No. 2--06--0140 Filed: 1-14-09

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Wi nn eb ag o C ou nt y. ) Plaintiff-Appellee, ) ) v. ) No. 04--CF--3278 ) JOHNATHAN J. ROMERO, ) Honorable ) Richard W. Vidal, Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________ Modified on Denial of Rehearing PRESID ING

JUSTICE

ZENOF F delive

red the o pinion of t

he court : Defend ant, Johnathan R

omero, a ppealshis conviction of

first degree murder (720 I LCS 5/9-- 1(a)(2) (West 2004)) and his subsequent sentence of 50 years' imprisonment in connection with an incident in which he fatally sta

bbed another

young ma

n, Eric Flynn, at a bonf

ire par ty. On appea

l, defendant argues that (1) the evide nce that defendant acted under an unrea sonable belief in the necessi ty of deadl y f orce in s elf-de fense w arrant s our red ucing h is conviction to sec ond degree murder; (2) his c onviction should be r

everse d and the c ause re manded f or retri al d

ue to th e prose cutor 's allegedly

improper statemen ts during closing rebuttal arg ument; (3) his sentence was excessive; and (4) the judgment must be corrected to reflect the three y

ears of mandatory

supervised releas e (MSR) statutorily authorized instead of the four y ears actually

imposed. The State concedes the latter point. For the reasons that follow, we affirm a s modified.No. 2--06--0140

-2-

Defend ant's trial took place between November 18 and No vembe r 29, 2 005. T he St ate's first witness, Flynn' s mother, testified that Flynn c ame home from work on October 2, 2004, shortly after 9 p.m. but left home again at approximately 10:30 or 10:45 p.m. When he left he was wearing blue jeans and a gray

sweatshirt. John Peppers testified next for the State. He testified that October 2 was the night of Auburn High School's homecoming dance and that

his younger

brother Jeff was planning a bonfire party for that night. Shortly after

10 p.m., after the party

had started and after John, who was 21 yea rs old at the time, purchased some alcohol, he picked Fly nn up and drove him to the party . When they arrived at John's house, they discovere d that John's parents were breaking up the pa rty. The g

roup decided to join ano ther bonf

ire par ty a t the home

of Eric E llis. Though there were no streetlights in the area and the pathway

leading up to the bonfire area

was dark, the bonfire clearing wa s "pretty br ight," and, "as soon as y

ou got into the clearing, *** y ou could de fi nitely see." John recognized most of the people at the Ellis party as either friends or "frien d[s] of friend[s]" whom he had met that night, but he did not know defendant and did not see him at th e p ar ty. Even though the majority of the partygoers were high school students, most of them

were drinking. John stayed at thebonfire for approximately one hour before leaving to meet another friend and also to purchase more alcohol for the party . Flynn rema ine d a t t he pa rt y d uring J ohn's absence. When John eventually returned to the par ty, the atmosphere was "panicked," and "[t]here

were a lot of cars kinda speeding away ." John was informed by the party

goers that Fly

nn had been stabbed. Chri s Peppers, John's younge r brother, testified that he arrived at the Ellis party at approxima

tely 11 p.m. on October 2, after his parents had broken up his party, which had inc ludedNo. 2--06--0140

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his friend M itch Hea slip and some of Heaslip's friends from Wisconsin. Chris drank five beers over the co urse o f the n ight, but, thou gh th er e w er e " a l ot of pe op le " u si ng ma ri

ju an a a t t he El li s p ar ty, Chris testified that he did not take any drugs that night. Chris saw his brother John leave after approxima

tely one-half hour

in order to purchase more beer, and, a fter two more of

his friends left the party 15 minutes

later, Ch ris wandered away

from the bonfire and toward the road. Ther e, he

sawan acquaintanc e named Christina a nd a pers on he rec ognized n amed Ada

n arrive with a sma

ll group of one girl and three boy

s whom Chris did not recognize. Chris followed the group back to the bonfire, but

he wa s s us pi ci ou s o f t he un kn ow n b oys because they were not interacting with the ot he r p ar tyg oe rs bu t w er e i ns te ad st an di ng to th e s id e o f t he pa rt y. A short time

later, Chris again walked away from the bonfire and toward the road. While he

was away, he "st arted h earing a bunchof noise, yelling and screaming." He ra

n back to the bonfire and saw what

"looked like fift een peo ple *** jus t in a bi g brawl." Chris could not identify any specific people in the brawl, but henoted that the group of unknown boys was no longer standing where he had

last seen them. On cross-examination, Chris recalled that, during the fig ht, he sa w Ryan Hatfield standing

on a spool, with a six-foot-long metal pole in his hand. Chris joined

a group of people sitting behind some nearby cars and observed the fight from

a safe distance. At

some point, the group of unknown boy s came rushing toward Chris, "screaming and yelling, saying

'We gotta get out of here .' " Chris ran and jumped into a nearby ditch, and from there he saw two cars leave. Accor ding to Chris, his brother John arrived at the party within a minute thereafter. Peter Miller te stified ne

xt for the Sta

te. On October 2, 2 004, he a nd sever al f riends had traveled from Wisconsin to visit

Mitch Hea slip, who to ok them fir st to the Peppers party a

nd, afterNo. 2--06--0140

-4-

that party was brok en up, tothe Ellis party. At some point

during t he Ellis pa

rty , a gro up of peo ple with whom Miller was not fam iliar arrived; the gro up did not mi

ngle wi th the othe

r party goers. Miller "decid e[d] to socia

lizewith them," and thus approached them. Then, "this black dude asked [Miller] what [his] colors were *** or asked [him] what [his] problem was." When Miller attempted to respond w ith a joke, it did not appear that the stranger "took it as a joke ," and "a confrontation happened." One of the boys in the g roup of strangers "flicked" Miller's hat off into the fire, an d Miller shoved him. Miller exchange d crosswords with the group as his friends from Wisconsin and

some people from Rockford rushed in to break up the fig ht. Miller and the group reconciled, but,

a short time l a ter, he saw a "verbal" argument break out between " the guy in the hoodie and that group." Some people were pulling back the "g uy in the hoodie," w

ho Miller later learned was Eric Flynn, when the

group "kinda bull rushed him." (Whe

n asked w

hat it meant whe

n someone

"gets bull rushed," Miller answered, "Self- defense, running back, try ing to prot ect himself, he's in the defensive.") A large fight, involving what Miller e stimated on cross-examinationas "fif teen, twe nty people," broke out. The next time Miller saw Eric Fly nn was "[w]hen he *** pulled his hand off of his shirt and

said *** 'help' or something" be fore falling to the ground, bleeding. Miller "could hea r him breathing hard and *** could see blood squirting out." Eric Stone, another pa

rty goer f rom Wiscons in, was the

next witnes s for the State. He testified that, after M ille r's con front ation with the gr oup t hat was not interacting with the other party goers, he saw Fly

nn "standing there" when a "chair [was] thrown right by him and a Mexican started rushing after him, and he was kinda running backwards and stuff." Stone later testified that two people approached Fly nn--one wearing an ora

nge shirt and one we aring a gray shirt. Stone testified that the confrontation was "about fifteen, twenty feet away ," and that he could "pretty muchNo. 2--06--0140

-5-

see" or could see "pretty

clearly." When Flynn was being rushed, he was "rushing

backwards," and Ston e's imi ta tion of his hand movements was described as follows: "his palms are up at sort of shoulder height with the palms facing out." During redirect examination, Stone indicated that Fly nn swung at the two adversaries with the palms of his hands up and his elbows in front of his face. It appeared as if o ne of Fl ynn's assailants, who was wearing a gr ay shirt and g

ray pants, wa s punching him in an "awkward," "dow

nward sideway s motion" while Flynn "struck out with his

fists, pro bably to block them, trying to g et them off of him." Stone was distracted by noises behind him, and, when he turned back

around, he saw Fly

nn, who was on the ground, get up, "take[] like four or five steps

*** and fall[] on his face." On cross-examination, Stone agreed that he was intoxicatedat the time of the altercations. He also agre ed on cross-examination that he never saw a knife. Brian Coy, another Wisconsin party goer, testified that he saw the confronta tion between Miller and the g roup of st ran gers during the Ellis party and that he "kind of stepped forward, [to] make sure nothing was going to happe n. " Whe n he t urne d aro und, he saw

"som eone

stand on [a nearby wooden sp ool] with

a gray sweatshirt on saying

everyone needs to respect every

body." The

n, "[s]omeone pushed the spool over and he fell down," and thre e people began "kickin g him, beating him up" while he was on the ground. Thoug h he testifie d that he was not into xicated a t the time of the incident, Coy stated that he co uld not "really se e" who was involved in the altercations that followed, because it was dark and the three pe ople had t

heir backs turned to him. When next he saw the person in the gray

sweatshirt (which he also described as a hooded sweatshi rt) approximately 10 minutes later, the person "stumbled over by [him] and fell over by [his] feet." John Gillitzer, yet another party goer from Wisconsin, testified that he met Flynn, who wa s wearing a gray hooded sweatshirt, that

ni gh t a t t he El li s p ar ty. After Miller's confrontation with theNo. 2--06--0140

-6-

group of strangers, Gillitzer saw someone y elling at the group, " ' Don't disrespect me, we'rehere to have fun.' " Gillitzer testified that he then sa

w two of the strang ers push someone off the wooden spool , but he could not tell who was pushed off the spool. On cross-examination, Gillitzer stated that Flynn was not the pe

rson who was pushed

off the spool but was the person who told others not to disrespe ct him. Gill itzer did not see Flynn dur

ing the altercations that followed, and, the next time Gillitzersaw Flynn, he

saw a Hispanic male wear i ng an orange shirt "hit him in the fac e and then that same gu y c ame back and hit

him in the c

hest." Gillitzer looked awa y, a nd Fly nn came up to him "gasping for air." One of F lynn's friends, Ryan Ha tfield, testified that Flynn wa s wearing a dark gr ay hooded sweatshirt

at the Ellis part

y on October 2, 2004. Hatfield recalled that, during the Ellis party, a g

roup of strangers arrived with a person he knew named Adan, and the group did not interac t with t he remainingpartyg oers. At some point during the party , Hatfield saw Fly nnarguing with the group, andH atfield t

ried to re move Fly nn from th e argu

ment. Hat

field re called that, "as

[th ey] were walking [away

from the confron

tation,] the

group o f people

came af ter [him] and

[Fly nn]." Ha tfield was punched in the

nose during the encounter. Hatfield recalled that, " [a]fter everybody scattered away f rom that [,] [Hatfield] walked back over by the fire a

nd Adan grabbed [Hatfield] and threw [him] into the trees and had [him] around by [his] neck, and then one of [Adan' s] buddies came and grabbed [Adan] off

[Hatfie ld] and said *** [' ] we got to go[.']" Hatfiel d recal led undercrossexamination that he grabbed a nearby metal pole after Adan had been pulled off of him. Also on cross-examination, Hatfiel d estimate d that hisencounter with Adan likely lasted less than one minute. Once Adan and Hatfield were se parated, the strangers left, a nd Hatfield saw Fly

nn being lifted onto a truck to be taken

to the hospital. Hatfield stated that he had stood atop a wooden spoolNo. 2--06--0140

-7-

at one point during the party and that he did not see anyone else on the wooden spool during the pa rt y. After

the testimony of the police offic er who collected phy sical evidence related to the case, the State called Daniel Romero, defendant's brothe r, to testify. He re called that he and defe ndant, along with two girls and f our other boy s, went to a

bonfire party on the nig

ht o f October 2, 2004

. Daniel wore gray

pants and a gray

T-shirt to the party. Da niel testified that so meone wearin g a stran ge hat approached his group to ask for drug s, and an argument between Ada n and the person ensued. According to Daniel's testimony, a fight between defendant and another boy

broke out at that point, but Daniel did not see any of that fight because his attention was directed toward Adan. Under further question ing, Da

niel agree d that he had told pol ice that t he other boy had got ten in defend ant's face, that Danielhad tried to keep the two apart using his arms, and that defendant took outa knife for

protect ion, but Da

niel asse rted tha t he was " just agr eeing" to those sta

tements be cause th ey were what the pol ice wer e telling him. When a sked if he

told police

that def endant c ut h i m while he was try

ing to keep the two people apart, Daniel answer ed that "[t]hat's what the police said." However, upon bein

g shown p ictures o f him

and of his clothing from that night, Daniel agreed tha t he had an injury on

his arm and that his clothes had blood on them. Daniel testifie d later that he did notknow how he got the injury to his arm. Later under dire ct examination, Daniel agreed whe n asked if he wa s " th e o nl y person t hat stepp ed betwe en [defe ndant] and

the [Fly nn]." Da niel also agreed that, while he was standing between defendant and Fly

nn, Flynn did not have

any thing in h is ha nds and did no t hit defe ndant. Da

niel rec alled se eing blo od on def endant' s butterf

ly k nif e onc e they had returned to their car

to leave the party. On c

ross-examination, Daniel stated that during the car ride home defendant said that he stabbed the other person "because they were jumping him."No. 2--06--0140

-8-

Detective Vincent Lindberg , who questioned Daniel on the day af ter the incident, testified next for the State. He testified that Daniel at first said that he had been asleep by 8 p.m. the previous night, but, when Lindberg confron ted Danie l by

indicatin g that he knew abo ut Daniel 's wher

eabouts the prev ious nigh t, Danie l tol d Lindbe rg that Flynn had gotten "in hi s brot her's face," that he tried to separate the two, that defendant pulled out a butterfly knife a nd stabbed Flynn, a

nd that defendant cut h im as he wa s tryin

g to sepa rate Fl ynn and defe ndant. L indberg took two wr

itten stat ements fromDaniel. Bo th statem ents w ere con sist ent wi th Lind berg's t estim ony regardi ng Dani el's responses during questioning, but, in t he second statement, Daniel added that, though none of the other partygoers appeared to have a ny weapons, defenda

nt may have wie lded his knife because he anticipated

that two ot

her peop le would

join Flynn in f

ighti ng him . Lindbe rg test ified that, thou gh he and not Daniel handwrote the first statement and ty ped the second, Daniel confirmed the accur acy of the sta tements. After testimony from a

police officer who went

with a prosecutor to speak with Daniel, an offic er who collected a DNA swab from Daniel, and the court reporter who transcribed Da niel' s grand jury testimony, the State called Officer Frank I ngardona of the Rockford police depart ment to testify. Ingardona

testified regarding

his extensive training in martial arts, and he stated that he

was familiar with butterfly knives. I ngardona said that one would not be able to op en a butte

rfly knife safely

with one hand without practice and that it took him "quite awhile" to lear n how to do so himself. After the testimony

of a cri me scene technic ian, the St

ate elic ite d testimon y from three forensics special ists and e nte red a s tipulation regarding the testimony of another. One of the special ists, a

pathologist, testified that Flynn suf fered up to five stab wounds (one of Fly nn's woundsNo. 2--06--0140

-9-

might have been made during

medical treatment), including a through- and-through knife wound that produced two cuts on

Fly nn's lef t arm, a fatal knife wound that pierced "a ll the way throug

h the left ventrical [ sic ] and *** through the posterior portion of the heart," and a potentially fatal knife wound to the lung. The pathologist stated that the heart wound was inflicted by " a delibe

rate force," akin to the force required to stab a knife throug h a roast. The pathologist also testified tha t Flynn died with a blood alcohol level of 0.081. After the pathologist's testimony , the State rested its case. Defend ant's f irst witness, David Cruz, testified that, on October 2, 2004, he and a group of six other boy

s, includi ng def endant a nd defen dant's brother, and some

girls went together

to a bonfire pa rt y. Cruz stated that nobody in the group was wearing an or ange shirt and that defendant was

wear ing blue jeans and a blue plaid shirt. When they arrived at the party , Flynn wa lked up to t

h e group and, in a ton e that struc k Cruz as " upset," asked the m who they

were. Once the g

irls introduced

their group, "every

thing was fine." The gir

ls from the group mingled, but the boy s in the group stay

ed to them selves un

til some one approached the group to ask for drug s and one of the group members "smacked" the hat off his head. After that, Cruz saw fights break out, but he did not see Flynn d uring t he figh ting. Danielle Zobal, one of

the gir ls who tra veled to t he party with defendant, testified that she

was talking to someone when she looked over and saw someone retrieving his hat

from the bonfire after it had been knocked off his head. Zob al r ecalle d that "e very thing wa s fine for a coupl e minute s" af

terwards. She walked with Cruz away from the crowd, and, when they returned, "every body was arguing, and then af ter that ev erybo dy just started fig hting." She did not see defendant or Fly nn fight ing, but she did see

Fly nn ly ing on th e grou

nd with a stab wo

und shortl

y thereafter. As she an d her group dr ove away from the party, Z obal saw that "all of them" hadNo. 2--06--0140

-10-

"bruises an [ sic ] scrape s" and the cordur oy sw eat shirt def

endant w as wear

ing was torn. She a

lso recalle d seeing

scratches on de fendant's hand s. After the testimony

of a priv ate investigator for the defense who had diff iculty obtaining an interviewwith a prosecution witness, Travis Triplett testified for the defe nse. Trip lett

was another member of the group that accompanied defe ndant to the Ellis party. Fiftee n minutes after

the group arrived at the party, one

of the part yg oers app

roache d Triplet

t to try to acquire

drugs, and "somebody proceeded

to knock his hat off his head and throw it into the bonfire." Just when tempers cooled, Triplett saw Flynn

standing atop a wooden

spool, yelling that the g

roup needed to watch what they

were doing and

not disrespect him or the party . According to Triplett, Fly nn told the group, " [']y

ou don't know what w e can do to you, we 're goin g to bas icall y fuck you up. ['] " One of Fly nn's friends grabbed him to remove him in order to ease tensions, but Triplet t heard Flynn say

, " [']You heard what I sa id , g et ou t o r yo u' re go in g t o g et you r a ss wh oo pe d. [' ] " Th en , T ri pl et t r ec al le d, "t he gu ys that were in our group go running towards all the guy s in their group." Triplett tried to break up the ensuing fights a

nd leave with his g roup. As he was lea

ving, he saw Fly nn fall to t he gro und. Trip lett stay ed to help Fly nn while the rest of

his grou p left. Defendant

next testified on his own be half. He testified that, on October 2, his brother Daniel and a friend picked him up at hi s house. Defendant was wearing blue jeans and a flannel plaid shirt; he did not recall anyone from their group wearing a nything ora

nge. When he entered

the car, he had

in his pocket a butterfly

knife, which Daniel had bought him, that he had been " playing around with" and

"[ o] pe ni ng " a nd "f

li pp in g" ea rl ie r i n t he da y. They went to Ada n Ibarra' s house, where they

met Adan, David Cruz, and three girls, including Danielle Z obal. They lef t for the bonfire party and picke d up Travis Triplett on the way

. When they arrive d at the pa

rty , a "[c]ou

pleNo. 2--06--0140

-11-

gu ys came up and told [them] to come on in th e p ar ty [ sic ] after they we re talking to some of the girls." Defend

ant and hi s g roup had been at the party for approximately 20 or 25 minutes when

someone walked up to the group to ask for drugs a nd a member o f the gro up knocked off that perso n's hat. Def

endant r ecalle d that Ada

n then began y

ellin g at the person

who aske d for dru

gs, because Adan believed

him to be a

"snitch ," "[a]nd

then Ada n started getting into it with [Flynn]." As Adan and

Flynn argued, Daniel joined a gr oup of people trying

to separate the two, and defendant tried to "grab [Daniel] to get away ." Defendant continued: "They started wa lk ing away , and everybody

somehow moved toward the other side of the bonfire and anothe r fight started going on." According

to defen dant, the next thing

he reme mbered was " look ing o ver and [his] brother was gettingjumped by two guy s." Defend ant "went ov er, pushed [those] guys off of [his] brother." Defendant

stated that

Flynn was one

of Daniel's two adversaries. Afte r defendant pushed Fly

nn off of Daniel, Flynn star

ted "coming after

[defendant ]" and "raised h is fist." Defendant "pulled out the knife and then [Flynn] struck [de fendant ]" "in the face area." D efendant stated that he pulled out the knife becaus e two p eople were co ming at him an d he "th ough t [he ] was going to get hurt." Defendant

"tr[ied] to get away

from hi m" by "stickin

g him with

the knife " "[t]wo or three " times. Though defendant

believed that stabb ing Fly

nn would c ause him harm, def endant w as not try

ing to kill Flynn. When defe

ndant stabbed Flynn, the altercation stopped, and defendant and his g roup left to return to

Adan's house. Defendant threw the knife into a river and returned home later that nig ht. Police arrived at defendant's house the ne xt morning and

took him to the police department for questioning. At trial, d

efenda nt admitte d that he i

nitially lied to police about whether he stabbed Flynn, even after police confronted him with Daniel' s statement that defendant had stabbed Flynn,No. 2--06--0140

-12-

butdefendant eventually

told police that he h ad stabbe d Flynn and g ave them a statement to that effect. Oncross-examination, defendant agreed that he had playe d

with the butterfly knife a

number of times before that night, that he did not cut himself at all when he was play ing with the weapon, that he had no

problem f

lipping i t open, an d that he c ould bounc e it

off of hi s hand "pretty

easily." He also ag

reed tha t his mother

had implor

ed him and

his brother not to carry

knives with them, but defendant asserted that the advice was directed more toward his brother, who "alwa ys collected knives." Defendant further agr eed th at, when he saw Fly nn raise his hand or fist, he did not see anything in Flynn's hand, but defendant said that he did not know if Flynn had any thing in his hand, because it was dark. Defendant agre ed that there was no apparent injury to his face as a result of Flynn's punching

him. Defe

ndant acknowledg ed that, i nhis written statement to police, he indicated that one of the

two peopl e who atta

cked him "took off" when he drew his knife. Defendant testified that he thought the second person took off, because he did not know where the person w a s afterw ards, but defendant asserted that he "didn 't know fo r sure if [the person] kept on coming at [him]." The defense

rested a fter de fendant's testim

ony , and, af

ter the te stimo ny of t

hree rebuttal witnesses regarding statements made to the police ( inclu ding testimony that defendant did not mention in interviews just after the incident that he ha d acted in self -defense or that he had been struck before stabbing Fly nn), both s ides pre sented c losing a rgumen ts. Th e j ur y found defendant guilty of first degree m

urder , and the t

rial cou rt subseq uently sentenc ed him to 50

ye ars' imprisonme

nt and a 4-ye ar term o f MSR. Def endant ti mely appeals

.No. 2--06--0140

-13-

Defend ant's first argument is that his conviction must be reduced to a conviction of second degreemurder because the evidence showe d that he acted with an unreasonable belief that ther e were circumstances present

to justify his use of

deadly force a gain st Flynn. Pursuant to section 9--2 of the Criminal Code of 1961 (Code):

"(a) A person commits the offense of second deg ree murder

when he commits the offense of first deg ree mur der *** a nd either of the fo llowing m

itigatin g fact ors are present :

*** (2) At the time of the killing he believes the circumstances to be such that , if they existed, would justify or

exonerate the killing [as self-de fense], b ut his belie f is unreasonable.

*** (c) When a defendant

is on trial for

first degree murder and e vidence of either of the mitigating factors *** has been presented, the burde nof proof is on

the defendant to prove either mitig ating factor by

a preponderance of the evidenc e ***. However, the burden of proof remains on

the State to prove b eyond a rea sonable d oubt eac h of the e lements of

first degre e murder

and, whe n appropriately

raised, the absence of circumstance s at the time of the killing that would ju stify or exoner

ate the killing under the principles stated in Article 7 of thi s Code . In a jury

trial for first degree murder in whic h evidence of either of the mit igatingfa ct or s * ** ha s b ee n p re se nt ed an d t he de fe nd an t h as re qu es te d t ha t t he ju ry b e given the option of finding the defendant g uilty of second

degree murder, the jury

must be instructe d that it ma

y not conside

r whethe r the def endant ha s met his bur

den of pr oof with regard to second degree murder until and unless it has first dete rmined that

the Sta te hasNo. 2--06--0140

-14-

proven beyond a reasona ble doubt e ach of the eleme nts of first

degre e murder ." 720 I

LCS 5/9--2 (West 2004). The parties disagree as to the standar d of app ellate review applicable to defendant' s claim that the trier of

fact er red in fin ding him guilty of first de gree murder rather than second deg ree murder. Defendant

argues that, while we no rmally re view the s ufficie ncy of the ev

idence t o support a criminal conviction by determining whether any

rational trier of fact

could have fou nd the ele ments of the crime proven bey

ond a reasonable doubt, we should employ the manifest-wei ght -of-theevidence standar

d to revie w the jury

's findi ng that d efenda nt's g uilt shoul d not be miti gated t o second, rather than first, de gree murder. The State

initially disputed defendant's position and insisted that "a defendant's conviction for first-deg ree murder should not be modified to second-degree murder unless a r

atio nal trier of fa ct, after viewing the evidence in the light most favorable to the prosecution, could not have found the elements of first-degr ee murder and could not have found, beyond a reasonable dou

bt, that de fendant

did not act in

self defense. People v. Lee , 213 Ill. 2d 218, 224 [(2004)]." Howeve

r, at ora l argument, the St

ate conc eded tha

t defend ant is cor rect on t his point. We disagree. For its origina

l position, t

he State relied on Lee , a case

in which the supreme court articulated the stand ard of r eview for a j ury's determination that the defendant did not act in self-defense under section7--1 of the Code. See Lee , 213 Ill. 2d at 225, citing 720 I LCS 5/7--1 (West 1998). Here, however, the questionis not whet her def endant a cted in se lf-defe

nse so as t o justify his action s. The question is whethe

r he posse ssed an un

reasona ble belie f that s e lf-defe

nse was ju stified, s o as to mitigate his guilt but not "justify or exonerate the killing." The difference

in this con

text is that lack of self-de fense, w

hen self -defen se is raised, is an element of first or second deg ree murder. See 720No. 2--06--0140

1 Due process also does not require that the State disprove affirmative defenses beyond a reasonable doubt where their absence is not an element of the crime. Patterson , 432 U.S. at 211, 53 L. Ed. 2d at 292, 97 S. Ct. at 2327. However, Illinois law provides that, where a defendant raises an affirmative defense other than insanity, the State must disprove it beyond a reasonable doubt just as it must prove the elements of the crime beyond a reasonable doubt. 720 ILCS 5/3--2(b) (West 2004). -15- IL CS 5/7--14 (West 2004) ("A defense of justifiable use of f orce *** is an affirmative defense"); 720 IL CS 5/3--2(

b) (West 2004) (where affirmative defe nse is raised, "the State must sustain the burden of proving the defendant guilty beyond a re asonable doubt as to [the affirmative defense] together with all the other elements of the offense"). By contras t, the presence of a mitigating f actor is not

anelement o f second

degre e murder

--it mitig ates cul

pability on the already

established elements of first degree murder. Or, a s stated in People v. Jerome , 206 Ill. App. 3d 428, 436 (1990):

"When a defendant is charged

with first-degree murder, the State is requir ed to prove death, caus ation

and i nten t ***. [Citat

ion.] The defendant then has theopportunity to prove provocation

or unreasonable belief in justification to reduce the of fe nse to second-degree murder. [Citation.] The existence of provocation or an unreasonable belief in justification, however, will notdiminish or negate any of the proved elements of first-degre e murder. The mitigating factor is a separate issue the existence of which the

State is wil ling

to re cog nize as a circumst ance affecting the degree of culpabi lity or the severit y of punishment." While due process requires that the State bear the bur den of proving

bey ond a rea sonable doubtall of the elements of a crime in order to obtain a conviction ( In re Winship , 397 U.S . 358, 364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1073 (1970)), due process does not r

equire t hat the Sta

te disprove mitigating factors bey ond a reasonable doubt

where their absence is not an element of the crime. Patterson v. New York , 432 U.S. 207, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977). 1 Nor doesNo. 2--06--0140

-16-

Illinois law. Onc e the State has met its burden to prove the elements of first degree murder, the burden shifts to the defenda

nt wishing

to mitiga te the of fense to second degree murder to prove the existence of one of the statutory mitigating factors by

a preponderance of the evidenc e. Lopez , 166 Ill. 2d at 447; see 720 I

LCS 5/9--2(c) (West 2004). Our resear ch has uncovere d publishe d Illi nois decisions that

support the notion that the Sta te bears the b urden to d

isprove a ny m itigatin g circ umstance s bey

ond a rea sonable d

oubt in ord

er to obtain a conviction of first, rather than second, deg ree murder. See Peop le v. Thompson , 354 I ll. App. 3d 579, 586 (2004) ("Once the defenda nt carries his burden of pro ving any of the fa ctors in mitigation, the burde

n shifts ba

ck to the St

ate to pr ove the a bsence o f the impli c ated mitigating factors bey

ond a rea sonable d

oubt"); People v. Izquierdo-Flores , 332 Ill. App. 3d 632, 638 (2002) ("If the defe ndant mee

ts [the burden to prove the presence of a mitigating factor by

a preponderance of the evidence], then

the State must disprove beyond a r easonable doubt any

mitigating factor that th e defend ant has r

aised" ); People v. Golden , 244 Ill. App. 3d 908, 919 (1993) (if the defe ndant present s mitigating evidence, "the State must disprove those fa ctors beyond

a reasonable doubt"); Peoplev. Buckner , 203 Ill. App. 3d 525, 534 (1990) (if the trier of fact finds that the defendant has established

a mitiga ting fa ctor by a prepon deranc e of the e

vidence , "the Sta

te must disprove

su ch factor (s) by proof bey

ond a reasonable doubt"). These ca ses misstate the la w. Illinois's statutory scheme nowhere provides that the State must disprove a mitigating factor bey ond a reasonable doubt after a defendant has established a mitigating f actor by a preponde

rance of the evidence. Section 9-- 2(c) provides

that the Sta

te must dis

prove "the absence of circumstance s at the time of the killing that would justify or exoner

ate the k illing under the principle s stated in Article 7 of this Code" (720 IL CS 5/9--2(c) (West 2004 )), but it d oes not sa y th e same f

or circ umstance s that woul d

mitigate anNo. 2--06--0140

2 We note that the decision in Buckner is particularly odd, because it rejects the defendant's argument that section 9--2 "improperly shifted the burden of proof to him" ( Buckner , 203 Ill. App. 3d at 529) yet still misstates the law by saying, without supporting authority, that, if the trier of fact finds mitigating factors to have been established by a preponderance of the evidence, "the State must disprove such factor(s) by proof beyond a reasonable doubt" ( Buckner , 203 Ill. App. 3d at 534). -17- offense from first degree murder

to second degree murder. I nstead, section 9--2(c) provides that "the burden of p roof is on the defendant to prove either mitigating f actor by a

preponderance of the evidence before the

defendant can be found guilty of second degree murder ." 720 IL CS 5/9--2(c) (West 2004). In fact, section 9--2(c) has withstood numerous constitutional challenges raised precise ly because

it shifts the burden to the defendant to prove the existence of a mitigating factor instead of requiring the State to disprove it beyond a re asonable doubt. See People v. Jeffries , 164 Ill. 2d 104, 114 -19 (1995 ); People v. Hooker , 249 Ill. App. 3d 3 94, 406 (1993) (collecting cases); Peoplev. Guidry , 220 Ill. A pp. 3d 406, 412 (1991 ) (colle cting c ases); People v. Cook , 217 I ll. App. 3d 299, 301- 05 (1991) ; People v. Brown , 218 Ill. App. 3d 890, 895-97 (1991); Buckner , 203 Ill. App. 3d at 529-34. 2 Further, the approach specified in Izquierdo-Floresand Buckner , which both state that the State must disp rove m itiga ting circumstances bey ond a reasonable doubt after the defe ndant establishes them by a preponde rance of the evidence, does not reflect curre nt practice. In a

jury trial, the way to deter

mine if mitigating factors had been prove n by a preponderance of the evidenc e would be to submit the question to the jury . Thus, under Izquierdo-Floresand Buckner , all second degree murder tr ials would

be bifurcated

so that the jury would return a verdict of guilty

(with mitigating circumstances proven by a pr eponderanceof the evidence), and then proofs would be re opened forNo. 2--06--0140

-18-

the State to ma

ke its case to d

isprove t he mitiga ting fa ctors be yon d a reas onable

doubt. Ag ain, this is not the law. Inan appe al challe

nging a factu al deter mi nation that no mitigating factor was present, the question presented

is not whether a reasonable fact finder could have found that the State disproved the mitigati

ng factor bey

ond a rea sonable d

oubt but, r

ather, w hether t he fact finder cor

rectly concluded

that the defendant did not prove the existence of a mitigating factor by a preponderance of the evidence. The question of whether a de fenda nt's a ctions were committed under mitigating circumstances--here, the question of whether defendant unreasona bly believed that

circumstances justifying the use of lethal forcewere present--presents a que stion of fact. Cf. Peoplev. Urdiales , 225 Ill. 2d 354, 428 (2007) ("As is the case when a defe ndant raises a defense of insanity, for which

a defendant also bears the burden of proof, the existenc e of 'me ntal illne ss' *** is a question of fact"). No rm al ly, we would not overturn the decision of the trier of fact on such a fa ctual issu e unless the finding is against the manifest weight of the evidenc e. See Urd iale s , 225 Ill. 2d at 428 (invoking manifest weight review where

defenda nt challe nged a finding that he di d not prove

his mental

illness by a preponderance

of the ev idence) ; Peoplev. Johnson , 146 Ill. 2d 109, 128-29 (1991) (same for insanity). However, in two more recent case s, our supreme court has applied the stan dard that , where a defendant argues that he prese nted suff icient ev idence t o prove a mitigati ng factor in

a first

or second degree murder c ase, the re viewing court must consider "whether, a fter viewing the evidence in the lig

ht most favora ble to the prosecution, any rational trier of fact could have found that the mitigat ing factors were n ot present. " People v. Blackw ell , 171 Ill. 2d 338, 358 (1996); see also People v. Reid , 179 Ill . 2d 29 7, 308 (1997 ) (cit ing Blackw ell for the same proposition). W eNo. 2--06--0140

-19-

must follo w our s uprem e court 's most recent pronouncements on the issue, and we there fore ap

ply the standard articulated in Blackw ell and continued in Reid

. In pressing his argument that the evidence established that he acted with an unrea sonabl e belief that circumstances existed to justify his use of forc e, defendant emphasizes evidence that there

was brawl ing at the par

ty a nd that Fl

ynn had thre atened d

efenda nt's g roup. He also point s to testimony that two boys, including F lynn, attacked his brothe r and later attacked him, and he notes that the testimony that it was dark outside at the time of the inc ident lends credence to his claim that he could not see if Fly

nn was brandishing a weapon. Finally , defendant

relies on his relative you

th and the rapid nature of the encounte r as factors that l imited his a bility to fully and rationally conside

r th e situation before reacting. We ag ree with defendant that all of the above evidenc e could b e interp reted to su pport his cl aim of unreas onabl e self

-defen se. Ho wever, contr ary to defe ndant 's argume nt, there was also evidence to nega te his claim of

unreasonableself-defense. Miller testified that defendant's group " bull rushed" Fly nn while Flynn wa s being pulled back and w as "in the defensive." Stone testified that two peop le from def endant' s group

"rush[e d] after" Fly

nn while Flynn was "running backwards" and in adefens ive po siti on. Th ough he did n ot wi tness the st abbin g, Hatfiel d testified that

defendant's group

was the aggressor in the conf rontation with Fly nn. Triple

tt testifie d that peo

ple from d

efenda nt's g roup wen t "runni ng towa rds" other part

yg oers. Defendant

disputes this evidence by emphasizing that no witnessdirectly stated that he was among the group who rushed toward Fly nn. However, even

without testimony directly identifying defendant as being among the initial agg ressors, the evidence nevertheless pre s en ted the strong implication that defendant was among the g roup. Defendant also observes that Stone described the clothing of the people he saw rush Fly nn and that neither

of his descrip tions matched other witnesse s'No. 2--06--0140

-20-

de scriptions of defendant's clothing that night. ( Stone recalled that the two party goer s wh o approached

Flynn wer

e wearing an orang e shirt and a gray shirt; other testimony indicated that defendant was wearing a blue shirt.) Howeve r, much of the tes timon y de scribing the even ts surroundingthe stabb ing was e i th er h az y or i rre con cil abl e wi th ot her wit nes ses ' ac cou nt s. In attempting to sort the testimony, the jury could reasonably

have discarded

Stone's recollection of the detailsof the combatants' attire. In su m, while de fendant

present ed some te stimony

to support

his assertion that he a cte d in unre asonable self-defense (and while he highlights some evidence that could be seen t

o underc ut the State 's positi on), ther e was als o te sti mony to support the Stat e's position that he did not act in unreasonable self-defense. It is the responsibility of the trier of fa ct to determine the cre dibility of witnes ses, the weight to be given to their testimony , and the reasonable inference s to be drawn from the evidence. People

v. Brisbon , 106 Ill. 2d 342, 360 (1985). Thus, it was within the province of the jur y to find the testimony of the above witnesses more credible than the testimony of defenda

nt. Indeed, the rec ord reveal s several reasons the jury may have r

easonably discr

edited defendant's testimony . Defendant testified that he stabbed Fly

nn in part because he thought he was going to be "jumped" by two people. However, defendant's written statement indicated that the person standing next to Flynn ran away as soon as defendant drew his knife. Defe ndant testified that

Flynn had hit him in the

face, y et defendant bore no physica

l indicia of such a blow immediately a fter th e incide

nt. The jur

y c ould have interpreted this evidence as discrediting def endant's claim that

Flynn punche d him. Or, on the

co nt ra ry, defendan

t te stified that he thought Fly nn's raised hand may

have carried a weapon, but defendant did not stab Flynn until after F lynn punched him. The jury c ould have inferred that Fly nn punched defendant but that Fly

nn's punching defendant would have revealed that Fly

nn was notNo. 2--06--0140

3 We recognize the inconsistency between the notion that the jury may not have believed defendant because it did not believe that Flynn punched him and the notion that the jury did not believe defendant because it believed Flynn's punching him discredited defendant's claim that he thought Flynn had a weapon. However, our role in examining the evidence requires us to examine all the reasonable inferences to be drawn from the evidence to determine if there is evidentiary support for any ground upon which the jury may have rested its finding. -21- wielding a weapon. 3 Defendant also acknowledge d giving misinformation to the police. Likewise, defend ant's brother, who testified in a manne r generally favorable to defendant, acknowledg ed misleading police on this case and also contradicted wr itten statements he had given police. Based on the record before us, we conc lude that the combined testimony of all of t h e witnesses provided

ample evidentiar

y su pport for the conc lusion tha

t defend ant did notact under an

un re as on ab le be li ef

in th e n ee d f

or se lf -d ef en se . A cc or di ng ly, we hold that, viewing the evidence inthe light

most favorable to the prosecution, a rational trier of fa ct could have found that defendant fa il ed to pr ov e a mi ti ga ti ng ci rc um st an ce , a nd we re je ct de fe nd an t' s a rg um en t t o t he co nt ra ry. Defend ant's second arg

ument on appeal i s that his c onviction should be r

everse d and this

caus e remande d for re

trial due to the pro secutor

's alle gedly

improper statemen ts during closin g rebuttal argume

nt. A pros ecutor i s affor

ded wide latitude i nmaking closing arguments. People v. Blue , 189 Ill. 2d 9 9, 1 27 ( 200 0). Inclosing arguments, the State may comment on the evidence and all of the reason able i nferen ces ari sing f rom the evidenc e. Blue , 189 Ill. 2d at 127. Closing argume nts are to be viewed in

their en tirety, and any

allege dly improper argume nt must be viewed in its context within the closing argument as a whole. Blue , 189 Ill. 2d at 128. Defendant

highlig hts two aspe cts of the Sta

te's cl osing re

buttal ar gument a s imprope

r. First , defendant argues that the prosecutor misstated the law on second degree murder by telling the juryNo. 2--06--0140

-22-

that defenda nt's bel ief was i

rrelev ant. For this contention, defendant relies on the following passages from the S tate's

rebutta l argument: "His belief w as clea

r, reas onable

or unrea sonable, it doesn' t matter, it's not e nough, i t [ sic ]

was unjustified in using deadly f orce." And: "Nothing he bel ieved just ified his cr imes." The defens e did not ob

je ct to these comments when the State made them. Though a defend ant's failure

to raise bo th a conte

mporane ous objection and a posttrial objection normally resultsin his waiv er of the same obje ction on a

ppeal ( People v. Enoch , 122 I ll. 2d 176, 186 (1988) (in order to preserve an issue on appeal, a defendant must both raise a contemporaneous objection and raise it i n his posttr

ial motion) ), defe

ndant urges that we

review t his issue as plain error. See 134 Ill. 2d R. 615(a

). "[T]he plain-e rror doctrine all ows a

reviewing court to consider unpreser ved error when (1) a clear or obvious error occ urs and the evidence is so closely balanced that the error

alone threatened

to tip the sc ales of ju stice ag ainst the d efenda nt, reg ardless

of the se riousnes s of

the error,

or (2) a clear or obvious error occ urs and that error is so serious that it affected the f ai rness of the defend ant's trial and challenged theintegrity of the judicial process, regardless of the c loseness of the evidence. " People v. Piatkowski , 225 Ill. 2d 551, 565 (2007). The first step of

the inquir

y un der the p lain err

or doctr ine is to de

termine i f the challenged comment constituted error. Piatk owski , 225 Ill. 2d at 565. I f so, then we proceed to determine whether either of the two prongs is satisfied: whether the er ror affected the fairness of the trial process or whether the evidence was closely balanced. Piatkowski , 2 25 Ill . 2d at 566 . The State argues that, when the above quotes are considered in their f ull context, they do not

demonstrate error, much less plain error. We agree with the State.No. 2--06--0140

-23-

The abov e stateme

nts from the prosec

utor's c losing r

ebuttal a rgumen t appear incontext as follows: "As to th e Defen dant's theor y, you might c all i t mis taken self- defens e. If thi ngs were

as this defendant thought they were, the question is was he entitled to u s e de adl y for ce. If he mad e an unreasonable assumption about the facts, a mistake, is he e xcused from hi s conduct so that the crime is reduced to second deg ree murder? [DEFENSE COUNSEL]: Objection, Your Honor. THE COURT: Overruled. I' ll give y ouwhat the ins tructions are. I'll read them to you. Be su re if th e a tt or ne ys misstate the instructions in any way , pay attention what [ sic ] I tell

you and give you in way [ sic ] of writte

n instruc tions. Proceed. [STA TE'S ATTORNEY]: I'll read it too. *** [A ] mitigatin

g fact or[] exists so as to reduce the offense of first degree murder to the less er offe

nse of se cond deg

ree mur der if at the time of the killing the defendant believes that circumstance s exist which wo ul d justify the deadly for

ce he uses, but his belief that such circumstances exist is unreasonable. So ask yourself w

hat are the circumstances that this defendant believed were going

onat the time. *** When you evaluate the defendant's claim, pay

special attention to the instruction on j ustifi cation and when someone is justified in using deadly force, because what the instruction says is a person is justified *** only if he reasonably

believes that such force is necessary

to prevent death or great bodily harm to himself.No. 2--06--0140

-24- The burden is

on the def

endant to show this mi

tig ating f actor, that t his d efenda nt's fear was so g reat, that his fear of

this tall, skinny kid was so grea t ***, that he was justified inusing de adly

force. And reme

mber wha t this defe ndant fa iled to say . We know w

hat his state of m ind is bec ause he told us. All he said was he was afraid of being hur t. *** And, Ladies and Gen tlem en, wi thou t more it do esn't meet the burden. Fear is not a justification. Chaos is not

a just ific ation . Size

is not a justification. What this defendant actually be lieved at the time was that he was going to stab Eric Fly nn. He told you that. *** His belief was clear, reasona

ble or unreasonable, it doesn't matter, it's not enough, it [sic] was unjustified in using deadly f

orce. * * * Nobody hit this de fendant . Nobody came to th

is defen dant with a

weapon. This defendant told [police] what happened. 'When he got close e nough to me, I took

my knife and stuck him in the ches t two time s, maybe m ore.' Nothing he belie ved justif ied his crimes ." (Emphases added.) Intheir ful l context, the above emphasized comments convey the pr

osecutor's argument that defendant offered no evidence of a be lief, reasonable or not, that would justify his use of lethal force againstFlynn. The

prosecutor was not arguing that, if de fendant believed circumstances existed that would justify his use of

lethal force, tha

t belief was irrel evant. Rather, the prosecutor was arguing that the particular circumstances defenda nt testified he b elieved

were present would not have justified his stabbin

g Fly nn, reg ardless

of wheth er defe

ndant re asonably

or unreasonably

believed that those circumstances existed. This argument does not misstate the law. We therefor e find n o error, plain or otherwise, based on the above pa ssages.No. 2--06--0140

-25-

The secon d alle gedly imp roper p rosecu tion state ment i s the f ollo wing c hara cterization of defend ant's actions: "These were not the mistaken flailings of a frightened boy , these were the cold, determined, and deliberate acts of an experienced knife fighter ." (Emphasis in original.) Again, we consider the quote in its full c ontext: "He stabbed Eric Fly

nn, and the defendant wants y ou to believe that in a panic he pulls out his trusty butterfly

knife, flips it open safely, a nd then in the heat of a fearsome attack he sticks this butt erfly kni fe thr ough Er ic Flynn's upper arm ** *. *** Two of this Defend ant's knife thrusts landed exactly where th is practi ced knif

e-wield er intended, in the

core of Eric Flynn's body . In s

pite of his fear, i nspite of the chaos, in spite of his impulse

he accu rately lands a three-inch stab wound into the upper chest of

Eric Flynn' s body puncturing his lung three inches deep. He deliberately lands another blow in the center of Eric' s chest piercing Eric's heart through and through. These were no t the m istak en flai lings of a fr ig ht en ed bo y, thesewere the cold, determined, and deliberate ac ts of a n experienced knife fighter. " (Emphasis added.) The full context of

the above

quote casts the emphasized portion as part of a proper rebuttal to the assertion

that defendant stabbed Fly nn outof fear. However, the crux of defe ndant's objection is not the emphasized

sentence as a whole, but instead the prosecutor' s characterization of defendant

as "an experienced knife f ighter." D efendant's argument on this point has two prong s: first, he argues that the evidence did not support the assertion that he was an experienced knife fig hter, and, second, he ar

gue s that , eve

n if he were an exp eri enced k

nife fig hter, the statemen t was undu

ly prejudicial because it implied that defendant had been involved

in similar

stabb ing i

ncidents. We consider each point in turn.No. 2--06--0140

-26-

First, we consider whether the prosecutor' s statement mischaracterized the e vidence. As noted above, in closingarguments, the State may comment on the evidenc e and all of the re asonable inferenc es arising from the evidence. Blue , 189 Ill. 2d at 127. Defendant asse rts that there was "absolu tely no evidence presented in this case from which one could reasonably infer that [defenda nt] was an

experienced knif

e fight er, or that he had

ever be en in

a knife fight in the past." We disagree with defendant' s approach. Read in it s full context, the prosecutor's description of defendant as an "experienced knife fig hter" does no t b eg a literal interpretation. Rather, the comment came as part of a rebutta l to an ar gument t hat defe ndant acted out of p anicked fear; the comment emphasized defendant's advantag e in the fight with Fly nn. Further, we are not convince d that the prosecutor's comment stray ed unduly from the evidence. The State elicited testimony from Office r Ingardona t

hat it took h

imsome time to acquire

anexpe rtis e in us ing a bu tterf ly knife; that t estim ony could suppo rt an i nferen ce that defend ant's ability to wi el d a bu tt er fl y kn if

e ( an d t o h an dl e o ne , a s d ef en da nt te st if

ie d h e d id ca su al ly on the day of the incident) exceeded that of the average person. A lso, as the prosecutor pointed out in closing rebuttal argume

nt, the na ture of F lyn

n's woun ds--eve n in the midst of the excitement o f the inc ident, defendant was able to stab Fl

ynn twice " int he core of [his] body"- -could certainly support an infer ence that defendant was capable in handling the knife. Though the further inferenc e tha t defendant had experience in knife fighting may have been weaker, we

do not belie

ve that, i n context, the prosecutor's referenc e to defendant's being an "experienced knife fighter " was meant to be taken

as literally asdefenda

nt would now have

it. In short, we

view the p

rosecut or's comment as a dramatic way of e mphasizing the evidence that defendant was skilled with a knife, in the context of arguing that defendant e

njoyed a cle ar advantage during the encounter.No. 2--06--0140

-27-

Second, we consider whether the prosecutor' s statement was unduly pre j udicial be cause it impliedthat defendant had been involved in s imilar stabbin g incide nts. We do not agre e with defendant that the import of the prosecutor's statement was that defe ndant had committed other bad acts and thus likely committed a bad ac t here. Again, in our view, the prosecutor' s statement advanced the arg

ume nt that defendant was not panicked or overmatche d during the confrontation butinstead set out to stab Fly nn without s

ubjectiv e justific ation. Thu s, we disagree with defendant that the above statement was used to "emphasize that

*** defe ndant has committed

a similar crime in order to p rove that th e defendant com mitted th e crime charged." For this reason, we distinguish the cu rrent cas e from People v. Tenny , 224 Ill. App. 3d 53 (1991), a case that defendant arg ues is closely analogous to the current case. In Tenny , the defendant

was convicte d of murde

r for his p art in

an incident in which a

group o f five pe ople met a t a pool ha ll, traveled to a home, and killed

the tw o people inside the home. During closing arg ument, the prosecutor

told the jury that three of the five accomplices, including the defend ant , " 'entered [the pool hall] together and that indicated and is evidence of the fact that they were working together that night as a sophisticated, experienced team of ki llers.' " Tenny , 224 I ll. App. 3d at 63. The

court, whichhad already

reversed and

remand ed the cause o n an un relat ed iss ue, de emed t he pro secut or's statement improper because it was "designe d to convince the jury tha

t the defendant had participated inother kill ings with [the two other men]." Tenny , 224 Ill. App. 3d at 63. The defenda nt's principal argument was th at he d id no t part icipa te in t he kil lings at issue. Tenny , 224 Ill. App. 3d at 59. The prose cutor 's statement that the defendant was part of a "sophisticated, experienced team of killers" therefore could not have been meant to rebut any a ssertion that the defendant was overmatched or afraid--its context reveals it as a gratuitous comment that sugge sted an impermissible and irrelevantNo. 2--06--0140

-28-

inference. Here, by

contrast, as we explained above, thefull context of the prosecutor's description of defendant as an "experienced knife fighter" sugg ests that it was not meant to imply literally that defendant had been

involved in previous knife fights. Rather, the statement served the purpose of emphasizing defendant's advantag e in the fight and thus rebutting his assertion that he acted out of fear. For this r

eason, w e deem Tenny

inapposite, and

we reject defendant's a

rguments regarding

the prose cutor 's closing argument. As we hold that none of the prose cutor 's statements during closing rebuttal argument were improper, we reject defendant's arg

ument that his con vic tion must be

revers ed due to p

rosecut orial misc onduct. Defend ant's third argument on appea l is that his

sentence was excessive. Before a ddressing that argument, we recount

the evidence presented at defenda nt's sentencing

hearing . The State 's firs t witnes s at the sent encing hearing , Marcus

Elmore, t

estified that def endant a nd a gr oup of pe ople damaged property a

t Elmore's house. Elmore testified that defendant "ha d [a] ba t and s tarted banging on the doo

r; busted a couple windows out of the house, knocked down the mailbox and the frontga te." Sonja Robles, who lived in the same house, testified that, for several week s afte r defendant beat on her house, she saw defendant in a black car driving past her house three or four times a week. Gary Anderson, a corrections officer, te stified regarding an incide nt in which defendant and another inmate entered into a fight. Anderson rec alled that defendant was agitated a nd yelling a

nd that he was str

ugglin g with the

two other

corrections offi cers who were tr yin g to res train him

. It became necessary

for the officers to restrain defenda nt by "for cing him into a wall." Anderson agreed that, ac cording

to a state

ment def endant la ter ga ve, the f ight did no t start until the other inmatehad taken off his handcuffs and beg un m ovin g toward defendant. Another cor rectionsNo. 2--06--0140

-29-

officer, Matthew Bunk, testified that de fendant admitted to having placed ga ng graffiti on prison walls and al so adm itte d to b eing pa rt of a parti cular s treet gang. Mike Tischman, defe ndant's former juvenile probation officer , testified that he referred defendant to an ang er mana

gement progra m, whichdefendant "barely attended," and two drug and alcohol programs, one of which def endant did not attend and one of which defendant completed

su cc es sf ul ly. Tischman also referred defenda nt to a mentor in g program, but defendant did not particip ate in the pro gram. T is chman recalled that defendant had seve ral behavioral problems at school during the 16 months Tischman served as his probation officer. J odee Hu ngness, the probationofficer who t ookover defendant's case f rom Tischman, testified that defendant made prog ress at a drug a

nd alcoho l progr

am Tischman had re ferre d him to, but that upon r

elease defendant had a relapse that caused

Hungness to refer him to another prog ram. Defendant attended that progra m, but he did not complete an anger manag ement program to which Hungness referred him. Defend

ant's a ttendanc e at scho ol was als o sporadic . Hungness was never told that defendant was havi ng troub le finding

transpor tation to a ny progra ms. Af ter Fly nn's parents testified regar ding their loss and read a victim impact statement, the defense called defenda nt's aun t, who testified that defendant's lega l troubles began shortly

after the death of his grandfather, that defendant's father was a n alcoholic, and that defendant had a good

re lationship with his young daug hter. Melanie Romero, defendant's mother, testified tha t defend ant's father was an ab usive alco holic and that the d eath of d efenda nt's g randfa ther af fected him ad ve rs el y. She further

testifie d that def

endant w as unable

to partic ipate in some of the progra ms his probation officers had recommended, beca use they wer

e unable to find transportation.No. 2--06--0140

-30-

The present

ence re port indic ated tha

t defend ant, who was born in 1986, had been adjudged

a delinque nt minor in 1 999 for c

riminal da

mage to propert y, i n2001 for d

isorder ly c onduct, a

nd in 2001 for ag grava

ted batte ry . His probation was re

voked in 2003 for f

ailure to comply with the te

rms, and, also in 2003, he admitted to three counts of criminal damage to property from a January 2002 incident

. The report also indicated that defendant admitted to having been a member of a street gang from 2000 to 2002. After hearing argument fr

om the parties and defendant's statement in allocution, the trial court impo sed sente

nce as f ollows, in p ertinen

t part: "Court in determining sentence has considered evidence in the case, conside red the Presentence Reports, consider[ed] the financial impact of incarceration * ** , considered evidence of aggravation

and mitig ation, the

positive a nd nega tive thing s about [de fendant 's] background. *** * * * Impact on the victim's family is the first factor I note. *** * * * Iam mindful

als o there is [ sic ] mitigating factors and certainly an impact on [defenda nt's] family . And it is tr agic to a lesser degre e. I

t is a y oung man who will be incarcerated

for a very

long time. There are positive things the court has noted. He is very young. Ve ry y

oung at the time of the incident. [Defendant] did complete [drug/alcohol trea tment ]. He comple

ted an inp atient ab

use program showing

the ability for reha

bilitation in that instance. [Defendant] has a dependent daughter, a young child who [ sic ] he has aNo. 2--06--0140

-31-

good relation ship with. [D efenda nt] has show

n remors e by expressing his apologies to the victim. *** The crime itself was not pre meditate d. It was sponta

neous.

*** I fe el that the

State has present ed insuff icient ev idence t o use gang

membersh

ip as an aggrava

ting factor ***. The defendant has a close family relationship. *** [Defendant

has] been *** disadvant aged t o the exten t of [his] fat

her's r ole in [his] life. That's a mitigating factor. *** * * * Ihave considered in agg

ravation the base ball bat incident of August of 2004. I find it has bee n proven in demonst

rating the viole nt nature of the de fendant

. Ido rely on the De cember 28, 2005, evidence. And even assuming the fight involved injail was mutual and that [defendant was] not at fault for starting the fight, I find that [he]

was co m bative and uncooperative with corrections offic ers. Once again, that impacts the court' s evalua

tion of whe

ther *** [d

efenda nt has] any

rehabil itative potential. [Defendant

was] unco operati

ve with juv enileprobation service[s]. *** [Defendant was] provided with substantial juvenile court assistance and services. And [he] didn't attend. [He] turned [his] back on it. A ga in affecting whether [defendant] will be a ca ndidate for rehabilitation. [Defenda nt] had poor

behavior in school a

nd poor a ttendanc e, final ly d

ropping out. [Defendant

has] a substantial history of prior delinq uency including

a sentence to the Department of Corrections as a juvenile.No. 2--06--0140

-32- * * * And I look now to the nature of the off ense. And I have to say that I reject [defendant's] self-defense position that [he has] taken in this case. Iam going to talk about the things [he] didn't do. First of all, [he] di d n't leave the knife at hom e. Wh at [h e] als o did n't do is [he] didn't leave it in [his] pocket and say look, I've got a knife, stay a

way fr om me. *** [He] didn't take the knife out of [his] pocket and say I've g ot a knife, stay[] away from me. [He] didn't slash in the air at someone and say stay away fr om me ** *. [H e] di dn 't sl as h a t s om eo ne in a n on le th al wa y to wa rn th em th at wa y.

*** [He] didn't only strike once. What [he] did is [he] struck three times in a lethal area of th e b od y in a s ta bb in g m ot io n t o k il l s om eb od y.

*** And I feel it wasmotivated not by self-def ense but by the ef

fects of rage. And that's been [defendant's] constant companion in life, rage

. So the natu re of the offense is also [a] substa ntial basi s for which the court must decide the sentence. I feel that a substantial sentence to the Department of Corrections i s necessary so as not to deprecate the serious nature of the offense. I f

eel that a substantial sentence *** is necessary to deter s [ sic ] others inthis kind of

conduct. And I

so then se

ntence [d efenda nt] to fifty y

ears in the Department of Corrections." Defendant

argues that his sentence violates the constitutional man d ate that "[a]ll penalties shall be de termined both according to the seriousness of the off ense and with the objective o f restoringth e of

fen der to use ful cit iz ens hi p." Il l. Const. 1970, art. I, §11. As the State notes, "[a] sentence within sta

tutory limits will not be deemed excessive unless it is greatly at variance with the spirit and purpose of the law

or manifestly disproportionate to the nature of the o ffense." People v.No. 2--06--0140

-33-

F ern , 189 Ill. 2d 48, 54 (1999). A reviewing court must afford great defe rence to the tri al court ' s judgment regardi ng sent encin g becaus e the t rial j udge, h aving obser ved the defendant and the proc eeding s, ha s a fa r b et te r o pp or tu ni ty t o c on si de r s uc h f ac to rs as th e d ef

en da nt 's cr ed ib il it y, demeanor, ge ne ra l m or al ch ar ac te r, me nt al it y, social environment, and habits. Fern , 189 I ll. 2d at 53. Thus, "[i]n considering the propriety of a sentence, the reviewing court must proceed with great cautionand must notsubstitute its judgme

nt for tha t of the tr ial cour t merely because it would have weighed the factors differ ently" ( Fern , 189 Ill. 2d at 53), and it may not reduc e a defendant's sentence unless the sentence constitutes an abuse of the trial court' s discretion ( People v. Streit , 142 Ill. 2d 13, 19 (1991)). Defendant

first notes that his ac

tions occ urred in the midst of

a "big brawl" and thus were not premeditated

but were taken in the face of provocation. The evidenc e at tria l does not s

upport thi s conclusion. Alth ough Hatfield described seeing an a rgument between Fly

nn and defendant's group, and other wit nesses te stified to

a brawl or a fight involving 15 or more people, no one testified to any acts of provocation by F lynn or his associates spec ifically directed at defendant. None of the witnesses testifie d that def endant w as directly

in vo lv ed in th e a rg um en t o r b ra wl . P re su ma bl y, defendant was present and saw

the action. But without evidence that defendant was directly taunted

or threatened, the record does not support his claim that he was pr ovoked. Moreover, the two persons c losest tothe action when Fly nn was sta

bbed, de fendant

and his br

other Da niel, both said they saw no we apon in F lyn

n’s hand, which mak

es it less l ikely

that defendant

pulled out the knife inresponse to a personal attack. While defendant testified that F lynn h i t him in the head, Daniel

s tated to the police that he did not see Fly nn strike defendant, again making it less likely tha t defendant reacted to a personal attack. Defendant did not have any visible marks on his body fromNo. 2--06--0140

-34-

allege dly being struck by

Flynn, which calls into questiondefendant’s version of events. Defenda nt admitted he did not attempt to run away f rom Flynn instead of sta

bbing him. Based on the evidence,

we do not see any pr

ovocation of defendant by Flynn or anyone a ssociated with him, much less any provocation

sufficient to change the

nature of the offense

as the tri al court

viewed it and war rant a reduced sentence. The trial court found that the killing was not premeditated. The evid

ence be ars this ou

t to the extent that

defenda nt did not show up at th e bonfir e party with a pre conceiv ed plan to kill Flynn. However, "preme ditat ion" i s "a lega l term of art meani ng not hing m ore than ' "having made the choice to kill. " ' [Citatio n]." People v. Williams , 193 Ill. 2d 1, 29 (2000). Fly nn suffered

five stab wounds. All but one were made by a double-edged blade t

hat was c onsi stent with defendant’s butterfl y knife. The one that was different, located under Fly nn’s left clavicle, could have been made inthe course of med

ical tre atment. T

he pathol ogist

described a through-and-throug h knife wound that produced two separate cuts on Fly nn’s left arm. The pathologist could not determine whether those were de fensive

wounds. Another knife wound pierced the left lung. The pathologist testified that the fourth knife wound went through the sac cove ring the heart, into the left ventricular wal l, "all the way through the left ve ntrical [ sic ] and actually went throug h the posterior portion of the heart." This wound was fatal and was delivered with "a deliberate force." The

pathologist

likened th e force used to that needed to stab a knife throug h a roast. The pathologist testified, "[a]s any muscle, [t he he ar t i s] ve ry tight, compact, so i t takes de liberate

force t o do that." The pathologist opined that it also took deliberate force to pierce the lung , "although not as much." We believe that the trial court inferred from the medica l evidence that defendan

t, at some pointbefore he stabbed Fly nn, made the choice to kill and that thus his act, while spontaneous, wasNo. 2--06--0140

-35-

calculated. That defendant did not premeditate the crime, i n tha t he did not act pursuant to a preconceived

plan or scheme, does not in our view reduce theseriousness of his actions in choosing to fatally stab F lynn through the heart rather than to deter Fly nn (assuming deterrence was

ne ce ss ar y) some other way . Th e trial c ourt recognized this when it addressed defenda nt at the sentencing hearing and sa id: "You didn’t go for a nonlethal

area of the body

. You didn’t do that. You didn’t only strike

once. What you did is y

oustruck three times in a lethal area of the body in a stabbing motion to kill somebody." Defendant’s actions after he fatally stabbed Flynn do not

bear out his claim that he stabbed Flynn as a r

eaction to provocation . He ran from the scene, threw the knife in the river, a

nd lied to the police a

bout stabb ing Fly

nn. The tr

ial c ourt, in s entencing defendant, rec ognized that the circumstances did not dictate defendant’s actions when he killed Flynn: "You say to me bad thing s happen and you bla me bad things. No. It’s y

ou. You brought the knife. You broug

ht it out. You stabb ed. I

t’s not the circumst ances. You can’t

blame tha

t. So the nature of the offense is also [a] substantial basis for which the court must decide the sentence." To support his argument that the circumstances of the offense warranted a lowe r sentence, defendant relies on four ca ses: People v. Steffens , 131 Ill. App. 3d 141 (1985); People v. Treadway , 138 Ill. A pp. 3d 899 ( 1985); People v. Newell , 196 Ill. App. 3d 373 (1 990); and People v. Nolan , 291 Ill. App. 3d 879 (1997). Each of those c ases is distinguishable. The murder of Eric Fly

nn was unlike the murder that occurred in Steffens , where the confrontation

was initia

ted by the victim

and th e murder

was ultimately the result of a suddenNo. 2--06--0140

-36-

escalation of the encounter between th e d ef en da nt an d t he vi ct im 's fa mi ly. Steffens , 131 Ill. App. 3d at 152. In our case, although multiple witnesses testified to the chaos at the bonfire party , none of them except

defendant himself and

defend ant's b rothe r saw wh at led to Flynn's murde r. Dani el's trial testi mony was s ignifi cantl y impeach ed by his p rior s tatem ents, and de fendan t's testimony that Flynn struck him was incredible. In the absence of credible ey

ewitness testimony that defenda nt was part of the confrontation, Steffens offers no support for defendant's position. Moreover, as the trial court pointed out, Flynn' s death could have been avoided had defendant not chosen to bring the knife to th e p ar ty a nd to ta ke it ou t a nd go fo r l et ha l b lo ws to Fl ynn 's bo dy. Treadway is also dist

inguisha ble from the insta

nt case, because it involved the imposition of three extended-term 60-y ear sentences for attempt mur der, ar me d violence, and aggra vated battery. In New ell , the defe ndant was mentally re tarded, he was among a g roup of people involved in the shoot ing, someone e lse broug ht the gu n used in the shooting , and the d efenda nt did not know of the presence of the gun. Newell , 196 Ill. App. 3d at 383. Fi na ll y, the victim in Nolanwas the aggressor, a nd the defendant was attempting to back away and extricate himself from the situation whenthe gun in the defendant's possession discharged and killed the victim. Nolan , 291 Ill. App. 3d at 887. Nolanis also dist inguisha ble from o

ur case because it involved

an extende d term. Insum, give

n the lack of cre dible evide nce that Fly nn provoked the attack and given the medical evidence, the trial court 's conclusion that the circumstances of the crime were serious enough to warrant

the sentence imposed was not unreasonable. See People v. Moreira , 378 I ll. App. 3d 120, 132 (2007).No. 2--06--0140

-37-

Defendant

next arg ues that the trial c ourt fail ed to giv e adequate cons ideration to defend ant's rehabilitative potential in light of defendant's "re lative" lack of cr imina l hist ory and his y outh. We disagree. The trial court carefully considered defendant's reha bilitative potential and concluded that it was minimal. The record demonstrates that defendant ha d a len gthy juvenile history

, including offenses of criminal damage to property , felony disorder ly conduct, and aggrava

ted battery while on probation. The record

also disc loses tha

t defend ant did not

coopera te with his probation in that he failed to have contact with his pr obatio n officer, failed to attend classes, failed to attend a nger management

groups, and failed to follow through on a Rosecr ance referral . T he trial court considered these failures in assessing def endant's rehabilitative potential and stated: "You w er e u nc oo pe ra ti ve wi th ju ve ni le pr ob at io n s er vi ce [s ]. So of te n I s it he re an d s ay a young man did not have the opportunity for service s, we didn't intercede to help him, and he ended up in this c ourt. Bu

t in your case

the system

didn't f ail y ou. You fa

iled the sy

stem. You were provided with substantial juvenile court assistance and services. And

you didn 't attend. You tu rned your b ack on it. A ga in aff ecting whether y

ou will be a candidate for rehabilitation. You

had poor behavior in school and poor atte ndance , finally

dropping out. You have a substantial history of prior delinquency

including a sentence to the Department of Corrections as a juvenile. Alth ough you are ve ry y oung, you ha

ve limited work history considering y

ou weren't in school and y ou have a dependent child." T he trial cou

rt also considere d a figh

t defend ant had w hile in jai l, finding

that he wa s "comb ativ e and uncooperative w ith correction officers." The cour t additionally considered a s reflecting on defend ant's potential for rehabilitation the "baseball bat incident" of Au gust 2004, in which defe ndan t atta cked a hom e wit

h a ba seba

ll bat , smashing

windows, a

door , and

the ma ilbox.No. 2--06--0140

-38-

Defendant

downplays the violence

he used in the

"baseb all bat inc ident" by refe rring to it as "an uncharged property

offense." The true import of the "baseball bat

incident" was not lost on the trial court, however, which stated, "I find it has been proven in demonstrating the violent nature of the defendant." The trial court considere d defendant's "subs tanti al history of prior delinquenc y including [a] s enten ce to t he Depa rtmen t of C orrect ions as a ju venil e," alo ng with defend ant's demonstrated

violent nature, in assessing whether defendant had "any " rehabilitative potential. The 50-year sentenc e of im

p risonment reflects not only the tr ial court's findings with regar d to the seriousness of the offense, but also the c ou rt's ap parent c onclusion

that def endant po ssessed l ittle rehabil itative potential. Nor do we believe defendant's age merits a sentence reduction. We find People v. Evans , 373 Ill. App. 3d 948 (2007), c loser to the f acts in this case than the Steffens , Treadway , Newell , and Nolancas es c it ed b y def

end ant . In Evans , the appe llate cou rt upheld the defendant's agg

regate 100- year sentence for first degree

murder despite the fact that the defendant was 19 y ears old when he committed

the murder and despite his lack of an adult criminal record. Evans , 373 Ill. App. 3d at 969. The defendant in Evans , as in our case, had a juvenile history. Evans , 373 Ill. App. 3d at 968. Also as in our case, the killing occurred during a melee in which, the defendant claimed, he killed the victim in self-defense. Evans , 373 Ill. App. 3d at 955. The jury was instructed on

first degree murder, self-defense, and second deg ree murder. Evans , 373 Ill. App. 3d at 955. In upholding the 100-year sentence (55 y

ears for first degree

murder and 45 consecutive y ears for discharging a firearm), the appellate court pointed out that the sentence was well withi n th e statutory limits and that the trial court properly

considered all factors in sentencing the de fendant. Evans , 373 Ill. App. 3d at 969.No. 2--06--0140

-39-

We agree with the di ssent tha

t People v. Stacey , 193 Ill. 2d 203 (2000), held that an a ppellate court may reduc e a sentenc e that is within statutory limits only w here it is so out of line with the spirit and purp ose of the law as to constitute an abuse of discretion by the trial judge. Stacey , 193 Ill. 2d at 210. The dissent relies on the cases cited by defendant in support of his argument that his sentence was excessive, to buttress its position that defendant's sentence here should be reduced. We have a

lready distingu ished thos e cases . While the disse

nt appropriates Stacey 's analy sis, where the court held that the "level of seriousness of the

offe nse[]" did not warrant the sentence imposed ( Stacey , 193 I ll. 2d at 21 1), in fact the dissentwould have us su bstitute ou

r judgme nt for tha t of the tr ial cour t. Appar ently , this is because the di ssent sees d efenda nt's actions in murderingFlynn during the course of a heated melee at a homecoming bonfire party as not so serious. The trial court weighed the facts and cir cumstances surroundingthe offense, but (unlike the dissent) it also simultaneously weighed the other prong of the constituti onal limita

tion on sen

tencing , that is, defendant's rehabilitative potential. While we do notquarrel wi th t he dissen t's representa

tion of the

constituti onal ana

lys is that Stacey

applied, the facts in Stacey

were quite different from those here , and, in our view, do not suggest that a similar result should obtain. In Stacey , the trial court imposed two con sec utive 25- ye ar sente nces for momentar

ily touching the breasts of two you ng gir ls, over their clothing. Stacey , 193 Ill. 2d at 208. The sentences resulted from the defendan

t's pr ior Class 2convicti ons, which made him eligible for Class

X sente ncing. Stacey , 193 Ill. 2d at 210. Our supreme court made a point of noting the classes of the crimes of which the defendant was actually convicted. Indeed, the tr

ial court meted out such severe sentences for crimes that we re only Class 2 fe lonies (one of whi ch was a n enhanc ed Class 2felony),No. 2--06--0140

-40-

whichunder other circ

umstance s would not

have ca rried su ch gre at punishme n t. In reducing the defend ant's s enten ces, o ur sup reme co urt he ld, "A ltho ugh suchbehavior is appalli ng and harmful, it is notsevere

enough to warra nt a 25-year sentence." Stacey , 193 I ll. 2d at 21 0. The uni que facts that resulted in the excessive sentences in Stacey are not present

in our case. Accordingly , we affirm defendant's sentence. Defend ant's fi na l a rg um en t o n a pp ea l i s t ha t t he tr ia l c ou rt er re d i n i mp os in g f ou r ye ars o f MSR at the en d of defe ndant' s sentenc e. As the State co ncedes, the trial court wa s statutor

ily authorized

to impose only a three-yea r term of MSR. See 730 IL CS 5/5--8--1(d)(1) (West 2004). We there fore ag

ree with defenda nt that his sentence should be m odified to reflect the statu

torily authorize d period o f MSR. For the foregoing reasons, we affirm as modified the judgment of the circuit court of Winnebago County. Affirmed as modified. BURKE, J., concurs . JUSTICE O'MAL LEY, concurr

ing in pa rt and dis senting

in part: I disa gree w ith the majority's de cision to affirm defendant's sentence. F or the reasons that follow, I would reduce de fendant's sentence to 35 y ears' imprisonment. As the majority notes, our constitution requires that "[a]ll penalties shall be d

etermine d both according to the ser iousness o f the off

ense and with the object

ive of re storing

the offe nder touseful citizenship." Ill. Const. 1970, art. I, §11. Also as the ma jority notes, " [i]n conside

ring the propriety of a sentence, the revi ewing c ourt must pr oceed w ith gre at caution and must n ot substitut

e its judgment for that of the trial court merely because it would have weighed the factor s d if fe re nt ly"No. 2--06--0140

-41-

( Fern , 189 Ill. 2d at 53), and it may notreduce a defendant' s sentence unless the sentence constitutes an abuse of the trial court's discretion (People v. Streit , 142 Ill. 2d 13, 19 (1991)). The defere

nce to be given a trial court's sentenc ing decision is well illu strated b

y ou r supreme court 's decision in Streit . T he re , a de fe nd an t w ho ha d n o p ri or cr im in al hi st or y, was gainful ly employed, and showed remorse for her actions pled g uilty to two counts of benefits fra ud, which she had perpetrated in part to help make house pay ments and pay for

clothes for

her children. Streit , 142 Ill. 2d at 17. The State recommended that she be sentenced to 30 months' probation. However, the trial court imposed a sentence of two year s' imprisonment. Streit , 142 I ll. 2d at 18 . The app ellate court reduce d the sent

ence be cause, i

nits view, the trial court abuse d its discr etion by "ignor[ ing] compelling miti gating c ircum stanc es" and "rel[ ying] on only one aggravating factor." Streit , 142 I ll. 2d at 19. The supreme court reinstated the trial court' s sentence. In so doing , the s upreme cour t offered no independent discussion of the factors in mitiga tion and aggr avation, but instea

d simply observed that the trial court had considered several of ea ch type of factor and that "it is the province of the trial court to balance these fact ors and make

a reasoned dec ision as to t he appro priate punishmentin each case." Streit , 14 2 Il l. 2d at 20-21. Thus, Streit implies ve

ry strongl y that a sentencingdecis ion m ust b e uphe ld on review so lo ng a s the trial court considers f

actors in mitigationand aggravation, re gardless of what relative weig ht the trial court pla

ces on tho se fact

ors.

However, even though the supreme court hasindicate d that a reviewi ng cour t has virtu

ally

no oversight over a trial court's we ighing of the sentencing fa ctors, it has also indicated that the trial court 's discreti on in sente ncing " is not witho

ut l imitati on." People v. Stacey , 193 Ill. 2d 203, 209 (2000). As noted above, notwithstanding the discretion afforde d the t rial cou rt in sente ncing ma tters,No. 2--06--0140

-42-

a sentence within the statutory limits "will be de emed excessive and the r esult of an abuse of discretionby the trial court where the sentence is gre atly at varianc e with the spirit and purpose of the law, or mani festly disproport ionate to t he nature of th e offense." Stacey , 193 I ll. 2d at 2 10. Under those circumstances, a reviewing c ourt is empowered under Supreme Court

Rule 615(b)(4) (134 I ll. 2d R. 615 (b)(4) ) to redu ce the se ntence i mposed by

the trial court, be cause I

llinois cou

rts "must adhere to our

constitution's mandate that penalties be determined accord ing to the seriousness of the offense." Sta cey , 193 Ill. 2d at 210-11; see Ill. Const. 1970, art I, §11 (sentences must be determined

"both ac cording

to the ser iousness o f the off

ense and with the objective of restoring the offender to useful citizenship"). In Stacey , the supreme court invok ed the const itut ional manda te to r educe a defend ant's excessive sentences. In re aching its holding, the court relied exclusively on "the nature of the crimes" to determine that the defendant's sentence s were unconstitutionally exce ssive, an d it expressly stated that it was not reweighing "a ny aggravating or

mitigatin g factors." Stacey , 193 I ll. 2d at 210. The rule f

rom Streit and Stacey , then, is that a reviewing court may not reduce a sentence based on the rela tive stre ngth of the mitigating and agg ravatingsentencing factors but may reduce

a sentence when, based on the nature of the crimes or the circumstances of the c ase, the sentence violates article I, section

11, of the Illinois Constitution. The question here becomes when a sentence within the statutory

limi ts may be d eemed s o exc essiv e as to trigger a revie wing co urt's constitutional obligation to provide relief. Defendant direc ts us to several cases that provide guidance. In Peopl e v. Steffens , 131 Ill. App. 3d 141 (1985), the defenda nt and the eventual murder victim "had a verbal altercation re garding the speed of [the] defendant's car" outs ide th e vict im's home. Ste ffens , 13 1 Ill. App. 3d at 142. After the alter cation, the defendant drove away , and theNo. 2--06--0140

-43-

victim entered his house. Steffens , 131 Ill. App. 3d at 142-43. However, the defend ant later returned, and the victim and several members of his family went outside. Steffens , 131 Ill. App. 3d at 143. Though there was some conflict in the testimony, it generally showed that, after a short confrontation, the victim started to walk away fromthe d efendant's car and the de fendant accelerated, swerved toward the vi ctim, hi t the victim, and dragged him under the ca r for an apprec iabledistance (the victim died as a result). See Steffens , 131 I ll. App. 3d at 143-45. The trial court imposed a 30-yea

r sentence (the midpoint of the then applicable 20- to 40-y ear range). Steffens , 131 Ill. App. 3d at 151. The appellate court reduced the se ntence to 20 ye ars. It reasoned as follow s: "In the pres ent case , the off ense wa s not a

calculated

murder. The confrontation between [the] defendant and the victim was initiated by the victim, and, eve n though [the] defendant returned to the scene apparently

to cause some sort of trouble, the murder itself wasthe resu lt of a sudden escalation of the encounter betwe en[the] defendant and the victim's family

. We particu larly note the short period of time which elapsed, and, taken in context, the offe nse did not app roach [a prem editated at tack]." Steffens , 131 Ill. App. 3d at 152. The court also noted

the defe ndant' s rehabi litative p otential b ased on h is youth (he was 16 at the time of the offense), his desire to continue his education, and his lack of a violent

c ri mi na l h is to ry. Steffens , 131 Ill. App. 3d at 152-53. In People v. Treadway , 138 Ill. App. 3d 899 (198 5) , the defendant was convicted of and sentenced for attempted murder, armed violence, and a ggravated assault in conne ction with an incident in which he forced a female bar pa tr on in to a b ac k a ll ey, st ab be d h er re pe at ed ly, and also slashed a man who

cameto her aid. The appellate court reduce d the defendant's two concurre nt 60-No. 2--06--0140

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year sentences to 30 ye ars apiece, based primarily on the de f

endant' s rehabi litative p otential. Treadway , 138 Ill. App. 3d at 905. The court noted that the defendant was only

24 years old, ha

d suffered from a drug and alcohol problem since a young

age but was taking steps to improve, had only a "minor" criminal history (the court did not

furth er desc ribe t he defe ndant 's criminal history), had earned a high school diploma while awaiting trial, and was the father of a y oung child. Treadway , 138 Ill. App. 3d at 905. The court al so briefly cons idered t he natur e of the o ffense s, whichit con clude d were "p erpetr ated i n a flee ting moment o f intoxicated rage upon a stranger ." Treadway , 138 Ill. App. 3d at 905. In People v. Newell , 196 Ill. App. 3d 373 (1990), the defenda nt was with a

group o f people who charte

red a limo

usine and murdere d the driv er. The defenda nt was sen

tenced t o 60 y ears' imprisonme

nt, but the ap

pellate c ourt red

uced the sentenc e to 30 y

ears. The first expressed r ationale the appellate court offered for re ducing the sentence was that the n ature and circumstances of the offense did not justi fy

the pena lty. The cour

t summarize d the point

as follow s: "[I]n the instant case, [the] defendant wasamongst a group of people involved in a shoot ing, another

member o f the gr

oup broug

ht the gu n used in the shoo ting, and [the] defendant has repeatedly

stated that he did not know a member of

the group carried a g

un the day of the murder. Taken in its proper context, we believe the de fenda nt's actions do not compare to a cal culated, prem editated mu rderer." Newell , 196 Ill. App. 3d at 383. The court also noted

that the defendant's age

(he was 17 at the time of

the offense) was an indicator of rehabilitative potential. Newell , 196 Ill. App. 3d at 383. In P eople v. Nolan , 291 Ill. App. 3d 879 (1997), the defenda nt was convicted of second degreemurder in connection with an incident in which he fatally shot a shopkeeper who suspectedNo. 2--06--0140

-45-

the defendant of shoplifting and aggr essively approac hed him, yelled at him, g

rabbed his wrist, and may have tri ed to sea

rch his po ckets. Inreducing the defendant' s sentence from 30 y ears to 15, the appella te court reasone d as follows: "As the defen

dant contends , the

'fa ctua l matr ix surroundi ng the shooting' does not warrant a 30-yea r prisonterm. I

t is clear that [the shopkeeper] was the agg ressor in the

e ncounter ***. T he evi dence c onsi stent ly showed that [ the de fendan t] wa s atte mpti ng t o back away from the encounter

and extract himself from the situation. The shooting was not

anact of plan or premeditation. Although [the defendant] was unable to prove [the shopkeeper] reached for the gun and the gun we nt of f a cc id en ta ll y, this was a close case and [the defendant] carried

his burden of

proving mitigati ng factors that r

educed the offe nse to second degree mur der." Nolan , 291 Ill. App. 3d at 887. The court also briefly

observed that the defendant's two prior fe lony convictions did not indicate that he was "a dangerousl y aggressive criminal." Nolan , 291 Ill. App. 3d at 887. The nature a

nd circu mstance s of defe

ndant' s crime sh are man

y pa rallels w ith the ab ove case s. Most signific antly , the cour

ts in Steffens , Newell , and Nolanspecifically r elied on the fact that

the defenda nts' actions were not premeditated, and the court in Treadway

relied in part on the idea

that the defendant's actions were pe rpetrated in a

"fleeting moment" of rag e. Likewise here, thoug h the evidence did not demonstrate facts sufficien

t to mitigate his crime to second degree murder, as the trial court noted, the evidence did not show that the act was premeditated in the sense that defendant conceived

it before the brawl commenced. Nor was his act perf ormed in cold blood--the testimony uniformly describes the escalating tensions among groups at the bonfire party . Like thedefendant in Steffens , defendant here had suffere d some provocation from either the v icti m or someoneNo. 2--06--0140

-46-

associated

with the vi ctim, even

if that provocation was insufficient to provide legal justification for defend ant's actions. Further, like the defendant in Nolanand likely the

defendant in Steffens , there

was at least some threat

of physical

violence made towards defendant befor e he acted. While none of this serve s to justify defenda nt's actions, it doe s serve t o disting uish his crime from those that warrant maximum or near-maximum sentences. Defendant's 50-y ear sentence, which rests on the high end of the 20- to 60-year statutory r ange (see 730 I

LCS 5/5--8--1(a)(1)( a) (West 2004)), is not

commensu

ratewith th e circumstances; though all first degre e murder cases are both tragic and reprehen sible, I struggle to envision what factual scenario would justify a sentence lower than 50 years if this one doe s not. Inmy view, the unique

circumst ances of this case compe l the c onclu sion that t he tri al cou rt's imposition of a 50- year te rm of imprisonment violates the constitutional limitations on criminal sente ncing, as defe

ndant' s sentenc e is manif estly disp ropor tionate to

the natur

e of the o ffense

. Pursuant to our power under Rule 615(b)(4), I would reduce de fendant's sentence from 50 y

ears to 35. Inso stating, I briefly address some points raised by the majority. The majority very strongl y argues that, eve

n if defe ndant did not "preme ditate" the murde r here, he "mad

e the cho ice to kill " before stabbing Fly

nn. Slip op. at 33. Of course, I agre e that defendant made the choice to kill or inflictserious harm--that conclusion is implicit, and require d, in my

agree ment to affirm defend ant's convictionof first degree murder. My point is that the circumstances of this murder do not warrant the sentenc e impose d. Th us, the majority does not underc ut my position when it makes several statemen ts directed at the ideas that the circumstances her e do not excuse

defenda nt's cr ime or that defendant acted with deliberate force. See slip op. at 32 ("both said they

sawno weap on in Flynn'sNo. 2--06--0140

-47-

hand, which makes it less likely that defe ndant pulled

out the kni fe in re sponseto a personal attack"); slip op. at 32 ("Defendant admitted he did not attempt to run away from Flynn instead of

stabbing him"); slip op. at 33 ("defendant, at some point before he stabbe d Fly

nn, made t

he choic e to kill, and thus his act, while spontaneous, was calculated"). In response, I repeat that, if I disag

reed with any of these statements, I would not vote to affirm defendant's conviction of first deg ree murder. The question I discuss above is whether the se ntence imposed by the

trial court was warranted; I wou ld hold that it was not. The majority also takes issue with the idea tha t defendant suffered

so me provocation, because , accor

ding tothe major

ity, there wa s no cred

ible evidence that there was any provocation "speci fically

directed at defendant." Slip op. at 32. However, the point that defe n dant suffered provocation

is not that d

efenda nt confr onted a di rect thr eat (ag ain, that

would ra ise a serious question regarding whether we should affirm his first degre e murder conviction), but that he was part of a group that b ecame i nvol ved in an imm ediat e and es calat ing, "in your fac e" confrontation with other partyg oers, thus making this tragedy markedly diffe

rent from, e.g. , a drive-by shooting. Iunderstand t

hat the major ity consi ders a w ider r ange of f actors in aff

irmi ng defen dant's sentence than I do in arguing that it should be reduced. I offer two explanations for my more narrow analy sis. First, I

confine my a naly sis to the c onstitutional limi tatio n applied in Stacey ; I do not engage in a revi ew of the trial cou rt's ove rall sent encing determi natio n based on all of the aggravating

and mitigating factors the trial court was compelled to consider. My approac h mirrors the approach taken in Stacey , where our suprem e court held a senten ce to be u

nconstitu tionally excessive based solely on the nature of the offenses. See Stacey , 193 Ill. 2d at 210-11. Second, as noted above, our constitution provides two limitations on criminal sentencing: sentences must beNo. 2--06--0140

4 That said, I observe that there are indicia of defendant's rehabilitative potential sufficient to refute any argument that defendant's sentence, even if excessive in light of only the seriousness of the offense, was justified by his lack of rehabilitative potential. Here, just as in Steffens and Newell , defendant was very young at the time of the incident. Further, though defendant had a history of juvenile adjudications, I note that the only previous adjudication that could by its label be considered a result of violence, his aggravated battery adjudication, was aggravated not because it involved a weapon but because it took place on a public way. See 720 ILCS 5/12-- 4(b)(8) (West 2000). Additionally, like the defendant in Treadway , defendant is the father of a young child and had taken some positive steps (though, as the dissent notes, not all possible positive steps) in alcohol and drug treatment programs. Under applicable truth-in-sentencing laws, defendant is required to serve 100% of his sentence without any credit for good conduct. See 730 ILCS 5/3--6--3 (West 2004). Thus, if defendant's 50-year sentence were to stand, defendant would be released at age 68, having spent almost three-fourths of his life in prison. Such a sentence does not advance the constitutional objective of returning offenders to useful citizenship. -48- determined

"both according to the seriousness of the offe nse and w iththe objective of restoring the offender to useful citizen ship." Ill. Const. 1970, art. I, §11. A sentence must succe ed on both of thesetests in order

to pass constitutional muster. I wou ld hold tha

t the sente

nce her e fails the first test, regardless

of how it me asures on the sec ond test. 4 Based on the above analy sis, I would re duce de fendant's sente nce to 35 y

ears.