                              NO. 4-04-0771           Filed 4/18/07

                          IN THE APPELLATE COURT

                               OF ILLINOIS

                             FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,    )    Appeal from
          Plaintiff-Appellee,           )    Circuit Court of
          v.                            )    Champaign County
MAURICE A. JACKSON,                     )    No. 03CF687
          Defendant-Appellant.          )
                                        )    Honorable
                                        )    Thomas J. Difanis,
                                        )    Judge Presiding.
_________________________________________________________________

            JUSTICE COOK delivered the opinion of the court:

            A jury convicted defendant, Maurice A. Jackson, of

first degree murder (720 ILCS 5/9-1(a)(1) (West 2004)).      On July

27, 2004, the trial court sentenced defendant to 40 years in

prison.   Defendant appeals, arguing (1) the State failed to prove

his guilt beyond a reasonable doubt in light of the jury's answer

to a special interrogatory; (2) the trial court committed revers-

ible error by refusing to give a jury instruction on involuntary

manslaughter; (3) the trial court committed reversible error by

refusing to give a jury instruction on self-defense/justified use

of force.    We affirm.

                              I. BACKGROUND

            On the evening of April 20, 2003, police officers

responded to reports of a shooting in the 400 block of West

Eureka Street in Champaign.      When officers arrived, they found

17-year-old Demarcus Cotton lying in the street, the victim of an
apparent gunshot wound.   Cotton died at the hospital.   An autopsy

revealed a bullet wound to the abdomen had caused massive blood

loss, leading to cardiac arrest.    There was also an insignificant

gunshot wound to the right elbow, and a bullet fragment was found

in Cotton's right shoelace.   Three shell casings were collected

at the scene of the shooting.

          The next morning police officers spoke to defendant, an

18-year-old male.   Defendant agreed to accompany them to the

Champaign police station, where the officers spoke to him in an

interview room.   Defendant eventually admitted he had been

present on Eureka Street.   He stated he had been armed with a

handgun and had fired the gun at a person with whom he had been

involved in an altercation earlier in the day.    At this point,

the officers advised defendant of his rights under Miranda v.

Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).

          Defendant agreed to give a videotaped statement, which

was later introduced at trial.    Defendant stated that he had met

Cotton 9 to 10 months earlier, when Cotton tried to sell mari-

juana to defendant and his friend, Tyran Bascomb.    Defendant and

Bascomb did not buy the drugs but stole them from Cotton.      On the

afternoon of April 20, Cotton and two other men confronted

defendant about the marijuana.    Cotton attempted to strike

defendant, and defendant struck back.    Defendant ran to Priscilla

Lee's house, where his friend Bascomb was present.    Priscilla


                                 - 2 -
Lee's daughter, Mary, was Bascomb's girlfriend.     Defendant and

Bascomb came outside, and more fighting ensued until Lee screamed

that she was calling the police.    As Cotton left, he told defen-

dant to meet him at Beardsley Park.

           Defendant stated that he had previously returned a gun

to Cole Baker.   Defendant and Bascomb went to Baker's home, where

Baker gave Bascomb the gun.    Defendant's cousin, Ashanti, gave

defendant and Bascomb a ride to Beardsley Park, where they spoke

to a friend, who said he would speak to Cotton in hopes of ending

the dispute.   When Cotton spotted defendant, however, a verbal

exchange took place.   Defendant saw Cotton take a portable music

player from his pocket, but he did not see a weapon.     Cotton

advanced on defendant in a manner that indicated to defendant he

wanted to fight.   While Cotton was still a distance away, defen-

dant pulled out the gun, fired it twice with his back toward

Cotton, and prepared to run.    Bascomb then called out "gimme the

gun, gimme the gun."   Defendant gave the gun to Bascomb and "then

I looked back one time and start running.    And then [,officer,]

that's when I heard the gunshot and then we got back into the

van."   Defendant and Bascomb returned to Lee's house, and Bascomb

took the gun and hid it in a tree in the backyard.

           The State called Bascomb as a witness.    Bascomb, 22

years old, was in custody for delivery of a controlled substance.

In 2000 and 2001 he had been convicted of misdemeanor theft.       In


                                - 3 -
2000, 2001, and 2002, he had been convicted of obstruction of

justice.   Bascomb confirmed that defendant, his close friend, had

come to Lee's house with Cotton chasing him and trying to fight.

Cotton had five friends with him.   Bascomb intervened and fought

with one of Cotton's friends.   Cotton and defendant yelled that

they were going to "mirk" (kill or fight) each other.   Bascomb

and defendant were told to meet Cotton and his friends at

Beardsley Park.

           Bascomb accompanied defendant to Baker's house but did

not know the reason for going there.    He saw defendant speak to

Baker but did not hear them or see Baker give defendant anything.

Bascomb and defendant were given a ride to Beardsley Park.

Defendant began playing with the gun, causing it to jam.    Bascomb

unjammed the gun and returned it to defendant but kept the clip.

He was afraid defendant did not know how to handle a gun and

decided it would be dangerous for defendant to be in possession

of a loaded gun.   Bascomb told defendant to "just not use the

gun."   Bascomb also told defendant to just fire "a warning shot."

Defendant said he only wanted to fight and that he would fire the

gun into the air to scare people.

           After they saw Cotton, a few friends went to talk to

him and see if they could quell tempers.   Meanwhile Bascomb and

defendant discussed the clip.   Bascomb testified defendant asked

him for the clip, and they had an argument about it, but Bascomb


                                - 4 -
ended up giving it to him.    When Cotton saw defendant he became

enraged, and the two exchanged words.    As Cotton approached,

defendant pulled out the gun and fired three shots at Cotton.

Bascomb ran after the first shot.    Defendant was close behind.

They returned to Priscilla Lee's house.    Bascomb testified he

never touched the gun after he had unjammed it and that defendant

had not given him the gun during the shooting.    At some point,

defendant disposed of the gun but Bascomb did not see where he

put it.

            Various witnesses testified a number of shots were

fired, and after a pause, other shots were fired.    Other wit-

nesses testified only three shots were fired.    Some witnesses

testified a man with a snake design on his jacket had the gun

after the shooting and defendant did not have the gun.

            Bascomb's girlfriend, Mary Lee, testified that after

the shooting, at her mother's house, she observed defendant to be

in shock.    She asked what happened and defendant stated "I shot

him."   Mary asked Bascomb if that was true and Bascomb confirmed

what defendant had stated.    Defendant was asked what he was

thinking and said, "Man, I don't know.    The gun just went off."

Police found the gun in a tree in Priscilla Lee's yard.    A

ballistics test established the gun to be the one that had fired

the fatal shot and the bullet fragment found in Cotton's right

shoelace.


                                - 5 -
           The trial court instructed the jury on first degree

murder.   The trial court also instructed the jury on second

degree murder that defendant had the burden of proving a mitigat-

ing factor, either provocation or belief in justification, so

that he would be guilty of that lesser offense.    The court

refused to give an instruction on the lesser-included offense of

involuntary manslaughter, the reckless performance of acts likely

to cause death or great bodily harm.   The court refused to give

an instruction on self-defense, which would have defined when a

person is "justified" in the use of force.

                           II. ANALYSIS

  A. The Special Interrogatory and Sufficiency of the Evidence

           The trial court gave the following standard instruc-

tion:

                "To sustain either the charge of

           first degree murder or the charge of second

           degree murder, the State must prove the

           following propositions:

                First Proposition: That the defendant,

           or one for whose conduct he is legally res-

           ponsible, performed the acts which caused

           the death of Demarcus Cotton."

The second and third propositions, dealing with intent/knowledge

and justification, also referred to the defendant "or one for


                               - 6 -
whose conduct he is legally responsible."    Illinois Pattern Jury

Instructions, Criminal, No. 7.04, Committee Note at 200 (4th ed.

2000) (hereinafter IPI Criminal 4th).

          At the request of the State, the trial court also asked

a "special interrogatory" of the jury:

                  "If, however, you find the defendant

          guilty of first degree murder, your foreperson

          will preside during your deliberations on one addi-

          tional question.    In addition to the ver-

          dict forms, you will be provided two forms

          that are answers to the question 'Has the

          State proven beyond a reasonable doubt that,

          during the commission of the offense, the

          defendant personally discharged a firearm

          that proximately caused the death of Demarcus

          Cotton?'

                  Your agreement on an answer must be un-

          animous.    Your answer must be in writing and

          signed by all of you including your foreper-

          son."

After asking several times whether the special interrogatory

would be inconsistent with a verdict of guilty of first degree

murder, the jury unanimously answered the special interrogatory

in the negative.


                                 - 7 -
          The State's purpose in asking the special interrogatory

was to obtain a sentence enhancement under section 5-8-

1(a)(1)(d)(iii) of the Unified Code of Corrections (730 ILCS 5/5-

8-1(a)(1)(d)(iii) (West 2004)).    That section provides that "if,

during the commission of the offense, the person personally

discharged a firearm that proximately caused *** death to another

person, 25 years or up to a term of natural life shall be added

to the term of imprisonment imposed by the court."   730 ILCS 5/5-

8-1(a)(1)(d)(iii) (West 2004).    Sentencing-enhancement provisions

were called into question by Apprendi v. New Jersey, 530 U.S.

466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63

(2000), which holds that "[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a

jury[] and proved beyond a reasonable doubt."

          Several cases have used "special interrogatories" to

comply with Apprendi.   In People v. Forcum, 344 Ill. App. 3d 427,

435, 800 N.E.2d 499, 506 (2003), where the defendant was con-

victed of first degree murder and other offenses, the State

tendered a special interrogatory, "'Has the State proven beyond a

reasonable doubt that the offense was committed by exceptionally

brutal or heinous behavior indicative of wanton cruelty?'"    The

jury answered in the affirmative and, based on its finding, the

court sentenced defendant to an extended term of natural-life


                                 - 8 -
imprisonment for first degree murder.    Forcum, 344 Ill. App. 3d

at 435, 800 N.E.2d at 506.

          In our case, however, the jury answered the "special

interrogatory" in the negative, and defendant now attempts to use

the jury's answer to challenge the verdict of guilty of first

degree murder.   Defendant argues he was not proved guilty beyond

a reasonable doubt because the State (1) failed to prove he

personally discharged the firearm that caused the death and (2)

presented no evidence that he was accountable for the actions of

Tyran Bascomb.   The State responds some evidence was presented

from which the jury could have found that defendant was account-

able for the actions of Bascomb.   This court is accordingly

requested to ignore the bulk of the evidence, that defendant was

the shooter, and determine whether there is sufficient evidence

that Bascomb was the shooter and defendant was responsible for

Bascomb's conduct.

          There is no statutory authority for special interroga-

tories in criminal cases.    People v. Testin, 260 Ill. App. 3d

224, 235, 632 N.E.2d 645, 652 (1994).   Even in civil cases,

special interrogatories must be used with great care.   A special

interrogatory in a civil case provides the defendant with a

"magic bullet" that he can use to upset the verdict against him.

"When the special finding of fact is inconsistent with the

general verdict, the former controls the latter and the court may


                                - 9 -
enter judgment accordingly."    735 ILCS 5/2-1108 (West 2000).     The

purpose of a special interrogatory is to test a general verdict

against a jury's determination as to one or more specific issues

of ultimate fact.     Northern Trust Co. v. University of Chicago

Hospitals & Clinics, 355 Ill. App. 3d 230, 251, 821 N.E.2d 757,

775 (2004).

           It is improper to request a special interrogatory

simply to gain some insight into a jury's thinking.    A special

interrogatory asking for a finding as to a mere evidentiary fact

is always improper.     Northern Trust, 355 Ill. App. 3d at 251, 821

N.E.2d at 776.   A special interrogatory is in proper form only if

it relates to an ultimate issue of fact on which the parties'

rights depend and if an answer to the interrogatory would be

inconsistent with a general verdict that the jury might return.

Simmons v. Garces, 198 Ill. 2d 541, 555, 763 N.E.2d 720, 730

(2002).   Where there were two alternate theories of negligence

asserted against the defendant, and the special interrogatory

addressed only one, the special interrogatory was not in proper

form, as the answer to it would not necessarily be inconsistent

with the general verdict.     Stach v. Sears, Roebuck & Co., 102

Ill. App. 3d 397, 411, 429 N.E.2d 1242, 1252-53 (1981).    A

special interrogatory may focus on only one element of a claim,

but only if that element is dispositive of the claim at issue.

Northern Trust, 355 Ill. App. 3d at 253, 821 N.E.2d at 777.


                                - 10 -
           If we apply civil rules to this criminal case, the

interrogatory should never have been submitted to the jury.     The

answer to the interrogatory could not control the general ver-

dict, whether defendant was guilty of first degree murder,

because alternate theories were alleged and the special interrog-

atory addressed only one.   The jury was instructed that to

sustain the charge of first degree murder the State must prove

that "the defendant, or one for whose conduct he is legally

responsible, performed the acts."   The special interrogatory

addressed only whether defendant performed the acts.

           Defendant was not entitled to a unanimous verdict on

whether he fired the weapon or whether Bascomb fired the weapon.

People v. Travis, 170 Ill. App. 3d 873, 890, 525 N.E.2d 1137,

1147 (1988).   The jury need only be unanimous with respect to the

ultimate question of defendant's guilt or innocence of the crime

charged, and unanimity is not required concerning alternate ways

in which the crime can be committed.    Travis, 170 Ill. App. 3d at

890, 525 N.E.2d at 1147.    It was improper to require the jury to

unanimously agree to an answer to the special interrogatory here.

The special interrogatory caused tremendous confusion for the

jury, which correctly saw it as inconsistent with the general

verdict where they were not required to agree on who fired the

weapon.   This case illustrates the reason why, even in civil

cases, a special interrogatory is permitted only on an ultimate


                               - 11 -
issue, an issue that controls the case.   The answer to a special

interrogatory should not have the effect of pinning the State

down to a single theory, perhaps the wrong theory, with the

result that the true facts must be ignored.

          Special interrogatories, at least the type of special

interrogatories used in civil cases, should not be used in

criminal cases absent a statute.    Forcum, which allowed a special

interrogatory, recognized that the use of special interrogatories

in criminal cases is not favored.    Forcum, 344 Ill. App. 3d at

439, 800 N.E.2d at 509, citing Testin, 260 Ill. App. 3d at 235,

632 N.E.2d at 652.   Unlike the present case, the answer to the

special interrogatory in Forcum not only could not have con-

trolled the general verdict, it could not have affected the

general verdict.   "Brutal and heinous," the subject of the

special interrogatory in Forcum, was not one of the theories upon

which that defendant could be found guilty.   There is no author-

ity to ask a "special interrogatory" that would impinge upon the

verdict of first degree murder.    We refuse to consider the answer

to the "special interrogatory" beyond the purpose for which it

was asked--whether there could be a sentence enhancement.

          The question on a challenge to the sufficiency of the

evidence is whether, after examining the evidence in the light

most favorable to the prosecution, a rational trier of fact could

have found the essential elements of the crime beyond a reason-


                              - 12 -
able doubt.    People v. McDonald, 168 Ill. 2d 420, 443-44, 660

N.E.2d 832, 842 (1995).   A reviewing court "will not reverse a

criminal conviction unless the evidence is so unreasonable,

improbable, or unsatisfactory that it creates a reasonable doubt

of the defendant's guilt."    McDonald, 168 Ill. 2d at 444, 660

N.E.2d at 842.

            There clearly was sufficient evidence here for the jury

to conclude that defendant was guilty of first degree murder.

There was evidence that defendant and Cotton had been fighting

earlier that day and threatened to kill each other.   Defendant

and Bascomb went to a friend's home to get a gun and proceeded to

Beardsley Park, where defendant and Cotton became involved in an

argument.   Defendant admitted he fired shots in the direction of

Cotton.   Defendant testified he then gave Bascomb the gun and

took off running, then looked back and heard Bascomb fire three

or four times.   Bascomb denied firing any shots and testified

defendant fired three shots and then they both ran.   The two fled

together in Ashanti's van.   Defendant told Mary Lee that he had

shot Cotton.   A rational jury could easily have concluded that

defendant, or one for whose conduct he was legally responsible,

performed the acts that caused the death of Demarcus Cotton.

                     B. Involuntary Manslaughter

            Defendant argues the trial court erred when it refused

his instruction on the lesser-included offense of involuntary


                               - 13 -
manslaughter where the evidence supported an inference that he

recklessly caused the death of Demarcus Cotton.

           The giving of jury instructions is a matter within the

sound discretion of the trial court.    An instruction on a lesser

offense is justified when there is some credible evidence to

support the giving of the instruction.    People v. Jones, 219 Ill.

2d 1, 31, 845 N.E.2d 598, 614 (2006).    Where there is evidentiary

support for an involuntary-manslaughter instruction, the failure

to give the instruction constitutes an abuse of discretion.

"Whether an involuntary[-]manslaughter instruction is warranted

depends on the facts and circumstances of each case."    Jones, 219

Ill. 2d at 31, 845 N.E.2d at 614.   An involuntary-manslaughter

instruction was properly refused in Jones, despite pathologists'

testimony the victim sustained a skull fracture that was either

the result of a blow to the head by a blunt object or the result

of a fall.   "There was simply no evidence at trial to support

defendant's claim that he inadvertently caused [the victim] to

fall."   Jones, 219 Ill. 2d at 32, 845 N.E.2d at 615.

           "The basic difference between involuntary manslaughter

and first degree murder is the mental state that accompanies the

conduct resulting in the victim's death."     People v. Daniels, 301

Ill. App. 3d 87, 95, 702 N.E.2d 324, 330 (1998).    For first

degree murder, the defendant knows his acts "create a strong

probability of death or great bodily harm."    720 ILCS 5/9-1(a)(2)


                              - 14 -
(West 2000).   To step down to involuntary manslaughter the

defendant performs acts "likely to cause death or great bodily

harm" and he performs those acts "recklessly."   720 ILCS 5/9-3(a)

(West 2000).   "Reckless conduct generally involves a lesser

degree of risk than conduct that creates a strong probability of

death or great bodily harm."   People v. DiVincenzo, 183 Ill. 2d

239, 250, 700 N.E.2d 981, 987 (1998).

           A defendant who deliberately provokes a confrontation

may still be entitled to an instruction on involuntary manslaugh-

ter.   "[A] defendant may act recklessly where he commits deliber-

ate acts but disregards the risks of his conduct.   See 720 ILCS

5/4-6 (West 1994)."   DiVincenzo, 183 Ill. 2d at 252, 700 N.E.2d

at 988 (involuntary-manslaughter instruction should have been

given; weaponless fight involving individuals of the same general

size and strength).

           However, Illinois courts have consistently held that

when the defendant intends to fire a gun, points it in the

general direction of his or her intended victim, and shoots, such

conduct is not merely reckless and does not warrant an

involuntary-manslaughter instruction, regardless of the defen-

dant's assertion that he or she did not intend to kill anyone.

People v. Eason, 326 Ill. App. 3d 197, 210, 760 N.E.2d 519, 530

(2001); cf. People v. Williams, 293 Ill. App. 3d 276, 282, 688

N.E.2d 320, 325 (1997) (where defendant testified he closed his


                               - 15 -
eyes and fired in the air "above their heads" in order to scare

the victim away, jury should have been instructed on reckless

conduct as a lesser-included offense of aggravated discharge of a

firearm).    A defendant's "testimony that he did not intend to

kill anyone does not provide a sufficient basis for instructing

on involuntary manslaughter."    People v. Cannon, 49 Ill. 2d 162,

166, 273 N.E.2d 829, 831 (1971).

            That is not to say that a defendant's testimony is

never worthy of belief.    The jury is not entitled to disregard

defendant's testimony merely because he is the defendant in the

case.   People v. Barney, 176 Ill. 2d 69, 74, 678 N.E.2d 1038,

1041 (1997).    Rather, a defendant is not entitled to reduce first

degree murder to a Class 1 felony by a hidden mental state known

only to him and unsupported by the facts.

            In the present case, defendant went to Beardsley Park

looking for a fight, after first obtaining a weapon.    The victim

did not have a weapon.    Defendant intentionally fired the weapon

several times, in the general direction of the victim, striking

the victim several times.    Defendant argues the bullet fragment

found in the shoelace supports the testimony that he fired toward

the ground.    See People v. Banks, 192 Ill. App. 3d 986, 996-97,

549 N.E.2d 766, 773 (1989) ("Surely, one does not point and fire

a gun at the ground if he intends to kill someone"; involuntary-

manslaughter instruction should have been given).    Defendant


                                - 16 -
refers to evidence that he had said he would just fire the gun in

the air as a warning to scare people, he fired the gun without

aiming it, and he turned his back and fired behind him without

looking where he was firing.   Defendant did admit to the police,

however, that he fired the gun at the victim.   The evidence in

this case did not require an involuntary-manslaughter instruc-

tion.   As in Eason and Cannon, the trial court did not err in

refusing defendant's tendered instruction on involuntary man-

slaughter.   Nor does defendant's testimony that Bascomb was the

shooter warrant the instruction.   Even assuming Bascomb was the

shooter, no evidence showed that Bascomb simply acted recklessly.

                       C. Justification

           Defendant argues the trial court improperly refused his

instruction No. 13 on use of force in defense of a person:

                "A person is justified in the use

           of force when and to the extent that he

           reasonably believes that such conduct is

           necessary to defend [(himself)(another)]

           against the imminent use of unlawful force.

                [However, a person is justified in the

           use of force which is intended or likely to

           cause death or great bodily harm only if he

           reasonably believes that such force is

           necessary to prevent [(imminent death or


                               - 17 -
            great bodily harm to [(himself) (another)])

            (the commission of ___)].]"   IPI Criminal

            4th No. 24-25.06.

The trial court instructed the jury on second degree murder

(belief in justification).      A defendant may be guilty of second

degree murder where he believes circumstances exist that would

justify the deadly force he uses, but his belief is unreasonable.

Defendant argues that the refused instruction was necessary to

explain what "justification" meant in the second-degree-murder

instruction.

            When an instruction on second degree murder (belief in

justification) is given, a third proposition is added to the

elements of the offense: "That the defendant was not justified in

using the force which he used."     IPI Criminal 4th No. 7.06B.

Under that instruction the jury could conceivably find the

defendant's actions were justified and that he was accordingly

not guilty, even though the only argument was that his belief

that his conduct was justified was unreasonable and he was guilty

of second degree murder.

            It has been held that when the evidence supports giving

the jury an instruction on the justifiable use of force in self-

defense, an instruction for second degree murder should likewise

be given.    People v. Toney, 309 Ill. App. 3d 28, 43, 722 N.E.2d

643, 654 (1999), vacated by People v. Toney, 197 Ill. 2d 581, 759


                                 - 18 -
N.E.2d 1 (2001).   "We cannot reconcile the trial court's finding

sufficient evidence to warrant a self-defense instruction, and

thereby allowing the jury to consider whether defendant's subjec-

tive belief was reasonable, with the trial court's refusal to

allow the jury to consider whether that belief was unreasonable."

Toney, 309 Ill. App. 3d at 42, 722 N.E.2d at 654.    The converse

does not appear to be true, however.    The existence of sufficient

evidence to warrant a second-degree-murder instruction, that the

defendant unreasonably believes that circumstances justify the

force he uses, may not amount to sufficient evidence to warrant a

self-defense instruction, that the defendant reasonably believed

the use of force was justified.    That is especially true where a

weapon is involved.    It is not enough that defendant simply

believes his conduct is necessary to defend himself or another.

Where a weapon is involved, as in this case, the defendant must

reasonably believe that his conduct is necessary to prevent death

or great bodily harm.    720 ILCS 5/7-1(a) (West 2004).

          We question whether the instruction on justification,

as opposed to unreasonable belief in justification, should have

been given at all.    Defendant does not point to any evidence

suggesting that he was acting in self-defense.    At trial, defen-

dant made no claim that he was acting in self-defense.    Defendant

was allowed to make all the arguments to which he was entitled

under the instructions that were given.    Defendant was not


                               - 19 -
entitled to argue that he was not guilty because he reasonably

believed his conduct was necessary to defend against the imminent

use of unlawful force.

                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.    As part of our judgment, we grant the State its

statutory assessment of $75 against defendant as costs of this

appeal.

            Affirmed.

            KNECHT and TURNER, JJ., concur.




                               - 20 -
