riotous, or tumultuous manner and he reasonably believes that such force is necessary to prevent an assault upon or offer of personal violence to himself or another then in the dwelling.”1
Defendant argued that the instruction was appropriate because there was some evidence presented at trial to support it. Specifically, the defense asserted that numerous witnesses for the State testified that defendant was within his garage at the time “this attack occurred.” Citing People v. Sawyer, 115 Ill. 2d 184 (1986), the court stated that the defense-of-dwelling instruction is justified if (1) the victim‘s entry was made in a violent, riotous, or tumultuous manner and (2) the defendant reasonably believes that deadly force is necessary to prevent an assault upon, or offer of personal violence to, him or another in the dwelling. The defense responded that actual entry is not necessary and the instruction may be given where force is used “to either prevent or terminate the entry.” The defense further argued that the tumultuous-manner element “would be the additional people called to the scene” as supported by the testimony of Belmore as well as Weiss‘s testimony that he heard aggressive voices. The State objected to the instruction. The State argued that, at
¶ 34 Following deliberations, the jury found defendant guilty of all seven offenses with which he was charged. The jury also found that defendant was armed with a firearm and that he personally discharged a firearm that proximately caused great bodily harm, permanent disability, or permanent disfigurement.
¶ 35 On July 17, 2019, defendant filed a motion for judgment notwithstanding the verdict and a motion for a new trial. In the former motion, defendant argued that he presented numerous witnesses to support his statement that he was acting in self-defense and the State failed to prove beyond a reasonable doubt that defendant did not act in self-defense. Thus, defendant reasoned, the evidence was insufficient to support a finding of guilty even if taken in the light most favorable to the State. In the latter motion, defendant argued, inter alia, that the trial court erred in failing to give his requested instruction on the use of force in defense of a dwelling. Following oral argument, the trial court denied both motions. The court then determined that, under one-act, one-crime principles, all the offenses of which defendant was convicted merged into count 4 of the indictment, which charged attempt (first-degree murder) in that defendant personally discharged a
B. Sentencing
¶ 36 ¶ 37 Defendant‘s sentencing hearing was held on August 2, 2019. At the hearing, the State presented the testimony of Kelly Blum, Peterson‘s mother. Blum testified regarding the changes to Peterson following the shooting. Blum testified that Peterson‘s speech pattern is slower, he has difficulty getting out what he wants to say, he cannot walk, and his personality is not as vibrant as it was prior to the shooting. Further, Blum testified that Peterson is missing a portion of the right side of his brain, resulting in cognitive deficits and short-term memory problems. Blum also testified that Peterson is frustrated because he is unable to do normal things with his daughter, such as pick her up, make her dinner, give her a bath, or chase after her. Following Blum‘s testimony, the State introduced into evidence pictures of Peterson before and after the accident. Thereafter, Blum, Peterson, Peterson‘s father, and Peterson‘s two sisters read victim-impact statements into the record. Defendant presented letters written from various family members and friends. The parties then presented oral argument, during which they discussed the statutory factors in mitigation and aggravation (
¶ 38 In pronouncing sentence, the court stated that it had considered the factors in aggravation and mitigation, the arguments of counsel, the applicable law, the financial impact of incarceration, the evidence introduced at the sentencing hearing, and the presentence investigation (PSI) report.
¶ 39 With respect to the statutory factors in mitigation, the court characterized defendant‘s history of prior delinquency or criminal activity as “minor, and most of it is extremely old.” See
“I don‘t think people sit there and say to themselves well, I‘m not going to do this because I saw the sentence that [defendant] got, and so therefore, even though I‘ve been drinking all night, and even though I‘m upset about something that‘s occurred, I‘m not going to shoot this guy in the face ***. I don‘t know that that necessarily deters anybody. That being said, I think that the Court is duty bound to at least acknowledge and make sure the community understands that when people get involved in this activity, this type of activity, there are going to be significant consequences that arise out of that, and so I do think *** [this factor] does apply.”
Ultimately, the trial court sentenced defendant to a prison term of 45 years, which included a mandatory 25-year firearm enhancement.
II. ANALYSIS
¶ 40 ¶ 41 On appeal, defendant raises three distinct issues. First, he argues that he was denied the effective assistance of counsel where counsel failed to request an instruction on the unreasonable belief in self-defense concerning the attempt (first-degree murder) charges. Second, he argues that the trial court abused its discretion when it refused to instruct the jury on defense of dwelling
A. Ineffective Assistance of Counsel
¶ 42 ¶ 43 Defendant initially asserts that he received ineffective assistance of counsel because his trial attorneys failed to request an instruction on the unreasonable belief in self-defense. According to defendant, if the jury found that he unreasonably believed that he needed to act in self-defense, there is a reasonable probability that the jury would have acquitted him of the attempt (first-degree murder) charges as an unreasonable belief in self-defense negates the specific intent to commit an unjustified killing that is an element of attempt (first-degree murder). Consequently, defendant urges this court to reverse his conviction of attempt (first-degree) murder and remand the matter for a new trial before a properly instructed jury. In so arguing, defendant acknowledges that in People v. Guyton, 2014 IL App (1st) 110450, the court held that a defendant acting in unreasonable self-defense can still be convicted of attempt (first-degree murder) because there is no offense of attempt (second-degree murder) in Illinois. However, defendant contends that Guyton was wrongly decided and that its rationale is undermined by the supreme court‘s holdings in People v. Lopez, 166 Ill. 2d 441 (1995), and People v. Reagan, 99 Ill. 2d 238 (1983).
¶ 44 In response, the State asserts that defendant‘s argument should be rejected for two reasons. Relying on Guyton, the State first contends that defense counsel‘s performance was not deficient where the law does not support defendant‘s proposed instruction. Second, the State contends that defendant cannot establish prejudice where the evidence supporting an actual belief in self-defense was nonexistent. As such, the State concludes that defendant has not established ineffective assistance of counsel and his conviction of attempt (first-degree murder) should be affirmed.
¶ 46 Pursuant to section 8-4(a) of the Code, “[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.”
¶ 47 Defendant points out that an offender may mitigate the offense of first-degree murder to second-degree murder by proving the existence of a statutory mitigating factor by a preponderance of the evidence.
¶ 48 As noted, defendant relies on Reagan, 99 Ill. 2d 238, and Lopez, 166 Ill. 2d 441, in support of his position. In Reagan, the supreme court held that there was no crime of attempt (voluntary manslaughter) based on an unreasonable belief in self-defense. Reagan, 99 Ill. 2d at 240. The court explained that the attempt statute provides that “‘[a] person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.‘” Reagan, 99 Ill. 2d at 240 (quoting
¶ 49 In Lopez, 166 Ill. 2d 441 (1995), the defendant was charged with, inter alia, attempt (first-degree murder). He requested an instruction on attempt (second-degree murder) based on imperfect self-defense, i.e., the unreasonable belief in the need to use deadly force. The trial court rejected the instruction, finding there was no crime of attempt (second-degree murder) in Illinois. The jury returned a verdict of guilty, and the defendant appealed. On appeal, the defendant argued that the trial court erred in rejecting his requested instruction because attempt (second-degree murder) is an offense recognized in Illinois. The supreme court affirmed. The court noted that for a defendant to commit attempt, he must intend to commit a specific offense. Lopez, 166 Ill. 2d at 448. The court further noted that to commit second-degree murder, a defendant must have acted under a sudden and intense passion due to serious provocation or an unreasonable belief in the
¶ 50 More recently, in Guyton, 2014 IL App (1st) 110450, the court held that a defendant could not mitigate an attempt (first-degree murder) conviction based on an unreasonable belief in the need for self-defense. In that case, the State charged the defendant with various offenses, including first-degree murder of one victim and attempt (first-degree murder) of another victim. At trial, the defendant argued that he acted in self-defense when he shot the two victims. As to the victim that died, the jury found the defendant guilty of second-degree murder based on an imperfect self-defense, i.e., an unreasonable belief in the need to use deadly force in self-defense. As to the victim that survived, the jury found the defendant guilty of attempt (first-degree murder).
¶ 51 On appeal, the defendant contended that because he fired simultaneously at the two victims, he could not have had an unreasonable belief in the need for self-defense as to the victim that was killed, but not as to the victim that survived. Thus, the defendant contended, his conviction of attempt (first-degree murder) must be vacated. The Guyton court rejected the defendant‘s argument. The court observed that the mental state required to prove attempt (first-degree murder) and second-degree murder are the same. Guyton, 2014 IL App (1st) 110450, ¶ 41. Although second-degree murder requires the presence of a mitigating circumstance, the court noted that the presence of a mitigating factor does not negate the mental state of murder because mitigating factors are not elements of the crime. Guyton, 2014 IL App (1st) 110450, ¶ 41. The court further explained:
“The evidence established, and the jury found, the intent required to sustain an attempted first-degree murder conviction. The determination by the jury that mitigating
circumstances existed allowed for a conviction of a lesser second degree murder offense because of defendant‘s unreasonable belief in the need to defend does not invalidate the attempted murder conviction.” Guyton, 2014 IL App (1st) 110450, ¶ 46.
The court further found that, pursuant to Lopez, 166 Ill. 2d 441 (1995), there is no offense of attempt (second-degree murder) in Illinois. Guyton, 2014 IL App (1st) 110450, ¶ 42. The court also observed that, in response to Lopez, the legislature could have addressed the issue of whether imperfect self-defense constitutes a mitigating factor for attempted murder, but chose not to. Guyton, 2014 IL App (1st) 110450, ¶ 45. Thus, the court reasoned, the legislature‘s inaction suggested agreement with the judicial interpretation of Lopez. Guyton, 2014 IL App (1st) 110450, ¶ 45. In short, the court determined that even though the jury‘s verdict on second-degree murder revealed that it found the defendant acted in imperfect self-defense, the jury could not have been instructed on and could not have found the defendant guilty of attempted second-degree murder. Guyton, 2014 IL App (1st) 110450, ¶ 46.
¶ 52 Thus, pursuant to Guyton, when a jury finds that the evidence establishes that the defendant committed the offense of attempt (first-degree murder), as in the instant case, a defendant‘s ability to establish his unreasonable belief in the need for self-defense is irrelevant because the attempt statute does not provide for mitigation based on imperfect self-defense. Stated differently, under the current statutory scheme, the legislature has not provided for the affirmative defense of unreasonable belief in self-defense in cases of attempt (first-degree murder). Defense counsel recognized as much at the sentencing hearing, noting the “odd dichotomy in cases like this” in that if Peterson had died, “there would have been an argument for second-degree murder, in that his belief in defense, though held, was not reasonable.”
¶ 54 We also point out that the legislature has not chosen to allow a defendant to mitigate the offense of attempt (first-degree murder) based on an imperfect self-defense claim, although it amended the attempt (first-degree murder) statute to allow a defendant to mitigate the offense if it resulted from provocation. See Pub. Act 96-710 (eff. Jan. 1, 2010) (amending
¶ 55 Given the foregoing, we reject defendant‘s contention that his trial attorneys were ineffective. As discussed above, a defendant cannot mitigate an attempt (first-degree murder) charge based on an unreasonable belief in the need for self-defense. Consequently, counsel‘s decision not to request an instruction informing the jury that defendant should be acquitted if it found that he acted with an unreasonable belief in self-defense was reasonable. See Guyton, 2014 IL App (1st) 110450, ¶ 46. Because both prongs of the Strickland test must be satisfied, defendant‘s failure to establish that trial counsel‘s performance fell below an objective standard of reasonableness is fatal to his ineffective assistance of counsel claim. Flores, 153 Ill. 2d at 283.
B. Defense-of-A-Dwelling Instruction
¶ 56 ¶ 57 Next, defendant argues that the trial court abused its discretion when it refused to instruct the jury on use of force in defense of a dwelling. “The purpose of jury instructions is to provide jurors with correct principles of law that apply to the evidence that has been submitted to them.” People v. Bauer, 393 Ill. App. 3d 414, 423 (2009). A defendant is entitled to an instruction on his or her theory of the case where there is some foundation for the instruction in the evidence. People v. Jones, 219 Ill. 2d 1, 21 (2006). The threshold of evidence required to raise an affirmative defense is low. People v. Kite, 153 Ill. 2d 40, 45 (1992). Generally, the defendant bears the burden to present evidence in support of his or her theory of the case, and where the defendant does not present supporting evidence, the proffered instruction should be refused. Kite, 153 Ill. 2d at 45. However, where the evidence presented by the State raises the issue of the affirmative defense, the defendant will be excused from presenting any evidence thereon. People v. Jones, 175 Ill. 2d 126, 132 (1997). The trial court‘s decision to give a jury instruction is reviewed for an abuse of
¶ 58 As noted, defendant argues that the trial court abused its discretion when it refused his tendered instruction on use of force in defense of a dwelling. Defendant argues that evidence was presented that he was standing in his garage at the time of the shooting, tensions were high after he was asked to leave Schroeder‘s garage, Peterson went to his open garage uninvited to confront him about his conduct towards Melendez earlier in the evening, and Schroeder, Imel, and Millz stood nearby in Schroeder‘s driveway “apparently as reinforcements for [Peterson] if needed.” According to defendant, this evidence was sufficient to put the question of defense of dwelling before the jury because it constituted evidence of “tumult” coupled with a reasonable fear of an assault or use of violence in the dwelling. Defendant therefore insists that the trial court abused its discretion when it refused to instruct the jury on the use of force in defense of a dwelling.
¶ 59 The State‘s response is two-fold. First, the State argues that there was “zero evidence” adduced at trial to establish either of the necessary prongs to warrant a use-of-force-in-defense-of-a-dwelling instruction. Second, the State contends that because the defense theories of self-defense and of defense of dwelling were so intertwined, and because the jury was instructed on and rejected defendant‘s self-defense claim, any error in the trial court‘s decision not to give the use-of-force-in-defense-of-a-dwelling instruction was harmless.
¶ 60 Defendant‘s proposed instruction tracked
“(a) 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 prevent or terminate such other‘s unlawful entry into or attack upon a dwelling. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(1) The entry is made or attempted in a violent, riotous, or tumultuous manner, and he reasonably believes that such force is necessary to prevent an assault upon, or offer of personal violence to, him or another then in the dwelling.”
720 ILCS 5/7-2(a)(1) (West 2016).
The supreme court has distilled the requirements of this statutory defense into two requirements. Sawyer, 115 Ill. 2d at 192. First, the victim‘s entry or attempted entry must be made in a “violent, riotous, or tumultuous manner.”
¶ 61 We hold that the trial court did not abuse its discretion in refusing defendant‘s proposed instruction on defense of dwelling because there was not even slight evidence to support this affirmative defense. To begin, there was no evidence that Peterson or anyone else entered or attempted to enter defendant‘s dwelling unlawfully. Peterson approached defendant simply to tell him that he did not appreciate the remarks defendant had made to Melendez. At the time, Peterson was outside defendant‘s garage while defendant was standing just inside the garage. The distance
¶ 62 Additionally, there was no evidence of any “violent, riotous, or tumultuous” behavior by Peterson or any of the other individuals present. As noted above, Peterson approached defendant simply to tell him that he did not appreciate the remarks defendant had made to Melendez. Peterson testified that when he approached defendant, he did not have a gun or any other type of weapon with him. Peterson‘s testimony that he was unarmed was corroborated by several of the State‘s other witnesses and by Officer Marcellis, who testified that she did not see any weapons on or near Peterson‘s body at the scene. Similarly, the evidence reflects that neither Schroeder, Belmore, Melendez, Imel, nor Millz were armed with a weapon. In addition, the State‘s witnesses testified that they did not hear any yelling or shouting between Peterson and defendant prior to the shooting and that no one threatened defendant, walked towards him, or rushed him. Despite this record, defendant, relying on a dictionary definition of “tumult” (Merriam-Webster‘s Dictionary and Thesaurus (2007), 854), insists that when Peterson approached him, the circumstances presented “a state of commotion, excitement or agitation, particularly where [Peterson] had reinforcements standing just feet away at the ready.” We disagree. As noted above, prior to the shooting, there
¶ 63 Failure to prove an entry or an attempted entry made in a violent, riotous, or tumultuous manner obviates the need to conduct an inquiry into the second prong of the defense. Nevertheless, there was no evidence that defendant had a reasonable, subjective belief that deadly force was necessary to prevent an assault upon, or an offer of personal violence to, him. Sawyer, 115 Ill. 2d at 192. The only evidence of defendant‘s actual subjective belief came from Officer Rominski‘s testimony. Rominski testified that as the officers attempted to handcuff defendant at the scene, he resisted and stated that he was “defending himself” because “four cars rolled up, 20 deep, and they were Mexican gangbangers that came to jump him and break into his house.” However, there was no evidence to corroborate defendant‘s statements. Rominski testified that he arrived within three minutes of being dispatched and did not see carloads of people leaving or “20 Mexican gangbangers.” Similarly, Weiss, a neighbor, denied seeing “four carloads of people” or “20 Mexican gangbangers” in the area. Weiss further testified that prior to the shooting, he did not see any cars other than those being used by the neighbors who were moving in. Schroeder testified that there were only three cars in his driveway near the time of the shooting—his car, Belmore‘s car, and the car driven by Imel. Schroeder further testified that no other cars arrived at his house prior to the shooting and no other persons arrived. Imel‘s testimony corroborated that of Schroeder.
¶ 65 Citing to People v. Stombaugh, 52 Ill. 2d 130, 137-38 (1972), defendant contends that an intruder‘s entry or attempted entry need not be forcible and that a person is justified in using deadly force to defend his dwelling before the intruder reaches the dwelling to prevent his entry. Defendant‘s reliance on Stombaugh is misplaced for two principal reasons. First, the shooting in Stombaugh occurred after the intruder forcibly entered the dwelling. Stombaugh, 52 Ill. 2d at 134. In this case, there was no evidence that Peterson or anyone else entered or attempted to enter defendant‘s dwelling unlawfully. Second, the intruder in Stombaugh had a history of violence against his wife and the shooter. This history included stalking, violent attacks against the wife and shooter, and repeated threats to kill both the wife and the shooter. Stombaugh, 52 Ill. 2d at 132-135. Defendant points to no such conduct by Peterson, Schroeder, or anyone else in this case that would give defendant reason to believe that shooting Peterson was necessary to prevent an assault upon, or offer of personal violence to, him.
C. Sentencing
¶ 67 ¶ 68 Finally, defendant contends that the 45-year sentence imposed by the trial court was excessive. Defendant maintains that there was no reason for the trial court to sentence him to more than the minimum 6-year sentence for attempt (first-degree murder) plus the 25-year firearm enhancement, for a total of 31 years’ imprisonment, where he had no prior serious criminal background, he had been gainfully employed his entire adult life, he had strong support from family and friends who vouched for his character, and his criminal conduct was a result of circumstances unlikely to recur. The State responds that the trial court did not abuse its discretion in sentencing defendant to a term of 45 years’ imprisonment given the seriousness of the offense.
¶ 69 A trial court has broad discretion in imposing a sentence, and its sentencing decisions are entitled to great deference. People v. Alexander, 239 Ill. 2d 205, 212 (2010). As such, sentences within the permissible statutory range may be deemed an abuse of discretion only where they are greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense. Alexander, 239 Ill. 2d at 212. The trial court‘s responsibility is to balance the relevant factors and make a reasoned decision as to the appropriate punishment in each case. People v. Latona, 184 Ill. 2d 260, 272 (1998). The trial court has a far better opportunity to weigh such factors as the defendant‘s credibility, demeanor, general moral character, mentality, social environment, habits, and age. Alexander, 239 Ill. 2d at 213. A sentence must be based on the particular circumstances of each case and depends on many factors, including a defendant‘s criminal history and the need to protect the public and deter crime. People v. McGee, 2020 IL App (2d) 180998, ¶ 8. The reviewing court must not substitute its judgment for that of the trial court merely because it would have weighed the sentencing factors differently. Alexander, 239 Ill. 2d at 213.
¶ 70 Moreover, in imposing a sentence, the weight to be attributed to each factor in aggravation and mitigation depends upon the circumstances of the case. People v. Kozlow, 301 Ill. App. 3d 1, 8 (1998). While a sentencing court ” ‘may not refuse to consider relevant evidence presented in mitigation’ ” (People v. Calhoun, 404 Ill. App. 3d 362, 386 (2010) (quoting People v. Heinz, 391 Ill. App. 3d 854, 865 (2009)), it “has no obligation to recite and assign value to each factor presented at a sentencing hearing” (People v. Hill, 408 Ill. App. 3d 23, 30 (2011)). Where mitigating evidence was before the court, we presume that the sentencing judge considered the evidence, absent some indication to the contrary other than the sentence itself. People v. Allen, 344 Ill. App. 3d 949, 959 (2003).
¶ 71 In this case, defendant was convicted of attempt (first-degree murder).
¶ 72 Indeed, in fashioning the sentence imposed in this case, the trial court stated that it had considered the arguments of counsel at the sentencing hearing, the applicable law, the cost of
¶ 73 Defendant nevertheless argues that the court abused its discretion by imposing a sentence for attempt (first-degree murder) that was over three times the minimum sentence. In support of his claim that his sentence is excessive, defendant cites evidence that: (1) he does not have a “prior serious criminal background;” (2) he has been gainfully employed his entire adult life; (3) he has strong support from family and friends who vouched for his character; and (4) his criminal conduct was a result of circumstances unlikely to occur. Defendant is, in essence, asking us to reweigh the evidence presented to the trial court and assign greater weight to the evidence he cites than did the trial court. However, as noted above, as a reviewing court, we simply are not permitted to do this. Alexander, 239 Ill. 2d at 213.
¶ 74 In short, given the trial court‘s careful consideration of the evidence presented by the parties at the sentencing hearing, we hold that the trial court did not abuse its discretion in sentencing defendant to 45 years’ imprisonment.
¶ 75 III. CONCLUSION
¶ 76 For the reasons set forth above, we affirm the judgment of the circuit court of DeKalb County.
¶ 77 Affirmed.