People v. Barber , 2022 IL App (1st) 160800-U ( 2022 )

2022 IL App (1st) 160800-UNo. 1-16-0800
August 1, 2022
FIRST DIVISION
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in
the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) Of Cook County.
Plaintiff-Appellee, )
) No. 14 CR 2275 (01)
v. ) 14 CR 2275 (02)
)
TIMOTHY BARBER, ) The Honorable
) Charles P. Burns,
Defendant-Appellant. ) Judge Presiding.
JUSTICE WALKER delivered the judgment of the court.
Justice Mikva specially concurring. Justice Oden Johnson 1 concurring and
dissenting in part.
ORDER
Held: When a defendant presents evidence that he used deadly force in response to an
attempted robbery, the prosecution must prove beyond a reasonable doubt that
the defendant lacked justification for his acts. A defendant convicted
as an accomplice may assert the principal’s justification as a defense.
1
Oral argument was held in this case before a panel that included Justice Walker, Justice Griffin, and Justice Pierce.
Justice Griffin has retired, and Justice Oden Johnson has been assigned in his place. Justice Oden Johnson has read
the briefs and listened to the oral argument. Justice Pierce recused himself and Justice Mikva was assigned in his
place. Justice Mikva has also read the briefs and listened to the oral argument.
No. 1-16-0800
¶1 Following a bench trial, Timothy Barber (Timothy) was found guilty of second degree
murder and sentenced to a term of 27 years’ imprisonment. Timothy appeals arguing that (1) the
evidence did not prove him guilty of second degree murder beyond a reasonable doubt; (2) the
trial court improperly excluded evidence of Lamont Larkins’s prior violent conduct; (3) the trial
court imposed an excessive sentence; and (4) the court erred in its calculation of court fines, fees,
and costs.
¶2 We find that the State failed to refute Timothy’s evidence that he acted to prevent a robbery,
a forcible felony. Because the evidence does not show beyond a reasonable doubt that Timothy
lacked justification for his use of force, we reverse the conviction.
¶3 I. BACKGROUND
¶4 On August 29, 2013, Gregory Benson and Lamont Larkins went to the home of Dorothy
Brown (Brown), where they played cards against Brown's nephew, Timothy, and Timothy's son,
Jason Smith (Jason), at a table set up outside the house. Several others came into the yard to
socialize, including Brown's daughter, Tara Barber; Tara's boyfriend, Taurean Holmes; Tara's
friend, Katrina Baker; and Baker's boyfriend, Arthur Terry.
¶5 Larkins and Jason bet on the card game. Larkins accused Jason of cheating, then took cash
from Jason’s hand and punched Jason in the face. After a second punch, Jason tried to fight back.
Larkins, who outweighed Jason by 50 pounds, soon overpowered Jason. Timothy joined in the
fight, which ended when Larkins yelled that someone stabbed him. Larkins fell in the alley, Benson
called 911, and Timothy ran off. Larkins died from a stab wound that penetrated his heart.
¶6 Prosecutors charged Timothy and Jason with first degree murder, and they both argued at
their joint bench trial that they acted in self-defense. The trial court granted the State’s motion in
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limine to bar evidence of the victim’s prior arrests for domestic battery, criminal damage to
property, and unlawful restraint, but ruled that the victim’s conviction for robbery was admissible
pursuant to People v. Lynch, 102 Ill.2d 194 (1984).
¶7 During the trial, Benson testified that Timothy flicked a box cutter repeatedly during the
card game. Benson estimated the length of the box cutter at 1½ inches when closed and perhaps 3
inches when opened. When Larkins first accused Jason of cheating, Jason allowed Larkins to take
the pot. The game remained friendly through the second accusation of cheating. When Jason
needed change for a $10 bill, he went into the house and returned a few minutes later without
change. Larkins took the $10 bill from Jason's hand and said, “this my money, do something bout
it now.” Larkins then punched Jason, who fell back. When Larkins continued hitting Jason, even
after Larkins appeared to have gotten the best of the fight, Timothy jumped in, slashing Larkins
with the box cutter. Benson saw no other weapon.
¶8 Terry testified that he saw a friendly card game, then he heard Larkins and Jason arguing
about money. Larkins grabbed cash from Jason's hand, knocked over the table, and hit Jason in the
face. Jason told Larkins to leave, but Larkins refused. Jason went inside, and when Jason returned
a few minutes later the fight resumed. Terry did not see any weapons.
¶9 On cross-examination, defense counsel sought to clarify Terry's testimony about when
Larkins took cash from Jason's hand. Terry answered, “It was before he even went into the house.”
However, Terry agreed that he told police that “after Jason came back out of the house, [Larkins]
grabbed the money from him.” On another attempt, counsel asked, "[W]hen Jason went into the
house, he came out with a $10 bill, right?" Terry answered, “I wouldn't say yes or no. I am unsure
for that one.”
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¶ 10 Baker testified that she saw a friendly card game and then heard some argument about
money. Larkins said, "you are not getting this money." Jason and Larkins argued more, then Jason
went into the house. Baker went inside and saw Jason coming out. She did not see the fight start.
¶ 11 Tara testified that she was tending to her children inside the house when she heard Larkins
say, “squad up,” meaning put up your fists and fight. Tara woke up Brown and asked her to try to
break up the fight while Tara stayed inside with her children.
¶ 12 Brown testified that she went to sleep early, and Tara woke her. By the time she arrived
outside, Larkins was on the ground wounded with Jason holding a cloth on the wound. Larkins
said, “I'm dying.” Jason told him to lie still. According to Brown, Jason became frustrated because
Larkins would not lie still. Jason went into the house, leaving Brown to tend to Larkins while they
waited for the ambulance and police. When police arrived, Brown returned to the house and asked
Jason what happened. Jason said that Larkins accused him of cheating, took his money, and during
the fight, Jason stuck Larkins twice.
¶ 13 The prosecution presented a video recording of Timothy answering questions at the police
station. He admitted that he intervened in the fight when he saw his son losing, and he slashed at
Larkins with a box cutter.
¶ 14 Dr. Eric Eason, the medical examiner, found several superficial cuts on Larkins that were
not life-threatening. A box cutter could have made the cuts but would not have killed Larkins. The
fatal wound was a cut six inches deep that reached his heart. In the medical examiner's opinion, a
blade at least four inches long made the fatal wound. No box cutter could have made that wound.
¶ 15 Both defendants argued that they acted to defend Jason from a robbery. The judge stated:
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“It is a card game. It is a dispute over winnings. *** While it may be antisocial
and it may be wrong, at best, at best, it is a theft by person. It is nowhere near a
robbery.
There was no force used to take that. *** It is not something where a person is
being knocked down on the street and your purse is being taken ***.
*** There is no forcible felony.”
¶ 16 The court found Timothy guilty of second degree murder and sentenced him to 27 years in
prison. Timothy now appeals.
¶ 17 II. ANALYSIS
¶ 18 On appeal, Timothy argues that (1) the evidence did not prove him guilty of second degree
murder beyond a reasonable doubt; (2) the trial court improperly excluded evidence of Larkins’s
prior violent conduct; (3) the court imposed an excessive sentence; and (4) the court erred in its
calculation of court fines, fees, and costs.
¶ 19 Timothy contends the evidence did not prove him guilty because the State failed to rebut
evidence that he acted in defense of Jason. Section 7-1 of the Criminal Code provides:
“A person is justified in the use of force against another when and to the extent that
he reasonably believes that such conduct is necessary to defend himself or another
against such other's imminent use of unlawful force. However, he 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 or another, or the commission of a forcible felony.”
720 ILCS 5/7-1(a) (West 2012).
¶ 20 Our supreme court explained the burdens of proof:
“[T]o raise a claim of self-defense, a defendant must present evidence supporting
each of the following elements which justify the use of force in defense of a person:
(1) that force had been threatened against defendant; (2) that defendant was not the
aggressor; (3) that the danger of harm was imminent; (4) that the force threatened
was unlawful; (5) that defendant actually believed that a danger existed, that the
use of force was necessary to avert the danger, and that the kind and amount of
force actually used was necessary; and (6) that defendant's beliefs were
reasonable.” People v. Morgan, 187 Ill. 2d 500, 533 (1999).
¶ 21 Once a defendant has made a minimal showing on each of the necessary elements for self-
defense, “the State has the burden of proving beyond a reasonable doubt that the defendant did not
act in self-defense, in addition to proving the elements of the charged offense.” People v. Lee, 213
Ill. 2d 218, 224 (2004). We review the evidence in the light most favorable to the verdict, and we
must affirm the verdict if any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt. People v. Ward, 154 Ill. 2d 272, 314 (1992).
¶ 22 The defense presented evidence that Larkins took money from Jason and challenged Jason
to “do something bout it,” then slugged Jason twice before Jason started to defend himself.
Timothy joined the fight only when Larkins continued hitting Jason after Jason had apparently lost
the fight. The fight ended with cuts made by a knife with a blade much longer than the blade of a
box cutter. In terms of the Morgan factors, the evidence was undisputed that Larkins, was the
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initial aggressor. To justify the use of deadly force, the defense presented evidence that Larkins
committed robbery, a forcible felony (see 720 ILCS 5/2-8 (West 2012) (“‘Forcible felony’ means
*** robbery.”)).
¶ 23 While the trial court concluded that Larkins only engaged in theft, it is well established that
if force is used, the crime is robbery. A conviction for robbery requires proof that an offender took
property from the person or presence of another using force or by threatening the imminent use of
force. While a conviction for theft only requires proof that defendant knowingly obtained or
exerted unauthorized control over property of the owner with the intention to deprive the owner
permanently of the use or benefit of the property. People v. Rivers, 194 Ill. App. 3d 193, 195
(1990).
¶ 24 Larkins first took money from Jason, then used physical force to keep it. Hence, the State
did not disprove self-defense beyond a reasonable doubt simply because Larkins took the money
first and then used force or because some of the physical struggle might have occurred after Jason
went into the house and returned to the yard where the physical struggle continued. The forcible
felony of robbery continued while Larkins continued to use force to keep the money he had taken.
The timing does not disprove robbery.
¶ 25 We have addressed this issue in numerous cases, and we have recognized that there may
be a “series of events” that begins with a taking. The “series of events” includes attempts to recover
and/or to keep the property taken, and also includes a physical confrontation, all of which
correspond to a “single incident or occurrence" that amounts to robbery. People v. Brown, 76 Ill.
App. 2d 362 (1966); See also People v. Chambliss, 69 Ill. App. 2d 459 (1966), and People v.
Kennedy, 10 Ill. App. 3d 519 (1973). In Chambliss, the defendant snatched the victim's wallet, and
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an accomplice threw the victim to the ground when the victim started to chase the defendant. The
court held that the use of force after the taking made the crime a robbery. Chambliss, 69 Ill. App.
2d 459. Similarly, in People v. Brown, 76 Ill. App. 2d 362, the defendant snatched the victim's
wallet and struck the victim when the victim reached for the wallet. Again, it was contended that
there was no robbery as force was used after the defendant had obtained the wallet. The Brown
court concluded that the series of events created a single incident of robbery, and force was the
means used to accomplish the taking. In People v. Kennedy, 10 Ill. App. 3d 519, the defendant
took cash from a service station, and when an employee demanded the money, the defendant struck
him. The courts in Brown and Kennedy held that those defendants committed robberies, even
though the defendants possessed the stolen cash before striking the victims. Thus, in this case, the
robbery continued because Larkins continued to use physical force to hold onto the money he had
taken.
¶ 26 We reject any suggestion that this was not a robbery because Larkins had accused Jason of
cheating. Illinois has rejected the idea that we should accept the “rule of the gun” rather than the
“rule of reason.” People v. Robinson, 68 Ill. App. 3d 687, 691 (1979). Several courts “have rejected
[the argument] that a good faith belief by a defendant that he was entitled to the money or
possessions of the victim to satisfy or collect on a debt is a defense to robbery.” People v. Tufunga,
987 P.2d 168 (Cal. 1999). See also People v. Reid, 69 N.Y.2d 469, 508 N.E.2d 661, 663-665
(1987); People v. Hodges, (N.Y. App. Div.)113 A.D.2d 514 (1985); People v Coates, (N.Y. App.
Div.) 64 AD2d 1 (1978); People v Banks (N.Y. App. Div.), 55 AD2d 795 (1976); Crawford v.
State (Tex. Crim. App) 509 S.W.2d 582 (1974). “The law does not permit such self-help.” People
v. Uselding, 107 Ill. App. 2d 305, 309-10 (1969). Thus, the cheating claim does not distinguish
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Larkins's crime from the crimes proven in Chambliss, Brown, and Kennedy. Larkins was
committing a robbery, and the crime continued while Larkins continued to use force to hold onto
the money that he had taken.
¶ 27 The State contends that Timothy cannot claim that he acted to prevent a robbery because
in the video-recorded interview at the police station, Timothy did not mention the robbery as a
reason for entering the fight. The State argues that, therefore, there is no evidence to support an
inference that the robbery was the reason that Timothy became involved. “[I]ntent may be inferred
not only through acts but through circumstances and surroundings as well.” People v. Malcolm,
2015 IL App (1st) 133406. Circumstantial evidence supported an inference that Timothy reacted
to the robbery and the force Larkins used to keep the stolen money. See People v. Williams, 132
Ill. App. 2d 806, 807–08 (1971).
¶ 28 Moreover, the State admits that the court convicted Timothy of murder based on
accountability for what it concluded was Jason's act of stabbing Larkins. “Accountability is a legal
theory whereby a defendant is held responsible for a crime which he personally did not commit,
but which was committed by his accomplice. [Citation.] If the law places upon the accountable
defendant all the liabilities arising from the acts of the accomplice, the law should also afford the
accountable defendant the protections which would be afforded the accomplice, since the
accountable defendant stands in the shoes of the accomplice.” People v. Brown, 197 Ill. App. 3d
907, 919 (1990). Because there is no dispute that Jason acted in response to the robbery, Timothy
may assert the robbery as justification for his acts as Jason’s accomplice.
¶ 29 We find that Timothy presented evidence supporting findings in his favor on all elements
of self-defense, including justification for the use of deadly force. To meet its burden of proving
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that Timothy committed a crime, the State needed to disprove, beyond a reasonable doubt, at least
one of the elements of self-defense. See Lee, 213 Ill. 2d at 224.
¶ 30 The trial court rested its finding of guilt upon its conclusion that the evidence did not show
that Larkins robbed Jason. Unrebutted evidence showed that Larkins took cash from Jason and
used force to keep it. As noted above, the robbery and the altercation that followed it were one
continuous felonious action. The fact that the robbery occurred in connection with a card game did
not change the nature of the offense. In Illinois, a person who uses forceful self-help to recoup
gambling losses commits robbery. People v. Robinson, 68 Ill. App. 3d 687 (1979).
¶ 31 The State failed to prove that Timothy lacked legal justification if he used deadly force or
was accountable for Jason’s use of such force. Because the evidence does not support the
conviction, we need not address Timothy’s other arguments on appeal.
¶ 32 III. CONCLUSION
¶ 33 Timothy presented sufficient evidence to support an inference that he used deadly force to
prevent a forcible felony, and he showed all other elements necessary for self-defense. The State
failed to prove beyond a reasonable doubt the negative of any element necessary for a finding that
Timothy acted in self-defense of Jason. Accordingly, we reverse the conviction.
¶ 34 Reversed.
¶ 35 MIKVA, J., specially concurring:
¶ 36 I join fully in the majority decision in this case. I write separately only to acknowledge that
I was a panel member on a decision in this case that has since been vacated, but which affirmed
the defendant’s conviction. On review of the briefs and the oral argument and the draft offered by
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the authoring justice, I am convinced that, in fact, the State failed to rebut the defense that this
defendant was acting in self-defense and therefore join the decision to reverse his conviction.
¶ 37 JOHNSON, J., concurring in part and dissenting in part:
¶ 38 I would reverse the trial court for different reasons and remand for a new trial. I agree with
my colleagues that defendant Barber presented sufficient evidence to support an inference that he
used deadly force to prevent a forcible felony against codefendant Smith, however I would find
that his claim of self-defense was imperfect. I submit that this was a case of imperfect self-defense
because, although the decedent was the aggressor, it was nonetheless a fist fight, decedent was
unarmed, and there were two codefendants against the one aggressor, therefore rendering the belief
of imminent harm unreasonable.
¶ 39 Nevertheless, despite the imperfect self-defense, I would not affirm the trial court. I would
reverse and remand because I find that counsel was ineffective for failing to move for separate
trials. The standard for reviewing an ineffective assistance of counsel claim is whether the
attorney’s conduct fell below an objective standard of reasonableness and whether defendant was
prejudiced by counsel’s errors. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To
demonstrate prejudice, defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at
694. If either prong of the Strickland test cannot be shown, then the defendant has not established
ineffective assistance of counsel. Id. at 697.
¶ 40 A defense decision not to seek a severance is generally considered trial strategy. People v.
Bell, 2021 IL App (1st) 190366, ¶ 65. Additionally, the general rule in Illinois as to severance is
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that when defendants are jointly indicted, they are to be jointly tried unless fairness to one of them
requires a separate trial to avoid prejudice. People v. Johnson, 187 Ill. App. 3d 756, 763 (1989);
People v. Bond, 230 Ill. App. 3d 1086, 1088 (1992); Bell, 2021 IL App (1st) 190366, ¶ 65. Actual
hostility between the two defenses is required. Bond, 230 Ill. App. 3d at 1088-89.
¶ 41 A defendant moving for severance must state how he would be prejudiced by a joint trial.
People v. McCann, 348 Ill. App. 3d 328, 335 (2004); Bell, 2021 IL App (1st) 190366, ¶ 66. There
are two primary forms of prejudice which are likely to require that jointly indicted defendants
should be separately tried. Bond, 230 Ill. App. 3d at 1089. First, where the codefendants’ defenses
are so inconsistent or antagonistic that one of the defendants could not receive a fair trial if tried
jointly with the other, severance is necessary. Johnson, 187 Ill. App. 3d at 763; Bond, 230 Ill. App.
3d at 1089. Second, if in a joint trial, the State introduces the extrajudicial admissions of a non-
testifying codefendant which implicate the defendant, the defendant may be denied his
constitutional right of confrontation because the defendant cannot call the codefendant to the stand
for cross examination. Johnson, 187 Ill. App. 3d at 763.
¶ 42 I would find that both defendants had antagonistic defenses to one another such that
counsel should have moved to sever the trials. Further, it was prejudicial for counsel not to do so
based on information that was revealed during the discovery phase prior to trial. The antagonistic
nature of the defenses is detailed below.
¶ 43 First, the medical examiner’s testimony established that, although there were superficial
cuts on decedent’s body, the fatal stab wound was a six-inch deeper cut that pierced decedent’s
heart and lungs. Dr. Eason additionally opined that the fatal wound was caused by a knife with a
flat edge such as a kitchen or steak knife. While there was testimony presented that Barber was
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seen with a flip box cutter that was approximately three inches, and typically had a flat blade like
a razor, Dr. Eason stated that it would not have caused the fatal wound and was consistent with the
superficial wounds present on other parts of the decedent’s body. Barber admitted to swinging the
box cutter at decedent and cutting him on the back. However, he denied that he cut decedent near
his lungs or heart, or that his box cutter was capable of inflicting such a wound. Additionally, there
was no evidence presented that any other knife was present during the incident nor was Smith ever
seen with a knife. Moreover, Smith maintains that he did not have a knife and that it was simply a
fist fight on his part. In fact, both defendants argued in the trial court and maintain on appeal that
the other must have inflicted the fatal wound.
¶ 44 Next, both defendants contend that they are not accountable for the actions of the other.
On the one hand, codefendant Smith argues that he never asked Barber to intervene, nor did he
expect Barber to interfere, in the fist fight he had with decedent. Further, codefendant Smith argued
that he did not know or expect that Barber would slash at decedent with the box cutter or that
decedent would receive a fatal wound. In contrast, while Barber admits that he intervened because
decedent was getting the best of codefendant Smith and also that he slashed decedent with the box
cutter, he essentially contends that Smith must have had another knife that caused the fatal wound,
that he was not expecting that another weapon would be involved, or that decedent would receive
a fatal blow.
¶ 45 Additionally, Barber’s statement to police was admitted as evidence, albeit not against
Smith. In the statement, Barber stated that he saw codefendant Smith run inside and someone said
that Smith got a knife. Barber’s statement also indicated that he interfered in the fight when
decedent got the best of Smith and slashed at him with his box cutter, which he later threw in some
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bushes when he fled. However, because there was but one factfinder in this joint bench trial, the
factfinder necessarily had knowledge of the content of the statement when deciding both Barber
and codefendant Smith’s fate.
¶ 46 Even with regard to the self-defense claims, defendants’ arguments are antagonistic. While
Barber argues that they were each justified in using lethal force during the altercation with
decedent, codefendant Smith contends that Barber alone was justified as he, Smith, never had a
weapon during the fight. Barber’s argument presupposes that Smith was armed with a kitchen
knife during the fight.
¶ 47 When reviewing the defenses presented by each defendant, I would find no reasonable trial
strategy to support counsel’s failure to move for severance. I would further find that defendants
were indeed prejudiced by counsel’s failure to move for severance of the trials. Their individual
defenses were clearly antagonistic as detailed above. In the joint bench trial, neither defendant
could fully establish his argument that the other was responsible; the State argued that they were
each accountable for the other’s actions; and the trial court did not determine who inflicted the
fatal blow. The trial court treated them as if they were acting in concert during the fight and likely
had a similar viewpoint about their trial. I would find such viewpoint infringed upon defendants’
right to a fair trial and effectively pitted both defendants against one another during the
proceedings, as evidenced by their respective counsel’s cross examinations of the State’s
witnesses. See People v. Bean, 109 Ill. 2d 80, 93-4 (1985). (When codefendants’ defenses are so
antagonistic to each other that one of the codefendants cannot receive a fair trial jointly with the
others, severance is required. Codefendant’s trial strategy of depicting the other codefendant as the
“murderer” unfairly placed the codefendant in the position of having to defend against two
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accusers, the State and his codefendant). Based on the foregoing, I believe that severance was
warranted and that counsel’s motion to sever the trials would have been successful. Further, I
would find that there is a reasonable probability that the outcome of the trials could have been
different. As such, I would conclude that trial counsel was ineffective for failing to move for
severance of the trials. Accordingly, I would reverse defendants’ convictions and sentences and
remand for new separate trials.
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