Filed 01/12/07             NO. 4-05-0869

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Sangamon County
ONTARIO L. WALLS,                      )    No. 03CF1232
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    Stuart H. Shiffman,
                                       )    Judge Presiding.
_________________________________________________________________

                 MODIFIED UPON DENIAL OF REHEARING

          JUSTICE STEIGMANN delivered the opinion of the court:

          In June 2005, a jury convicted defendant, Ontario L.

Walls, of two counts of second degree murder (720 ILCS 5/9-2

(West 2002)) and one count of aggravated battery with a firearm

(720 ILCS 5/12-4.2 (West 2002)).   The trial court later sentenced

him to 15 years on each of the second-degree-murder convictions

and 15 years on the aggravated-battery-with-a-firearm conviction,

with all three sentences to run consecutively.

          Defendant appeals, arguing only that the guilty ver-

dicts for second degree murder and aggravated battery with a

firearm were inconsistent because they required a finding of

conflicting mental states for the same conduct.   We disagree and

affirm.

                           I. BACKGROUND

          Evidence presented at defendant's June 2005 trial
showed the following.    On November 19, 2003, two fistfights

erupted between friends of defendant and friends of the following

victims in this case:    Kendrix Morgan, Clarence Perkins, and

Michael Cummings.    In the early morning on November 20, 2003,

shots were fired at defendant's Springfield residence while he

and his family were inside.    Defendant's wife was grazed by a

bullet.    At the time of the shooting, both defendant and his wife

saw a white Chevy Caprice in a driveway across the street from

defendant's residence.

            Around 9 a.m. on November 26, 2003, in the 2100 block

of South Wirt in Springfield, defendant and his brother, Itasha

Walls, opened fire on the white Chevy, which was parked.    As a

result, Morgan and Perkins both died from gunshot wounds to their

heads.    Cummings was wounded but survived.   The car had been hit

with at least 13 bullets.    Cummings later identified defendant as

one of the shooters.

            Defendant gave two different statements to police.

First, he claimed that he was at a job interview and knew nothing

about the shooting.    A few hours later, he admitted that he and

Itasha saw the white Chevy and believed its occupants were

responsible for the November 20, 2003, shooting of defendant's

residence.    Defendant and Itasha then got their guns, went to the

car, and opened fire on it.

            At trial, defendant presented evidence to show that, at


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the time he fired on the car, he believed the circumstances to be

such that the deadly use of force was justified, but that his

belief was unreasonable.   Specifically, he presented evidence

that (1) the white Chevy had been seen cruising by defendant's

house and the car's occupants made threatening gestures; (2)

although defendant and Itasha got their weapons before they

approached the car, they intended to try to resolve their differ-

ences with the car's occupants peacefully; (3) when Itasha looked

into the front window of the car (the only window that was not

tinted), he saw Morgan holding a gun and pointing it at him; (4)

Itasha began to fire his gun at the car because he was in fear

for his own life; and (5) defendant began firing after Itasha

fired.

          Based on this evidence, the jury convicted defendant of

two counts of second degree murder for the deaths of Morgan and

Perkins (720 ILCS 5/9-2 (West 2002)) and one count of aggravated

battery with a firearm for the shooting of Cummings (720 ILCS

5/12-4.2 (West 2002)).

          This appeal followed.

                     II. THE GUILTY VERDICTS

          Defendant argues that the guilty verdicts for second

degree murder and aggravated battery with a firearm were incon-

sistent because they required findings of conflicting mental

states for the same conduct.   We disagree.


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           "'Legally inconsistent verdicts occur when an essential

element of each crime must, by the very nature of the verdicts,

have been found to exist and to not exist even though the of-

fenses arise out of the same set of facts.'"      People v. Price,

221 Ill. 2d 182, 188, 850 N.E.2d 199, 202 (2006), quoting People

v. Frieberg, 147 Ill. 2d 326, 343, 589 N.E.2d 508, 516 (1992).       A

claim that two verdicts are legally inconsistent presents a

question of law that we review de novo.   Price, 221 Ill. 2d at

189, 850 N.E.2d at 202.

           We begin by setting forth the statutory definitions of

the two offenses at issue.   Section 9-2 of the Criminal Code of

1961 (Code) defines "second degree murder," in pertinent part, as

follows:

                "(a) A person commits the offense of

           second degree murder when he commits the

           offense of first degree murder as defined in

           paragraphs (1) or (2) of subsection (a) of

           [s]ection 9-1 of this Code and either of the

           following mitigating factors are present:

                     (1) At the time of the killing

                he is acting under a sudden and

                intense passion resulting from

                serious provocation by the individ-

                ual killed or another whom the


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     offender endeavors to kill, but he

     negligently or accidentally causes

     the death of the individual killed;

     or

           (2) At the time of the killing

     he believes the circumstances to be

     such that, if they existed, would

     justify or exonerate the killing

     under the principles stated in

     [a]rticle 7 of this Code, but his

     belief is unreasonable.

     ***

     (c) When a defendant is on trial for

first degree murder and evidence of either of

the mitigating factors defined in subsection

(a) of this [s]ection has been presented, the

burden of proof is on the defendant to prove

either mitigating factor by a preponderance

of the evidence before the defendant can be

found guilty of second degree murder.    ***

In a jury trial for first degree murder in

which evidence of either of the mitigating

factors *** of this [s]ection has been pre-

sented and the defendant has requested that


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          the jury be given the option of finding the

          defendant guilty of second degree murder, the

          jury must be instructed that it may not con-

          sider whether the defendant has met his bur-

          den of proof with regard to second degree

          murder until and unless it has first deter-

          mined that the State has proven beyond a

          reasonable doubt each of the elements of

          first degree murder."    720 ILCS 5/9-2 (West

          2002).

          Subsections (1) and (2) of section 9-1(a) of the Code,

referred to in the foregoing section, provide as follows:

               "(a) A person who kills an individual

          without lawful justification commits first

          degree murder if, in performing the acts

          which cause the death:

                    (1) he either intends to kill

               or do great bodily harm to that

               individual or another, or knows

               that such acts will cause death to

               that individual or another; or

                    (2) he knows that such acts

               create a strong probability of

               death or great bodily harm to that


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               individual or another."   720 ILCS

               5/9-1 (West 2002).

          Under section 12-4.2 of the Code, "[a] person commits

aggravated battery with a firearm when he, in committing a

battery, knowingly or intentionally by means of the discharging

of a firearm (1) causes any injury to another person."   720 ILCS

5/12-4.2 (West 2002).   The statutory definition of a battery

includes the requirement that the actor's intentional or knowing

conduct also be "without legal justification."   720 ILCS 5/12-3

(West 2002).

          Defendant contends that the verdicts were inconsistent

in that when he fired shots into the white Chevy he could not

have believed both that (1) he was justified in shooting in self-

defense (as to Morgan and Perkins) and (2) he was not justified

in shooting (as to Cummings).

          Defendant's argument that the mental states underlying

each of his convictions conflict is based on a fundamental

misunderstanding of Illinois' second-degree-murder statute.     In

1995, in People v. Jeffries, 164 Ill. 2d 104, 122, 646 N.E.2d

587, 595 (1995), our supreme court explained the relationship

between first and second degree murder and the requisite mental

state for a second-degree-murder conviction:

          "[T]he mental states required for *** second

          degree murder[] are identical to that re-


                                - 7 -
          quired for first degree murder.     Illinois law

          recognizes only the following four mental

          states: intent, knowledge, recklessness, and

          negligence.   [Citation.]    Murder and second

          degree murder each require the same mental

          state: either intent or knowledge.     [Cita-

          tions.]   Moreover, second degree murder is

          not a lesser included offense of murder.

          Section 2-9 of the [Code] defines an included

          offense in pertinent part as an offense that

          '[i]s established by *** a less culpable

          mental state.'   [Citation.]    Having deter-

          mined that the mental states for murder and

          second degree murder are identical, it is

          evident that second degree murder is not a

          lesser included offense of first degree mur-

          der.   Rather, second degree murder is more

          accurately described as a lesser mitigated

          offense of first degree murder."     (Emphases

          in original.)

          In People v. Lopez, 166 Ill. 2d 441, 449, 655 N.E.2d

864, 867-68 (1995), the supreme court explained again that

"second degree murder requires the presence of a mitigating

circumstance, which, while not an element or mental state, does


                               - 8 -
reduce the culpability and thus the sentencing range."

            Thus, defendant is incorrect when he asserts that his

"mental state" when he committed the second degree murder of

Perkins and Morgan was that he believed that he was justified in

shooting.   The only mental state the State was required to prove

--and did prove--on the murder counts was either (1) intent (to

kill or do great bodily harm) or (2) knowledge (that the shooting

would likely cause death).   See Jeffries, 164 Ill. 2d at 122, 646

N.E.2d at 595 ("Illinois law recognizes only the following four

mental states: intent, knowledge, recklessness, and negligence"

(emphasis in original)).   Defendant's belief that he was justi-

fied in shooting constituted a "mitigating circumstance," not a

mental state, and the jury's finding that such a mitigating

circumstance existed did not negate the already proved mental

state required for a first-degree-murder conviction.   See People

v. Thompson, 354 Ill. App. 3d 579, 584, 821 N.E.2d 664, 669

(2004) ("first degree and second degree murder each require the

same mental state, either intent or knowledge, and it is the

presence of statutory mitigating factors that reduces an unlawful

homicide from first degree to second degree murder, not the

absence of an intent to kill").   Accordingly, no inconsistency

exists between the mental states underlying defendant's convic-

tions for second degree murder and aggravated battery with a

firearm.    See People v. Torres, 269 Ill. App. 3d 339, 348-49, 645


                                - 9 -
N.E.2d 1018, 1024-25 (1995) (holding that guilty verdicts on

second degree murder and aggravated discharge of a firearm were

not legally inconsistent).    In addition, no inconsistency exists

between convictions of second degree murder (defendant mistakenly

thought justified) and battery (not justified).

            In so concluding, we note that the creation of second

degree murder was an act of legislative grace in that the legis-

lature recognized that some circumstances under which the crime

of first degree murder might be committed warrant lesser penal-

ties than others.    The legislature has not seen fit to grant such

grace as to other crimes.    We thus reject any argument that the

existence of a mitigating circumstance under the second-degree-

murder statute somehow forecloses the possibility of a guilty

verdict on another charge arising from the same set of facts.

                            III. CONCLUSION

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

judgment.

            Affirmed.

            MYERSCOUGH and COOK, JJ., concur.




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