People v. Billups

FIRST DIVISION
August 23, 2010

No. 1-08-1383

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
)
v. ) No. 05 CR 26029
)
LAVELLE BILLUPS, ) The Honorable
) John P. Kirby,
Defendant-Appellant. ) Judge Presiding.

JUSTICE GARCIA delivered the opinion of the court.

The defendant-appellant, Lavelle Billups, testified before a

jury that he shot and killed Charles Thompson during a robbery

attempt by Thompson after he won the struggle over Thompson's

gun. The State presented evidence that the defendant shot and

killed Thompson with a gun the defendant had concealed on his

person. The jury rejected the claim of self-defense and found

the defendant guilty of first degree murder. The defendant

contends Judge John P. Kirby abused his discretion by refusing to

instruct the jury on second degree murder after instructing on
self-defense. Alternatively, the defendant contends the State

failed to negate his claim of self-defense beyond a reasonable

doubt. We hold Judge Kirby acted within his discretion in not

instructing the jury on second degree murder because the

defendant's subjective belief was not at issue; no evidence

exists upon which the jury could have found the defendant

believed circumstances existed that would justify his intentional

or knowing killing of Thompson, but that his belief was

unreasonable. In so holding, we follow People v. Anderson, 266

Ill. App. 3d 947, 641 N.E.2d 591 (1994), and distance ourselves

from the unfortunate characterization in People v. Washington,

399 Ill. App. 3d 664, 680, 926 N.E.2d 899 (2010), that the

Anderson decision is an "aberration." As in Anderson, this case

involves only a claim of perfect self-defense: the evidence

permitted only a conclusion of guilty of first degree murder or

not guilty by reason of self-defense. Additionally, we find the

State overcame the defendant's claim of justified use of deadly

force beyond a reasonable doubt. Accordingly, we affirm.

BACKGROUND

This case arose from the killing of Charles Thompson in the

early morning of October 18, 2005. Thompson was shot three times

and died in an alley running parallel to West 115th Street,

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between Yale and Princeton Avenues, in Chicago. He was last seen

alive during the late hours of the previous night, in the company

of the defendant and the defendant's brother, Dante Billups.

At trial, Dante was the key prosecution witness. According

to Dante, on October 17, 2005, he was with his girlfriend, Taiara

Koroma, when he received a phone call from the defendant

instructing Dante to "pick him up." Dante dropped Taiara off at

her apartment and drove her Dodge Caravan to meet the defendant

at 65th Street and King Drive. Dante testified he and the

defendant were driving on 117th Street near State Street when

Thompson, whom he had never seen before, flagged down the van.

Thompson and the defendant knew each other. Thompson asked Dante

if he had any cocaine. Dante said no, but agreed to take

Thompson to a friend that sold cocaine.

According to Dante, as the three men drove toward Dante's

friend's house, they stopped at a store to purchase liquor.

Shortly thereafter, the police stopped the van at the corner of

119th Street and Calumet Avenue. Officer Verlisher Syas would

later testify that she was involved in the traffic stop, which

occurred at approximately 10:50 p.m. She and other officers

searched all three men and the van. When they discovered an open

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beer bottle in the back of the van, they wrote Thompson a ticket

for possession of an open alcohol container. Additionally, the

officers wrote Dante tickets for an expired license plate and

city sticker. Although the officers did not issue the defendant

any citations, they gave the defendant a contact card describing

the nature of the stop.

Dante testified that he grew nervous after the traffic stop

so he decided against taking Thompson to his friend's house.

Instead, Dante drove to his mother's house to drop off the liquor

he had purchased. Dante and the defendant went inside the house

for 15 minutes while Thompson walked the street. Thereafter, all

three reentered the van and Dante agreed to drive Thompson to

95th Street. As Dante drove, Thompson and the defendant said

they had to urinate. Dante drove the van into the alley parallel

to 115th Street, between Yale and Princeton Avenues. The

defendant and Thompson walked behind the van, where Dante could

not see or hear them.

Approximately 20 seconds later, Dante heard gunshots and

"thought somebody was shooting at us." Dante's immediate

reaction was to drive away out of the alley, but he stopped at

the corner when he realized his brother was still in the alley.

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When the defendant reached the stopped van, he entered through

the rear sliding door, and "just said 'drive.' " Dante asked the

defendant what happened but got no answer. Dante drove the van

to Taiara's apartment. Once inside, Dante again asked the

defendant what happened. According to Dante, the defendant

answered, "he think he shot him." Dante asked the defendant

where he obtained a gun; the defendant claimed "he had it the

whole time."

Officer Syas testified that shortly after midnight on the

morning of October 18, 2005, she responded to a call of a man

shot in an alley. The decedent was killed by multiple gunshots

and was discovered in the alley lying facedown with his pants

halfway down and his boxers still up. The officers on the scene

recovered four cartridge cases, two near the decedent and two

underneath the decedent's body. Officer Syas identified the

decedent as Thompson, the same man involved in the traffic stop a

little more than an hour earlier. Officer Syas informed the

other officers at the scene that Thompson had been riding in a

Dodge Caravan with the defendant and Dante. Police officers

proceeded to Taiara's apartment, where the vehicle was

registered. There, they found Dante and the defendant. The

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officers recovered a handgun from a pair of the defendant's pants

and arrested both men. Officers also searched the Dodge Caravan,

but recovered no evidence; no blood was present in the van and it

had no bullet holes.

Dr. Nancy Jones, the Cook County medical examiner, testified

she recovered three bullets from Thompson's body during the

autopsy. The first two entered the right upper chest and the

front of the left hip, but did not appear to have been fired from

"close range," within 18 to 24 inches of the body. The third

bullet entered the back of Thompson's head, and based on a

muzzle-impression around the wound and gunpowder inside the

wound, Dr. Jones determined that the barrel of the gun was

touching Thompson's skull when that bullet was fired. Dr. Jones

added that because the head wound was "immediately

incapacitating" while the other two wounds were not, the shot to

Thompson's head was fired last.

The defendant offered only his own testimony in his defense.

According to the defendant, on October 17, 2005, at approximately

7 p.m., Dante drove the Dodge Caravan to the corner of 79th

Street and Ingleside to pick up the defendant. At 79th Street

and King Drive, Thompson, whom the defendant had known for a few

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months, flagged them down and asked for a ride to 116th Street

and Wentworth. Dante agreed. Thompson entered the van and the

three men drove to a liquor store. Dante then drove to his and

Dante's mother's house so Thompson could buy some crack cocaine

that Dante stored there. Dante entered the house while the

defendant remained near the van and Thompson walked about.

Fifteen minutes later, Dante emerged from the house. All

three men got in the van, and Dante drove into an alley about a

block away. Dante stopped the van in the alley and handed the

drugs to Thompson, who was seated in the front passenger seat.

The defendant, who was seated directly behind Thompson, opened

the sliding door, anticipating that Thompson would leave the van

after purchasing the drugs and the defendant would then move to

the front passenger seat.

According to the defendant, Thompson suddenly pointed a gun

at Dante and demanded the drugs and his money. On direct

examination, the defendant testified that Thompson got out of the

van and reentered the van through the open sliding door. This

forced the defendant to move to the seat directly behind the

driver's seat. With the gun in his right hand, Thompson patted

down the defendant with his left hand, removing $2 from him. At

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this point, the defendant began to wrestle with Thompson, during

which he managed to take the gun from Thompson. Thompson then

grabbed the hood of the defendant's sweatshirt, pulling it over

his head while forcing the defendant to his knees inside the van

with the defendant's face toward the floor. The defendant

testified he fired the gun in the direction of Thompson without

looking, although he was not sure how many times. The defendant

felt Thompson loosen his grip on the hood, which allowed the

defendant to look up and see Thompson fall to one knee just

outside the van. The defendant testified he then shot Thompson

once more on the top of his head. Dante then exited the driver's

seat and walked around the van to pat down Thompson for his drugs

and money. Dante got back into the driver's seat, the defendant

got into the passenger seat, and the two drove to Taiara's

apartment. Although the defendant and Dante discussed turning

themselves in, they did not because they knew the police would

locate them based on the recent traffic stop.

On cross-examination, the defendant admitted that following

his arrest, during his first interview at the police station, he

denied knowing anyone by the name of "Charlie." At trial, he

explained his denial: "I know Charles. I don't know Charlie."

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He also claimed to the interviewing officers that he and Dante

were alone in the van during the traffic stop. When asked during

the interview about the gun, the defendant answered, "What gun?"

The defendant acknowledged that the first time he claimed that a

shooting occurred during a drug deal between Dante and Thompson

was during his testimony at trial. At trial was also the first

time he said Dante got out of the van while it was parked in the

alley. The defendant admitted he never told the interviewing

officers that Thompson had pulled a gun on him. On cross-

examination, the defendant asserted that Thompson never reentered

the van after vacating the front passenger seat. Instead,

Thompson only leaned into the van from outside the sliding door

to pat down the defendant and take his $2. During his entire

testimony, the defendant maintained that he did not shoot

Thompson in the back of the head.

After the State's rebuttal case of three witnesses, both

sides rested. Judge Kirby then conducted a conference on jury

instructions. The defendant requested instructions on self-

defense and second degree murder. The State agreed to a self-

defense instruction, but objected to instructing the jury on

second degree murder. The defendant argued that under People v.

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Lockett, 82 Ill. 2d 546, 413 N.E.2d 378 (1980), the jury must be

given a second degree murder instruction whenever it is

instructed on self-defense. The State argued that the trial

evidence did not give rise to an unreasonable belief in the use

of deadly force and thus no second degree murder instruction was

required pursuant to Anderson. Judge Kirby agreed:

"[T]he proposition of law that was

initiated by the Supreme Court in 1980 in

Lockett was addressed here in Anderson. I

will apply the ruling of Anderson based on

the facts that was [sic] presented, based on

the defendant's testimony, based on the

doctor's testimony, and based on Dante's

testimony. The request for [a second-degree-

murder] instruction will be denied."

The jury found the defendant guilty of first degree murder.

Judge Kirby sentenced the defendant to life imprisonment. The

defendant timely appeals.

ANALYSIS

We first address the underlying issue of whether the holding

in People v. Anderson, 266 Ill. App. 3d 947, 951, 641 N.E.2d 591

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(1994), that the rule in People v. Lockett, 82 Ill. 2d 546, 413

N.E.2d 378 (1980), does not apply when the "subjective belief" of

the defendant is not at issue before the jury precluding an

instruction on second degree murder even though the jury is

instructed on self-defense, is an accurate statement of law. In

reversing, the Washington court adopted the defendant's argument

"that where sufficient evidence is present to support an

instruction for self-defense, a second degree murder instruction

is a mandatory counterpart." (Emphasis added.) Washington, 399

Ill. App. 3d at 676.

Subjective Belief

In Lockett, the supreme court noted the shared element of

"subjective belief" in the affirmative defense of self-defense

and in the offense of voluntary manslaughter, now known as second

degree murder. See People v. Jeffries, 164 Ill. 2d 104, 111, 646

N.E.2d 587 (1995) (effective July 1, 1987, the legislature

"abolished the offense of voluntary manslaughter, and substituted

for it the offense of second degree murder"); 720 ILCS 5/9-2(b)

(West 2006). The Lockett court illustrated the role of

subjective belief in self-defense, voluntary manslaughter, and

murder in its discussion of the three possible outcomes when a

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jury is called to assess a defendant's subjective belief.

"First, it could decide that the defendant

did not have a subjective belief that use of

force was necessary. In that case, the

verdict should be murder. Second, it could

determine that the defendant had the

subjective belief that use of force was

necessary and that subjective belief was

reasonable. In that event, the defendant's

use of force was justified and the verdict

should be not guilty. Third, a jury could

conclude that the defendant subjectively

believed that use of force was necessary, but

that this subjective belief was unreasonable

under the circumstances. This third

alternative is the precise situation in which

a verdict of voluntary manslaughter should be

reasoned under section 9-2(b)." (Emphasis

added.) Lockett, 82 Ill. 2d at 551-52.

While self-defense includes the element of subjective belief

that "a danger existed that required the use of the force

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applied," the essential showing to successfully claim self-

defense is that "the beliefs of the person threatened were

objectively reasonable." (Emphasis added.) People v. Lee, 213

Ill. 2d 218, 225, 821 N.E.2d 307 (2004). In other words, for a

verdict of not guilty by reason of self-defense, the element that

the defendant "subjectively believed a danger existed" is

equivalent to the element that "his beliefs were objectively

reasonable." Jeffries, 164 Ill. 2d at 128. Stated differently,

in the case of a successful self-defense claim under the second

alternative discussed in Lockett where "the verdict should be not

guilty," the beliefs subjectively held by the defendant and the

defendant's beliefs the jury should conclude are objectively

reasonable in finding self-defense must be one and the same.

Lockett, 82 Ill. 2d at 551 ("defendant had the subjective belief

that use of force was necessary and that subjective belief was

reasonable" (emphasis added)).

It is this distinction between a reasonable, subjective

belief to support a claim of self-defense and the unreasonable,

subjective belief involved in the offense of voluntary

manslaughter that the Lockett court acknowledged:

"The State correctly draws a distinction

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between a reasonable, mistaken belief under

section 7-1 (e.g., a reasonable belief that

the victim was coming at him with a gun when

the victim, in fact, had no gun) and an

unreasonable belief under section 9-2(b)

(e.g., a belief that the victim was coming at

him with a gun and that belief was

unreasonable). Lockett, 82 Ill. 2d at 550.

Based on a subjective belief that is unreasonable, the

voluntary manslaughter form at issue in Lockett (now second

degree murder) is often "referred to as imperfect self-defense."

Jeffries, 164 Ill. 2d at 113. The "imperfect" nature of the

self-defense claim for second degree murder is the

unreasonableness of the defendant's subjective belief that force

was justified. Jeffries, 164 Ill. 2d at 113 ("the defendant

believed he was acting in self-defense, but that belief is

objectively unreasonable").

The Lockett court made clear that a jury must be instructed

on second degree murder when the evidence places at issue before

the jury the subjective belief of the defendant. "Therefore, a

self-defense and a voluntary manslaughter instruction should be

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given when any evidence is presented showing the defendant's

subjective belief that use of force was necessary." (Emphasis

added.) Lockett, 82 Ill. 2d at 552.

In Anderson, Justice J. Gordon, writing for the fifth

division, determined that the rule in Lockett did not apply: "We

believe the holding in Lockett is inapplicable to the facts in

the instant case. In Lockett, the defendant's subjective belief

clearly was in question, and the jury had to decide whether the

defendant could reasonably believe the concealed object the

victim picked up before the defendant shot him was a gun, when it

was actually an empty whiskey bottle." Anderson, 266 Ill. App.

3d at 951.

It is no coincidence that the salient facts in this case

mirror the salient facts in Anderson. In his testimony,

defendant Anderson put the gun in the hands of the decedent.

"[T]he defendant's testimony was that Sutton [the victim] pointed

a gun at the defendant, that a struggle ensued, and that the gun

went off, fatally injuring Sutton." Anderson, 266 Ill. App. 3d

at 951. The prosecution witnesses testified, however, that the

defendant had the gun all along, walked over to the decedent and

shot him. Anderson, 266 Ill. App. 3d at 951. Based on the

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diametrically opposed versions of the salient facts, Justice J.

Gordon determined that "the defendant's subjective belief was not

in question." Anderson, 266 Ill. App. 3d at 951. "If the jury

disbelieved the defendant's testimony and believed the testimony

of the other witnesses, then there was no physical altercation

between Sutton and the defendant and, instead, the defendant was

the aggressor; had possession of the gun; walked over to Sutton;

and shot him." Anderson, 266 Ill. App. 3d at 951.

In the case before us, the defendant claimed that Thompson

had the gun, that Thompson attempted to rob the defendant and

Dante, and that the defendant acted in self-defense in killing

Thompson. That is, the shooting occurred while Thompson was

engaged in an armed robbery, which justified the defendant's

conduct "to prevent *** the commission of a forcible felony."

720 ILCS 5/7-1(a) (West 2006). The prosecution, on the other

hand, presented evidence that the defendant shot and killed

Thompson within 20 seconds after the two exited the van in an

alley to urinate. While Dante did not see the actual shooting,

he testified that the defendant admitted to having the gun used

in the shooting "the whole time," an apparent reference to the

failure of the Chicago police to discover the gun when they

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searched the defendant following the traffic stop.

The defense proposition, before the jury here and before the

Anderson jury, might best be described as a claim of perfect

self-defense. In the instant case, it is a claim of perfect

self-defense because if the jury believes the circumstances

existed as testified to by the defendant--that Thompson used his

own gun in an attempt to rob the defendant and Dante and, that in

the course of defending himself against a forcible felony, the

defendant killed Thompson--the verdict must be not guilty by

reason of self-defense. A similar claim of perfect self-defense

was presented in Anderson. "If the jury believed [the factual

scenario alleged by the defendant occurred], and that Sutton

instigated the altercation and threatened the defendant by

pointing a gun at him, then the jury could conclude that the

defendant could reasonably believe that the use of deadly force

was necessary to prevent imminent death or great bodily harm to

himself [citation]." Anderson, 266 Ill. App. 3d at 951.

The claim is one of perfect self-defense because, in effect,

each defendant implies that had the incident been videotaped, the

videotape would reveal the circumstances to be as each testified.

The same objective facts would be seen on the videotape. There

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is no overlap between the prosecution's version of the salient

facts and the defendant's. Each claim of self-defense was an

all-or-nothing proposition, prevail or be found guilty of first

degree murder.

By the same token, there was no issue regarding the

subjective belief of each defendant before the jury because each

defendant's claim was that the "facts" were such that the conduct

of each was objectively reasonable. In other words, the choice

for each jury was to find either objectively reasonable beliefs

on the part of each defendant or that each defendant "did not

have a subjective belief that use of force was necessary" and was

therefore guilty of first degree murder. Lockett, 82 Ill. 2d at

551. When a jury must choose between two irreconcilable versions

of the salient facts, such as in this case and in Anderson, the

third Lockett alternative that "a jury could conclude that the

defendant subjectively believed that the use of force was

necessary, but that this subjective belief was unreasonable under

the circumstances," is not possible. (Emphasis added.) Lockett,

82 Ill. 2d at 552. Stated in stark terms, the subjective belief

of each defendant was not at issue because, in order to reject

the claim of self-defense, the jury had to determine that each

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defendant's testimony placing the gun in the hands of the

decedent was a fabrication.

When a claim of perfect self-defense is made, the

dispositive question is not whether the use of force by the

defendant is reasonable or unreasonable under the circumstances

but, rather, which set of opposing circumstances presented by the

parties existed at the time of the incident based upon all of the

evidence: the one urged by the defendant that the decedent was

the aggressor or true criminal or the one urged by the

prosecution that the defendant killed the decedent in a senseless

act. The circumstances existed as the defendant testified or

they did not. The jury could conclude only one of two things:

either the circumstances were as the defendant testified, which

means his claim of self-defense is perfect, or the circumstances

were as the prosecution witnesses testified, which means the

defendant is guilty of first degree murder.

Though a case of perfect self-defense based on diametrically

opposed salient facts is uncommon, we understand the supreme

court to have acknowledged that such a case might arise. "The

State does not contend that the facts of this case would permit

only a conclusion of murder or not guilty by reason of self-

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defense." People v. Joyner, 50 Ill. 2d 302, 306, 278 N.E.2d 756

(1972). The trial judge below ruled that the diametrically

opposed salient facts presented by the prosecution and the

defendant's self-defense claim, which boiled down to who brought

the gun to the confrontation, permitted "only a conclusion of

murder or not guilty by reason of self-defense." Joyner, 52 Ill.

2d at 306. During the trial, the prosecution argued as much to

the jury: "As a matter of fact, ladies and gentlemen, in order to

find him not guilty, you have to believe [the defendant's]

story."

Based on the decision in Anderson, the trial judge properly

ruled that the polar-opposite facts allowed for only one of two

verdicts: if the defendant were believed, he must be found not

guilty by reason of self-defense; if the prosecution witnesses

were believed, the defendant was guilty of first degree murder.

As in Anderson, the defendant's subjective belief was not at

issue. In a case where a claim of perfect self-defense is made,

there is no room in the evidence for a finding of second degree

murder by the jury.

Exercise of Discretion

The Illinois Supreme Court in Lockett also reminded us that

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it is the record evidence that should drive the decision to

instruct the jury on second degree murder.

"It is the settled rule in murder cases that

if there is evidence in the record which, if

believed by a jury, would reduce the crime to

manslaughter, an instruction defining

manslaughter should be given. [Citations.]

It is equally well settled, however,

that such an instruction should not be given

if the evidence clearly demonstrates that the

crime was murder and there is no evidence

upon which a jury might find the defendant

guilty of manslaughter." (Emphasis added.)

Lockett, 82 Ill. 2d at 550-51.

We do not read Lockett to have changed well-settled law that

the exercise of sound discretion on the instructions to tender to

a jury turns on the trial judge's assessment of the evidence in

the record. The "clear guidelines" from the Illinois Supreme

Court direct a trial court to determine whether "some evidence"

exists that, if believed by the jury, would reduce a crime from

first degree murder to second degree murder. People v. Austin,

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133 Ill. 2d 118, 124, 549 N.E.2d 331 (1989). If some evidence

exists in the record, "a defendant's request for a [second degree

murder] instruction must be granted." (Emphasis added.) Austin,

133 Ill. 2d at 124-25. To be clear, a trial court abuses its

discretion when it makes an error of law by not instructing on

second degree murder. Washington, 399 Ill. App. 3d at 680. See

also Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d 392,

414, 116 S. Ct. 2035, 2047 (1996) (where the Supreme Court

explained that "[l]ittle turns *** on whether we label review of

this particular question abuse of discretion or de novo, for an

abuse-of-discretion standard does not mean a mistake of law is

beyond appellate correction").

Lockett did not establish, however, that a second degree

murder instruction is, by rote application, a "mandatory

counterpart" to a self-defense instruction.1 Washington, 399

1
The need to assess the evidence separately in deciding

whether to instruct on second degree murder when instructing on

self-defense has been previously noted. "I do not believe that a

finding that there are facts sufficient to require the giving of

an instruction on justifiable use of force, ipso facto, requires

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Ill. App. 3d at 676. We agree with Anderson. "We do not believe

that Lockett is so encompassing." Anderson, 266 Ill. App. 3d at

950.

In the case at bar, the jury instruction conference was held

after both sides had rested, which meant the trial judge had a

full understanding of the opposing theories put forth by the

parties. As demonstrated above, the parties presented

diametrically opposed explanations for the origin of the gun used

in the shooting, which removed the defendant's subjective belief

as an issue before the jury.

We agree with the Anderson court's determination that the

Lockett rule does not apply to cases where the defendant's

subjective belief is not at issue. Anderson, 266 Ill. App. 3d at

the giving of an instruction on voluntary manslaughter--the so-

called third alternative. *** I think there are two questions

of law involved, that is, are there sufficient facts to support

one (self-defense) and are there, again, sufficient facts, to

support the other (manslaughter)?" People v. Johnson, 1 Ill.

App. 3d 433, 435-36, 274 N.E.2d 168 (1971) (Smith, P.J.,

dissenting).

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951. It follows that in such cases, the trial court does not

abuse its discretion in failing to instruct on second degree

murder. It remains within the sound discretion of the trial

judge to assess the evidence and determine whether a second

degree murder instruction is warranted. Austin, 133 Ill. 2d at

124; Anderson, 266 Ill. App. 3d at 950-51.

To support his contention that the trial judge abused his

discretion in failing to instruct on second degree murder, the

defendant offers a single assertion in his main brief: "a jury

could have concluded that the third shot, which ultimately killed

Thompson, was unreasonable given the effect of the first two."

The defendant cites no authority for his implied contention that

the jury is free to parse one of three shots as being

unreasonable. Nor does the defendant argue that each of the

three shots constituted " 'separate and distinct acts' ***

capable of independently sustaining a complete criminal

conviction" as the supreme court discussed in People v. Crespo,

203 Ill. 2d 335, 340, 788 N.E.2d 1117 (2001). Accordingly, the

defendant's argument based on the claimed unreasonableness of the

third shot is forfeited. See 210 Ill. 2d R. 341(h)(7).

On its merits, the defendant's assertion is unpersuasive. A

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similar contention by the State to parse the acts of a defendant

into separate offenses was rejected by the Illinois Supreme Court

in Crespo. Unless the charging instrument evinces otherwise, the

State is barred from treating "the conduct of defendant as

multiple acts in order [to obtain] *** multiple convictions."

Crespo, 203 Ill. 2d at 345. We are unpersuaded that a different

rule should apply when it is the defendant that seeks to

apportion his beliefs among the various shots he fired at

Thompson.

The real question before us is whether "some evidence"

exists in the record to support a second degree murder

instruction. Austin, 133 Ill. 2d at 124-25. According to the

defendant, all three wounding shots were fired when he gained the

upper hand during the armed robbery attempt by Thompson. In

order to find the defendant guilty of second degree murder, the

jury would have to first find the State proved each proposition

for first degree murder beyond a reasonable doubt, including

"that the defendant was not justified in using the force which he

used." Illinois Pattern Jury Instructions (IPI), Criminal, No.

7.06 (2006). The burden would then fall on the defendant to

prove "by a preponderance of the evidence that [the] mitigating

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factor [of unreasonable belief] is present" to reduce the offense

to second degree murder. IPI, Criminal, No. 7.06 (2006). We

note, the State did not charge the defendant with first degree

murder based solely on the third and fatal shot. The defendant

fails to inform us of any facts in the record to support his

claim that the jury could find he was justified in shooting

Thompson twice, but he had the unreasonable subjective belief

that shooting Thompson for a third time was necessary. See

People v. Sample, 326 Ill. App. 3d 914, 928, 761 N.E.2d 1199

(2001) ("To parse the crimes out into bounded acts would

contradict the reality that these crimes were intertwined both

temporally and functionally"). It is telling that no "state of

mind" testimony to support such a claim was ever elicited from

the defendant. Cf. People v. Keefe, 209 Ill. App. 3d 744, 751,

567 N.E.2d 1052 (1991) (when the defendant's state of mind is

material to the issue of self-defense, he should be allowed to

testify "that he feared for his life or that he was in danger of

great bodily harm"). We find no basis to support the defendant's

claim that the jury should have been instructed on second degree

murder based on the third shot.

That rules apply equally to the prosecution and defense

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means that the exception to the Lockett rule first announced in

Anderson, that we apply here, may yet benefit a defendant under

different circumstances. When the prosecution and defense

present diametrically opposed circumstances of a shooting, with

credible evidence presented on behalf of the defendant, the

parties may well change sides on this issue. A case may arise

where the State requests the jury be instructed on second degree

murder, with the defendant objecting to the tender of such an

instruction. Such a defendant may object to a second degree

murder instruction because he or she wants the jury to choose

between the State's witnesses and the credible defense witnesses,

thereby avoiding the possibility of a compromise verdict. See

People v. Dixon, 58 Ill. App. 3d 557, 560, 374 N.E.2d 900 (1978)

(defendant claimed error when the jury was instructed on

voluntary manslaughter over his objection because "giving such

instructions relieved the jurors of the need to make this

decision by presenting them with an easier compromise verdict").

Under the holding in Anderson and the instant case, such a

maneuver by the prosecution when faced with a claim of perfect

self-defense should be rejected.

Based on the evidence presented, the trial judge here did

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not abuse his discretion in refusing to instruct the jury on

second degree murder. The jury could conclude only one of two

things: either the circumstances were as the defendant testified,

which means the defendant was not guilty by reason of self-

defense, or the circumstances were as the prosecution witnesses

testified, which means the defendant was guilty of first degree

murder. Anderson, 266 Ill. App. 3d at 951.

Self-Defense Claim

Having set out the diametrically opposed evidence presented

by the defendant and the prosecution in addressing the earlier

issues, we say little to reject the defendant's final contention

that the prosecution failed to overcome beyond a reasonable doubt

his claim of self-defense. It was for the jury to decide which

of the two opposing sets of circumstances it found credible. See

People v. Feyrer, 269 Ill. App. 3d 734, 743, 646 N.E.2d 1244

(1994) ("the jury was not required to accept defendant's

testimony and version of events as true").

CONCLUSION

The evidence below presented irreconcilable accounts of the

shooting death of Charles Thompson. Based on the State's

evidence, the defendant used his own gun to shoot and kill

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Thompson. In the defendant's account, it was Thompson who, while

armed with a gun, attempted to rob the defendant and his brother.

After wrestling the gun away from Thompson, the defendant shot

and killed Thompson. Although the facts before the jury

warranted a self-defense instruction based on the defendant's

version of the events, there is no evidence to support a middle

ground between guilty of murder and not guilty by reason of self-

defense. Judge Kirby did not err in not instructing on second

degree murder because no evidence existed that could reduce first

degree murder to second degree. Because no rational trier of

fact could find the defendant guilty of second degree murder, we

find no basis to grant the defendant a new trial.

Affirmed.

HALL, P.J., and PATTI, J., concur.

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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_________________________________________________________________

PEOPLE OF THE STATE OF ILLINOIS
Plaintiff-Appellee,

v.

LAVELLE BILLUPS,
Defendant-Appellant.
________________________________________________________________

No. 1-08-1383

Appellate Court of Illinois
First District, First Division

Filed: August 23, 2010
_________________________________________________________________

JUSTICE GARCIA delivered the opinion of the court.

HALL, P.J., and PATTI, J., concur.
_________________________________________________________________

Appeal from the Circuit Court of Cook County
Honorable John Kirby, Judge Presiding
_________________________________________________________________

For PLAINTIFF- Anita Alvarez
APPELLEE State's Attorney, County of Cook

Alan J. Spellberg
Douglas P. Harvath
Miles J. Keleher
Assistant State's Attorneys, Of Counsel
Richard J. Daley Center, Room 309
Chicago, IL 60602

For DEFENDANT- Paul E. Wojciciki
APPELLANT Jason A. Higginbotham
Segal McCambridge Singer & Mahoney, Ltd.

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Willis Tower 5500
233 South Wacker Drive
Chicago, Illinois 60606

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