People v. Salcedo

ILLINOIS OFFICIAL REPORTS
Appellate Court

People v. Salcedo, 2011 IL App (1st) 083148

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JOSE SALCEDO, Defendant-Appellant.

District & No. First District, Fourth Division
Docket No. 1-08-3148

Filed June 9, 2011
Rehearing denied August 30, 1022
Held On appeal from defendant’s convictions for first degree murder and
(Note: This syllabus aggravated discharge of a firearm, the appellate court had jurisdiction,
constitutes no part of even though defendant’s notice of appeal was filed more than 30 days
the opinion of the court after sentencing, since the State participated in the hearing on defendant’s
but has been prepared untimely motion to reconsider without objection and defendant’s notice
by the Reporter of of appeal was filed just a few days after the motion was denied, and
Decisions for the defendant’s convictions were upheld where the trial court complied with
convenience of the Supreme Court Rule 431(b) and gave the potential jurors an opportunity
reader.)
to indicate whether they understood the Zehr principles by asking if they
had any “difficulty or quarrel” with those principles.

Decision Under Appeal from the Circuit Court of Cook County, No. 05-CR-25129; the
Review Hon. Stanley J. Sacks, Judge, presiding.

Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Michael G. Soukup, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan Spellberg, Kathleen
Warnick, and Emma Nowacki, Assistant State’s Attorneys, of counsel),
for the People.

Panel PRESIDING JUSTICE LAVIN delivered the judgment of the court, with
opinion.
Justices Pucinski and Sterba concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, defendant Jose Salcedo was found guilty of the first degree murder
of Keith Thomas (720 ILCS 5/9-1(a) (West 2004)) and aggravated discharge of a firearm
(720 ILCS 5/24-1.2(a)(2) (West 2004)). The trial court sentenced defendant to 28 years in
prison for first degree murder, an additional 25 years in prison for discharging a firearm
causing death and a concurrent 10-year prison term for aggravated discharge of a firearm. On
appeal, defendant asserts that (1) the trial court failed to comply with Illinois Supreme Court
Rule 431(b) (eff. May 1, 2007); (2) the trial court erroneously submitted an initial aggressor
instruction to the jury; (3) the trial court improperly prohibited defendant from presenting
evidence regarding the victim’s prior act of aggression; and (4) trial counsel was ineffective
for stipulating to the recovery of firearm-related evidence from defendant’s home. We affirm.

¶2 I. BACKGROUND
¶3 The unfortunate events that led to the death of Keith Thomas occurred as he was driving
to pick up his mother at a Chicago Transit Authority (CTA) elevated train station in the late
afternoon of September 28, 2005. As he drove north on Pulaski Road, Thomas was shot
several times by defendant, who claimed that the victim had struck his motor vehicle at least
once and then allegedly brandished a gun at defendant. Defendant fled the scene, but was
apprehended several days later. A subsequent search of the victim and his automobile
revealed no weapons, just his dead body with a cell phone in his lap. While it was undisputed
that defendant was the individual who shot the victim, a major controversy at trial concerned
whether the alleged vehicular collision contributed to the defendant’s decision to shoot the
victim, on the basis that he felt in fear for his life.
¶4 The State and the defendant obviously pursued diametrically opposing theories at trial.
The State’s theory was that on the day in question, the victim and defendant were both
driving when the victim allegedly bumped into defendant’s car and continued driving. As a
result, defendant became angry, chased the victim and intentionally fired multiple shots into

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 the victim’s car, resulting in his death. The State also argued that because defendant was the
initial aggressor, he could not have acted in self-defense or the unreasonable belief that self-
defense was warranted. Defendant testified he was driving with his three-year-old son when
the victim intentionally struck defendant’s car. Defense counsel argued that defendant, who
had a heightened sense of fear for his safety because he had previously been shot, believed
he saw a silver gun in the victim’s hand and fired multiple shots at him. Counsel dealt with
the absent weapon by arguing that the gun may have been removed from the car or that
defendant mistakenly believed that the silver cell phone was a gun. Counsel asked the jury
to find defendant not guilty based on self-defense or, alternatively, guilty of second degree
murder based on an unreasonable belief that self-defense was warranted.
¶5 Michael Considine testified, in pertinent part, that at about 5:30 p.m. on September 28,
2005, he was on his way to pick up his mother from the CTA Orange Line train station when
he stopped his car facing east at a red light at the intersection of 51st Street and Pulaski Road.
He then heard multiple gunshots and looked in the direction of where the shots had been
fired. He saw a white or grey car, which had been stopped facing north in the left turning
lane, drift toward oncoming southbound traffic and stop at the curb. Next to the passenger
side of that car was a red car, which continued to drive north at a high speed. Considine
called 911 and looked inside the grey car but did not see a cell phone. He did not put the car
in park and did not see anyone else put his or her hand inside the car. When the police
arrived, Considine described the red car and its driver.
¶6 Officer John Svienty testified that on September 28, 2005, he and his partner were
assigned to this investigation. When they arrived at 5054 South Pulaski Road at 5:45 p.m.,
Officer Svienty saw a grey car facing northwest in the southbound lanes and an unresponsive
individual inside. The individual and his car had been shot and a grey cell phone was on his
lap. Officer Svienty spoke to Considine, who relayed what he had seen and described the
offender and his car. After looking at a photograph showing that the victim’s gearshift was
in park, Officer Svienty testified that he did not move the gearshift to park and did not know
who did. He did not recover anything from the interior of the car.
¶7 Detective Roger Murphy testified that when he and his partner arrived at the scene at
about 6:15 p.m. on the day in question, the weather was cold, rainy and windy. Detective
Murphy saw the victim in a grey car and observed a cell phone on his lap. He also observed
damage to the victim’s car, specifically, scrapes on the front left bumper, bullet holes in the
passenger side door and shattered glass. Detective Murphy also found fired cartridge cases
from a semiautomatic handgun and spoke to Considine, who described the offender and his
car, which was last seen going north on Pulaski Road.
¶8 Forensic investigator Donald Fanelli testified that when he arrived at the scene at about
7 p.m., he assisted with the recovery of firearm evidence, including .45-caliber bullets and
cartridge cases. Upon being shown photographs of the scene, Detective Fanelli testified there
were two lanes and an additional turning lane in each direction and that a grey cell phone was
in the victim’s lap. Detective Fanelli did not find a gun inside the victim’s car.
¶9 Marie Slaga, the victim’s mother, testified that on the day in question, the 19-year-old
victim drove her in their grey or silver Chevrolet Malibu to the CTA Orange Line train

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 station at 51st and Pulaski Road to go to work. At 4:30 p.m., they spoke on the phone and
arranged for him to pick her up from the same station at about 6:10 p.m. When Slaga arrived,
she observed significant traffic, crime scene tape and police officers. She called the victim
to tell him not to pick her up but could not reach him. When Slaga walked toward the police
officers, she was told that someone had been shot and a grey car was involved. She then
recognized her own car, which was at an angle facing north in the southbound lanes of
Pulaski Road, and she learned from detectives that her son had been shot.
¶ 10 The parties stipulated to the testimony of several police officers, including Officer
Alfonso Castillo, who would testify that he obtained a warrant to search defendant and his
apartment regarding a separate investigation. As Officer Castillo and his partner were
conducting surveillance outside the apartment on October 3, 2005, they saw defendant drive
a maroon 2000 Chevrolet Impala out of his garage. The officers stopped him, recovered his
apartment keys and seized his car. Inside the apartment, officers recovered a .45-caliber
semiautomatic Ruger firearm, a magazine containing seven .45-caliber rounds of ammunition
and an additional round in the chamber of the firearm. The officers recovered a second
magazine loaded with six .45-caliber rounds of ammunition, a plastic firearm case and a 9-
millimeter Davis Industries pistol, which had two 9-millimeter rounds in its chamber. The
officers also recovered a box of .357 Magnum Winchester ammunition, a box of 9-millimeter
Winchester ammunition and a box of .45-caliber Winchester ammunition. In addition, the
officers recovered a bulletproof vest, defendant’s ‘identification cards” and additional pieces
of identification showing defendant lived there. When the officers arrested defendant, they
observed that his physical description and car matched the description of the person who shot
the victim in this case. Officer Castillo also recalled that a .45-caliber gun was used in the
shooting. As a result, he notified the appropriate detectives of defendant’s arrest.
¶ 11 Detective John Murray testified that on October 3, 2005, he was assigned to this
investigation. When he arrived at work the next day, he learned that defendant had been
arrested the day before and was in the custody of a different division of the police station.
Upon the request of Detective Szudarski and Detective Murray, defendant was released to
their custody and placed in an interview room, where the detectives turned on a recording
device. After the detectives took defendant to the restroom, he gave a statement. Detective
Murray testified that he never told defendant what he should or should not say and that the
detectives did not speak to him in the hallway to the restroom. During Detective Murray’s
testimony, defendant’s statement was published for the jury.
¶ 12 The video shows that after advising defendant of his rights and giving him food,
Detective Murray and Detective Szudarski escorted defendant to the restroom. When they
returned a few minutes later, defendant told the detectives he was driving on Pulaski Road
at about 54th Street after dropping his girlfriend off, when the victim moved behind
defendant and hit him a “little bit.” The victim then passed defendant on his right, apparently
referring to defendant’s passenger side. Defendant stated that the victim “didn’t hit me hard
but he bumped me.” Defendant also stated that the victim cut in front of defendant’s car and
other cars. The two men did not know each other and no words were exchanged. At first,
defendant stalled because he did not want to “deal with” the situation but he became angry
because his “shorty” was in the car. Referring to the victim, defendant said, “he tried to get

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 away from me” and then entered the turn lane. Defendant stated that as a result, he “caught
up” to the victim and shot him six times with a .45-caliber gun. Defendant further indicated
he did not unload the entire clip because he did not want to kill the victim. After the
shooting, defendant continued driving on Pulaski Road and went home. Toward the end of
the video, defendant was asked if he wanted anything else. Defendant himself did not provide
any additional details regarding the shooting at that time, but he raised a number of matters
when he testified at trial. Detective Murray testified that after defendant made his statement,
evidence technicians were directed to photograph and remove a section of bumper from both
defendant’s car and the victim’s car.
¶ 13 The parties stipulated that forensic investigator Steven Strzepek would testify that he
recovered the left front corner bumper of the victim’s car and the right rear corner bumper
of defendant’s car. In addition, forensic scientist Scott Rochowicz testified that he was
assigned to compare the sections of bumper taken from the two cars, but he did not see signs
of possible paint transfer. Although the bumper from the maroon car had a white to light-grey
colored smear, the smear contained an insufficient quantity to do a comparison. In addition,
the victim’s bumper was heavily scratched and stained but the stain was not maroon paint.
Forensic scientist Leah Kane testified that fired bullets and cartridge cases recovered from
the scene were fired from the .45-caliber Ruger firearm recovered from defendant’s home.
The parties further stipulated that Dr. Michelle Jorden would testify that the victim’s autopsy
revealed one entry gunshot wound to the back of the upper right arm and one entry wound
to the upper right back. She opined that the victim died from multiple gunshot wounds in the
manner of homicide. When the State rested its case, the trial court granted its motion in
limine to prohibit defendant from presenting the statements of Sandy Carrillo, the victim’s
girlfriend, regarding the victim’s alleged aggressive driving.
¶ 14 Defense counsel presented the testimony of Roberto Rodriguez, who testified that in
2005, he was employed by an auto repair shop which defendant frequented. Although
Rodriguez could not remember the exact date, at some point near September 28, 2005,
defendant brought his maroon or red car to Rodriguez for repairs. The car had sustained
damage to the rear quarter panel of the passenger side. Rodriguez removed a dent from the
bumper and buffed the car but did not paint it. Even after the repairs, there was still visible
damage to the car. Because Rodriguez did the work “on the side,” no paperwork was
generated.
¶ 15 Defendant, who was 23 years old at the time of the incident, testified that on the evening
in question, he and his son had been driving home after dropping off Verenise Vasquez,
defendant’s girlfriend, at Daley College. The weather was rainy and windy. Defendant was
driving northbound on Pulaski Road when he saw a grey car behind him at about 54th Street.
When defendant first saw the car, it swerved behind him and hit the back of his car.
Defendant “heard the bumper crack” but felt the impact only “a little bit.” Defendant,
believing it was an accident, activated his right turn signal to pull over. As he did so, the grey
car hit them from the right side of the car at the back quarter panel. Defendant began
swerving but regained control of the car. At that point, defendant “knew it was intentional,
on purpose,” because the grey car’s driver did not respond to defendant’s signal to pull over
and instead, hit his car a second time.

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¶ 16 Defendant testified that as this was happening, he was frightened due to an incident
which occurred in 2000, when a van hit the car that he and his sister were traveling in at
about 28th Street and Pulaski Road and a person in the van subsequently pointed a gun at
them. Defendant and his sister were able to escape and no shots were fired. Defendant also
testified that about six years before trial, he was at 30th Street and South Komensky Avenue
when he was shot three times. In addition, he owned a bulletproof vest because he was afraid
of being shot again. He usually took the vest with him when he left home but was not
wearing it during his encounter with the victim.
¶ 17 Defendant continued, testifying that the grey car then “cut me off by my right side” and
went around defendant on his left side. Defendant did not pull over and call the police at that
time because the incident happened very quickly. He did, however, remove his gun from his
waistband, keeping the gun out of sight from other drivers. He held the gun in his right hand
and drove with his left hand. In addition, defendant rolled down his window because the rain
obstructed his view of the grey car. As he continued to drive forward in the same lane, he
slowed down due to traffic and a red light at 53rd Street, rather than weaving in and out of
traffic to catch up with the grey car. Defendant then saw the grey car, which was about two
car lengths ahead of him in the left turn lane. As defendant was passing the grey car, he saw
something grey in the driver’s hand and believed it was a gun. Defendant then fired five or
six shots “[r]eal fast” without aiming his gun. He was scared because “either it was him or
me and I got my son in the back seat.” Defendant also testified that the whole incident
happened very quickly and he did not know how much time passed between the second
impact and the time he fired his gun.
¶ 18 After the shooting, defendant was afraid and drove home, although not at a high speed.
Defendant did not know the victim had died and was afraid the victim was going to shoot
him. When defendant arrived at home, he put the gun away but did not contact the police
because he was scared. Following the shooting, defendant’s back bumper was pushed in on
the passenger side, his quarter panel was “crunched up” and the dent was “[p]retty big.” He
had the dent repaired and the car buffed but did not have the car repainted.
¶ 19 Defendant testified that on October 3, 2005, the police came to the apartment where he
lived with Vasquez and their sons to execute a search warrant. Defendant was taken into
custody because of the two loaded weapons, ammunition and bulletproof vest recovered from
his home. At the police station, defendant was interviewed twice by different police officers.
When counsel asked what the officers had asked defendant during the first interview, he
answered, “[t]hey were asking me about the drug case.” On the day after defendant’s arrest,
he spoke to Detective Murray and Detective Szudarski. When the officers were transporting
defendant to and from the restroom, they asked him what happened. Defendant testified that
before he explained his account of events to the detectives, “[t]hey pretty much [told] me that
somebody was ramming me and I was with my son.” Defendant testified that although the
detectives told him that he was scared and shot the victim six times because he was
defending himself, it happened to be true. At some point, defendant learned that the victim
had been killed in the shooting. Although defendant said in his statement that the victim
bumped his car a “little bit,” he was referring to the first collision. Defendant testified that
the police did not let him talk, but, rather, they kept talking and telling him what happened.

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¶ 20 Verenise Vasquez testified that on September 28, 2005, she lived with defendant and
their two sons. When defendant drove Vasquez to class in her maroon Chevrolet Impala that
evening, their three-year-old son was in the car and it was raining heavily. She did not see
a .45-caliber firearm in the car.
¶ 21 Detective Murray testified in rebuttal that he did not suggest to defendant what happened
on September 28, 2005. Following closing arguments, the jury was instructed on first degree
murder, second degree murder based on an unreasonable belief that self-defense was
warranted, self-defense and the limited availability of self-defense to an initial aggressor.

¶ 22 II. JURISDICTION
¶ 23 As a threshold matter, we must determine whether this court has jurisdiction in light
of the passage of more than 30 days between sentencing and the filing of both defendant’s
motion to reconsider his sentence and notice of appeal. Although this issue was not raised
by the parties in their original briefs, they were afforded an opportunity to address this issue
in a supplemental brief. See People v. Gargani, 371 Ill. App. 3d 729, 731 (2007) (the
appellate court has an independent duty to ensure that it has proper jurisdiction and will
consider jurisdictional issues even where neither party has raised them).
¶ 24 Pursuant to Illinois Supreme Court Rule 606(b) (eff. Sept. 1, 2006), a notice of appeal
must be filed within 30 days after the entry of the final judgment being appealed from or
within 30 days after the entry of an order disposing of a timely filed motion directed against
the judgment. People v. Gutman, 401 Ill. App. 3d 199, 209 (2010), appeal allowed, 237 Ill.
2d 572 (2010); People v. Lindmark, 381 Ill. App. 3d 638, 651 (2008). In a criminal case, the
sentence is the final judgment (Gutman, 401 Ill. App. 3d at 209) and a motion to reconsider
a defendant’s sentence must be filed within 30 days of sentencing (730 ILCS 5/5-8-1(c)
(West 2008)). Thus, ordinarily, the trial court loses jurisdiction 30 days after the final
judgment was entered unless a timely postjudgment motion has been filed. People v. Gibson,
403 Ill. App. 3d 942, 948 (2010).
¶ 25 Here, defendant was sentenced on September 15, 2008. As a result, he had until October
15, 2008, to either file a motion to reconsider his sentence, thereby extending the trial court’s
jurisdiction, or file a notice of appeal, thereby vesting this court with jurisdiction. Defendant
did not, however, file his motion to reconsider until October 31, 2008, and did not file his
notice of appeal until November 7, 2008. Neither filing was timely. Although the trial court
denied defendant’s motion on October 31, 2008, the trial court had lost jurisdiction by then.
Defendant contends and the State concedes that despite the otherwise untimely filing of
defendant’s motion to reconsider, the trial court retained jurisdiction by granting defendant
an extension of time in which to file his motion to reconsider. Without specifically deciding
that the trial court would have the authority to take such an action, we find that the record
does not support their position.
¶ 26 Following sentencing, the court entered a continuance to October 8, 2008. Defendant
correctly asserts that on that date, defense counsel, Stephen Komie, filed a “motion for
continuance due to engagement of counsel,” in which he represented that he was engaged in
an unrelated trial which would require three weeks to complete and prevented him from

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 appearing in court that day. Counsel also stated that he was the only attorney in his firm with
knowledge of defendant’s case and the ability to provide competent representation “at any
evidentiary trial or hearing.” In counsel’s prayer for relief, he sought a continuance. Notably
absent from this motion is any indication that the unrelated trial impacted his ability to file
a motion to reconsider defendant’s sentence or a request that counsel be given an extension
of time to file such a motion. We also note that despite the motion’s suggestion that only
Komie had knowledge of defendant’s case, it appears that attorney Eric Anderson also
appeared on defendant’s behalf and was present for the majority of the trial.
¶ 27 On the same date, Anderson appeared in court on Komie’s behalf and stated, “we do still
intend to file a motion to reconsider as well as have a hearing on that. And we have filed a
motion to continue today due to an engagement of counsel.” When the trial court asked how
long Komie would be unavailable, Anderson represented that Komie would not be available
until October 31, 2008. The court then stated, “[a]s far as 05-25129, it’s continued for post-
trial motions and sentencing.” None of the legal banter at that hearing can reasonably be
considered a request for, or a grant of, an extension of time until October 31, 2008, for
defendant to file his motion to reconsider. The discussion reflects a mere request that the
hearing on any timely filed motion would be continued until October 31, 2008. We note that
at this hearing on October 8, 2008, defendant still had seven days to file a motion to
reconsider. Thus, Anderson’s indication that defendant still intended to file a motion to
reconsider in no way places doubt on the clear meaning of that request. The State adds to
defendant’s argument that at the hearing on October 31, 2008, defense counsel stated,
“Judge, you were kind enough to continued [sic] this for our motion to reconsider sentencing.
We filed that with your Honor.” Again, it would be an abuse of the English language to
suggest that an extension of time to file a motion had been requested or granted.
¶ 28 Defendant alternatively argues that the trial court was revested with jurisdiction. Pursuant
to the revestment doctrine, parties may revest a trial court with personal and subject matter
jurisdiction more than 30 days following a final judgment where they actively participate in
proceedings which are inconsistent with the merits of the prior judgment. People v.
Bannister, 236 Ill. 2d 1, 10 (2009). A party’s conduct may be inconsistent with the prior
judgment where the conduct can reasonably be construed as an indication that the parties do
not view the prior judgment as final and binding. Gibson, 403 Ill. App. 3d at 948; Gutman,
401 Ill. App. 3d at 210. It is active participation, rather than mere consent, that revests
jurisdiction. Gargani, 371 Ill. App. 3d at 731; People v. Minniti, 373 Ill. App. 3d 55, 66
(2007). If the trial court is revested with jurisdiction, the appellate court will be vested with
jurisdiction by the filing of a notice of appeal within 30 days after the ruling on the untimely
postjudgment motion. Gutman, 401 Ill. App. 3d at 210; Lindmark, 381 Ill. App. 3d at 652.
¶ 29 Here, at the hearing on October 31, 2008, the State did not merely consent to the
proceedings but, rather, argued why defendant’s motion should be denied on its merits. This
was inconsistent with the finality of the prior judgment. See Gibson, 403 Ill. App. 3d at 948
(rejecting the State’s assertion that revestment did not apply where it simply maintained its
original position that the sentence was proper and holding that if the State had wished to take
a position consistent with the prior judgment, it should have objected to any proceedings as
being untimely); see also Minniti, 373 Ill. App. 3d at 66. By participating rather than

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 objecting to the hearing, the State essentially acknowledged that the previous sentencing
judgment should be revisited. See Lindmark, 381 Ill. App. 3d at 652. We decline the State’s
request to depart from this court’s prior cases finding such conduct to be sufficient for
revestment. Furthermore, we disagree with the State’s contention that our supreme court’s
opinion in Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539-40 (1984), requires that
both parties specifically seek to set aside the judgment and retry the case in order for the
revestment doctrine to apply. We find nothing in that case requiring that both parties overtly
seek to set aside the judgment but, rather, find the opinion to be consistent with this court’s
cases finding that revestment may apply where one party challenges the prior judgment and
the other party conducts itself in a manner which is inconsistent with acknowledging the final
and binding nature of that judgment. Accordingly, because the trial court was revested with
jurisdiction on October 31, 2008, defendant’s notice of appeal filed on November 7, 2008,
was timely and we have jurisdiction to consider his appeal.

¶ 30 III. SUPREME COURT RULE 431(b)
¶ 31 On appeal, defendant first asserts the trial court failed to ensure that jurors understood
certain principles as required by Supreme Court Rule 431(b). Initially, the State contends
defendant forfeited this issue by failing to object and include this issue in a posttrial motion.
People v. Thompson, 238 Ill. 2d 598, 611-13 (2010). Defendant argues that even if this issue
was forfeited, the court’s lack of compliance constituted plain error. Pursuant to the plain
error doctrine, we will review an unpreserved error where (1) the evidence is closely
balanced, regardless of the seriousness of the error; or (2) the error is serious, regardless of
the closeness of the evidence. People v. Davis, 405 Ill. App. 3d 585, 590 (2010). Plain error
analysis requires however, that we first determine whether any error occurred at all.
Thompson, 238 Ill. 2d at 613. We find no error.
¶ 32 Rule 431(b) codified our supreme court’s decision in People v. Zehr, 103 Ill. 2d 472
(1984), which held that the trial court erred by refusing the defendant’s request to ask the
venire about four fundamental principles of law. Zehr, 103 Ill. 2d at 47-78. The four Zehr
principles are as follows: (1) the defendant is presumed innocent; (2) the defendant must be
proved guilty beyond a reasonable doubt; (3) the defendant is not required to produce any
evidence; and (4) the defendant’s failure to testify cannot be held against him. Zehr, 103 Ill.
2d at 477. According to Rule 431(b), the trial court must address the Zehr principles and
“shall ask each potential juror, individually or in a group, whether that juror understands and
accepts” those principles. Ill. S. Ct. R. 431(b) (eff. May 1, 2007). In addition, “[t]he court’s
method of inquiry shall provide each juror an opportunity to respond to specific questions
concerning the principles set out in this section.” Ill. S. Ct. R. 431(b) (eff. May 1, 2007). No
magic words are required to satisfy the mandate of Rule 431(b). People v. Ingram, 409 Ill.
App. 3d 1, 12 (2011).
¶ 33 Defendant does not dispute that the court conveyed the requisite principles to the jury but
contends that it was insufficient for the court to ask jurors whether they had any “difficulty
or quarrel” with those principles. Specifically, defendant contends that such language did not
give the jurors an opportunity to indicate whether they understood the principles. This court

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 has previously held it was sufficient for the trial court to ask whether the jury had “any
difficulty or quarrel” with the Zehr principles. Ingram, 409 Ill. App. 3d at 12; see also People
v. Atherton, 406 Ill. App. 3d 598, 611 (2010) (asking jurors whether they had “difficulties”
with the propositions was another way of asking whether they understood). We find that any
juror who did not understand one of the Zehr principles would have answered that he was
experiencing “difficulty,” a word which would certainly encompass a lack of understanding.
Accordingly, we find no error.

¶ 34 IV. INITIAL AGGRESSOR INSTRUCTION
¶ 35 Defendant next asserts the trial court committed reversible error by giving the jury the
initial aggressor instruction because it was unsupported by the evidence and it harmed him
by permitting the jury to find he was required to retreat instead of continuing to drive in the
same direction, thereby foreclosing his claim of self-defense. See In re T.W., 381 Ill. App.
3d 603, 613 (2008) (a person who is not the initial aggressor does not have a duty to retreat);
People v. Ellis, 107 Ill. App. 3d 603, 614 (1982) (“an initial aggressor must retreat before he
regains the privilege to use force”). Initially, we reject defendant’s assertion that our standard
of review is de novo. Because defendant contends that no initial aggressor instruction should
have been given, rather than asserting that the instruction given was inaccurate, we review
the trial court’s decision for an abuse of discretion. See People v. Hammonds, 399 Ill. App.
3d 927, 938 (2010) (we review the trial court’s decision that an instruction applies to a case
and thus, should be submitted to the jury, for an abuse of discretion; however, we review de
novo whether the applicable law was accurately conveyed).
¶ 36 At trial, the jury was instructed on defendant’s theory that he acted in self-defense (720
ILCS 5/7-1 (West 2004)) and was also instructed on his theory that he acted in the
unreasonable belief that self-defense was justified, warranting a conviction for second degree
murder (720 ILCS 5/9-2(a)(2) (West 2004)). As a counterpart, the jury also received the
following initial aggressor instruction:
“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.”
See Illinois Pattern Jury Instructions, Criminal, No. 24-25.09 (4th ed. 2000).
¶ 37 The State and the defendant are both entitled to have the jury presented with instructions
as to their theories of the case, and even very slight evidence regarding a theory justifies an
instruction. People v. Floyd, 262 Ill. App. 3d 49, 55 (1994). An initial aggressor instruction
is warranted by the evidence when the State presents evidence showing the defendant to be
the aggressor or, where the case involves a question of whether he was the aggressor. People
v. Brown, 406 Ill. App. 3d 1068, 1079 (2011). When the jury is given the initial aggressor
instruction along with instructions pertaining to the justifiable use of force, the jury may
resolve the evidence pursuant to either hypothesis. Floyd, 262 Ill. App. 3d at 56. Thus,
submitting such an instruction to the jury does not erroneously assume that the defendant was

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 in fact the initial aggressor (Floyd, 262 Ill. App. 3d at 56) but, rather, permits the jury to
identify the initial aggressor (People v. Toney, 337 Ill. App. 3d 122, 138 (2003)).
¶ 38 Defendant argues the evidence clearly showed that the victim was the aggressor because
defendant testified that the victim intentionally struck defendant’s car, disregarded his use
of a turn signal as an indication to pull to the side of the road and, instead, struck his car a
second time. The jury was entitled to reject such testimony, particularly because defendant’s
prior statement referred to only one minor collision. Notwithstanding defendant’s prior
statement, the severity of the resulting damage was also in question at trial. At a minimum,
the jury could have found that despite defendant’s conclusion that the victim was acting
intentionally, his behavior indicated he accidentally hit defendant’s car. Not only was the jury
entitled to reject defendant’s testimony regarding the collisions, but it was also entitled to
find that the victim ended any such aggressive encounter when, according to defendant’s own
testimony, the victim subsequently passed defendant and continued driving. See People v.
De Oca, 238 Ill. App. 3d 362, 368 (1992) (the trier of fact was entitled to find that the
defendant was the initial aggressor where evidence indicated the prior fistfight had already
ended and the situation transformed into a different encounter when defendant displayed a
gun). Although defendant contends that there was no significant break in time after the
collisions based on his testimony that the incident happened very quickly, the State contends
that it did not happen quickly because it occurred over the span of a few blocks. The duration
of the incident was clearly in dispute and it was for the jury to decide whether the initial
encounter ended. More importantly, the jury was entitled to find that defendant became the
aggressor. See People v. Heaton, 256 Ill. App. 3d 251, 257 (1994) (a nonaggressor has a duty
not to become the aggressor). In light of defendant’s statement to the police, the jury could
find that he was angry and “caught up” to the victim in an aggressive manner while
displaying a gun. See Brown, 406 Ill. App. 3d at 1079 (the right of self-defense will not
justify killing the original aggressor either for the purpose of retaliation or where the original
aggressor has abandoned the confrontation); De Oca, 238 Ill. App. 3d at 367 (a defendant
may become the initial aggressor by pointing a loaded gun). The jury was not required to
believe defendant’s testimony that his gun was not visible to other drivers.
¶ 39 Defendant further contends that for the initial aggressor instruction to apply, three
steps must be reflected in the evidence: (1) the defendant first acts in an aggressive manner;
(2) the victim then uses force against the defendant; and (3) the defendant uses additional
force against the victim. Defendant argues that because the instruction requires two
aggressive acts by a defendant and here, the evidence presented at trial supports only one
such act, i.e., defendant’s shooting of the victim, the initial aggressor instruction is
inapplicable. Defendant’s position is refuted by the record. As stated, the jury could find that
defendant’s conduct in displaying a weapon before he “caught up” to the victim was an act
of aggression. Thus, the trial court properly submitted the initial aggressor instruction to the
jury.

¶ 40 V. VICTIM’S PRIOR ACT OF AGGRESSION
¶ 41 Defendant further asserts that the trial court erred by prohibiting him from presenting the

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 testimony of Sandy Carrillo, the victim’s girlfriend, who would testify to a prior incident in
which she and the victim were having an argument when the victim intentionally drove into
another car because he was angry, relying on People v. Lynch, 104 Ill. 2d 194 (1984). It is
within the trial court’s discretion to determine whether such evidence is admissible and
relevant and a trial court’s decision in this regard will not be reversed absent a clear abuse
of discretion. People v. Morgan, 197 Ill. 2d 404, 455 (2001). We find no abuse of discretion
here.
¶ 42 Pursuant to Lynch, when self-defense is properly raised, the defendant may offer evidence
of the victim’s aggressive and violent character for two purposes, the first of which is to
demonstrate the defendant’s knowledge of the victim’s tendencies that affected both his
perception and reaction to the victim’s behavior. People v. Figueroa, 381 Ill. App. 3d 828,
841 (2008). The second purpose, however, is implicated where there are conflicting accounts
regarding who was the initial aggressor so that evidence of the victim’s propensity for
aggressiveness and violence may be admissible to support the defendant’s account of events.
People v. Dennis, 373 Ill. App. 3d 30, 52 (2007) (citing Lynch, 104 Ill. 2d at 200). The first
purpose requires that the defendant knew of the victim’s violent nature, whereas the
defendant’s knowledge is irrelevant for the second purpose. People v. Nunn, 357 Ill. App.
3d 625, 631 (2005). In addition, evidence of the victim’s aggressive and violent character
may affect a jury’s credibility assessment of the varying versions of the facts and a defendant
is entitled to have the jury assess the reasonableness of his behavior in light of all relevant
facts. Lynch, 104 Ill. 2d at 199-200. Where accounts of an incident are conflicting or
incomplete, the jury needs all available evidence to determine what really happened. Nunn,
357 Ill. App. 3d at 632 (citing Lynch, 104 Ill. 2d at 200).
¶ 43 The State contends that despite the trial court’s decision to submit a self-defense
instruction to the jury, there was no evidence of self-defense presented at trial and, thus,
Lynch does not apply. Nonetheless, even assuming the jury was properly instructed on self-
defense, we find Carrillo’s testimony was not relevant to the purposes of Lynch.
¶ 44 During trial, the State filed a motion in limine to prohibit defendant from presenting
Carrillo’s statements regarding the victim’s “bad character.” Attached to the motion was an
“Investigative Memorandum” from defense counsel’s private investigator, Paul Ciolino. The
memorandum contained statements made by Carrillo during an interview with Ciolino.
According to the memorandum, Carrillo stated, in pertinent part, that the victim was “an
aggressive driver who has received numerous speeding tickets and had been involved in at
least two traffic accidents.” Regarding the second collision, Carrillo indicated that near the
time of the shooting, she and the victim were having an altercation and that “[w]hile they
were having this altercation Thomas intentionally struck one of her neighbors car with his
car.” Carrillo stated that he did so because he was mad at her.
¶ 45 When the State brought this motion to the trial court’s attention, it argued that Carrillo
was not with the victim at the time of the shooting, that her statements about the victim’s
driving record and personal life were irrelevant to this case and that “[t]here are hearsay
statements.” The State represented that even though the memo referred to “an accident,” it
did not state that Carrillo witnessed it, but the memo specifically states that the second
intentional collision happened “[w]hile they were having this altercation,” indicating to us

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 that Carrillo was indeed present. The State further argued that defense counsel was
improperly attempting to introduce “bad character” evidence. Defense counsel confirmed that
he intended to present Carrillo’s testimony and made an offer of proof that if called, Carrillo
would testify that she and the victim lived together, had a child together and that the victim
had a flash temper. According to defense counsel, “she would be able to testify to episodes
involving automobile[s] driven by the decedent where he slammed them into automobiles
of others just because he was mad. For no other explanation, just being angry about
something.” Defense counsel also stated that Carrillo had personal knowledge of and had
witnessed such conduct. Counsel further stated that he would be calling Carrillo to establish
the victim’s driving habits, rather than to show his bad character, and that her testimony was
relevant.
¶ 46 Following the parties’ arguments, the trial court granted the State’s motion, finding that
Carrillo’s testimony was “basically irrelevant on some occasions and, second of all, probative
value, and I use the term very loosely, if any, is far outweighed the prejudicial effect in this
case. Keith Thomas is not the person on trial. The fact that he might have been a bad driver
on other occasions is not relevant to this case before me.”
¶ 47 Because defendant did not know the victim at the time of the shooting, let alone know
of any prior act of aggression, the first Lynch purpose does not apply here. We also find,
however, that the second purpose of Lynch would not have been furthered by submitting this
evidence to the jury. Defendant correctly contends that defense counsel’s offer of proof, as
corroborated by the investigative memo, showed Carrillo would testify that the victim
intentionally, rather than accidentally, drove into a neighbor’s car out of anger. Defendant’s
attempt to bootstrap this thin narrative into a tale of road rage run amok must fail, however,
because neither defense counsel’s statements to the court nor the investigative memo
indicated that the neighbor’s car was occupied, that the incident occurred on a roadway or
that the victim was otherwise attempting to injure a motorist in the prior incident. An
individual’s tendency to exercise aggression against an inanimate object such as a parked car
does not inherently increase the likelihood that the individual would exercise aggression
against another person. Even assuming the victim had previously driven into a parked car
because he was mad at Carrillo, this does not make it more probable that the victim
deliberately drove into defendant’s moving vehicle, after having dropped his mother off at
the Orange Line. Morgan, 197 Ill. 2d at 455-56 (evidence is relevant if it has any tendency
to make the existence of a fact which is of consequence to the determination of an action
more or less probable than it would be without such evidence). The fact that the victim hit
a parked car out of anger with his girlfriend does not even remotely tend to prove that he was
aggressively driving his vehicle in a manner to threaten and/or injure defendant. In this
regard, defendant leans on a rather slender reed. Accordingly, the trial court properly found
Carrillo’s testimony was irrelevant and did not abuse its discretion by not allowing the jury
to hear the details of the victim’s prior driving issues.
¶ 48 Even assuming error occurred, we find such error was harmless for the same reason. We
do not believe the victim’s alleged use of force against an unoccupied car would affect a
determination by the jury that the victim did not intentionally strike defendant’s car and thus,
was not the aggressor. See People v. Bass, 351 Ill. App. 3d 1064, 1069 (2004) (the State

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 carries the burden of proving the jury verdict would have been the same in the absence of the
error); People v. Bowens, 407 Ill. App. 3d 1094, 1104-05 (2011) (an error is harmless when
it appears beyond a reasonable doubt that it did not contribute to the verdict).

¶ 49 VI. INEFFECTIVE ASSISTANCE OF COUNSEL
¶ 50 Finally, defendant asserts trial counsel was ineffective because he stipulated that the
police executed a warrant to search defendant and his apartment regarding an unrelated
investigation and located firearms, ammunition and a bulletproof vest which were unrelated
to the present offense. To show that counsel was ineffective, a defendant must demonstrate
both that counsel’s performance was deficient and that, as a result, the defendant was
prejudiced. People v. Bailey, 232 Ill. 2d 285, 289 (2009) (citing Strickland v. Washington,
466 U.S. 668 (1984)). The failure to satisfy either prong precludes finding that counsel was
ineffective. People v. Colon, 225 Ill. 2d 125, 135 (2007). Under the first requirement, there
is a strong presumption that trial counsel’s action or inaction resulted from sound trial
strategy. People v. Perry, 224 Ill. 2d 312, 341-42 (2007). To overcome this presumption, a
defendant must show that trial counsel’s action was so irrational and unreasonable that no
reasonably effective attorney would pursue that strategy under similar circumstances. People
v. Mabry, 398 Ill. App. 3d 745, 751 (2010). In addition, trial counsel’s strategic decisions are
virtually unchallengeable. People v. Weatherspoon, 394 Ill. App. 3d 839, 848 (2009). In
deciding whether defense counsel’s performance was deficient, the court must consider
counsel’s conduct from his perspective at trial and must avoid using hindsight. Bailey, 232
Ill. 2d at 296. To show prejudice, a defendant must demonstrate a reasonable probability
exists that but for counsel’s error, the result of proceedings would have been different.
People v. Harris, 389 Ill. App. 3d 107, 132 (2009). Furthermore, the mere use of a stipulation
does not demonstrate ineffective assistance of counsel. People v. Smith, 326 Ill. App. 3d 831,
851 (2001).
¶ 51 Defendant does not dispute it was relevant to the State’s case that the police found inside
defendant’s home the .45-caliber gun used to shoot the victim. As a result, the police could
explain how they came to be inside defendant’s home and there would be no basis here for
defense counsel to object to evidence that the police had a search warrant regarding an
unrelated investigation. See People v. Garmon, 394 Ill. App. 3d 977, 989 (2009) (a police
officer may explain the steps taken in investigating a crime and may describe the events
which led to the accused’s arrest where necessary to explain the State’s case).
¶ 52 We also find defense counsel stipulated to the remainder of firearm-related evidence that
was not connected to this offense as a matter of trial strategy. At trial, counsel presented
alternative theories of self-defense and second degree murder based on an unreasonable
belief that self-defense was warranted. In support of the latter theory, counsel argued that
defendant had a heightened sense of fear due to prior incidents in which he was the victim.
Contrary to defendant’s suggestion, a jury could find evidence that defendant had two guns,
a significant amount of ammunition and a bulletproof vest corroborated the theory that he
was more fearful and protective than the average person. That defendant was not wearing the
vest on the day in question does not change the result. Thus, we reject defendant’s contention

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 that such evidence had no bearing on his belief at the time of the shooting. In addition,
defendant argues evidence that the victim struck his car, that defendant believed he saw a gun
in the victim’s hand and that defendant had previously been victimized was sufficient to
support counsel’s theory. Defendant ignores, however, that such evidence came exclusively
from his own uncorroborated and self-serving testimony. We find it was entirely reasonable
for counsel to present additional corroborating evidence.
¶ 53 Defendant also argues this strategy was unsound in light of case law limiting the State’s
use of weapons evidence and cases discussing the danger of prejudice in admitting weapons
which are unrelated to the crime charged. See People v. Evans, 373 Ill. App. 3d 948, 960
(2007) (a weapon may not generally be admitted into evidence unless there is evidence
connecting it to the defendant and the crime or unless the weapon was in the defendant’s
possession when arrested for the crime); People v. Jackson, 154 Ill. App. 3d 241, 246 (1987)
(“[t]he potential for prejudicial inferences to be drawn from such a weapon in evidence far
exceeds any legitimate purpose identified by the State in the present case and must be
condemned”); People v. Smith, 413 Ill. 218, 223 (1952) (where the State failed to connect
weapons evidence to the crime committed, court held “the admission of shotguns in evidence
was improper” and “could only serve to arouse the jury and prejudice the defendant’s
position”). Notably, none of those cases involved a defense attorney’s deliberate decision to
stipulate to weapons evidence in support of a defense. Defendant contends that “[m]erely
because there are no published cases where counsel failed to object to evidence that was
introduced through stipulation does not diminish the fact that it was unsound for counsel to
do so.” Although our own research has not revealed any cases involving a similar strategy
by defense counsel, we find this strategy to be sound where, as here, it was probative
evidence toward a defense which otherwise relied exclusively on defendant’s testimony. We
will not engage in hindsight to find counsel was deficient merely because his strategy did not
result in the verdict defendant desired.
¶ 54 Furthermore, the record refutes defendant’s assertion that counsel failed to connect the
challenged evidence to the defense’s theory. As defendant acknowledges, counsel
specifically asked defendant why he owned a bulletproof vest and defendant answered that
he wanted protection because he had previously been shot. Defendant also testified that he
usually took the vest with him when he left the house. In addition, counsel argued at length
in closing that prior incidents in which defendant was the victim had rendered him more
fearful and protective than the average person, as corroborated by the items found in his
home. Specifically, counsel argued as follows:
“I fell off a horse into a cactus once. I got two hundred needles in me. My
parents, after I walked into town like this (indicating) because I couldn’t ride the
horse anymore with the cactus, I walked in town and the doctor pulled the needles
out. I never wanted to get back on a horse, but my parents told me I had to. When I
got back up on the horse the next time, I wore chaps on my legs, a leather vest to
make sure if I ever got tossed off in the cactus again I would be protected.
So a man who had been shot would become more sensitive to injury than the
ordinary person. A man who had been shot three times and lay in Mount Sinai
Hospital down the street here to get better would be more sensitive and more

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 concerned about protecting himself than the ordinary guy who had never been shot
at.
So it’s not surprising he’s got a bulletproof vest. It is not surprising he has a 45.
It is not surprising that when he looked out that window on that day and saw
something in somebody’s hand and it looked silver, looked metallic, it looked like
a weapon to him, that he reacted the way he did.”
This engaging anecdote was surely designed to persuade the jury that defendant came by his
disputatious temperament because of his earlier traumas. Counsel’s argument was also
designed to connect defendant’s earlier traumas to his heightened sense of fear, as
corroborated by the items found in his home. Although counsel did not specifically refer
during closing arguments to the firearm and ammunition which were unrelated to this crime,
the jury would clearly understand counsel’s argument to apply to such items. This type of
advocacy does not establish ineffective assistance of counsel; it points out defense counsel
went to great lengths in an effort to convince the jury that defendant’s actions were consistent
with self-defense or at least consistent with second degree murder. That he failed in this
effort is no basis for criticism on appeal.
¶ 55 Finally, to the extent defendant argues that the evidence was improperly introduced
through the State’s case rather than defendant’s case, it would make little sense to challenge
the evidence as irrelevant and prejudicial in the State’s case and subsequently seek its
admission because it would be relevant and probative to the defense. Even if the stipulation
potentially benefitted both parties, that fact did not render counsel’s conduct unreasonable.
The stipulation may have indicated to the jury that defendant did not find such evidence to
be harmful to his case, as opposed to a concession in favor of the State. Under these
circumstances, defense counsel’s use of a sound trial strategy to support defendant’s
otherwise uncorroborated testimony was not deficient. Accordingly, defendant has failed to
demonstrate that counsel was ineffective.
¶ 56 For the foregoing reasons, we affirm the judgment.

¶ 57 Affirmed.

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