People v. Brown

NO. 4-09-0454 Filed 2/8/11
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
MICHAEL B. BROWN, ) No. 08CF181
Defendant-Appellant. )
) Honorable
) Robert L. Freitag,
) Judge Presiding.
_________________________________________________________________
JUSTICE POPE delivered the judgment of the court, with
opinion.
Presiding Justice Knecht and Justice Turner concurred
in the judgment and opinion.
OPINION
In April 2009, a jury found defendant, Michael B.
Brown, guilty of two counts of first degree murder (720 ILCS 5/9-
1(a)(1), (a)(2) (West 2008)) for the deaths of Calvin Walls and
David Walls and of aggravated battery with a firearm (720 ILCS
5/12-4.2(a)(1) (West 2008)) in the shooting of Levar Walls.
Additionally, defendant was found not guilty of aggravated
battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2008)) in
the shooting of Montell Jones. In June 2009, the trial court
sentenced defendant to natural life in prison on each first-
degree-murder conviction to run concurrent with a 30-year prison
term for the aggravated-battery-with-a-firearm conviction.
Defendant appeals, arguing (1) the trial court erred
when it instructed the jury mid deliberation with Illinois
Pattern Jury Instructions, Criminal, No. 24-25.09 (Illinois
Pattern Jury Instructions, Criminal, No. 24-25.09 (4th ed. 2000)
(hereinafter IPI Criminal 4th No. 24-25.09); (2) the evidence was
insufficient to convict defendant of two counts of first degree
murder and one count of aggravated battery with a firearm beyond
a reasonable doubt; and (3) defendant is entitled to a $5-per-day
credit against fines imposed for time spent in jail awaiting
trial and sentencing. We affirm as modified and remand with
directions.
I. BACKGROUND
At defendant’s jury trial, Detective Daniel Donath, a
crime-scene detective for the City of Bloomington, testified he
went to an apartment building located in the 300 block of Riley
Drive, Bloomington, Illinois, on February 12, 2008. When he
arrived, he was told by another detective two deceased persons
were found in the hallway between apartments five and six. He
entered the building and noticed a bullet shell casing on the
stairs leading to apartments five and six. As he walked up-
stairs, he saw the deceased body of David Walls on the landing
outside the apartments. To the right of David Walls, he noticed
the deceased body of Calvin Walls. He also noticed additional
shell casings in the hallway and patterns of blood on the hallway
doors and walls. Upon entering apartment six, he observed a
small spot of pooling blood on the living-room carpet. Also in
the living room of apartment six, he observed shell casings on
the floor, a black-handled knife on top of a big screen televi-
sion, and a small black-handled paring knife underneath a fish
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tank. He also noticed four holes in the front door.
Detective Donath exited the back door of apartment six
and proceeded to apartment five. He noticed a trail of blood
coming from the carpet of apartment five that continued on the
carpet and walls leading to the back door of the building. In
apartment five, he observed shell casings on the living-room
floor. He also observed a few holes in the living-room wall, a
hole by the front door that was approximately waist-high, and a
hole in the ceiling by the front door. He found a box for a
Glock handgun containing a receipt showing the gun was purchased
on October 4, 2000, by Rogers T. McElroy. He also found a
magazine for a Glock handgun in the bedroom. Outside the apart-
ment building, he observed a blood trail leading from the back
entrance of the building to 601 Bradley, Bloomington, Illinois.
Additionally, he testified in April 2008 he responded
to a call regarding a handgun found at Oakbrook Court Apartments
in Bloomington, Illinois. He retrieved the handgun that was
found on the roof of a single-story garage.
Detective Timothy Power, a detective for the City of
Bloomington, testified he was dispatched to the scene of the
incident on February 12, 2008. He observed two deceased black
males on the upstairs landing of the apartment building. The
bodies were later identified as David Walls and Calvin Walls.
The two bodies were facedown with David Walls lying on top of
Calvin Walls.
While in the hallway, he heard a male voice in apart-
- 3 -
ment six crying in pain and saying he had been shot. The male
was later identified as Levar Walls. Levar was lying on the
living-room floor in a pool of blood. Levar told Detective
Powers "Bam" had shot him and his two brothers.
Detective William Buchanan, a detective with the
Bloomington police department, testified he was one of the
initial officers dispatched to the call of shots fired at Riley
Drive. While in apartment five, Detective Buchanan noticed the
entire framework of the front door, including the door, was
pushed inward. The door was still closed and undamaged
Detective Brent Smallwood, a detective with the
Bloomington police department, testified he was also dispatched
to the crime scene. Upon arrival, he parked his squad car at the
corner of Mecherle and Riley Streets to question individuals
leaving the area. When he stopped Jerry Nored’s vehicle, Nored
stated his passenger, Montell Jones, had been shot. Jones told
Detective Smallwood he had been shot in the leg and arm.
Eric Purchis, a paramedic for the City of Bloomington,
testified he was dispatched to Riley Drive to treat multiple
gunshot wounds. He testified he treated Montell Jones, who had
two gunshot wounds in his left forearm, two gunshot wounds in his
right forearm, and one gunshot wound in his outer right calf.
Tracy Miller testified she lived at 333 Riley Drive,
apartment two, in February 2008. On February 12, 2008, defendant
briefly visited the apartment Miller shared with her boyfriend,
Darron Epps. Defendant lived upstairs in the same apartment
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building. After defendant left, Miller heard a loud commotion on
the stairs outside her apartment. Both she and Epps went into
the hallway to determine the source of the commotion. While in
the hallway, she observed David, Calvin, and Levar Walls being
shoved out of defendant’s apartment. She then observed the
brothers attempt to regain entry by kicking and pushing the front
door. As she was heading back to her apartment, she heard a loud
bang that sounded like a door being kicked open. She also heard
several gunshots and a commotion down the back stairwell. She
then heard a young man screaming and two children crying. She
ran upstairs and observed two men lying on top of each other in
the doorway of Levar Walls’ apartment. She also observed Levar
Walls lying on the living-room floor in front of the fish tank,
and two children sitting on the couch. She grabbed the children
and went down the back staircase to her apartment. As she was
going downstairs, she noticed blood on the stairs and wall.
Darron Epps testified he was in his apartment watching
television with his girlfriend, Tracy Miller, on the night of the
shooting. Defendant was visiting their apartment when they heard
noises coming from defendant’s upstairs apartment. Defendant
left to check on his apartment. After defendant left, Epps
continued to hear loud noises coming from defendant’s apartment,
and he went upstairs to investigate. He observed defendant
pushing people into his apartment, while Levar Walls pushed
people into the hallway. Once defendant’s friends were inside
his apartment, the door was closed. It is unclear from Epps'
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testimony whether defendant or Levar closed the door to defen-
dant's apartment. Epps observed a man kick defendant’s front
door off its hinges and the three men enter defendant’s apart-
ment. Epps then heard gunshots, and he ran back to his apart-
ment. He stayed in his apartment until he heard Levar Walls
calling for help. As he was going upstairs, he noticed two men
lying in the hallway by the front door to apartment six. He
testified he did not observe anything in anyone’s hands during
the altercation.
Levar Walls testified in February 2008 he lived at
333 Riley Drive, apartment six, with his girlfriend, Tanesha
Phillips. On February 12, 2008, he was inside his apartment
when he heard a loud noise at his front door. He opened the
door and saw his two brothers arguing with a tall black man, a
white man, and Montell Jones in the hallway outside defendant’s
apartment. He went into the hallway and grabbed his brothers.
The tall black man attempted to hit Calvin, and the white man
and Jones grabbed David and pulled him into defendant’s apart-
ment. Because the apartment door had been locked, Calvin
kicked the door open. Levar and Calvin grabbed David and
headed to Levar’s apartment. Levar testified he was not hold-
ing anything in his hands during the confrontation, and he did
not observe anything in his brothers’ hands. He further testi-
fied he did not enter defendant’s apartment that night, and he
did not see Calvin enter the apartment.
As Levar walked back to his apartment, he heard a
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loud bang. He turned around and saw defendant shooting a gun
at him. He was shot twice in the buttocks before he was able
to reach his apartment. He entered his apartment and closed
the door, but defendant continued shooting through the closed
door. Levar was knocked down by a shot to his leg. Defendant
then entered the apartment, pointed the gun at Levar, and said
he was going to kill him. David and Calvin ran upstairs to
Levar’s apartment, and defendant turned around and immediately
started shooting at them. Calvin reached the front door of the
apartment before defendant shot him. David reached defendant
and attempted to push his left arm down before falling on top
of Calvin. Defendant then left the apartment building with his
friends.
Leonard Hosea testified he was at defendant’s apart-
ment playing video games. He testified defendant, a white guy,
Montell Jones, and defendant’s uncle were also present. Every-
one was in the living room when he heard pounding on the front
door. Defendant answered the door, and Hosea heard a man ask
defendant if his brother was in the apartment. Defendant’s
uncle claimed he knew the man from prison, but the man said he
was mistaken. When defendant’s uncle stood up, the man entered
the apartment and pushed defendant’s uncle in the face. Hosea
and defendant tried to intervene and prevent the men from
fighting. Hosea testified a second man entered the apartment
and started fighting with Jones. He further testified he did
not observe anything in the two men's hands during the confron-
- 7 -
tation. Hosea exited the apartment before the gunshots oc-
curred.
Tanesha Phillips testified on February 12, 2008, she
lived at 333 Riley Drive, apartment six, with her boyfriend,
Levar Walls. That night, she heard a loud knock at the front
door. Levar opened the door and went into the hallway. He
came back into the apartment, and told Phillips his brothers
were arguing in the hallway. He then stepped back out into the
hallway. Phillips went to the open door and saw Levar, David,
and Calvin standing in the hallway. Because the argument was
getting louder, she went into the kitchen, grabbed a butcher
knife, and set it on the television in the living room. She
then heard gunshots and rushed to the front door. She observed
defendant in the hallway holding a gun and sparks coming from
the gun. Levar ran through their front door, and closed the
door behind him. She observed bullets coming through the front
door, striking Levar. Defendant entered the apartment and told
Levar not to play with him because he would kill Levar.
Defendant then turned around and started shooting into the
hallway. Defendant left the apartment after firing the gun
several more times.
Phillips was trying to locate her car keys when she
noticed David lying in her doorway. After she found the keys,
she left the apartment to bring their car around front. When
she opened the back door of her apartment, she saw defendant
and his friends running out the back door of defendant’s apart-
- 8 -
ment.
David Robinson testified on the evening of February,
12, 2008, a black male knocked on his back door and asked to
use his telephone. Robinson told the man he did not own a
telephone, but he could find a phone at the local gas station.
Eric Foster testified on February 12, 2008, he was at
defendant’s apartment playing video games when he heard a knock
at the front door. Defendant answered the door, and Foster
heard Montell Jones’ uncle say he recognized one of the men at
the door. After words were exchanged, the three men in the
hall tried to enter the apartment. Foster grabbed the man who
entered the apartment in an attempt to calm him down, but the
man slammed him against the living-room wall.
He then noticed defendant walking toward the living
room with a pistol. Foster was in the kitchen when he heard
five or six gunshots. However, he did not see the person
firing the gun. Jones told Foster he had been shot, and Foster
ran out the back door of the apartment with Jones and Jones’
uncle. He returned to the apartment to retrieve his and Jones’
coats, and he saw two men lying in the hallway outside the
apartments. He went back outside and noticed Jerry Nored pull
into the parking lot, and he asked Nored for a ride to the
hospital. The police stopped the truck before they reached the
hospital.
Steven Clifford, an officer for the Bloomington
police department, testified once defendant was placed in
- 9 -
custody, he repeatedly asked defendant for the location of his
weapon. Eventually, defendant informed him he had thrown it
somewhere but did not know its location. On April 17, 2008,
Officer Clifford observed a handgun on a garage roof at Number
One Oakbrook, Bloomington, Illinois.
Michael Johnson, an officer for the Bloomington
police department, testified on February 13, 2008, he was
transporting defendant to the police department when defendant
informed him he wanted to turn himself in, and it was not his
fault. Defendant also stated he felt bad about the incident.
Officer Johnson further testified defendant appeared visibly
shaken.
Montell Jones testified he was playing video games at
defendant’s apartment with defendant, Leonard Hosea, Eric
Foster, and his uncle, Andrew Walker. While they were playing
video games, two men knocked on the door. Walker said he
recognized one of the men, but the man denied knowing Walker.
Everyone in the apartment walked toward the door where the two
men were standing. After words were exchanged, the man Walker
had recognized swung at Walker, while the second man pushed
Jones into the living-room wall. Jones then noticed defendant
and Walker were holding the door closed. Jones asked for help
because the second man was choking him. Both Walker and defen-
dant were walking toward Jones when the front door was kicked
in by the men in the hallway. He observed people enter the
apartment, but his attention was returned to the man attacking
- 10 -
him. When he looked down, he noticed he had been shot in the
arm. Defendant and Walker helped him leave the apartment. He
had been shot in his right arm, his left arm, and his right
leg.
Andrew Walker testified on February 12, 2008, he went
to defendant’s apartment. He was under the influence of alco-
hol when he arrived. While at defendant’s apartment, he heard
a loud knock at the door. He recognized one of the men at the
door from prison, but the man denied knowing him. Walker
responded he did know him, and the man attacked him. Defendant
was able to push the man out of the apartment and close the
door. Before the door was closed, Walker noticed Levar Walls
standing in the hallway, holding something that looked like a
knife. The front door was kicked open, and the man Walker had
recognized entered the apartment. He threw Walker to the
ground and started punching him. Walker then heard gunshots
and heard Jones say he had been shot. He helped Jones exit the
apartment through the back door, and he saw defendant standing
outside the building. He testified defendant had something in
his hand.
Dr. Edward Kolb testified he treated Levar Walls and
Montell Jones for multiple gunshot wounds. He noticed both
patients had three gunshot wounds.
Chad Wamsley, a detective for the City of
Bloomington, testified he interviewed Andrew Walker regarding
the February 12, 2008, incident. The interview was recorded
- 11 -
and played for the jury. During the interview, Walker told
Detective Wamsley he ran into a man outside the apartment
building who was carrying a black-colored handgun. He also
stated he thought the man he observed standing outside the
apartment door was carrying a gun. Walker was not forthcoming
about the identity of the man with the gun.
Rogers McElroy testified on October 4, 2004, he
purchased a Glock 10-millimeter handgun at a pawnshop. McElroy
testified defendant had probably seen him with that gun. He
was unaware the gun was missing from his residence until the
police contacted him and advised it had been found.
Dr. John Scott Denton testified on February 14, 2008,
he performed autopsies on Calvin and David Walls. He testified
David Walls had a gunshot wound on the right side of the but-
tock, a gunshot wound in the left hip area, a close-range
gunshot wound on the right side of his face beneath his right
eye, a gunshot wound on the left mid-back area, and also vari-
ous bruising and scratching injuries consistent with a fight or
altercation. Additionally, he testified the gunshot wounds on
David Walls’ chest and body were consistent with a range
greater than 18 to 24 inches.
Next, Dr. Denton testified Calvin Walls had a gunshot
wound on his right wrist consistent with a range greater than
18 to 24 inches, and also a close-contact gunshot wound to the
left side of his head. Calvin also had small abrasions on the
right side of his forehead and right eyebrow consistent with
- 12 -
injuries caused by a fight or altercation.
Defendant testified in February 2008 he lived at 333
Riley Drive, apartment five, Bloomington, Illinois. On the
night of the occurrence, he was in his apartment playing video
games and drinking with Montell Jones, Eric Foster, Andrew
Walker, and Leonard Hosea. While playing video games, he heard
a loud knock at his front door. When he answered the door, he
recognized Calvin Walls. Andrew Walker said he recognized
Calvin from prison, but Calvin denied knowing him. While
standing in the doorway, defendant noticed David Walls in the
hallway.
Calvin and Walker continued to exchange words, and
Calvin attempted to enter the apartment. Defendant prevented
Calvin from entering the apartment. Defendant noticed Levar
Walls approach, pull on Calvin’s jacket, and then return to his
apartment. According to defendant, Levar returned with a knife
a few seconds later. Calvin swung at Walker, and David at-
tacked Jones. Defendant attempted to push Calvin outside the
apartment, while also trying to prevent Levar from entering.
However, Calvin pushed defendant back and attacked Walker.
Levar then entered the apartment carrying a knife.
While in the apartment, Levar helped Calvin drag Walker toward
the outside hallway. Eventually, defendant was able to remove
Calvin from the apartment while keeping Walker inside. Walker
and defendant locked the front door to prevent the brothers
from getting inside the apartment, but the brothers began
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kicking the door. Defendant heard them say their brother was
still inside, and the people inside the apartment were going to
kill him. Defendant went to the kitchen to get his handgun.
After the apartment door was forced open, Walker released
David, and David exited the apartment. Calvin entered the
apartment and started threatening everyone. Defendant pleaded
with Calvin to leave the apartment. Defendant testified the
people in the hallway outside his apartment had knives.
Defendant thought he saw David and another person
enter his apartment. He fired the gun in the direction of
Calvin and David. However, the men continued attacking the
guests in his apartment. From his doorway, defendant observed
Levar reach into his own apartment, grab a knife, and swing it
at him. In response, defendant shot Levar in the lower body.
Levar fell in the doorway of his apartment, and defendant
approached to check for additional weapons. When he turned to
go back to his apartment, Calvin and David attacked him and
tried to take his gun. During the struggle, he fired the gun
several times. He went back to his apartment, but it was
empty. He exited through the back door, and he saw Walker,
Jones, and Foster on the back staircase. Once outside, he ran
from the building and threw the gun away. He knocked on a
man’s door and asked to use his phone, but the man refused. He
then knocked on a lady’s door, and she called the police for
him.
On cross-examination, defendant testified he put four
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bullet holes in Levar’s front door, but Levar was standing
outside the apartment in front of the door. Additionally, he
testified he was in close physical contact with both Calvin and
David when he fired the shots in the hallway.
During the April 2009 jury-instruction conference,
the State tendered an instruction setting forth an initial
aggressor’s responsibilities before a use of force can be
justified. The trial court refused to submit the instruction
to the jury, stating, although there was ambiguity in the
evidence regarding who initially provoked the use of force,
there was no direct testimony by any eyewitness as to who threw
the first punch.
During deliberations, the jury inquired about the
legal justification for an initial aggressor’s use of force.
The trial court allowed the initial-aggressor instruction to be
tendered to the jury over defense counsel’s objection. In
allowing the instruction, the court stated it had a duty to
appropriately respond to jury questions, and the instruction
directly answered the inquiry.
The jury found defendant guilty of two counts of
first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2008))
for the deaths of Calvin Walls and David Walls and of aggra-
vated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West
2008)) in the battery of Levar Walls. Additionally, defendant
was found not guilty of aggravated battery with a firearm (720
ILCS 5/12-4.2(a)(1) (West 2008)) in the battery of Montell
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Jones.
In May 2009, defendant filed a motion for judgment of
acquittal notwithstanding the verdict or, in the alternative,
for acquittal asking the trial court to vacate the judgment
entered on the jury’s verdict. In particular, defendant argued
the court erred in submitting the initial-aggressor instruction
to the jury mid deliberation.
In June 2009, the trial court denied defendant’s
motion. Regarding the initial-aggressor instruction, the
court stated it had a duty to provide instruction because the
jury asked a specific question. The trial court sentenced
defendant to natural life in prison on each first-degree-murder
conviction to run concurrent with a 30-year prison term for the
aggravated-battery-with-a-firearm conviction.
This appeal followed.
II. ANALYSIS
A. Jury Instruction
A trial court’s decision to answer a jury question
will not be disturbed absent an abuse of discretion. People v.
Brown, 319 Ill. App. 3d 89, 100, 745 N.E.2d 173, 184 (2001).
When faced with a jury question during deliberations, "the
general rule is that the trial court has a duty to provide
instruction to the jury where it has posed an explicit question
or requested clarification on a point of law arising from facts
about which there is doubt or confusion." People v. Childs,
159 Ill. 2d 217, 228-29, 636 N.E.2d 534, 539 (1994). Failure
- 16 -
to specifically and accurately answer a jury question has been
held to be prejudicial error. Brown, 319 Ill. App. 3d at 100,
745 N.E.2d at 184.
However, under appropriate circumstances, a trial
court may exercise its discretion and properly refrain from
answering the question. Childs, 159 Ill. 2d at 228, 636 N.E.2d
at 539. The court may decline to answer a jury question when
(1) the instructions are readily understandable and suffi-
ciently explain the relevant law; (2) further instruction would
serve no useful purpose or would potentially mislead the jury;
(3) the inquiry involves a question of fact; or (4) answering
the question would cause the court to express an opinion that
could potentially direct the verdict. Childs, 159 Ill. 2d at
228, 636 N.E.2d at 539.
If the trial court provides instruction to the jury
mid deliberation, it must refrain from submitting instructions
on new case theories. People v. Millsap, 189 Ill. 2d 155, 161,
724 N.E.2d 942, 946 (2000). Both parties are entitled to
instructions pertaining to their separate theories of the case;
however, evidence must be presented on a particular theory
before an instruction may be submitted. People v. Fleming, 155
Ill. App. 3d 29, 37, 507 N.E.2d 954, 959 (1987).
An initial-aggressor instruction is warranted when
either the State presents evidence that defendant was the
aggressor or the case involves a question of whether defendant
was the aggressor. People v. Heaton, 256 Ill. App. 3d 251,
- 17 -
257, 631 N.E.2d 247, 251 (1994). Tendering the self-defense
instruction, along with the initial-aggressor instruction,
allows the jury to resolve conflicts in evidence and apply the
appropriate law. Fleming, 155 Ill. App. 3d at 37, 507 N.E.2d
at 959.
Additionally, although the right of self-defense may
justify a use of force, it will not justify the killing of an
original aggressor as an act of retaliation or after the ag-
gressor has abandoned the argument. People v. De Oca, 238 Ill.
App. 3d 362, 368, 606 N.E.2d 332, 336 (1992). In De Oca, 238
Ill. App. 3d at 367-68, 606 N.E.2d at 336, the victim was the
initial aggressor in a fistfight with the defendant; however,
the evidence indicated the confrontation escalated into a
different encounter when defendant displayed a loaded shotgun
and shot the victim. Therefore, the court held the trial court
did not err in determining defendant was the aggressor at the
time of the shooting. De Oca, 238 Ill. App. 3d at 368, 606
N.E.2d at 336.
In the present case, during the April 2009 jury-
instruction conference, the State tendered IPI Criminal 4th No.
24-25.09, which stated as follows:
"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
- 18 -
great bodily harm, and he has exhausted every reason-
able 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."
The trial court refused to tender the instruction to the jury
because the evidence regarding the origin of the fight was
ambiguous and no direct eyewitness testimony suggested who
threw the first punch.
During deliberations, the jury asked the following
question:
"Does a person who has initially provoked
the use of force against himself have a duty to
attempt to escape the danger before using force
against the aggressor?"
In response, the trial court allowed the initial-aggressor
instruction to be submitted to the jury because the instruction
specifically answered the jury question.
Defendant argues the trial court erred in tendering
the jury instruction mid deliberation because none of the
evidence suggested defendant was the initial aggressor in the
confrontation. Additionally, defendant argues the jury was
confused when it submitted the question because it was either
inquiring about the rights and duties of the Walls brothers, or
it mistakenly believed defendant was the initial aggressor.
Therefore, defendant argues the instruction served no useful
- 19 -
purpose and potentially misled the jury. We disagree.
The jury was provided with a self-defense instruction
prior to deliberations. The jury was also instructed a person
who is not an aggressor has no duty to attempt escape before
using force against an aggressor. However, the jury was not
initially presented with an instruction regarding the legal
justification for an initial aggressor’s use of force. The
lack of instruction was especially significant because the
State argued defendant became the aggressor in the conflict
when he pursued and shot Levar Walls as Levar was retreating.
Additionally, the State argued defendant became the aggressor
when he shot Calvin and David Walls in the hallway.
The trial court had a duty to appropriately address
the question posed by the jury. While the evidence on the
issue of initial-aggressor status may have been ambiguous, it
was a matter for the jury to determine. The jury clearly
stated its question and there was a relevant IPI instruction on
the topic. Additionally, when the court submitted the new
instruction mid deliberation, it was not injecting a new theory
into the case. Like in De Oca, the State had argued defendant
became the aggressor when he shot three of the victims after
they had abandoned the initial confrontation. After hearing
the State’s argument, it was reasonable for the jury to con-
sider the legal justification for an initial aggressor’s use of
force. Tendering this instruction to the jury allowed it to
resolve the conflicts in testimony and apply the correct law.
- 20 -
Additionally, the trial court noted the evidence did
not completely absolve defendant of being the initial
aggressor. Therefore, the jury could have reasonably concluded
defendant was the initial aggressor. It seems, however, the
trial court was thinking only in terms of the initial fistfight
in defendant's apartment when discussing the initial-aggressor
issue during the instruction conference. However, the evidence
did support the jury's determination defendant became the
aggressor when he shot each of the Walls brothers. Providing
the initial-aggressor instruction to the jury would not direct
a verdict on the issue, because the jury was presented with
both a self-defense instruction and an instruction regarding
the legal justification for a nonaggressor’s use of force.
Consequently, the trial court appropriately addressed the jury
question by tendering an instruction that provided a correct
statement of law on the issue.
B. Sufficiency of the Evidence
Next, defendant argues the evidence was insufficient
to convict him of two counts of first degree murder and aggra-
vated battery with a firearm beyond a reasonable doubt. We
disagree.
1. Self-Defense
The question on review is whether, after viewing all
of the evidence in the light most favorable to the State, any
rational trier of fact could have found beyond a reasonable
doubt defendant did not act in self-defense. People v.
- 21 -
Grayson, 321 Ill. App. 3d 397, 402, 747 N.E.2d 460, 465 (2001).
A person acts in self-defense when (1) the person is threatened
with unlawful force, (2) the person threatened is not the
aggressor, (3) the danger of harm is imminent, and (4) the use
of force is necessary. Grayson, 321 Ill. App. 3d at 402, 747
N.E.2d at 464-65. It is the State’s burden to prove beyond a
reasonable doubt that defendant did not act in self-defense.
People v. Dillard, 319 Ill. App. 3d 102, 106, 745 N.E.2d 185,
188 (2001). However, a jury has discretion to reject a self-
defense claim based on the probability or improbability of
defendant’s account, the circumstances of the crime, the testi-
mony of the witnesses, and witness credibility. Dillard, 319
Ill. App. 3d at 106, 745 N.E.2d at 189.
At trial, defendant argued he was acting in self-
defense when he shot Levar Walls. According to defendant’s
testimony, Levar entered defendant’s apartment and was waving a
knife around. Later, defendant observed Levar reach into his
apartment for a knife and swing it at him. In support of his
testimony, defendant notes a knife was found on the living-room
floor underneath the fish tank in Levar's apartment. However,
the State presented evidence to explain the location of the
knife, such as testimony the living room was cluttered and the
kitchen table was near the fish tank. Additionally, the State
offered evidence no knife wounds were found on any person
involved in the altercation. Only one witness, other than
defendant, testified he observed something in Levar’s hands
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that night, but he could not specifically say whether the
object was a knife. Also, Levar testified he was not carrying
a knife. He testified he heard the gunshots and retreated to
his apartment, but defendant pursued him and shot him as he
entered his apartment. Additionally, the State argued the
location of the bullet holes in Levar’s front door and the
location of his injuries were not consistent with defendant’s
testimony.
Also at trial, defendant argued he acted in self-
defense when he shot both Calvin and David Walls in the hallway
of the apartment building. Defendant testified he had
approached Levar to check for additional weapons when he was
attacked by Calvin and David. Additionally, defendant testi-
fied he was in close physical contact with David and Calvin
when they attempted to grab his gun. However, the State pre-
sented evidence that both Calvin and David were fleeing defen-
dant’s apartment and had only returned to Levar's apartment
after hearing additional gunshots. Also, to contradict defen-
dant’s self-defense claim, the State presented evidence defen-
dant fired the gun at least 14 times resulting in 11 gunshot
wounds to the four victims, four out of five of the wounds on
Calvin and David were fired from greater than two feet away,
and the locations of the wounds on each victim were not consis-
tent with defendant’s testimony.
Conflicting evidence was presented regarding whether
defendant was the aggressor in the confrontation. After
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considering all of the evidence and observing the witness
testimony, the jury was entitled to resolve the conflicts in
testimony and reject defendant’s self-defense claim. Looking
at the evidence in the light most favorable to the State,
sufficient evidence was presented to support the jury verdict.
2. Defense of Dwelling
Deadly force in defense of a dwelling is justified
when (1) the victim’s entry is made in a "violent, riotous, or
tumultuous manner" and (2) defendant’s subjective belief that
deadly force is necessary to prevent an assault upon him or
another in the dwelling is reasonable. People v. Sawyer, 115
Ill. 2d 184, 192, 503 N.E.2d 331, 335 (1986). The reasonable-
ness of defendant’s subjective belief is a question of fact for
the jury to determine. People v. Evans, 87 Ill. 2d 77, 86, 429
N.E.2d 520, 524 (1981). Additionally, for a defense-of-dwell-
ing justification to be successful, "a defendant need only be
within the confines of his dwelling." (Emphasis in original.)
People v. Morris, 162 Ill. App. 3d 1046, 1055, 516 N.E.2d 412,
418 (1987). At trial, defendant argued his use of force was
necessary to prevent an assault upon him or another in his
dwelling. First, defendant testified the altercation was the
result of an argument between Calvin Walls and Andrew Walker.
Additionally, he testified Calvin and David entered his apart-
ment in a violent manner and proceeded to attack his guests.
In support of defendant’s testimony, both Montell Jones and
Andrew Walker testified they were in defendant’s apartment when
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the brothers attacked them. Defendant also testified at least
one of the brothers had a knife in defendant's apartment.
Additionally, defendant testified, while in the hallway, he was
prevented from returning to his apartment by the brothers’
attack.
In contrast, Levar testified defendant’s front door
was kicked open because David was locked inside the apartment.
He also testified he had not entered defendant’s apartment that
night, nor was he armed with a knife when he was shot. Addi-
tionally, he testified he was fleeing defendant’s apartment
when he was shot at the threshold of his own apartment. Also,
David and Calvin were both shot in the hallway of the apartment
building. The State presented testimony that David and Calvin
had exited defendant’s apartment and were only returning to
their brother’s apartment because they heard gunshots. The
State presented evidence of the location of their bullet wounds
to support this testimony.
As evidenced by the fact the jury found defendant not
guilty of aggravated battery with a firearm for the battery of
Montell Jones, the jury determined defendant was not the ini-
tial aggressor in the confrontation that occurred within his
apartment. However, sufficient evidence was presented to
support the State’s theory defendant became the aggressor when
he shot Levar, David, and Calvin in the hallway outside his
apartment. The question posed by the jury during deliberations
suggests the jury believed the evidence pointed to defendant
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being an aggressor in the conflict. Because sufficient evi-
dence was presented to justify a determination defendant became
an aggressor in the conflict, the jury was entitled to reject
defendant’s justification for defense of dwelling.
C. Credit for Incarceration on Bailable Offense
Defendant argues he is entitled to a $5-per-day
credit for time served against his $15 children’s-advocacy-
center fee and his $10 drug-court fee. Section 110-14(a) of
the Code of Criminal Procedure of 1963 provides:
"Any person incarcerated on a bailable of-
fense who does not supply bail and against
whom a fine is levied on conviction of such
offense shall be allowed a credit of $5 for
each day so incarcerated upon application
of the defendant. However, in no case
shall the amount so allowed or credited
exceed the amount of the fine." 725 ILCS
5/110-14(a) (West 2008).
The statutory right to a credit is mandatory, and a defendant
is entitled to this credit despite it not being requested in
the trial court. People v. Woodard, 175 Ill. 2d 435, 457-58,
677 N.E.2d 935, 946 (1997).
In this case, the trial court ordered defendant to
pay $15 for the children’s-advocacy-center fee and $10 for a
drug-court fee but failed to grant the $5-per-day credit for
time served. Although labeled a fee, the children’s-advocacy-
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center fee is a fine. People v. Jones, 397 Ill. App. 3d 651,
660, 921 N.E.2d 768, 775 (2009). Therefore, defendant is
entitled to a $5-per-day credit against the $15 fine. The
drug-court fee is also a fine, and defendant is entitled to an
additional $5-per-day credit against this $10 fine. People v.
Sulton, 395 Ill. App. 3d 186, 193, 916 N.E.2d 642, 647-48
(2009). The State concedes defendant is entitled to the $5-
per-day credit for the 475 days he spent in custody. Accord-
ingly, we remand this case and direct the trial court to amend
the judgment order to grant defendant a credit against the $15
children’s-advocacy-center fee and the $10 drug-court fee.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment as modified and remand with directions. As part of
our judgment, we award the State its $75 statutory assessment
against defendant as costs of this appeal.
Affirmed as modified; cause remanded with directions.
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