People v. Rutigliano , 2020 IL App (1st) 171729 ( 2020 )

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Appellate Court Date: 2020.11.09
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People v. Rutigliano, 2020 IL App (1st) 171729Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption AARON RUTIGLIANO, Defendant-Appellant.
District & No. First District, Sixth Division
No. 1-17-1729
Filed May 8, 2020
Rehearing denied June 4, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 15-CR-3338; the
Review Hon. Thaddeus L. Wilson, Judge, presiding.
Judgment Affirmed.
Counsel on Lawrence C. Marshall, of Stanford, California, for appellant.
Appeal
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Annette Collins, and Janet C. Mahoney, Assistant State’s Attorneys,
of counsel), for the People.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justice Connors concurred in the judgment and opinion.
Presiding Justice Mikva concurred in part and dissented in part, with
opinion.
OPINION
¶1 Following a 2017 jury trial, defendant Aaron Rutigliano was convicted of first degree
murder and aggravated battery and sentenced to consecutive prison terms of 30 and 2 years.
On appeal, defendant contends that (1) he should have been convicted of second degree murder
rather than first degree murder, and (2) the trial court erroneously instructed the jury that
voluntary intoxication is not a defense. For the reasons stated below, we affirm.
¶2 I. JURISDICTION
¶3 On January 12, 2017, a jury found defendant guilty of first degree murder and aggravated
battery. On May 23, 2017, the court sentenced defendant to a total of 32 years’ imprisonment
and denied reconsideration of its sentencing. Defendant filed his notice of appeal on June 21,
2017. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois
Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 603 (eff. Feb. 6,
2013) and Rule 606 (eff. July 1, 2017) governing appeals from a final judgment of conviction
in a criminal case.
¶4 II. BACKGROUND
¶5 Defendant was charged with first degree murder for the stabbing death of Antonio Gamboa
and with attempted first degree murder and aggravated battery for slashing and cutting Gianna
Pena, all allegedly committed with a knife on or about February 1, 2015.
¶6 Defendant answered that he would rely on the insufficiency of the State’s evidence and
could assert affirmative defenses of intoxicated or drugged condition—citing section 6-3 of
the Criminal Code of 2012 (720 ILCS 5/6-3 (West 2016))—and self-defense.
¶7 A. Pretrial
¶8 The State filed motions in limine, including one seeking to bar defendant from arguing
diminished capacity as part of a reasonable doubt argument; that is, arguing or presenting
evidence that he “was incapable of acting in a knowing or intentional manner on February 1,
2015.” The State asserted that “[d]iminished capacity is not a defense recognized in Illinois”
and sought to bar argument that defendant’s intoxication rendered him unable to form the intent
to commit first degree murder or to appreciate the criminality of his conduct, unless he
“properly raised the defense of intoxication.” While the record indicates that this motion was
granted in part and denied in part, the relevant transcript does not include argument or a ruling
on the motion.
¶9 The parties offered proposed jury instructions before trial, including self-defense and
second degree murder based on an unreasonable belief in self-defense. Defendant’s proposed
instructions included one titled “Involuntary Intoxication or Drugged Condition” stating “A
person who is in an intoxicated or a drugged condition which has been involuntarily produced
is not criminally responsible for his conduct if the condition deprives him of substantial
capacity to appreciate the criminality of his conduct or to conform his conduct to the
requirements of law.” Illinois Pattern Jury Instructions, Criminal, No. 24-25.03 (approved Dec.
8, 2011) (hereinafter IPI Criminal).
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¶ 10 At the instructions conference, defense counsel repeatedly referred to “the defense of
involuntary intoxication.” When the court asked if the defense case was “I was involuntarily
intoxicated, but if I wasn’t, then it was self-defense; or I was voluntarily intoxicated and I was
defending myself,” defense counsel replied “Sounds good to me.” The court decided that the
defense-proposed instruction on involuntary intoxication would be given if involuntary
intoxication was properly raised at trial, and that self-defense and second degree murder
instructions would be given if self-defense was properly raised at trial.
¶ 11 B. Opening Statements
¶ 12 In the State’s opening statement, it argued that defendant was at a Super Bowl watching
party with his girlfriend Danielle Fernandez and various other people including Gamboa and
Pena, where drinks and marijuana were served. When Fernandez asked defendant if he wanted
to leave the party to attend another party elsewhere, he declined. A short time later, defendant
put a steak knife in his back pocket, grabbed Fernandez’s arm, and told her that they were
leaving. Remarking that he could kill them all, defendant shoved Fernandez across the room,
picked her up, and threw her to the floor again. He then “turns his attention on every person
that intervenes,” attacking Pena and then Gamboa with the steak knife, stabbing the latter
repeatedly even when party guest Daisy Martinez threw a vase and a bowl at defendant. One
of the party hosts, Darud Akbar, tried to subdue defendant, who fought him off. Akbar and
host Mia McNair then stabbed defendant in further efforts to subdue him, as the police had
been called but not yet arrived. Defendant was only placed under control by the police. The
State argued that “defendant was in control” despite some of his remarks that evening being
“crazy,” and that he acted with the intent to kill.
¶ 13 In his opening statement, defense counsel admitted “there’s not going to be any real issue
with what occurred” at the party nor a challenge to the credibility of the State’s witnesses,
though each witness “is probably going to have a different perspective of what occurred.”
Instead, the jury’s task would be to “resolve a why in all of this,” as not all killing constitutes
first degree murder as the jury would be instructed. Counsel argued that Akbar served
marijuana and Martinez served “spiked” punch during the party, which was “cool” and
“mellow” until well after the halftime show when Fernandez asked defendant if he wanted to
leave for another party. He politely declined, as the weather was foul, and there was no
argument between defendant and Fernandez. Instead, defendant suddenly grabbed her by the
arm and remarked that someone was trying to kill him and they needed to leave. They “end[ed]
up on the floor,” and the others surrounded them. Defendant put the knife in his pocket and
then began swinging it around, stabbing Gamboa fatally while “screaming all sorts of things
*** about Jesus and sex.” Defendant fought without weakening, despite having two knives
stuck into him, and continued fighting in the ambulance to the hospital. Counsel characterized
defendant’s actions as “in a split second [he] went crazy” and denied that he had any motive,
noting that he “was never armed until he got to the party.”
¶ 14 C. State’s Evidence
¶ 15 Martinez testified to being Gamboa’s girlfriend, and Fernandez testified to having been
defendant’s girlfriend. Pena and Breanne Lash testified to being coworkers of McNair,
Martinez, and Fernandez in early 2015. Dawn Moore testified to being Akbar’s niece, and
Shiquetta Ector testified to being a friend of McNair. On the night of February 1, 2015, McNair
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and her boyfriend Akbar hosted a Super Bowl viewing party at Akbar’s home. As there was a
snowstorm that night, Gamboa and Martinez picked up Pena, Lash, Fernandez, and defendant
on the way to the party. Ector was at the party before Gamboa and the others, while Moore
arrived after they did. Moore knew only Akbar and McNair, and Ector did not know McNair’s
coworkers or their boyfriends. Food and alcohol were served—defendant ate and drank—and
McNair passed around a single marijuana cigarette or “blunt” that was smoked by McNair,
defendant, Fernandez, Akbar, and Martinez. McNair, Akbar, and Fernandez testified that
Gamboa also smoked the blunt.
¶ 16 Fernandez testified that, at the party, she and defendant were between the living room and
the kitchen island. She asked defendant at some point after the halftime show if he wanted to
leave to attend another Super Bowl party, but he replied that he was happy being at the party
with her. He had not behaved unusually up to that point. However, a short time later, he told
her that he needed to leave the party. When she asked why, he repeated that he had to leave
and wanted to go home, and he squeezed her arm “very hard, like harder than I was comfortable
with.” He told her “this is what I’ve been training for, and we could kill them all” and said
“things like I didn’t understand, like we have to put the weed in a box or someone’s going to
try and kill me.” Defendant reached behind him to a knife on the kitchen counter and put in in
his pocket. Realizing that she “had to do something,” Fernandez made eye contact with Moore
and stood up. Defendant grabbed her, dragged her away from the kitchen island, shoved her
against a shelf, and then threw her to the floor. As she tried to get up, he grabbed her hair and
pushed her head into the floor. She called for help, “[s]omeone got him off of me,” and she ran
to a bedroom. When she came back, “it was a blur” but defendant had Gamboa against the wall
and was “making a very deliberate motion” of stabbing him. Though she did not see the knife,
she knew defendant had one, and Gamboa was “slumped against the wall” as if injured.
Martinez threw various objects at defendant’s hand but could not stop him from attacking
Gamboa. Fernandez fled to a bathroom where Lash was hiding and they called the police. She
could hear “a lot of screaming” and glass breaking, and defendant calling her name, so she did
not leave the bathroom until the police arrived.
¶ 17 On cross-examination, Fernandez testified that defendant did not act unusually, and there
were no unusual occurrences, such as arguments, before the incident. He did have two
discussions with Lash, but Fernandez considered them “normal.” He seemed to be enjoying
himself at the party. When he grabbed her arm and demanded to leave, Fernandez presumed
he meant to go to the other party. However, he then said that she knew why, which puzzled
her. As to what else he said, “[i]t wasn’t crazy or babbling *** just things I didn’t understand.”
He said “he thought somebody was out to kill him” while she saw no sign of that being so. She
also did not know why he said “we can kill them all.” When asked if he “freaked out,”
Fernandez replied that she did not “know if freaking out is the word I would use to describe
when he start[ed] attacking me.” She acknowledged describing him to the police as “freaking
out.”
¶ 18 Martinez testified that, at some point during the game when she was seated on the couch
with Gamboa, McNair, and Akbar, she noticed defendant and Fernandez “bickering” in the
kitchen. While the argument became “louder and more aggressive” as it went on, she could not
hear what they were saying. As defendant stood by the seated Fernandez, he grabbed her arm
and tried to “pull her or force her to go with him.” Martinez and Gamboa approached defendant
and Fernandez, and defendant then “threw [Fernandez] against the wall” and shoved Martinez.
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She fell to the floor, and she noticed that her wrist was slightly cut. Defendant then “directed
his attention to” Gamboa with a steak knife in his hand, pinning Gamboa against the wall with
his left arm and stabbing him repeatedly with the knife in his right hand. Gamboa was not
visibly armed, and his only aggressive act was telling defendant to stop. Martinez saw
defendant stab Gamboa about 14 times in the chest and face though Gamboa was unable to
fight back. Martinez threw a vase at defendant’s head, striking him, but he did not stop
attacking Gamboa. When Martinez threw another vase at defendant’s head, he turned to face
her, Akbar, and McNair. Gamboa fell to the floor. Martinez ran from the home to seek help,
and a neighbor called 911. She returned to Akbar’s home to see Akbar and McNair on top of
defendant pinning him to the floor as Pena attended to Gamboa’s wounds. Defendant was still
fighting Akbar and McNair, and he was “talking crazy” though Martinez “really couldn’t make
it out” as she was also trying to help the unconscious Gamboa. Paramedics arrived to take
Gamboa to the hospital, and the police also came.
¶ 19 On cross-examination, Martinez testified that the party was uneventful until the argument
between defendant and Fernandez. Before then, they had been whispering to each other, and
defendant had a knife in his back pocket at the time. As defendant became louder, Martinez
heard him “trying to get [Fernandez] to leave” but not why. Martinez denied that, once she and
others stood to keep defendant from harming Fernandez, they surrounded him. She did not
recall telling the police afterwards that “we all got up from the couch and kind of surrounded
[defendant] for a second” but admitted it was “[p]ossibly” so. Martinez recalled defendant
screaming at her but not what he said. When they approached defendant, Fernandez fled to the
bathroom. As defendant struggled with Akbar and McNair on the floor, he had two knives in
his abdomen. He was yelling “he was going to kill us” as he struggled, and was still struggling
when paramedics arrived.
¶ 20 Lash testified that the only unusual occurrences that night before the incident was a brief
political argument with defendant on the way to the party and another brief argument with him
about the effects of taking marijuana when Lash declined the blunt. Both times, Lash stopped
arguing with defendant when he became “passionate.” Lash sat with Pena on the love seat
while Gamboa, Martinez, Akbar, and McNair sat on the couch and defendant and Fernandez
sat on chairs during the game. At some point, Lash saw defendant shove Fernandez, grab her
hair, and push her to the floor. Pena “went to pull [defendant] off of” Fernandez by grabbing
his shoulders, but he “stood up and *** flung her off.” With Fernandez still on the ground,
defendant faced Martinez with a knife in his hand. Lash fled to the bathroom and hid there, but
she could hear screaming and glass breaking. Lash peeked out to see Fernandez at the bathroom
door and let her in. Lash and Fernandez called 911 and did not leave the bathroom until the
police arrived.
¶ 21 Moore testified that she was sitting and eating, only glancing at the game, when she noticed
defendant whisper in Fernandez’s ear. Moore could not hear what he was saying, but
Fernandez seemed startled and looked at Moore. Fernandez “tried to get up and run, but
[defendant] had grabbed her” by her hair and choked her by wrapping his arm around her neck.
Moore then saw a knife in his back pocket. Defendant and Fernandez struggled, and she fell to
the ground before yelling “somebody, he’s trying to kill me,” and fleeing to the bathroom.
Fearing what defendant may do next, Moore hid behind the couch. Martinez tried to calm
defendant, who seemed to Moore to be “a little hysterical” and “angry, I guess.” Far from
calming down, defendant shoved Martinez. When Gamboa approached defendant and tried to
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calm him, defendant grabbed Gamboa by the neck and pushed him to the wall. Defendant
looked briefly at Martinez before stabbing Gamboa repeatedly with the knife in his right hand
as he held Gamboa against the wall with his left hand. Defendant continued to stab Gamboa
even after he fell to the floor and Martinez threw a vase at him. When defendant finally stood,
Moore was still behind the couch while Akbar and Ector were on the couch. When McNair
stood up from the couch to walk away, defendant “tried to go after her.” “Everybody was
screaming,” and Moore grabbed Ector’s cellphone to call 911. Akbar stood up from the couch
and tackled defendant to the floor. As defendant tried to push off Akbar and stand, he said that
he would “kill us all,” “Can you get off me? Why are you all holding me down?” and “Let me
up.” Akbar asked Moore to bring him knives and commented on defendant’s strength. Moore
passed Akbar knives from his kitchen. As Moore was talking to the 911 operator, she told Pena
to keep pressure on Gamboa’s wounds. Moore let in the paramedics when they arrived. Before
defendant attacked Fernandez, Moore did not “see anybody attack the defendant in any way,”
and did not see Gamboa armed.
¶ 22 On cross-examination, Moore testified that she did not see defendant grab Fernandez’s arm
between grabbing her hair and Fernandez falling to the floor. Defendant also fell to the floor
when Fernandez fell. Moore denied hearing defendant call for his glasses or indeed any
mention of glasses. As defendant and Fernandez were on the floor, only Martinez approached
him while the others on the couch stayed there. Moore acknowledged telling the police that
defendant “did not look like a normal person” but “looked like something was wrong.” While
Moore testified that defendant seemed angry, she did not “know what was going through his
mind.” However, when Moore was asked if defendant “could have been scared and
frightened,” she doubted it. He did not seem scared or frightened when he had his arm around
Fernandez’s neck or when he was stabbing Gamboa. In addition to saying he was “going to
kill you all” and asking “Why are you holding me down,” defendant “made some remarks
about Jesus.” She did not recall telling the police that defendant said “Let me up. Jesus. Sex.
Help me up.”
¶ 23 Pena testified that she was sitting on a love seat with Lash, eating and watching the halftime
show, when she heard a commotion behind her where defendant and Fernandez were seated.
Specifically, she heard Fernandez exclaim “Stop Aaron, what are you doing? Stop.” The
people in front of Pena—Martinez, Gamboa, McNair, and Akbar—stood. When Pena stood
and turned around, defendant was holding Fernandez by her hair and then pushed her into the
wall. Pena grabbed defendant by the shoulders and tried to pull him away. Instead, he “swung
around at me and I heard Daisy yell ‘He’s got a knife,’ and then I saw him come at me with
the knife.” Though Pena jumped back and fled to the corner of the room, defendant had struck
her in the abdomen with the knife when he “swung backwards, swung around and wielded the
knife at me.” From the corner, Pena saw defendant holding Gamboa against the wall and
stabbing him repeatedly in the chest. Pena fled to a bedroom briefly, then saw Akbar and
McNair holding down defendant. Gamboa was motionless and bleeding on the floor, and Pena
went to assist him. Moore brought Pena towels, which she held against Gamboa’s chest. When
the paramedics arrived, defendant was “yelling and screaming” and still being violent. The
paramedics were told “that Aaron was dangerous and that we didn’t want to let him up because
we were afraid that he was going to attack someone again.” On cross-examination, Pena
testified that defendant was “engaging with other people” at the party before the incident.
However, when asked if there was anything “unusual about him” before the incident, she felt
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“he was being a little weird, but nothing that *** would make anyone predict that he would act
that way.” He wore glasses, but she did not see them fall to the floor.
¶ 24 Ector testified that there was a commotion at some point during the party. She specifically
recalled defendant grabbing Fernandez’s hair by the kitchen island and then a struggle between
defendant and Gamboa with “a bunch of people just moving around.” The fight ended up with
defendant pinning Gamboa against the wall with his left arm and repeatedly swinging his right
hand towards Gamboa’s chest. Gamboa fell to the ground when “defendant walked away and
started screaming and just yelling random stuff and looking for his next victim,” and Ector saw
that Gamboa was bleeding. As the other people were trying to avoid defendant, who Ector now
noticed had a knife, he grabbed McNair, and Akbar went to McNair’s defense. As Akbar
wrestled defendant to the ground, defendant continued to struggle, and Akbar called for a knife.
Ector passed Akbar a kitchen knife and left the room. On cross-examination, Ector
acknowledged that defendant seemed “possessed” during the incident, “yelling and screaming
and just saying who he was going to go after next.” He was not acting that way before the
incident.
¶ 25 Akbar testified that, during the game, he was seated on the couch with Gamboa and
McNair, while Pena and another guest sat on the love seat and defendant sat by the kitchen
table with Fernandez. Sometime after the halftime show, defendant “got up abruptly and was
kind of being aggressive towards” Fernandez, leaning over her, grabbing her neck or hair, and
whispering something in her ear that Akbar could not hear but could tell “was aggressive
because of his mannerism.” Martinez and other guests seemed shocked or bewildered while
Fernandez seemed puzzled. Fernandez tried to run away from defendant but he grabbed at her.
While everyone else was still in the living room, Gamboa went towards Martinez. Defendant
shoved Gamboa with his left arm while his right hand was behind his back and then pulled one
of Akbar’s kitchen knives from behind him and stabbed Gamboa multiple times as he shoved
Gamboa into a wall. He continued to stab Gamboa against the wall in the chest and face, “and
each time that he stabbed him, he appeared to look around and then turn back and begin
stabbing him again.” Akbar was still in the living room, where everyone was screaming, as
Martinez threw a vase and cups at defendant to end his stabbing attack on Gamboa. Defendant
was struck but did not stop stabbing Gamboa, merely pausing to look at Martinez before
resuming.
¶ 26 McNair tried to flee the room, and defendant reached for her. Akbar went to defendant,
grabbed his hair, and punched him repeatedly in an attempt to subdue him. Defendant fought
Akbar, “telling me he was going to kill me. He was going to kill everybody in the room. He
was screaming all types of just bizarre things.” As defendant and Akbar grappled, they fell to
the floor with Akbar on top. Akbar pinned defendant to the floor with his body, his left hand
on defendant’s throat, and his right arm holding defendant’s left arm. Defendant continued
screaming, “saying all different kind of things. He is going to kill us. Sex is a drug.” Because
defendant was extremely strong, Akbar “didn’t know how long I could keep him there” and
asked McNair for help. McNair sat on defendant, who was still struggling and uttering threats.
Akbar called for a knife and somehow got one, which he stuck into defendant’s stomach.
Defendant yelled even more but still resisted with great strength, so Akbar asked for more
knives. He also said that someone should get a towel for Gamboa’s bleeding wounds. McNair
stuck another knife into defendant’s chest or abdomen, but he continued struggling,
“threatening everyone,” and exclaiming “things like ‘Jesus.’ ‘Sex is a drug’ and just mostly
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‘I’m going to kill you.’ ” When paramedics and police arrived, Akbar told the paramedics to
tend to Gamboa first. He was reluctant to get up from pinning defendant “because he was still
strong. He was still moving erratically.” He told the paramedics to tend to defendant but told
the police that he would not get up until defendant was handcuffed.
¶ 27 On cross-examination, Akbar testified when asked about a “weed box” that he kept a box
of marijuana at the time of the party. The blunt that was smoked at the party came from that
box, but Akbar could not recall if he had rolled it beforehand or during the party. However,
Akbar testified before the grand jury that there were “approximately two blunts.” While
Akbar’s attention was drawn by defendant being aggressive towards Fernandez, his
aggressiveness in whispering in her ear was in his mannerisms, and he did not act violently
until he grabbed her as she tried to run away. Nothing unusual had happened, and “everyone
was just having a good time” up to that point. Defendant’s exclamations during the incident
were “some of the craziest things” Akbar had ever heard. After the incident, Akbar returned
defendant’s glasses, coat, and boots to the police.
¶ 28 McNair testified that everyone was “having a good time” until the second half of the game.
She was on the couch with Akbar, Gamboa, and Martinez, while defendant and Fernandez
were seated by the kitchen table, when she looked over to see defendant whispering in
Fernandez’s ear, then grabbing her neck, and then grabbing her hair when she tried to flee.
Pena stood up, but defendant pushed her down. Martinez approached defendant, who threw
her into the kitchen. Martinez cried out that defendant had a knife. Gamboa approached and
shoved defendant in the back, which was the first aggressive action towards defendant by
anyone. Defendant turned around and stabbed Gamboa in the eye, then looked at Martinez
before stabbing Gamboa several more times in the body and face as he held Gamboa against
the wall. Martinez threw several glass objects at defendant, who did not stop stabbing Gamboa.
Defendant then turned and approached the people on the couch including McNair. She tried to
run away, but he grabbed her hair. Akbar struck defendant, and McNair fled the home to seek
help from the neighbors. Martinez did the same and was successful. Hearing screams, McNair
returned to Akbar’s home to help. As Pena was tending to Gamboa’s wounds, Akbar had
defendant pinned down but asked for a knife because he could not hold the struggling
defendant. McNair sat on defendant, who was still resisting. Akbar asked for a knife, and
McNair got one from the kitchen, which Akbar stuck into defendant’s stomach. Defendant
yelled, “You can’t kill me because I have diabetes. My blood is thick. You guys can’t kill me,”
as well as threatening to kill “you guys.” Akbar told McNair to stab defendant, who was
kicking Akbar and McNair and trying to stand. McNair stabbed him in the stomach, but he was
still struggling when police and paramedics arrived. McNair and Akbar were on top of
defendant until police subdued him. He continued screaming, calling Fernandez’s name,
saying “sex is a drug” and that “we were trying to kill him.” McNair realized that her hand was
cut in the struggle.
¶ 29 On cross-examination, McNair testified that defendant no longer had the knife after
stabbing Gamboa when he approached the people on the couch, but she explained that he was
significantly bigger than her. While defendant seemed angry during the incident, she did not
know why as nothing unusual happened before he attacked Fernandez. As best as McNair
knew, the only marijuana at the party was Akbar’s and she passed around one blunt from
Akbar’s supply.
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¶ 30 Police lieutenant Michael Casey testified that he went to Akbar’s home in response to
multiple 911 calls. He saw defendant struggling with firefighters and Akbar, though the
firefighters were trying to treat defendant, and saw other firefighters treating Gamboa. When
Casey was told that defendant had stabbed Gamboa, he tried to handcuff defendant, who
resisted despite having two knives in his chest. Defendant was screaming and still fighting as
the paramedics took him away to the hospital, but Casey could not recall what he said.
¶ 31 Paramedic Tarek Faizi testified that he and other firefighters went to Akbar’s home in
response to multiple 911 calls. There, he saw defendant on the floor with two knives in him.
As he and another paramedic tried to get defendant onto a stretcher to take him to the hospital,
defendant was kicking them repeatedly and trying to bite them. He did not stop when Faizi
told him that he was being brought to a hospital. The paramedics eventually got defendant onto
the stretcher and restrained him, and he became “relatively calm” but was screaming, including
telling them to leave him alone. Defendant’s eyes were normally reactive, and he eventually
yelled in full sentences once in the ambulance, but he continued in a deliberate way to escape
his restraints and to bite the paramedics as they treated him. He was disoriented, or more
precisely “oriented times one” on a scale of zero to three, as he could say his name but not, for
instance, where he was. Though it was not mentioned in Faizi’s report, defendant threatened
to kill the paramedics as they treated him.
¶ 32 The forensic evidence from the incident included bloody knives and photographs of the
scene. A pair of eyeglasses was on the floor by the dining table. Two knives were collected at
the hospital where defendant was treated. No fingerprints of defendant were found on the
knives, but two had his blood and one had Gamboa’s blood. No marijuana was recovered.
¶ 33 Medical examiner Dr. Jon Gates testified to Gamboa’s autopsy. He had over 20 sharp-force
injuries consistent with a serrated knife, both stabbing and slashing wounds, and died from
these injuries. He had two wounds to his left eye, including one penetrating to the base of his
skull, and many other wounds to his neck, chest, arms, legs, and back. He had defensive
wounds to his hands.
¶ 34 After the State rested, a defense motion for a directed verdict was denied.
¶ 35 D. Defense Evidence
¶ 36 Defendant testified that he had a master’s degree in sports management and worked as a
personal trainer since 2013. Fernandez was one of his clients before they became romantically
involved. He worked on the morning of February 1, 2015, then was with Fernandez that
afternoon. She invited him to the Super Bowl party, and he went home to prepare meals for
the week. Fernandez picked him up with various other party guests, who were traveling
together because there was a blizzard that night. When they arrived at the party, there was food
and alcoholic drinks including punch. He took some food and drank some punch and one beer,
and he sat with Fernandez by the kitchen island. Two blunts were also passed around the party,
and he smoked about five times. Around halftime, he started feeling “very, very unusual”
compared to the usual euphoria marijuana gave him. He had a worsening “feeling deep in my
gut of incredible unease, and I started to feel a wave come over me, just tense, and my voice
starts to cut off, like I have a lump in my *** throat and I start to feel panic.” He was afraid
“that I’m going to be attacked or be killed.” When Fernandez asked him if he wanted to go to
another Super Bowl party, he said “if we’re going to go anywhere, we should just go home.”
She asked if they could stay at the party, and he was “fine” with that. When he tried to explain
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to Fernandez that he feared being attacked or killed, she did not understand his whispered
remarks “that I’m afraid and that I feel like someone is going to attack me and we need to leave
and I might be killed.” He was “holding her arm” as he leaned in to whisper to her. “At some
point there is a knife on the counter. I take that and *** put it in my back pocket” because of
his fear, though he did not fear any specific person. As he was sitting and still whispering to
Fernandez, “I have my hands on her arm and I am kind of holding and she kind of pushes away
and very quickly and we fall to the floor.” As he fell, his eyeglasses fell off. He yelled “I can’t
see. I can’t see. Where are my glasses?” as he searched for them. He needed glasses or contacts
both to read and to drive, and his vision was very blurry without them. Nobody answered that
they found his glasses.
¶ 37 As defendant was on the floor, “someone came up behind me and grabbed my back and
they attacked me. I don’t know what they were trying to do or what happened.” Without his
glasses, “I just saw everyone closing in.” He turned around to fend off the person who attacked
him, and “the knife is in my hand and then another person comes forward and attacks me again,
and I kind of wave the knife in front of me to keep everyone at a distance because I can’t see
what’s going on,” but not intending to cut anyone.
“Then another person comes in from the side and attacks me and grabs me and starts
to wrestle and then it was kind of like a shuffle and scramble and we were just moving
and wrestling, and *** I can’t see what’s going on. I’m trying to fend this person off,
and I push all the way away from kind of the island area. And I have this—I push this
person into the wall and I’m just trying to like fight them off because they are wrestling
with me.”
Defendant later learned that Gamboa was that person. He remembered “getting to the wall, and
like seeing my arm come back and then kind of like go forward, and then stepping away and
kind of seeing the person slump to the floor” before defendant dropped the knife.
¶ 38 Defendant was then “attacked from behind, and I end up wrestling with another person on
the ground and we end up falling to the floor and we were just rolling around on the ground.”
He was “trying to escape and get out of” Akbar’s home, but at “some point there’s another
person that gets involved and they stab me.” Defendant continued fighting after being stabbed
a second time. He fought anyone who tried to touch him, and he could not recall the police or
paramedics arriving.
¶ 39 On cross-examination, defendant admitted that he regularly smoked marijuana in 2015 and
chose to smoke a blunt at the party. Fernandez and other party guests smoked the same blunt
as himself. The punch contained alcohol, and other guests also drank the punch. He did not
feel strange when he smoked the blunt, but he began to feel strange during the second half of
the game. He never complained to Akbar about the marijuana, nor did he tell Fernandez in
explaining his fear that he believed he was drugged. He admitted grabbing Fernandez’s arm
and being emphatic about leaving but denied grabbing her arm “real hard” despite being strong
from his physical training. Though he feared being attacked, he was facing Fernandez with his
back to the other guests. Nobody was attacking him and nobody had a weapon but the knife in
his own pocket. When Fernandez pulled away, he slid off the chair, they both fell to the floor,
and his glasses fell off. She did not cry out for help. He did not recall grabbing Fernandez by
the hair or shoving her away. He did not know how he ended up cutting the person who
attacked him from behind as he searched for his glasses, as the knife was not in his hand. He
did know that Fernandez was no longer nearby. After he fought off the person who attacked
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him from behind, he “noticed” the knife in his own hand. While defendant maintained that he
was not aiming as he swung the knife at Gamboa, he acknowledged that one of his blows
entered Gamboa’s eye and skull. Defendant denied that he “fought everybody who tried to stop
[him] from doing what [he] wanted.”
¶ 40 On redirect examination, defendant reiterated that he acted because he believed he was
being attacked. While he felt “terror and panic” after smoking the blunt and had not felt that
feeling before that night, he did not attribute it to the marijuana and did not know what caused
it.
¶ 41 Hannah Applegate, Keith Skogstrom, and John Strand, three friends of defendant for four
or five years, testified from observing him at work, socially, and as a roommate that he was
peaceful and calm and a “really nice, easygoing person.” None were at the party at issue. When
asked if the fact that defendant fatally stabbed someone changed her opinion of defendant,
Applegate replied that it was “inconsistent with everything else that I know about him from
my personal interactions with him.” Asked the same question, Skogstrom replied that his
opinion did not change because “it doesn’t follow suit with the person that I lived with, that
worked for me, that I worked with. It’s totally different than anything I could ever imagine.”
Strand replied “no” to the question, adding that he was still defendant’s roommate for a few
months after February 1, 2015.
¶ 42 E. Jury Instruction Conference
¶ 43 The defense renewed its motion for a directed verdict, arguing that there was no evidence
to support attempted first degree murder. The State argued that defendant’s intent to kill Pena
could be inferred from attacking her with a deadly weapon and the deadliness of his attack on
Gamboa. The court denied the motion, finding that a jury could reasonably find attempted
murder from the totality of the events and circumstances.
¶ 44 At the jury instruction conference, the court decided to give instructions on self-defense
and second degree murder. Over a defense objection that the instruction would effectively bar
second degree murder if the jury found defendant to have provoked the use of force even if he
acted out of an unreasonable belief in self-defense, the court decided to instruct that a person
who provokes the use of force against himself is justified only if the force used against him is
so great that he reasonably believes he is in imminent danger of death or great bodily harm.
See IPI Criminal No. 24-25.09. The State, noting that the defense had sought an involuntary
intoxication instruction, argued that there was no evidence that defendant was involuntarily
intoxicated. Defense counsel agreed, stating “I do not believe as a matter of law that that
instruction is appropriate,” and the court ruled that an involuntary intoxication instruction
would not be given.
¶ 45 The State then sought a nonpattern instruction on voluntary intoxication, noting the
evidence that defendant consumed marijuana and testified to feeling panic during the incident
and arguing that intoxication was not a defense under the circumstances. The State wanted the
jury instructed that there was evidence that defendant may have been intoxicated but the jury
should not consider it in deciding whether he had the requisite mental state to commit the
charged offenses. The defense objected that the instruction was not a pattern instruction and
that the defense “haven’t advanced an involuntary intoxication defense, we’ve actually
withdrawn it.” The court found that the defense did make such an argument, albeit “softly,”
and that the defense did not present sufficient evidence for such an instruction. Defense counsel
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asked that the jury not be instructed on either voluntary or involuntary intoxication, arguing
that the commentary in the pattern instructions recommends that no instruction be given
regarding voluntary intoxication. The State argued that its desired instruction accurately stated
the law as the evidence of intoxication “could be confusing to the jury on what they’re allowed
to consider under the law.” The court stated that the commentary suggests that an instruction
on voluntary intoxication can be given where it is not a defense, “which is such a case here”
as voluntary intoxication would not be a defense to any of the charges. Defense counsel argued
that, while the State bears the burden on the charges it brought, the defense has the burden of
showing mitigation for second degree murder and the proposed instruction would prejudice
the defense in making that showing. The State argued that the defense should not be able to
argue an inference from defendant’s intoxication that he had an unreasonable belief in self-
defense. The court ruled that it would instruct the jury that a voluntary intoxicated or drugged
condition is not a defense to any of the charges.
¶ 46 F. Closing Arguments
¶ 47 The State argued in closing that defendant “brutally murdered” Gamboa after arming
himself with a knife, throwing his girlfriend against a wall, and turning his anger against the
people who tried to defend her. He stabbed Pena when she tried to intervene and then went
after Martinez, which prompted Gamboa to intervene. Defendant stabbed Gamboa repeatedly
until his “lifeless body fell to the ground.” Defendant then “turns around, looks at the other
people, who’s next?” Defendant was only stopped when Akbar and McNair intervened, and
they “had to stab the defendant themselves” to stop him. The State argued that defendant was
guilty of attempted murder because he took a substantial step towards killing Pena by arming
himself with a knife and then stabbing her with it and showed his intent to kill her by stabbing
her in the abdomen; she did not die because “she was able to get out of the way.” Defendant
was not acting in self-defense by attacking Pena because she had merely come to Fernandez’s
aid. The State argued that defendant was guilty of aggravated battery because he caused Pena
bodily harm with a deadly weapon when he struck her with the knife and again he was not
acting in self-defense against Pena.
¶ 48 The State argued that defendant was guilty of first degree murder because he performed
the act that killed Gamboa when he repeatedly stabbed him, as shown by Gamboa’s blood on
the knife, and intended to kill him, as shown by repeatedly stabbing Gamboa in the face and
chest and by remarking that he “could kill them all.” Defendant intended to leave the party
with Fernandez, tried to make her leave by force, armed himself with a knife against anyone
who could try to stop him, and then used it or tried to use it against every person who tried to
stop him. He was not acting in justified self-defense because Gamboa was unarmed and merely
trying to help Fernandez and calm defendant when he stabbed Gamboa repeatedly. Defendant
was the aggressor or first person to use force, against Fernandez, and thus could not use deadly
force unless he reasonably believed it necessary to prevent his death or great bodily harm.
However, nobody was blocking his exit when he started swinging the knife at people.
¶ 49 As to defendant acting out of an unreasonable belief in self-defense, the State argued that
he armed himself with the knife before anyone acted aggressively. The State cast doubt on
defendant’s testimony that he suddenly realized “these people were out to kill him” once he
lost his glasses, when defendant did not know most of the people at the party and various
witnesses testified that the party was uneventful until defendant’s actions. He did not act from
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a belief in self-defense but out of “rage and anger” against Fernandez for not wanting to leave
the party and against anyone who intervened to protect her.
¶ 50 Defense counsel argued that defendant was not “in a fit of rage” as the State argued, nor
did the evidence support the proposition that he wanted to leave the party while Fernandez did
not. “The case makes no sense and it never will make any sense.” While the basic facts were
not in dispute, the State’s witnesses were biased and none “wants to help us,” and the
“catastrophic, frantic state everybody” was in after the incident affected witness perceptions.
That said, “without question, *** something happened to” defendant. After eating, drinking,
and smoking at the party, a “while later, something he doesn’t attribute to the alcohol or the
weed or anything, all of a sudden he is overpowered by this terror and fear.” While the people
at the party were not actually trying to harm him, “that is something going on between his
ears;” that is, his skewed perception caused him to act out of a perceived need to defend
himself. He was babbling and “talking crazy,” remarking that someone was trying to kill him.
His remarks that he could kill them all, or the like, were not evidence of his intent to kill but
to defend himself. “He wasn’t acting like a normal person.” Both defendant and Fernandez
testified that defendant grabbed her arm, she fell back, and defendant fell to the floor. His
glasses then fell to the floor.
¶ 51 The defense argued that while Gamboa was stabbed multiple times, “[m]any of them are
shallow, some of them are deep,” and the fact that defendant stabbed Gamboa does not show
his intent to kill Gamboa without justification. Defendant was a “good young man” who
obtained his master’s degree, and his friends testified to him being peaceful and “laid back.”
While the State argued “that this is a made-up story of terror and fear,” counsel argued that the
evidence showed that the party was “fine, uneventful” until defendant “smoke, drank, ate and
an hour so whatever it was later suddenly he was in a moment of terror.” Counsel urged the
jury to “[g]o inside his head” and accept his perception even though “there was no reason to
be filled with terror or fear.” When he fell to the floor and his glasses fell off, “people begin to
surround him. The attack he feared is on.” He had armed himself with a knife “when he began
to have this fear and long before the conversation with” Fernandez. Unable to see properly
without his glasses, he swung the knife and warned the other guests to “get away from me,
don’t touch me.” Pena was “scratched heavily” by the knife, showing that defendant was not
trying to kill her but drive people away from him out of fear. “Then somebody gets on top of
him.” Gamboa “did everything right. He interceded to calm things down. He didn’t know what
was going on in [defendant’s] mind.” Defendant perceived Gamboa’s actions as an attack, and
he pushed Gamboa against the wall and stabbed him repeatedly. However, that was not “a fit
of rage” but “a fit of terror.”
¶ 52 Defense counsel argued that circumstantial evidence of defendant’s remarks to Fernandez
corroborated his irrationality and that he did not provoke the use of violence that night. The
evidence that defendant had two knives stuck into him and continued fighting rather than
fleeing the scene proved his “absolute terror and fear” that night.
“By the way, he doesn’t blame anybody. He isn’t saying I know it’s the weed, I know
it’s the alcohol, I know it was the food, I know it was—he doesn’t know and we don’t
know and they don’t know. If there’s a motive in anything he did, if there were a motive
it was a motive of self-preservation when he thought he was going to be attacked or
killed. That would be the motive that makes sense.”
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Thus, defendant did not commit either first degree murder or attempted murder but was
“horribly mistaken” because he “felt frightened, terrorized, had to defendant himself.”
¶ 53 The State argued in rebuttal that defendant was not a victim of terror but a cause of terror
on the night in question, and the only evidence that he acted out of fear for his safety came
from his own testimony. While the defense argued that the State’s witnesses were biased, they
were merely “in the wrong place at the wrong time because they were in the same room with
this defendant.” The State noted that defense counsel said that there was not much dispute over
the events of that night. Noting the testimony that defendant took up a knife before anyone had
approached him, the State argued that “defendant’s story just does not add up at all.” The
location where defendant’s glasses were on the floor were not near where he had been seated,
and the State argued that defendant did not fall from the fact that “every other witness you
heard” testified otherwise. All the witnesses but defendant testified that defendant did not grab
Fernandez’s arm lightly but “real tight” and also grabbed her neck before throwing her against
the wall.
¶ 54 The State argued that, if defendant believed everyone was going to attack him, it “makes
no sense whatsoever” for him to remark that he could kill them all. Instead, those words showed
that he was “a man who’s looking to kill, *** a man with a plan” who executed that plan by
arming himself with a knife. While defendant testified that he turned to talk to Fernandez while
the knife was in his back pocket, that was not “how somebody who is actually in fear behaves”
when he could walk out the door instead. While defendant testified that he called out for his
glasses and that someone came from behind and grabbed him while he was on the floor, no
other witness so testified. While defendant testified that stabbing Pena was a mistake, the State
argued that its intentional nature was shown by defendant having to turn around to stab her.
While there was some testimony that the other guests surrounded defendant, the weight of the
testimony was that everyone else was by the couch. While defendant testified that he waved
the knife to make space around him, he would have had space while he was stabbing Gamboa
by merely backing away. Rather than a scuffle or struggle between defendant and Gamboa, the
evidence showed that defendant immediately stabbed Gamboa in the eye. Defendant himself
testified that the first time he tried to escape was when Akbar brought him to the floor, and the
State argued that he had ample opportunity to leave or escape before that. The State noted that
it does not have to show a defendant’s motive to make its case. While the defense argued that
defendant did not act out of rage, defendant’s rage was shown by the extent of his injuries to
Gamboa.
¶ 55 The State argued that there was nothing “crazy” in defendant remarking that he would kill
people while he was actually trying to kill them and had succeeded regarding Gamboa nor in
invoking a deity when he “just killed a man.” Also, “it frankly doesn’t matter what he says
because [it is] the intent that’s important *** the intent at the time he takes that knife and he
stabs his victims.” “[T]here is no other intent when you plunge a knife into another human
being than to kill.” The State noted the jury instruction that an initial aggressor “needs to have
exhausted every other option” before using deadly force. However, defendant had options,
including leaving the party and taking cover behind furniture. Defendant’s character witnesses
were all friends who testified that their high opinions of him were not changed by him fatally
stabbing another person, but none of them were at the party. Defendant’s intent to kill Gamboa
was shown by his actions from taking up the knife to stabbing Gamboa repeatedly including
in the eye and chest. While defendant testified that he used marijuana regularly and “start[ed]
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to feel funny” after smoking the marijuana at the party, the jury would be instructed “that is
not a defense to the offenses charged.” “You cannot consider that as an excuse for his
intentional actions that day” because he voluntarily smoked marijuana and “took that knife and
turned it into a murder weapon” that night.
¶ 56 G. Subsequent Proceedings
¶ 57 The jury was instructed on first degree murder, second degree murder based on an
unreasonable belief in self-defense, attempted first degree murder, aggravated battery, and
upon the affirmative defense of self-defense. The instructions referred to self-defense as a
justification and to unreasonable belief in self-defense as a mitigating factor. The instructions
included:
“A person who initially provokes the use of force against himself is justified in the
use of force only if the force used against him is so great that he reasonably believes he
is in imminent danger of death or great bodily harm, and he has exhausted every
reasonable means to escape the danger other than the use of force which is likely to
cause death or great bodily harm to the other person.” IPI Criminal No. 24-25.09.
The jury was instructed: “A voluntary intoxication or drug condition is not a defense to the
charges in this case.”
¶ 58 During deliberations, the jury asked the court whether it would be a mitigating factor if
defendant was not sane when he committed murder. With the parties’ agreement, the court
instructed the jury that it had its instructions and should continue deliberating.
¶ 59 Following deliberations, the jury found defendant guilty of first degree murder and
aggravated battery, finding him not guilty of attempted first degree murder.
¶ 60 The defense filed a posttrial motion that, in relevant part, challenged the sufficiency of the
evidence and claimed that the jury instruction on voluntary intoxication was erroneous. The
defense noted the evidence that defendant consumed alcohol and marijuana on the night in
question but “never argued, or intended to argue, that Defendant’s actions that evening were a
result of Defendant’s voluntary use of such substances. Moreover, during Defendant’s
testimony, Defendant denied believing that alcohol or marijuana played any role in the alleged
offense.”
¶ 61 At the posttrial hearing, defense counsel stood on the written motion. The State argued that
the defense did not argue voluntary intoxication as a defense so that the instruction was
harmless as well as an accurate statement of law. There was trial evidence that defendant
voluntarily consumed alcohol and marijuana on the night in question, and he testified that “he
began to get that feeling in his gut” after doing so. While he did not expressly claim that he
had a mental breakdown due to that consumption, the defense had argued that the case made
no sense and that defendant’s actions resulted from misperceptions following that
consumption. The instruction was necessary, the State argued, to keep the jury from reaching
an erroneous legal conclusion.
¶ 62 The court denied the posttrial motion, finding the intoxication instruction appropriate.
While the defense had not formally argued intoxication as a defense, it “was clearly trying to
lay the ground work or alternative theory of something must have been wrong with the drugs
or the punch *** that caused the defendant to wig out and stab this man to death.” However,
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“everybody drank out of the same punch and *** smoked from the same blunt,” and the
instruction was proper.
¶ 63 Following a sentencing hearing, the court sentenced defendant to consecutive prison terms
of 30 years for first degree murder and 2 years for aggravated battery. Defendant’s motion to
reconsider the sentence was denied, and he timely filed his notice of appeal.
¶ 64 III. ANALYSIS
¶ 65 On appeal, defendant contends that that (1) he should have been convicted of second degree
murder rather than first degree murder and (2) the trial court erroneously instructed the jury
that voluntary intoxication is not a defense. We shall address these issues in reverse order.
¶ 66 A. Jury Instructions
¶ 67 Defendant contends that the trial court erred in instructing the jury that voluntary
intoxication is not a defense, when evidence of voluntary intoxication may be used to show the
defendant’s state of mind when that is relevant. Specifically, he contends that whether he was
involuntary intoxicated at the time of the offense is relevant to his state of mind for purposes
of showing second degree murder. The State responds that the jury instruction at issue was
proper and that voluntary intoxication cannot be used to show an unreasonable belief in self-
defense.
¶ 68 Whether to give a particular jury instruction is within the sound discretion of the trial court,
and the court does not abuse that discretion if the instructions taken as a whole fairly and fully
apprised the jury of the relevant legal principles, but we review de novo whether a jury
instruction correctly states the law. People v. Slabon, 2018 IL App (1st) 150149, ¶ 39.
¶ 69 Before 1988, section 6-3 of the Criminal Code of 1961 provided that an intoxicated or
drugged person was
“criminally responsible for conduct unless such condition either: (a) Negatives the
existence of a mental state which is an element of the offense; or (b) Is involuntarily
produced and deprives him of substantial capacity either to appreciate the criminality
of his conduct or to conform his conduct to the requirements of law.” Ill. Rev. Stat.
1985, ch. 38, ¶ 6-3.
Between 1988 and 2002, section 6-3 provided that an intoxicated or drugged person was
“criminally responsible for conduct unless such condition either:
(a) Is so extreme as to suspend the power of reason and render him incapable of
forming a specific intent which is an element of the offense; or
(b) is involuntarily produced and deprives him of substantial capacity either to
appreciate the criminality of his conduct or to conform his conduct to the requirements
of law.” 720 ILCS 5/6-3 (West 2000).
Since 2002, section 6-3 has provided that an intoxicated or drugged person “is criminally
responsible for conduct unless such condition is involuntarily produced and deprives him of
substantial capacity either to appreciate the criminality of his conduct or to conform his
conduct to the requirements of law.” 720 ILCS 5/6-3 (West 2016).
¶ 70 The crux of defendant’s contention is the effect of the amendments to section 6-3. He
contends that, before 2002, voluntary intoxication was a statutory affirmative defense under
certain circumstances and was held in case law to be relevant to state of mind, so that the 2002
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amendment eliminating the statutory affirmative defense did not change the case law. The State
contends that the purpose and effect of the 2002 amendment was to eliminate voluntary
intoxication as an excuse for criminal behavior including showing an unreasonable belief in
self-defense.
¶ 71 This court has previously considered a jury instruction on voluntary intoxication similar to
the instruction now at issue. Slabon, 2018 IL App (1st) 150149, ¶ 39. The Slabon defendant
contended that a jury instruction that “ ‘[a] voluntarily intoxicated condition is not a defense
to the charge of aggravated battery’ ” inaccurately stated the law because voluntary
intoxication can negate a specific intent and because it misled the jury to believe that it could
not consider his intoxication at all. Id. We held “that because section 6-3 does not mention
voluntary intoxication, that condition cannot be a defense to criminal conduct,” noting “the
general principle under Illinois law that ‘voluntary intoxication is not a defense to a criminal
charge.’ ” Id. ¶ 33 (quoting People v. Redmond, 265 Ill. App. 3d 292, 302 (1994)). We found
that the instruction was accurate because it “did not inform the jury it could not consider
defendant’s intoxication at all, only that voluntary intoxication cannot be a defense to the
charge of aggravated battery.” Id. ¶ 40. We also found that the State was entitled to an
instruction to protect against adverse inferences from the trial evidence of the defendant’s
intoxication. Id. ¶ 41.
¶ 72 Here, the instruction being challenged by defendant is substantively identical to the one in
Slabon: that voluntary intoxication is not a defense. As we stated in Slabon, voluntary
intoxication is generally not a defense under Illinois law since 2002. As in Slabon, defendant
contends that the instruction was likely misread by the jury as barring all consideration of
intoxication evidence. We rejected that proposition in Slabon because that instruction—and
the instruction at issue here—did not state that the jury could not consider intoxication
evidence at all. We see no reason not to follow Slabon here. The court did not exclude trial
evidence or argument regarding defendant’s consumption of alcohol and marijuana nor did it
instruct the jury to disregard evidence regarding intoxication. The jury was instructed that
voluntary intoxication is not a defense, which we find to be a correct statement of law. This
court was reciting as established law that “[a]s a general rule, voluntary intoxication is not a
defense to a criminal charge” (Redmond, 265 Ill. App. 3d at 302) well before the 2002
amendment to section 6-3 in which our legislature chose to eliminate all reference to voluntary
intoxication from the statutory affirmative defenses.
¶ 73 Last but certainly not least, the jury was not instructed that voluntary intoxication is not a
mitigating factor. Second degree murder is not a defense or justification, nor is it a lesser
included offense of first degree murder, but instead is first degree murder with an additional
mitigating factor. 720 ILCS 5/9-2(a) (West 2016); People v. Staake, 2017 IL 121755, ¶ 40.
“The State must prove the elements of first degree murder beyond a reasonable doubt before
the jury can even consider whether a mitigating factor for second degree murder has been
shown, such as *** whether his true belief in self-defense was unreasonable [citation].” Staake,
2017 IL 121755, ¶ 40. The jury here was properly instructed to that effect. We see nothing in
the jury instructions that would have precluded the jury from finding defendant guilty of
second degree murder. In particular, we see nothing in the jury instructions that would have
barred the jury from finding defendant’s unreasonable belief in self-defense from his testimony
corroborated by the evidence regarding alcohol and marijuana consumption if its weighing of
the evidence led it to that conclusion, but it did not. (We shall address this point more fully
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below.) We conclude that the trial court did not abuse its discretion in giving the voluntary
intoxication instruction.
¶ 74 B. Second Degree Murder
¶ 75 Defendant also contends that he should have been found guilty of second degree murder
based on an unreasonable belief in self-defense.
¶ 76 A person commits second degree murder by committing first degree murder with “the
following mitigating factor[ ] *** (2) at the time of the killing he or she believes the
circumstances to be such that, if they existed, would justify or exonerate the killing under the
principles stated in Article 7 of this Code, but his or her belief is unreasonable.” 720 ILCS 5/9-
2(a) (West 2016). While the State must prove the elements of first degree murder beyond a
reasonable doubt, once evidence of a mitigating factor has been presented, “the burden of proof
is on the defendant to prove [a] mitigating factor by a preponderance of the evidence before
the defendant can be found guilty of second degree murder.” 720 ILCS 5/9-2(c) (West 2016).
¶ 77 Section 7-1 of the Criminal Code of 2012 provides for the justification or affirmative
defense of self-defense, specifically that:
“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 great bodily harm to
himself or another, or the commission of a forcible felony.” 720 ILCS 5/7-1(a) (West
2016).
See also 720 ILCS 5/7-14 (West 2016) (justifications in article 7 of the Criminal Code of 2012,
including self-defense, are affirmative defenses).
¶ 78 However, justification is unavailable if a defendant
“initially provokes the use of force against himself, unless:
*** [s]uch force is so great that he reasonably believes that he is in imminent danger
of death or great bodily harm, and that he has exhausted every reasonable means to
escape such danger other than the use of force which is likely to cause death or great
bodily harm to the assailant.” 720 ILCS 5/7-4(c)(1) (West 2016).
The initial aggressor instruction, IPI Criminal No. 24-25.09, is properly given if the State
presents evidence showing the defendant to be the aggressor or there is a question of whether
the defendant was the aggressor. People v. Salcedo, 2011 IL App (1st) 083148, ¶ 37, abrogated
on other grounds by People v. Bailey, 2014 IL 115459, ¶ 18. When an initial aggressor
instruction is given alongside justifiable use of force instructions, the court is not assuming
that the defendant was the initial aggressor but allowing the jury to resolve the evidence
pursuant to either hypothesis. Salcedo, 2011 IL App (1st) 083148, ¶ 37.
¶ 79 Thus, the elements of self-defense against great bodily harm are that (1) unlawful force
was threatened against a person, (2) who was not the aggressor, (3) the danger of great bodily
harm was imminent, (4) the use of force was necessary, (5) the threatened person subjectively
believed a danger existed requiring use of the force applied, and (6) that belief was objectively
reasonable. People v. Wilkinson, 2018 IL App (3d) 160173, ¶ 35.
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¶ 80 When the sufficiency of trial evidence is at issue, we must determine whether, taking the
evidence in the light most favorable to the State, any rational trier of fact could have found the
elements of the crime beyond a reasonable doubt. People v. Eubanks, 2019 IL 123525, ¶ 95.
Where a defendant contends that the evidence was sufficient to find him guilty of second
degree murder, the issue on appeal is “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found that the mitigating
factors were not present.” People v. Blackwell, 171 Ill. 2d 338, 358 (1996). It is the
responsibility of the trier of fact to weigh, resolve conflicts in, and draw reasonable inferences
from the testimony and other evidence. People v. Harris, 2018 IL 121932, ¶ 26. Thus, we do
not retry a defendant. Eubanks, 2019 IL 123525, ¶ 95. The trier of fact is not required to
disregard inferences that flow normally from the evidence, nor to seek all possible explanations
consistent with innocence and elevate them to reasonable doubt. Id. In other words, the State
need not disprove or rule out all possible factual scenarios. People v. Newton, 2018 IL 122958,
¶ 27. The trier of fact need not be satisfied beyond a reasonable doubt as to each link in the
chain of circumstances if the evidence as a whole satisfies the trier of fact beyond a reasonable
doubt of the defendant’s guilt. In re Jonathon C.B., 2011 IL 107750, ¶ 60. A conviction will
be reversed only if the evidence is so unreasonable, improbable, or unsatisfactory that a
reasonable doubt of the defendant’s guilt remains. Harris, 2018 IL 121932, ¶ 26.
¶ 81 Here, taking the evidence in the light most favorable to the State as we must, we find that
a reasonable jury could find defendant guilty of first degree murder rather than second degree
murder. The evidence supporting defendant’s theory of the case that he committed the offenses
at issue out of fear of being attacked, other than his own testimony to that effect, are the remarks
and outbursts he made during the incident, his consumption of marijuana and alcohol at the
party, and his eyeglasses on the floor of Akbar’s home after the incident.
¶ 82 First and foremost, the jury was not obliged to find defendant a credible witness. While
there were minor discrepancies in their accounts, the State’s eyewitnesses—including
Fernandez herself, defendant’s girlfriend at the time of the incident—testified consistently to
defendant grabbing Fernandez’s arm forcefully, pulling her hair, and shoving her into the wall
at the beginning of the incident. By contrast, defendant expressly denied gripping her arm “real
hard” and testified to not remembering the remaining acts. We note that, while many witnesses
were acquaintances of Fernandez and came to her defense on the night in question, Moore and
Ector did not know defendant or Fernandez before that night and had no particular reason to
favor Fernandez or disfavor defendant in their testimony. Also, defendant testified to swinging
his arm at Gamboa with a knife in his hand once before Gamboa fell to the floor and defendant
dropped the knife. However, the State’s eyewitnesses and the scientific evidence were
consistent that defendant stabbed and slashed Gamboa multiple times, impeaching defendant’s
self-serving account.
¶ 83 Only defendant testified to falling to the floor and losing his glasses before he interacted
with anyone but Fernandez. It was a key element of defendant’s trial testimony that his inability
to see at that moment compounded or reinforced his fear of being attacked. However, a
reasonable trier of fact need not find defendant’s account corroborated from the evidence that
his glasses were on the floor after the incident. It is undisputed that defendant was in various
struggles that night, including on the floor with Akbar and McNair, and that could also explain
the disposition of his glasses.
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¶ 84 As to defendant’s consumption of marijuana and alcohol, various people at the party
testified to consuming both. While there was some evidence of more than one blunt, a
reasonable jury could conclude from the evidence as a whole that a single blunt was passed
around and smoked by various people at the party including defendant. Nobody but defendant
testified to having a paranoid or fearful reaction, and defendant himself testified that he did not
know the cause of his fear and did not attribute it to the marijuana that night.
¶ 85 Lastly, while there was evidence that defendant made bizarre or incomprehensible remarks,
there was also evidence that he repeatedly threatened to kill everyone at the party and then the
paramedics. Martinez and Akbar described defendant’s interaction with Fernandez before he
attacked her as aggressive. Moore testified that defendant seemed angry and did not seem
scared or frightened. While Ector testified that he seemed “possessed,” she also testified that
he was “saying who he was going to go after next.” In sum, while there was some evidence
from which to infer that defendant acted out of fear, it was also a reasonable inference that he
acted out of anger and with the intent to kill without justification. The jury reached verdicts
consistent with the latter, and upon the evidence seen in the light most favorable to the State
and with due deference to the jury as finder of fact, we shall not disturb those verdicts but
affirm the resulting judgment of the trial court.
¶ 86 IV. CONCLUSION
¶ 87 Accordingly, the judgment of the circuit court is affirmed.
¶ 88 Affirmed.
¶ 89 PRESIDING JUSTICE MIKVA, concurring in part and dissenting in part:
¶ 90 I concur fully with the majority that the court’s giving of the jury instruction was not an
abuse of discretion. The law remains that voluntary intoxication is not a defense, and the
majority is quite correct that nothing in this instruction precluded the jury from considering the
fact that defendant was intoxicated in reference to whether he had the belief he claimed to have
that he was in mortal danger.
¶ 91 However, in my view there would be no reason to reach this issue because I also believe
that this is one of those very rare cases where the evidence failed to support the jury’s verdict
of first degree murder, even under the very deferential standard with which we must review
that verdict on appeal.
¶ 92 While, as the majority points out, there was some disagreement among the State’s
witnesses as to what each of them subjectively believed the defendant was feeling at the
moment he suddenly became violent, there was absolutely no dispute among any of the
witnesses as to what the defendant did or that his conduct changed radically and suddenly just
before he attacked people at the party.
¶ 93 The conduct that two witnesses who remembered the defendant’s statements testified to
was that, from the beginning through the end of this horrific incident, the defendant was saying
that people were trying to kill him. It began with him frantically warning his girlfriend that
they had to leave because “somebody was going to try to kill [him],” and at the end, when the
defendant had finally been somewhat subdued and had knives sticking out of him, he was still
saying that people were “trying to kill him.” This was uncontradicted contemporaneous
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testimony as to what the defendant believed at the time he acted. This testimony
demonstrated—without evidence to the contrary—that he was acting based on a genuine, albeit
completely unreasonable, belief that the force he was using was “necessary to prevent
imminent death or great bodily harm to himself or another.” 720 ILCS 5/7-1(a) (West 2016).
This is what is required to reduce first degree murder to second degree murder. While there
was also testimony that he said that he been training for this his whole life and that he acted in
a manner that several of the witnesses described as aggressive, none of this contradicts in any
way his contemporaneous statements as to why he was behaving as he was and indeed may
even be further proof of his delusional state.
¶ 94 This undisputed evidence of a sudden onset of irrational fear does not exist in a vacuum.
There were also trial witnesses who testified—again without contradiction—as to the
defendant’s reputation for being peaceful and there was a complete absence of any possible
motive other than sudden irrational fear. There was also evidence that the jury was struggling
when they asked, in the middle of deliberations, if they could consider insanity as a mitigating
factor. While, as discussed above, the instructions did not preclude the jury from considering
whether intoxication influenced the defendant’s belief, there is still a concern, based on their
question, that the voluntary intoxication jury instruction might have indeed confused the jury
into thinking that it could not take into account the impact that the spiked punch, beer, and
marijuana had on defendant’s belief as to what was happening.
¶ 95 None of this context evidence alone is determinative. The State is under no obligation to
prove motive, and as mentioned above, the jury instruction does accurately state the law.
Nevertheless, where the defendant’s behavior changed suddenly and inexplicably, and
witnesses state the defendant expressly said that he thought someone was going to kill him, the
conclusion seems inescapable that defendant acted in unreasonable self-defense. “[I]f only one
conclusion may reasonably be drawn from the record, a reviewing court must draw it even if
it favors the defendant.” People v. Cunningham, 212 Ill. 2d 274, 280 (2004).
¶ 96 A reversal for lack of evidence is rare, and a decision by this court that a first degree murder
conviction must be reduced to second degree murder because of mitigating factors is even
more unusual. However, where, as here, even after viewing the evidence in the light most
favorable to the prosecution, it is clear that no “rational trier of fact could have found the
mitigating factors were not present” (People v. Blackwell, 171 Ill. 2d 338, 357-58 (1996)), a
reduction by this court in this defendant’s conviction to second degree murder is required. For
this reason, I respectfully dissent.
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