## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Lewis , 2012 IL App (1st) 102089

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. ORLANDO L EWI S, Defe ndant-Appe llant.

District & N o. First District, F ifth Division Docke t No. 1-10-2089

Filed November 21, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s conviction and sentenc e for s econd degree murder wer e upheld over his contention that he acte d in self-de fense
, since the victim

was not in a position to seriously harm defe ndant in a way that would justify defe ndant’s deadly use of a firea rm, and the sentenc e close to the maxi mum was appropriate in view of the gravity

of the off ense.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 07-CR-19 3 9 3 ; the Hon. J org e L

uis Alonso, J udg e, pre siding.

J udg ment Affir med, mittim us corr ecte d.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and Tomas G. Gonzalez, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, Sari L ondon, and Sara Dillery Hy nes, Assistant State’s Attorney s, of counsel), for the People

.

Panel J USTI CE TAYL OR delivere d the judg ment of the c ourt, with opinion. Presiding J ustice McB ride and J ustice Palmer concur red in the judgme nt and opinion.

OP INION

¶ 1 Following a bench trial, defe ndant Orlando L ewis was found guilty of the second de gree murder of Robert Thompkins a n d s e nten c e d to 1 8 year s’ imprisonment. On appea l, defe ndant contends that the State failed to prove beyond a rea sonable doubt that he did not act in selfdefe nse when Thompkins walked toward him afte r defe ndant di s p l ay ed a gun. Def endant further contends that his sentenc e was excessive and that his mitti mus should be reduc ed to ref lect 1,032 day s spent in prese ntencing custody

. The State agree s that his mitti mus should be cor rec ted to 1,033 day s. As to all other cla ims, the St ate disagree s.

¶ 2 BA CKGROUND ¶ 3 The rec ord shows that defe ndant was c harg ed with six counts of first de g reemurder in

connec tion with an incident which occur red on October 14, 2006, on th e s outh side of C hicag o. At trial, the S tate called four occur renc e witnesses, namely
, L atea cca h e T em p l e, Sylvester J ohnson, Fa

nia Morrow and Cameron Wordlaw, who testified consistently

. All four witnesses stated that the defe ndant and Thompkins had known eac h other for 15 year s. T em p l e, Morrow and J ohnson testified that in the evening of October 13, 2006, they h ad
g one to the hospit al
, along with defe ndant, his brother J ere my , and Thompkins, to visit a young man who was being treated for a gu n s h o t wo u n d suffe red during a robber y

. At the hospital, Thompkins told J ere my that he was a “bitch” for sending the young man to commit that robber

y instead of doing it himself. Acc ording to those witnesses, Thompkins then told J ere my that they would h an d le that dispute “on the block,” ref erring to 106th Street and Wabash in the city

of Chicag o. ¶ 4 Acc ording to all four occur renc e witnesses, t h e gro up , wh i ch i n cluded J ere my and T h o mp k i ns, as well as Morrow, J ohnson and Wordlaw, g ather ed at or about 1 a.m. i n an alley and vaca

nt lot just south of 10641 South Wabash, wher e Temple resided. Thompkins and J ere my beg an to argue in the street, and when the fight turned phy sical, they moved onto the sidewalk. At that time, defe ndant came running from his house and tried to brea k up the

-2-fi gh t

. The four witnesses stated that defe ndant pulled a gun and pointed it to Tho mp k i n s ,

who was unarme d and standing two to four fee t awa y from defe ndant. They all testified that Thompkins then told defe ndant t h at if he pulled out that gun, he better kill Thompkins, at which point defe ndant fired the gun at Thompkins at least twice befor e he fell on the g round, then shot Thompkins in t he hea d while standingover him. ¶ 5 Temple, who observe d the incident from her front porch about 20 fee t awa y , stated that when defe ndant approa ched Thompkins and J ere my , Thompkins walked awa y from the two brothers, and had his back to defe ndant when the defendant pull ed out the gun and fired it
at Thompkins. Acc ording to Temple, the first shot spun Thompkins ar o u n d t o war d defe ndant, who s hot Thompkins ag ain, t hen knelt over him on the ground and shot him in the bac k of the he ad. Johnson, who saw the fight be tween J ere my and Thompkins from 15
to 20 fee t awa

y , testified that when defe ndant ran to the scene , others had alre ady separ ated J ere my and Thompkins, but afte r J ere my briefly spoke to defe ndant, the two beg an fighting
ag ain. Acc ording to J ohnson, defe ndant g ot in the middle of the fight and Thompkins struck him twice befor e he pulled out the gun. J ohnson stated, howeve r, that Thompkins tried to run from defe ndant afte r the third or fourth shot, befor e falling to the g round. Simi larly to J ohnson’s testimony
, Morro w s ta te d th a t Je r e my w a s b a c kin g o f

f Thompkins when defe ndant

arrived, but bec a

me mo r e a g gr e s sive once defe ndant whispere d something to him. Acc ording
to M o rr o w, Thompkins then t old defe ndant and J ere my that he would beat them both, but she di d not see Thompkins strike d efe ndant. W ordlaw, who was playing chess at the alley about 15 fee t a

way , testified that the fight tur ned phy sical afte r Thompkins took a swing at J ere my , and that when defe ndant arrived, defe ndant tried to brea k up the ong oing fight. Wordlaw stated that Thompkins took a swing at defe ndant, who then took out his gun, and that Thompkins wa l k ed t o wa rd him with open palms and did not back down as defendant shot him sever al times. He further explained that ever yone on the scene , including defe ndant, Thompkins and J ere my, w ere friends who often eng ag ed in fistfig hts without fea r of any thing

worse. ¶ 6 Temple, J ohnson and Wordlaw testified that afte r the shooting, J ere my war ned ever yone at the scene not to repor

t the incident or they would be killed as well. J ere my , who testified for the defe nse, admitte d that he and defe ndant fled to Winds or, Canada
, shortly afte r the incident and did not re turn to Chicag o until J uly of 2007. ¶ 7 Wil liam Dunig an, a fore nsic investiga tor, testified that he rec overe d a spent bullet ne ar Thompkins’ body
, and that both Thompkins’ hands tested positive for gunshot residue. Scott Rochowicz, a fore nsic scientist, explained that those results meant that T h o mpkins had either discharg ed a firea

rm or was in c lose proxim ity when it wa s discharg ed. Rochowicz further stated that gunsmoke can be transfe rre d from one person to another
, and can trave l up to 10 fee t. Dr. Nanc y J ones, who perf ormed an autopsy on Thompkins, testified that she rec overe d three bullets from his body : one from the right side of his head, one from his right buttock and one from the are a near his right armpit and upper back. Her exam of the body reve aled

corr esponding gunshot wounds on the left side of the back of his head, his right hip and the inside of hi s right arm at the elbow. Dr. J ones further st ated that the bullet recove red f rom Thompkins’ head tra

veled through his brain, from the ba ck of his hea d toward the front. ¶ 8 Def

endant, who testified on his own behalf
, stated at trial that he had known Thompkins

-3-from the block for about 15 year s, and they wer e both members of the Four Corner Hustlers

street g ang

. He admitted that until the night in question, he had never been afr ai d of Thompkins. While defe ndant acknow ledg ed that he had a gun that night, he explained that he had taken it from a

g roup of young er me n who wer e about to use it to resolve a dispute. Def endant stated that he still had that gun when he saw J ere my and Thompkins fighting and

ran to the scene to brea

k up the fight. Def

endant explained that once he separ ated J ere my and Thompkins, and told J ere my to g o home, Thompkins g rabbe d defe ndant and beg an choking him. When defe ndant broke fre e, Thompkins punched h i m in the fac e. Acc ording to defe ndant, he then tried walking awa y , but Thompkins advanc ed toward him, at which time defe ndant pul led out his gun and point ed it at T h o mp k i n s , s t ating “we can do this a better
way .” Def

endant stated that Thompkins kept walking towar d h im and responde d with
comments such as “bitch, you better kill me.” He testified that Thompkins then “lung ed” at him and tried to take the gun, and defe ndant fired the gun at Thompkins three or four times. Def endant de nied shooting Thompkins once he wa s lying on the g round. ¶ 9 On cross-e x amination, defe ndant admitted that he knew that Thompkins did not have a
gun, but stated that he was still afr aid to turn and leave the are a afte r he separ ated Thompkins and J ere my

. He also acknow ledg ed disposing of the gun shortly af t er t he shooting and leavingfor Windsor with J ere my

. ¶ 10 In addition, defe ndant related four incidents in w h ic h h e o b s e rved Thompkins strike other individuals. Acc ording to defe ndant, i n 1999 or 2000, he saw Thompkins beat a man over money , an d i n 2 0 0 2 o r 2003, he saw Thompkins hit a man who tried to sell him a chain. Fur ther, in 2005, defe ndant saw Thompki n s at t ac k a man who won money from him
g ambling, and in an unrelated incident, Thompkins struck anothe r m an in the head with a gun. Howeve r, he admitted that he had never seen Thompkins threaten those men with a gun and that Thompkins never used a g un on his fellow g angmembers. ¶ 11 The defe nse also called three police office rs who had prior encounte rs with T hompkins. Offic er Davis testified that in September, 2003, he appre hended Thompkins for drinking in

a public way , and when he and his part n er p l ac ed him in the wag on afte r a strug g le, Thompkins dropped a handgun on the street. Offic er Rigg ins, the lockup office r for that 2003 incident, testified that once Thompkins arrived at the station, he was cursing and spitti ng on

o ff i cers. Thompkins struck the office r i n the face, and when officer s tried t o close the ce l l door on Thompkins, he slammed the door on Offic er Rigg ins’ arm, fra cturing it

. L as t ly
, Offic er McWill iams testified that in Dec ember 1999, he responde d to a domestic disturbance call involving T h o mp k i n s, and observe d him in a fistfig ht with his brother. When Offic er M cW i l liams’ fema le partne r attempted to brea k up the fight, Thompkins struck h er repe atedly

. ¶ 12 Following closing arguments, the trial court found defe ndant guilty of the lesser inc luded offe nse of second degree murder, holding that the evidenc e showed that while defe ndant was acting in the belief of self-de fense
, that belief was not rea sonable. In doing so, the court stated that while the four occur renc e witnes s es ’ t est imony contained inconsistencies, it provided a clea

r picture of what happene d the night in question and was more cre dible than defe ndant’s own trial testimony

. In fac t, the court found that the State proved that defe ndant had the intent to kill or do g reat bodily harm to Thompkins and was not jus t i fi ed i n u s ing

-4-deadly forc e. Howeve r, it also found that the d ef en s e proved by a preponde ranc e of the evidenc e the e x istence of a mitigating f

actor so as to allow def

endant to be f

ound guilty

of the sec ond, rathe r than fir st, degree murder. T he cour t further stated t hat s ince the me dical examiner did not find evidenc e of cl o s e-r ang e firing to the back of Thompkins’ head, it would g ive defe ndant “the benef it of the doubt” as t o wh et h er defe ndant kneele d over Thompkins on the g round. In addition, the court noted that defe ndant’s flig ht to Canada was further evidenc e that he kne w he wa s guilty

. ¶ 13 At sentenc ing, the State noted that defe ndant chose to join a fistfig ht w ith a man whom he had known for year s and never been afr aid of, chose to bring a firea rm, and chose to shoot Thompkins three times. Def ense counsel pointed out that defe ndant had no prior convictions for viol ent crimes, but only for drug possession. He also noted that defe ndant had a prior work history and family support. Def endant apolog ized to Thompkins’ family and expressed

remorse

. The court sentenc ed defe ndant to 18 year s’ imprisonment, noting that it had g iven him the “bene fit of the doubt” when it reduc ed his crime to second degree murder, and that

su ch a sentenc e was appropriate taking into acc ount all the fac tors in ag g ravation and mitigation. Def

endant was then cre dited with 1,003 day s spent in custody

. He filed a motion
to rec onsider the se ntence , which wa s denied.

¶ 14 ANALYSI S ¶ 15 On appea l from that j u d gm en t , defe ndant now contends that the State failed to prove beyond a re asonable doubt that he did not act in self-de fense in shooting Thompkins , who kept coming at defe ndant even afte r he display ed a gun to brea k up the on go i ng fistfig ht. Def endant maintains that the evidenc e prese nted at trial showed that defe ndant’s actions

wer e justified beca

use he believed that he and his brother wer e in imminent dang er of death
or great bodily

harm whe n Thompkins kept advanc ing towa rd him. ¶ 16 Where a defe ndant challeng es the sufficie ncy of the evidenc e to sustain a conviction, we deter mine wh et h er any rational trier of fac t, afte r viewing the evidenc e in the light most favor able to the State, could have found the essential el em ents of the crime beyond a

re as o n ab l e d oubt. People v. Siguenza-Brito
, 235 I ll. 2d 213, 224, 920 N.E.2d 233, 240 (2009). This standard rec og nizes the responsibility of the trier of fac t to resolve conflicts in the evidenc e, to deter

mine the cre dibilit y of the witnesses and the weight of their testimony
, and to dr aw rea sonable infere nces the ref rom. People v

. W

illiams
, 193 I ll. 2d 306, 338, 739 N.E.2d 455, 472 (2000). Acc ording ly
, this c ourt will not subst itute its j udgment for that of the trier of fac t as to the weight of the evidenc e or the cre dibilit y of the witnesses, or set aside

a criminal conviction unless the evidenc e is so improbable or unsatisfac tory as to cr eate a

rea sonable doubt a s to de fenda nt’s guilt. Siguenza-Brito
, 235 I ll. 2d at 224-25, 920 N.E.2d at 240. We do not find this to be such a ca se. ¶ 17 Self-def

ense is an affirmative defense
, and once defendant raises it and provides some evidenc e of it, the State has the burden of proving beyond a rea sonable doubt that defe ndant did not act in self-de fense
, in additi o n t o the elements of the charg ed offe nse. People v. Jeffries
, 164 I ll. 2d 104, 127, 646 N.E.2d 587, 597 (1995). In I llinois
, a person is justified in using deadly forc e only when he rea sonably believes that such forc e is nece ssary to preve nt

-5-imminent death or g reat bodily harm to himself or another person, or the forc e threatened is

a forc ible felony

. 720 I L CS 5/7-1 (West 2004). Thus, a person acts in self-de fense wher e: (1) forc e was threatened ag ainst defe ndant; (2) defe ndant was not the ag g ressor; (3) the dang er of harm was immine nt; (4) the forc e threatened was unlawful; (5) defe ndant actua lly believed

a dang er exis ted and the use of forc e was nece ssary to aver t it; and (6) defe ndant’s belief was

rea sonable. 720 I L CS 5/ 7-1 (West 2006); see also People v

. Morgan
, 187 I ll. 2d 500, 533, 719 N.E.2d 681, 700 (1999). I f the State n egates any of the above elements, defe ndant’s claim of self-de fense fails. Jeffries
, 164 I ll. 2d at 1 2 7 -2 8
, 6 4 6 N.E.2d at 597-98. Where a defe ndant shoots a

n unarme d victim, who was not in a position to cause g reat bodily harm,

a fac t finder may rationally conclude that any belief of imminent dang er so as to justify the

use of deadly forc e was unrea sonable. See, e.g. , People v. Davis
, 33 I ll. App. 3d 105, 109-10, 337 N.E.2d 256, 260 (1975) (def endant’ s belief that an unarme d man was about to cause her
g reat bodily harm was unrea sonable, and she was not justified in shooting him, even afte r he threatened to kill her, walked afte r her and snatche d off her wig ); People v. Lee
, 243 I ll. App. 3d 1038, 1043, 614 N.E.2d 108, 112 (1993) (fa ct finder may have found that unarme d victim could not have threatened g reat harm ag ainst defe ndant so as to justify shooting the victim,

even a fter a

fistfig ht started by

the victim). ¶ 18 In this case , the ev i d en ce , s h own in the light most favor able to the State, shows that defe ndant instigate d his brother to fight Thompkins afte r their initial fistfig ht had been broken up, and then intruded upon the second fight betwee n the two men. Fur ther, t he evidenc e shows that when defenda nt pulled his gun and point ed it at Thompkins, he knew that Thompkins was unarme d and that Thompkins had never shot at a fellow g ang member in the past. Whil e it appea rs that Thompkins told defenda nt that if he pulled a g

un on him, he “better kill [Thompki ns],” that statement, when viewed in the light most favor able to the
prosec ution, does not nece ssarily indicate that Thompkins was about to shoot defe ndant with that gun, but could have been a threat to merely

hit defenda

nt, or to seek reveng e at a later time. M o re o v er, instead of repor ting the incident to the police, defe ndant fled to Canada
, which further indicates that he knew the shooting was not justified. Thus, even if Thompkins kept walking toward defe ndant afte r he pointed the gun at him, a rational trier of fac t could have conclude d that if defe ndant believed that deadly forc e was nece ssary to aver t imminent dang er, suc h belief w as unre asonable

. ¶ 19 Def

endant’ s relianc e on People v. Harling
, 29 I ll. App. 3d 1053, 331 N.E.2d 653 (1975), and People v. Bailey
, 2 7 I l l. App. 3d 128, 326 N.E.2d 550 (1975), is misplaced. The defe ndant in Harling
, 29 I ll. App. 3d at 1058, 331 N.E.2d at 558 was the only witness to the fata l stabbing of the victim while they wer e eng ag ed in mutual combat, unlike defe ndant in this case , who shot an unarme d T h o mp k i n s fr o m two to four fee t awa y

. In Bailey
, 27 I ll. App. 3d at 1 3 3 -34, 326 N.E.2d at 554, there wer e two men advanc ing toward defe ndant, blocking his only exit and threatening to push him out of a third-story window immediately behind defe ndant. Thompkins, by contra st, was not in a position to cause any g reat harm to defe ndant so as to justify

the def endant’ s use of a

deadly wea pon. ¶ 20 De fe n d an t n ex t co n t en ds that his 18-year sentenc e for second degree murder w as excessive and that this court should reduc e his sentenc e to a more appropriate term or rema nd his case for rese ntencing

. He contends that a sentenc e that is only two year s shorter than the

-6-maxi mum sentence allowed f or this offense is ex cessive in light of the fa cts that he ha s no history of violent crimes, has a steady fa m i l y an d employ ment history
, and has expressed

remorse for his crime. ¶ 21 It is well establi s h ed t h at t ri al courts have broad discretionar y power s in imposing a
sentenc e, and that their sentenc ing decisions are entitled to g reat d ef er en ce. People v. Alexande r , 239 I ll. 2d 205, 212, 940 N.E.2d 1062, 1066 (2010). A revie wing court may not substitut e its own judgme nt absent an abuse of discretion, which will be foun d only if the judgme nt of the trial court is manifestly unjust or the defe ndant’s sentenc e constitutes a clea r depar ture from fundame ntal law or is not p roportional to the nature of t he offense. People v. He nderson , 354 I ll. App. 3d 8, 19, 820 N.E.2d 108, 117 (2004). ¶ 22 I

n th is c a s e , d e f

e n s e c o u nsel prese nted evidenc e of defe ndant’s prior employ ment history
, family ties, lack of a violent criminal history and remorse for his c rime. In ag g ravation, the State noted the nature and circ umstances of the crime, namely
, that defe ndant chose to join a fight betwee n his brother a nd Thompkins, to bring a firea rm, and to fire it at an unar med Thompkins repe atedl y

. The State further noted that the trial court had alre ady g iven defe ndant the bene fit of the doubt in finding him guilty of second, rathe r t han first, degree murder. In s entencing defe ndant to 18 year s’ imprisonment, which is within the statutory l i m its for second degree murder (730 I L CS 5/5-8-1(a )(1.5) (West 2006)), the trial co u rt stated that it considere d all the fac tors in ag gravation and mitigation, including defe ndant’s criminal history
, the financ ial impact of his incar cer ation as well as his statement of remorse

. It then noted that a sentenc e close to the maxi mum rang e was appropriate g iven the fac ts and seriousness of the crime. Under these circ umstances, we conclude that the trial court did not abuse its discre tion in imposing de fenda nt’s sentenc e. ¶ 23 L astly
, defe ndant contends that his mitti mus should be corr ecte d to ref lect 1,032 day s of

s p en t i n prese ntencing custody
, instead of the 1,003 day s curr ently ref lected there in. T h e question of whether defe ndant’s mitti mus should be corr ecte d is a purely leg al issue, subject
to de novo revie w (

People v. Jones
, 397 I ll. App. 3d 651, 656, 921 N.E.2d 768, 772 (2009))
, and this court has the authority to order the cler k of the circ uit court to issue a corr ecte d mitti mus (I ll. S. Ct. R. 615(b)( 1)). The rec ord shows that defe ndant was arr ested on August 27, 2007, and re m ai ned in custody until the day he was sentenc ed on J une 25, 2010. The State corr ectly notes that, excluding the day that he was sentenc ed, defe ndant was in custody for a total of 1,033 day s. Acc ording ly
, we order the mitti mus to be amende d to ref lect 1,033 day s of cr edit. ¶ 24 For the fore g oing rea sons, w e aff irm the judgme nt of the circ uit c ourt of Cook County
, and orde r the mittimus t o be ame nded to show 1,033 day s serve d.

¶ 25 Affir

med, mittim us corr ecte d.

-7-