specially concurring:
I agree with the majority opinion but address the remaining issues which are likely to reoccur on retrial. Defendant argues that the trial court erred in refusing to give an instruction for second degree murder where defendant asserted self-defense and where the jury questioned whether it could find defendant guilty of something less than first degree murder. The jury sent a question to the trial court asking whether it could recommend leniency for the defendant. The prosecution maintains that there was no evidence to support a second degree murder instruction.
The United States Supreme Court has observed that, “[a]s a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” Mathews v. United States, 485 U.S. 58, 63, 99 L. Ed. 2d 54, 61, 108 S. Ct. 883, 887 (1988). The question as to whether a defendant has met the evidentiary minimum for such an instruction is a matter of law. People v. Lockett, 82 Ill. 2d 546, 553 (1980). A person commits second degree murder when he commits the offense of first degree murder and at the time of the killing he believes the circumstances to be such that, if they exist, would justify the use of deadly force under the principles of self-defense, but his belief is unreasonable. 720 ILCS 5/9 — 2(a)(2) (West 1994).
Factors that we may consider in determining if a second degree murder instruction is justified include, but are not limited to, the defendant’s testimony, intent or motive, the type of wound suffered by the victim, any previous history of violence, any physical contact between the defendant and victim, and the circumstances surrounding the incident. See People v. Everette, 141 Ill. 2d 147, 158 (1990). Applying those factors in the present case, an instruction on second degree murder was warranted. Here, the defendant asserted the affirmative defense of self-defense. At trial, the defendant admitted to killing Andrew Redmond and Videl McGee as well as shooting Charles Buford. However, he testified that he did so in self-defense because he heard what sounded like gunshots and he believed that Redmond and Darnell Harris were armed.
At trial defendant described incidents with the Gangster Disciples in which various gang members threatened defendant over a course of three months. Defendant portrayed Darnell Harris as one of the aggressors in this case who approached defendant on several occasions and demanded that defendant join the Gangster Disciples. The first incident occurred in August 1994, when Harris and a person named K-Town approached defendant at his home and demanded money. Defendant reported this incident to the police. During the next three months, defendant stated that the Gangster Disciples continued to harass him. Defendant related that Harris, Buford and several other Gangster Disciples beat up codefendant Edmondson in November 1994. On the day of the incident, defendant testified that Harris, along with Buford, came to defendant’s home and again threatened him.
Whether the conduct here qualified as first degree murder, second degree murder or self-defense was a question of fact for the jury to resolve. There is a factual dispute as to whether defendant, Harris or Redmond was the initial aggressor who set into motion a course of felonious conduct. Defendant’s testimony at trial was consistent with his statement to the police and to an assistant State’s Attorney after his arrest. Defendant maintained that he and Edmondson went to the corner to scare the gang members. Defendant repeatedly testified that he feared for his life and that he used force to prevent an imminent threat of death or great bodily harm. Neither Harris nor Buford was called to rebut defendant’s testimony as to the events and threats preceding the shooting.
There is evidence that a jury could believe and find that defendant did not commit first degree murder, but fired the weapon under the unreasonable belief that circumstances justified the use of deadly force and was, therefore, guilty of second degree murder. Therefore, based on the record, including the history of aggression between defendant and the Gangster Disciples, the previous confrontations and the testimony of defendant, there is sufficient evidence of self-defense to warrant an instruction on second degree murder.
Defendant further contends that the trial court erred in excluding evidence regarding Andrew Redmond’s prior convictions for aggravated battery and that the jury instructions misinformed the jury as to the use of Darnell Harris’ prior conviction for attempted murder. Where, as here, the theory of self-defense is raised, evidence of the victim’s aggressive or violent character is relevant (1) to show that defendant’s knowledge of the victim’s behavior and tendencies affected his perception of, and reaction to, the victim’s actions and (2) to support the defendant’s version of the facts where there are conflicting accounts of what happened. People v. Lynch, 104 Ill. 2d 194, 199-201 (1984). Evidence of the victim’s past acts of violence aids the jury in resolving the question of who was the initial aggressor. People v. Bedoya, 288 Ill. App. 3d 226, 239 (1997).
Andrew Redmond, the person whom defendant claimed lunged at him on the street corner, was convicted in 1980 and 1988 of aggravated battery. Clearly, Redmond’s violent character and aggressive disposition were relevant where defendant asserted that he acted in self-defense and that Redmond was the initial aggressor. Convictions for crimes of violence, such as battery and aggravated battery, are reasonably reliable evidence of a violent character. Lynch, 104 Ill. 2d at 201; Bedoya, 288 Ill. App. 3d at 236. As such, Redmond’s 1988 conviction for aggravated battery should have been admitted as evidence of Redmond’s aggressive or violent character.
Defendant, relying on Lynch, asked the judge to instruct the jury that the prior conviction of a witness can be considered as to the aggressive or violent character of the witness. The jury was informed with Illinois Pattern Jury Instructions, Criminal, No. 3.12 (3d ed. 1992) (hereinafter IPI Criminal 3d) that the prior convictions of a witness could be considered as to the witness’ credibility. A witness’ credibility as a whole is attacked when the evidence shows that he has a propensity for violence. However, IPI Criminal 3d No. 3.12 does not completely and accurately state the law when the theory of self-defense is raised and evidence of the victim’s aggressive and violent character is offered to show who was the aggressor.
In conjunction with IPI Criminal 3d No. 3.12, the appropriate IPI instruction that should be used based on the evidence is IPI Criminal 3d No. 3.12X (Supp. 1996). This instruction states:
“In this case, because the State must prove beyond a reasonable doubt the proposition that the defendant was not justified in using the force which he used, you may consider evidence of [name of victim]’s prior conviction of the offense of [conviction for violent crime] in deciding whether the State has proved that proposition.” IPI Criminal 3d No. 3.12x (Supp. 1996).
The Committee Note to IPI Criminal 3d No. 3.12X (Supp. 1996) states that this instruction should be used only when evidence of the victim’s prior conviction for a crime of violence has been admitted pursuant to Lynch.
In the present case, defendant asked the judge to instruct the jury on a non-IPI instruction which was more specific than IPI Criminal 3d No. 3.12X (Supp. 1996). Defendant sought to have the jury instructed that it can consider the victim’s prior conviction in determining his aggressiveness and violent character. However, a non-IPI instruction should be used only if a pattern instruction does not contain an accurate instruction on the subject that the jury should be instructed upon. People v. Tsombanidis, 235 Ill. App. 3d 823, 838 (1992).
IPI Criminal 3d No. 3.12X (Supp. 1996) was devised to address the nature of evidence regarding a victim’s prior conviction for a crime of violence when the defendant claims self-defense pursuant to Lynch. As the Illinois Supreme Court held in Lynch, “when the theory of self-defense is raised, the victim’s aggressive and violent character is relevant to show who was the aggressor, and the defendant may show it by appropriate evidence.” Lynch, 104 Ill. 2d at 200. Moreover, the Lynch court recognized that convictions of a victim for crimes of violence are reasonably reliable evidence of a violent character and are admissible for the purpose of proving that the victim was the aggressor. Lynch, 104 Ill. 2d at 201. Thus, the appropriate instruction in this case is IPI Criminal 3d No. 3.12X (Supp. 1996).
Defendant also argues that the trial court improperly restricted cross-examination of Charles Buford as to his gang involvement. Evidence of gang membership is admissible where there is sufficient proof that gang membership is related to the crime charged. People v. Maldonado, 240 Ill. App. 3d 470 (1992). In this case, questions relating to the gang activity of Buford were clearly relevant and should have been allowed. These questions directly related to Buford’s motive and credibility as well as to whether he was one of the aggressors.
Defendant’s last issue is that the trial court improperly restricted defendant’s cross-examination of Darnell Harris. Harris testified on direct examination that he was at Cermak and Keeler Streets when defendant drove up and said he wanted to sell drugs on those two streets. During opening statements, however, the State indicated that defendant and Harris were standing at Cermak and Kildare. Defense counsel interpreted this statement to mean that Harris lied to the prosecutors.
In an effort to impeach Harris, defense counsel sought to either call the assistant State’s Attorney trying the case to testify or, in the alternative, requested that the trial court direct the assistant State’s Attorney to inform the jury that Harris’ testimony was inaccurate. In essence, defendant sought to impeach Harris with a comment the assistant State’s Attorney made during opening statement. Opening statements are not evidence. Further, a witness can only be impeached with a prior inconsistent statement that the witness made, not that another person made. 134 Ill. 2d R. 238. As such, the trial court appropriately denied defendant’s request.