People v. Jackson ( 2007 )

NO. 4-04-0771 Filed 4/18/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
MAURICE A. JACKSON, ) No. 03CF687
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
A jury convicted defendant, Maurice A. Jackson, of
first degree murder (720 ILCS 5/9-1(a)(1) (West 2004)). On July
27, 2004, the trial court sentenced defendant to 40 years in
prison. Defendant appeals, arguing (1) the State failed to prove
his guilt beyond a reasonable doubt in light of the jury's answer
to a special interrogatory; (2) the trial court committed revers-
ible error by refusing to give a jury instruction on involuntary
manslaughter; (3) the trial court committed reversible error by
refusing to give a jury instruction on self-defense/justified use
of force. We affirm.
I. BACKGROUND
On the evening of April 20, 2003, police officers
responded to reports of a shooting in the 400 block of West
Eureka Street in Champaign. When officers arrived, they found
17-year-old Demarcus Cotton lying in the street, the victim of an
apparent gunshot wound. Cotton died at the hospital. An autopsy
revealed a bullet wound to the abdomen had caused massive blood
loss, leading to cardiac arrest. There was also an insignificant
gunshot wound to the right elbow, and a bullet fragment was found
in Cotton's right shoelace. Three shell casings were collected
at the scene of the shooting.
The next morning police officers spoke to defendant, an
18-year-old male. Defendant agreed to accompany them to the
Champaign police station, where the officers spoke to him in an
interview room. Defendant eventually admitted he had been
present on Eureka Street. He stated he had been armed with a
handgun and had fired the gun at a person with whom he had been
involved in an altercation earlier in the day. At this point,
the officers advised defendant of his rights under Miranda v.
Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
Defendant agreed to give a videotaped statement, which
was later introduced at trial. Defendant stated that he had met
Cotton 9 to 10 months earlier, when Cotton tried to sell mari-
juana to defendant and his friend, Tyran Bascomb. Defendant and
Bascomb did not buy the drugs but stole them from Cotton. On the
afternoon of April 20, Cotton and two other men confronted
defendant about the marijuana. Cotton attempted to strike
defendant, and defendant struck back. Defendant ran to Priscilla
Lee's house, where his friend Bascomb was present. Priscilla
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Lee's daughter, Mary, was Bascomb's girlfriend. Defendant and
Bascomb came outside, and more fighting ensued until Lee screamed
that she was calling the police. As Cotton left, he told defen-
dant to meet him at Beardsley Park.
Defendant stated that he had previously returned a gun
to Cole Baker. Defendant and Bascomb went to Baker's home, where
Baker gave Bascomb the gun. Defendant's cousin, Ashanti, gave
defendant and Bascomb a ride to Beardsley Park, where they spoke
to a friend, who said he would speak to Cotton in hopes of ending
the dispute. When Cotton spotted defendant, however, a verbal
exchange took place. Defendant saw Cotton take a portable music
player from his pocket, but he did not see a weapon. Cotton
advanced on defendant in a manner that indicated to defendant he
wanted to fight. While Cotton was still a distance away, defen-
dant pulled out the gun, fired it twice with his back toward
Cotton, and prepared to run. Bascomb then called out "gimme the
gun, gimme the gun." Defendant gave the gun to Bascomb and "then
I looked back one time and start running. And then [,officer,]
that's when I heard the gunshot and then we got back into the
van." Defendant and Bascomb returned to Lee's house, and Bascomb
took the gun and hid it in a tree in the backyard.
The State called Bascomb as a witness. Bascomb, 22
years old, was in custody for delivery of a controlled substance.
In 2000 and 2001 he had been convicted of misdemeanor theft. In
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2000, 2001, and 2002, he had been convicted of obstruction of
justice. Bascomb confirmed that defendant, his close friend, had
come to Lee's house with Cotton chasing him and trying to fight.
Cotton had five friends with him. Bascomb intervened and fought
with one of Cotton's friends. Cotton and defendant yelled that
they were going to "mirk" (kill or fight) each other. Bascomb
and defendant were told to meet Cotton and his friends at
Beardsley Park.
Bascomb accompanied defendant to Baker's house but did
not know the reason for going there. He saw defendant speak to
Baker but did not hear them or see Baker give defendant anything.
Bascomb and defendant were given a ride to Beardsley Park.
Defendant began playing with the gun, causing it to jam. Bascomb
unjammed the gun and returned it to defendant but kept the clip.
He was afraid defendant did not know how to handle a gun and
decided it would be dangerous for defendant to be in possession
of a loaded gun. Bascomb told defendant to "just not use the
gun." Bascomb also told defendant to just fire "a warning shot."
Defendant said he only wanted to fight and that he would fire the
gun into the air to scare people.
After they saw Cotton, a few friends went to talk to
him and see if they could quell tempers. Meanwhile Bascomb and
defendant discussed the clip. Bascomb testified defendant asked
him for the clip, and they had an argument about it, but Bascomb
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ended up giving it to him. When Cotton saw defendant he became
enraged, and the two exchanged words. As Cotton approached,
defendant pulled out the gun and fired three shots at Cotton.
Bascomb ran after the first shot. Defendant was close behind.
They returned to Priscilla Lee's house. Bascomb testified he
never touched the gun after he had unjammed it and that defendant
had not given him the gun during the shooting. At some point,
defendant disposed of the gun but Bascomb did not see where he
put it.
Various witnesses testified a number of shots were
fired, and after a pause, other shots were fired. Other wit-
nesses testified only three shots were fired. Some witnesses
testified a man with a snake design on his jacket had the gun
after the shooting and defendant did not have the gun.
Bascomb's girlfriend, Mary Lee, testified that after
the shooting, at her mother's house, she observed defendant to be
in shock. She asked what happened and defendant stated "I shot
him." Mary asked Bascomb if that was true and Bascomb confirmed
what defendant had stated. Defendant was asked what he was
thinking and said, "Man, I don't know. The gun just went off."
Police found the gun in a tree in Priscilla Lee's yard. A
ballistics test established the gun to be the one that had fired
the fatal shot and the bullet fragment found in Cotton's right
shoelace.
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The trial court instructed the jury on first degree
murder. The trial court also instructed the jury on second
degree murder that defendant had the burden of proving a mitigat-
ing factor, either provocation or belief in justification, so
that he would be guilty of that lesser offense. The court
refused to give an instruction on the lesser-included offense of
involuntary manslaughter, the reckless performance of acts likely
to cause death or great bodily harm. The court refused to give
an instruction on self-defense, which would have defined when a
person is "justified" in the use of force.
II. ANALYSIS
A. The Special Interrogatory and Sufficiency of the Evidence
The trial court gave the following standard instruc-
tion:
"To sustain either the charge of
first degree murder or the charge of second
degree murder, the State must prove the
following propositions:
First Proposition: That the defendant,
or one for whose conduct he is legally res-
ponsible, performed the acts which caused
the death of Demarcus Cotton."
The second and third propositions, dealing with intent/knowledge
and justification, also referred to the defendant "or one for
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whose conduct he is legally responsible." Illinois Pattern Jury
Instructions, Criminal, No. 7.04, Committee Note at 200 (4th ed.
2000) (hereinafter IPI Criminal 4th).
At the request of the State, the trial court also asked
a "special interrogatory" of the jury:
"If, however, you find the defendant
guilty of first degree murder, your foreperson
will preside during your deliberations on one addi-
tional question. In addition to the ver-
dict forms, you will be provided two forms
that are answers to the question 'Has the
State proven beyond a reasonable doubt that,
during the commission of the offense, the
defendant personally discharged a firearm
that proximately caused the death of Demarcus
Cotton?'
Your agreement on an answer must be un-
animous. Your answer must be in writing and
signed by all of you including your foreper-
son."
After asking several times whether the special interrogatory
would be inconsistent with a verdict of guilty of first degree
murder, the jury unanimously answered the special interrogatory
in the negative.
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The State's purpose in asking the special interrogatory
was to obtain a sentence enhancement under section 5-8-
1(a)(1)(d)(iii) of the Unified Code of Corrections (730 ILCS 5/5-
8-1(a)(1)(d)(iii) (West 2004)). That section provides that "if,
during the commission of the offense, the person personally
discharged a firearm that proximately caused *** death to another
person, 25 years or up to a term of natural life shall be added
to the term of imprisonment imposed by the court." 730 ILCS 5/5-
8-1(a)(1)(d)(iii) (West 2004). Sentencing-enhancement provisions
were called into question by Apprendi v. New Jersey, 530 U.S.
466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63
(2000), which holds that "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury[] and proved beyond a reasonable doubt."
Several cases have used "special interrogatories" to
comply with Apprendi. In People v. Forcum, 344 Ill. App. 3d 427,
435, 800 N.E.2d 499, 506 (2003), where the defendant was con-
victed of first degree murder and other offenses, the State
tendered a special interrogatory, "'Has the State proven beyond a
reasonable doubt that the offense was committed by exceptionally
brutal or heinous behavior indicative of wanton cruelty?'" The
jury answered in the affirmative and, based on its finding, the
court sentenced defendant to an extended term of natural-life
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imprisonment for first degree murder. Forcum, 344 Ill. App. 3d
at 435, 800 N.E.2d at 506.
In our case, however, the jury answered the "special
interrogatory" in the negative, and defendant now attempts to use
the jury's answer to challenge the verdict of guilty of first
degree murder. Defendant argues he was not proved guilty beyond
a reasonable doubt because the State (1) failed to prove he
personally discharged the firearm that caused the death and (2)
presented no evidence that he was accountable for the actions of
Tyran Bascomb. The State responds some evidence was presented
from which the jury could have found that defendant was account-
able for the actions of Bascomb. This court is accordingly
requested to ignore the bulk of the evidence, that defendant was
the shooter, and determine whether there is sufficient evidence
that Bascomb was the shooter and defendant was responsible for
Bascomb's conduct.
There is no statutory authority for special interroga-
tories in criminal cases. People v. Testin, 260 Ill. App. 3d
224, 235, 632 N.E.2d 645, 652 (1994). Even in civil cases,
special interrogatories must be used with great care. A special
interrogatory in a civil case provides the defendant with a
"magic bullet" that he can use to upset the verdict against him.
"When the special finding of fact is inconsistent with the
general verdict, the former controls the latter and the court may
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enter judgment accordingly." 735 ILCS 5/2-1108 (West 2000). The
purpose of a special interrogatory is to test a general verdict
against a jury's determination as to one or more specific issues
of ultimate fact. Northern Trust Co. v. University of Chicago
Hospitals & Clinics, 355 Ill. App. 3d 230, 251, 821 N.E.2d 757,
775 (2004).
It is improper to request a special interrogatory
simply to gain some insight into a jury's thinking. A special
interrogatory asking for a finding as to a mere evidentiary fact
is always improper. Northern Trust, 355 Ill. App. 3d at 251, 821
N.E.2d at 776. A special interrogatory is in proper form only if
it relates to an ultimate issue of fact on which the parties'
rights depend and if an answer to the interrogatory would be
inconsistent with a general verdict that the jury might return.
Simmons v. Garces, 198 Ill. 2d 541, 555, 763 N.E.2d 720, 730
(2002). Where there were two alternate theories of negligence
asserted against the defendant, and the special interrogatory
addressed only one, the special interrogatory was not in proper
form, as the answer to it would not necessarily be inconsistent
with the general verdict. Stach v. Sears, Roebuck & Co., 102
Ill. App. 3d 397, 411, 429 N.E.2d 1242, 1252-53 (1981). A
special interrogatory may focus on only one element of a claim,
but only if that element is dispositive of the claim at issue.
Northern Trust, 355 Ill. App. 3d at 253, 821 N.E.2d at 777.
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If we apply civil rules to this criminal case, the
interrogatory should never have been submitted to the jury. The
answer to the interrogatory could not control the general ver-
dict, whether defendant was guilty of first degree murder,
because alternate theories were alleged and the special interrog-
atory addressed only one. The jury was instructed that to
sustain the charge of first degree murder the State must prove
that "the defendant, or one for whose conduct he is legally
responsible, performed the acts." The special interrogatory
addressed only whether defendant performed the acts.
Defendant was not entitled to a unanimous verdict on
whether he fired the weapon or whether Bascomb fired the weapon.
People v. Travis, 170 Ill. App. 3d 873, 890, 525 N.E.2d 1137,
1147 (1988). The jury need only be unanimous with respect to the
ultimate question of defendant's guilt or innocence of the crime
charged, and unanimity is not required concerning alternate ways
in which the crime can be committed. Travis, 170 Ill. App. 3d at
890, 525 N.E.2d at 1147. It was improper to require the jury to
unanimously agree to an answer to the special interrogatory here.
The special interrogatory caused tremendous confusion for the
jury, which correctly saw it as inconsistent with the general
verdict where they were not required to agree on who fired the
weapon. This case illustrates the reason why, even in civil
cases, a special interrogatory is permitted only on an ultimate
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issue, an issue that controls the case. The answer to a special
interrogatory should not have the effect of pinning the State
down to a single theory, perhaps the wrong theory, with the
result that the true facts must be ignored.
Special interrogatories, at least the type of special
interrogatories used in civil cases, should not be used in
criminal cases absent a statute. Forcum, which allowed a special
interrogatory, recognized that the use of special interrogatories
in criminal cases is not favored. Forcum, 344 Ill. App. 3d at
439, 800 N.E.2d at 509, citing Testin, 260 Ill. App. 3d at 235,
632 N.E.2d at 652. Unlike the present case, the answer to the
special interrogatory in Forcum not only could not have con-
trolled the general verdict, it could not have affected the
general verdict. "Brutal and heinous," the subject of the
special interrogatory in Forcum, was not one of the theories upon
which that defendant could be found guilty. There is no author-
ity to ask a "special interrogatory" that would impinge upon the
verdict of first degree murder. We refuse to consider the answer
to the "special interrogatory" beyond the purpose for which it
was asked--whether there could be a sentence enhancement.
The question on a challenge to the sufficiency of the
evidence is whether, after examining the evidence in the light
most favorable to the prosecution, a rational trier of fact could
have found the essential elements of the crime beyond a reason-
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able doubt. People v. McDonald, 168 Ill. 2d 420, 443-44, 660
N.E.2d 832, 842 (1995). A reviewing court "will not reverse a
criminal conviction unless the evidence is so unreasonable,
improbable, or unsatisfactory that it creates a reasonable doubt
of the defendant's guilt." McDonald, 168 Ill. 2d at 444, 660
N.E.2d at 842.
There clearly was sufficient evidence here for the jury
to conclude that defendant was guilty of first degree murder.
There was evidence that defendant and Cotton had been fighting
earlier that day and threatened to kill each other. Defendant
and Bascomb went to a friend's home to get a gun and proceeded to
Beardsley Park, where defendant and Cotton became involved in an
argument. Defendant admitted he fired shots in the direction of
Cotton. Defendant testified he then gave Bascomb the gun and
took off running, then looked back and heard Bascomb fire three
or four times. Bascomb denied firing any shots and testified
defendant fired three shots and then they both ran. The two fled
together in Ashanti's van. Defendant told Mary Lee that he had
shot Cotton. A rational jury could easily have concluded that
defendant, or one for whose conduct he was legally responsible,
performed the acts that caused the death of Demarcus Cotton.
B. Involuntary Manslaughter
Defendant argues the trial court erred when it refused
his instruction on the lesser-included offense of involuntary
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manslaughter where the evidence supported an inference that he
recklessly caused the death of Demarcus Cotton.
The giving of jury instructions is a matter within the
sound discretion of the trial court. An instruction on a lesser
offense is justified when there is some credible evidence to
support the giving of the instruction. People v. Jones, 219 Ill.
2d 1, 31, 845 N.E.2d 598, 614 (2006). Where there is evidentiary
support for an involuntary-manslaughter instruction, the failure
to give the instruction constitutes an abuse of discretion.
"Whether an involuntary[-]manslaughter instruction is warranted
depends on the facts and circumstances of each case." Jones, 219
Ill. 2d at 31, 845 N.E.2d at 614. An involuntary-manslaughter
instruction was properly refused in Jones, despite pathologists'
testimony the victim sustained a skull fracture that was either
the result of a blow to the head by a blunt object or the result
of a fall. "There was simply no evidence at trial to support
defendant's claim that he inadvertently caused [the victim] to
fall." Jones, 219 Ill. 2d at 32, 845 N.E.2d at 615.
"The basic difference between involuntary manslaughter
and first degree murder is the mental state that accompanies the
conduct resulting in the victim's death." People v. Daniels, 301
Ill. App. 3d 87, 95, 702 N.E.2d 324, 330 (1998). For first
degree murder, the defendant knows his acts "create a strong
probability of death or great bodily harm." 720 ILCS 5/9-1(a)(2)
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(West 2000). To step down to involuntary manslaughter the
defendant performs acts "likely to cause death or great bodily
harm" and he performs those acts "recklessly." 720 ILCS 5/9-3(a)
(West 2000). "Reckless conduct generally involves a lesser
degree of risk than conduct that creates a strong probability of
death or great bodily harm." People v. DiVincenzo, 183 Ill. 2d
239, 250, 700 N.E.2d 981, 987 (1998).
A defendant who deliberately provokes a confrontation
may still be entitled to an instruction on involuntary manslaugh-
ter. "[A] defendant may act recklessly where he commits deliber-
ate acts but disregards the risks of his conduct. See 720 ILCS
5/4-6 (West 1994)." DiVincenzo, 183 Ill. 2d at 252, 700 N.E.2d
at 988 (involuntary-manslaughter instruction should have been
given; weaponless fight involving individuals of the same general
size and strength).
However, Illinois courts have consistently held that
when the defendant intends to fire a gun, points it in the
general direction of his or her intended victim, and shoots, such
conduct is not merely reckless and does not warrant an
involuntary-manslaughter instruction, regardless of the defen-
dant's assertion that he or she did not intend to kill anyone.
People v. Eason, 326 Ill. App. 3d 197, 210, 760 N.E.2d 519, 530
(2001); cf. People v. Williams, 293 Ill. App. 3d 276, 282, 688
N.E.2d 320, 325 (1997) (where defendant testified he closed his
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eyes and fired in the air "above their heads" in order to scare
the victim away, jury should have been instructed on reckless
conduct as a lesser-included offense of aggravated discharge of a
firearm). A defendant's "testimony that he did not intend to
kill anyone does not provide a sufficient basis for instructing
on involuntary manslaughter." People v. Cannon, 49 Ill. 2d 162,
166, 273 N.E.2d 829, 831 (1971).
That is not to say that a defendant's testimony is
never worthy of belief. The jury is not entitled to disregard
defendant's testimony merely because he is the defendant in the
case. People v. Barney, 176 Ill. 2d 69, 74, 678 N.E.2d 1038,
1041 (1997). Rather, a defendant is not entitled to reduce first
degree murder to a Class 1 felony by a hidden mental state known
only to him and unsupported by the facts.
In the present case, defendant went to Beardsley Park
looking for a fight, after first obtaining a weapon. The victim
did not have a weapon. Defendant intentionally fired the weapon
several times, in the general direction of the victim, striking
the victim several times. Defendant argues the bullet fragment
found in the shoelace supports the testimony that he fired toward
the ground. See People v. Banks, 192 Ill. App. 3d 986, 996-97,
549 N.E.2d 766, 773 (1989) ("Surely, one does not point and fire
a gun at the ground if he intends to kill someone"; involuntary-
manslaughter instruction should have been given). Defendant
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refers to evidence that he had said he would just fire the gun in
the air as a warning to scare people, he fired the gun without
aiming it, and he turned his back and fired behind him without
looking where he was firing. Defendant did admit to the police,
however, that he fired the gun at the victim. The evidence in
this case did not require an involuntary-manslaughter instruc-
tion. As in Eason and Cannon, the trial court did not err in
refusing defendant's tendered instruction on involuntary man-
slaughter. Nor does defendant's testimony that Bascomb was the
shooter warrant the instruction. Even assuming Bascomb was the
shooter, no evidence showed that Bascomb simply acted recklessly.
C. Justification
Defendant argues the trial court improperly refused his
instruction No. 13 on use of force in defense of a person:
"A person is justified in the use
of force when and to the extent that he
reasonably believes that such conduct is
necessary to defend [(himself)(another)]
against the imminent use of unlawful force.
[However, a person is justified in the
use of force which is intended or likely to
cause death or great bodily harm only if he
reasonably believes that such force is
necessary to prevent [(imminent death or
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great bodily harm to [(himself) (another)])
(the commission of ___)].]" IPI Criminal
4th No. 24-25.06.
The trial court instructed the jury on second degree murder
(belief in justification). A defendant may be guilty of second
degree murder where he believes circumstances exist that would
justify the deadly force he uses, but his belief is unreasonable.
Defendant argues that the refused instruction was necessary to
explain what "justification" meant in the second-degree-murder
instruction.
When an instruction on second degree murder (belief in
justification) is given, a third proposition is added to the
elements of the offense: "That the defendant was not justified in
using the force which he used." IPI Criminal 4th No. 7.06B.
Under that instruction the jury could conceivably find the
defendant's actions were justified and that he was accordingly
not guilty, even though the only argument was that his belief
that his conduct was justified was unreasonable and he was guilty
of second degree murder.
It has been held that when the evidence supports giving
the jury an instruction on the justifiable use of force in self-
defense, an instruction for second degree murder should likewise
be given. People v. Toney, 309 Ill. App. 3d 28, 43, 722 N.E.2d
643, 654 (1999), vacated by People v. Toney, 197 Ill. 2d 581, 759
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N.E.2d 1 (2001). "We cannot reconcile the trial court's finding
sufficient evidence to warrant a self-defense instruction, and
thereby allowing the jury to consider whether defendant's subjec-
tive belief was reasonable, with the trial court's refusal to
allow the jury to consider whether that belief was unreasonable."
Toney, 309 Ill. App. 3d at 42, 722 N.E.2d at 654. The converse
does not appear to be true, however. The existence of sufficient
evidence to warrant a second-degree-murder instruction, that the
defendant unreasonably believes that circumstances justify the
force he uses, may not amount to sufficient evidence to warrant a
self-defense instruction, that the defendant reasonably believed
the use of force was justified. That is especially true where a
weapon is involved. It is not enough that defendant simply
believes his conduct is necessary to defend himself or another.
Where a weapon is involved, as in this case, the defendant must
reasonably believe that his conduct is necessary to prevent death
or great bodily harm. 720 ILCS 5/7-1(a) (West 2004).
We question whether the instruction on justification,
as opposed to unreasonable belief in justification, should have
been given at all. Defendant does not point to any evidence
suggesting that he was acting in self-defense. At trial, defen-
dant made no claim that he was acting in self-defense. Defendant
was allowed to make all the arguments to which he was entitled
under the instructions that were given. Defendant was not
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entitled to argue that he was not guilty because he reasonably
believed his conduct was necessary to defend against the imminent
use of unlawful force.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we grant the State its
statutory assessment of $75 against defendant as costs of this
appeal.
Affirmed.
KNECHT and TURNER, JJ., concur.
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