                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Lewis, 2012 IL App (1st) 102089




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



District & No.             First District, Fifth Division
                           Docket No. 1-10-2089


Filed                      November 21, 2012


Held                       Defendant’s conviction and sentence for second degree murder were
(Note: This syllabus       upheld over his contention that he acted in self-defense, since the victim
constitutes no part of     was not in a position to seriously harm defendant in a way that would
the opinion of the court   justify defendant’s deadly use of a firearm, and the sentence close to the
but has been prepared      maximum was appropriate in view of the gravity of the offense.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 07-CR-19393; the
Review                     Hon. Jorge Luis Alonso, Judge, presiding.



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

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Sari
                           London, and Sara Dillery Hynes, Assistant State’s Attorneys, of counsel),
                           for the People.


Panel                      JUSTICE TAYLOR delivered the judgment of the court, with opinion.
                           Presiding Justice McBride and Justice Palmer concurred in the judgment
                           and opinion.



                                             OPINION

¶1          Following a bench trial, defendant Orlando Lewis was found guilty of the second degree
        murder of Robert Thompkins and sentenced to 18 years’ imprisonment. On appeal, defendant
        contends that the State failed to prove beyond a reasonable doubt that he did not act in self-
        defense when Thompkins walked toward him after defendant displayed a gun. Defendant
        further contends that his sentence was excessive and that his mittimus should be reduced to
        reflect 1,032 days spent in presentencing custody. The State agrees that his mittimus should
        be corrected to 1,033 days. As to all other claims, the State disagrees.

¶2                                         BACKGROUND
¶3          The record shows that defendant was charged with six counts of first degree murder in
        connection with an incident which occurred on October 14, 2006, on the south side of
        Chicago. At trial, the State called four occurrence witnesses, namely, Lateaccahe Temple,
        Sylvester Johnson, Fania Morrow and Cameron Wordlaw, who testified consistently. All
        four witnesses stated that the defendant and Thompkins had known each other for 15 years.
        Temple, Morrow and Johnson testified that in the evening of October 13, 2006, they had
        gone to the hospital, along with defendant, his brother Jeremy, and Thompkins, to visit a
        young man who was being treated for a gunshot wound suffered during a robbery. At the
        hospital, Thompkins told Jeremy that he was a “bitch” for sending the young man to commit
        that robbery instead of doing it himself. According to those witnesses, Thompkins then told
        Jeremy that they would handle that dispute “on the block,” referring to 106th Street and
        Wabash in the city of Chicago.
¶4          According to all four occurrence witnesses, the group, which included Jeremy and
        Thompkins, as well as Morrow, Johnson and Wordlaw, gathered at or about 1 a.m. in an
        alley and vacant lot just south of 10641 South Wabash, where Temple resided. Thompkins
        and Jeremy began to argue in the street, and when the fight turned physical, they moved onto
        the sidewalk. At that time, defendant came running from his house and tried to break up the

                                                 -2-
     fight. The four witnesses stated that defendant pulled a gun and pointed it to Thompkins,
     who was unarmed and standing two to four feet away from defendant. They all testified that
     Thompkins then told defendant that if he pulled out that gun, he better kill Thompkins, at
     which point defendant fired the gun at Thompkins at least twice before he fell on the ground,
     then shot Thompkins in the head while standing over him.
¶5        Temple, who observed the incident from her front porch about 20 feet away, stated that
     when defendant approached Thompkins and Jeremy, Thompkins walked away from the two
     brothers, and had his back to defendant when the defendant pulled out the gun and fired it
     at Thompkins. According to Temple, the first shot spun Thompkins around toward
     defendant, who shot Thompkins again, then knelt over him on the ground and shot him in
     the back of the head. Johnson, who saw the fight between Jeremy and Thompkins from 15
     to 20 feet away, testified that when defendant ran to the scene, others had already separated
     Jeremy and Thompkins, but after Jeremy briefly spoke to defendant, the two began fighting
     again. According to Johnson, defendant got in the middle of the fight and Thompkins struck
     him twice before he pulled out the gun. Johnson stated, however, that Thompkins tried to run
     from defendant after the third or fourth shot, before falling to the ground. Similarly to
     Johnson’s testimony, Morrow stated that Jeremy was backing off Thompkins when defendant
     arrived, but became more aggressive once defendant whispered something to him. According
     to Morrow, Thompkins then told defendant and Jeremy that he would beat them both, but
     she did not see Thompkins strike defendant. Wordlaw, who was playing chess at the alley
     about 15 feet away, testified that the fight turned physical after Thompkins took a swing at
     Jeremy, and that when defendant arrived, defendant tried to break up the ongoing fight.
     Wordlaw stated that Thompkins took a swing at defendant, who then took out his gun, and
     that Thompkins walked toward him with open palms and did not back down as defendant
     shot him several times. He further explained that everyone on the scene, including defendant,
     Thompkins and Jeremy, were friends who often engaged in fistfights without fear of anything
     worse.
¶6        Temple, Johnson and Wordlaw testified that after the shooting, Jeremy warned everyone
     at the scene not to report the incident or they would be killed as well. Jeremy, who testified
     for the defense, admitted that he and defendant fled to Windsor, Canada, shortly after the
     incident and did not return to Chicago until July of 2007.
¶7        William Dunigan, a forensic investigator, testified that he recovered a spent bullet near
     Thompkins’ body, and that both Thompkins’ hands tested positive for gunshot residue. Scott
     Rochowicz, a forensic scientist, explained that those results meant that Thompkins had either
     discharged a firearm or was in close proximity when it was discharged. Rochowicz further
     stated that gunsmoke can be transferred from one person to another, and can travel up to 10
     feet. Dr. Nancy Jones, who performed an autopsy on Thompkins, testified that she recovered
     three bullets from his body: one from the right side of his head, one from his right buttock
     and one from the area near his right armpit and upper back. Her exam of the body revealed
     corresponding gunshot wounds on the left side of the back of his head, his right hip and the
     inside of his right arm at the elbow. Dr. Jones further stated that the bullet recovered from
     Thompkins’ head traveled through his brain, from the back of his head toward the front.
¶8        Defendant, who testified on his own behalf, stated at trial that he had known Thompkins

                                              -3-
       from the block for about 15 years, and they were both members of the Four Corner Hustlers
       street gang. He admitted that until the night in question, he had never been afraid of
       Thompkins. While defendant acknowledged that he had a gun that night, he explained that
       he had taken it from a group of younger men who were about to use it to resolve a dispute.
       Defendant stated that he still had that gun when he saw Jeremy and Thompkins fighting and
       ran to the scene to break up the fight. Defendant explained that once he separated Jeremy and
       Thompkins, and told Jeremy to go home, Thompkins grabbed defendant and began choking
       him. When defendant broke free, Thompkins punched him in the face. According to
       defendant, he then tried walking away, but Thompkins advanced toward him, at which time
       defendant pulled out his gun and pointed it at Thompkins, stating “we can do this a better
       way.” Defendant stated that Thompkins kept walking toward him and responded with
       comments such as “bitch, you better kill me.” He testified that Thompkins then “lunged” at
       him and tried to take the gun, and defendant fired the gun at Thompkins three or four times.
       Defendant denied shooting Thompkins once he was lying on the ground.
¶9         On cross-examination, defendant admitted that he knew that Thompkins did not have a
       gun, but stated that he was still afraid to turn and leave the area after he separated Thompkins
       and Jeremy. He also acknowledged disposing of the gun shortly after the shooting and
       leaving for Windsor with Jeremy.
¶ 10       In addition, defendant related four incidents in which he observed Thompkins strike other
       individuals. According to defendant, in 1999 or 2000, he saw Thompkins beat a man over
       money, and in 2002 or 2003, he saw Thompkins hit a man who tried to sell him a chain.
       Further, in 2005, defendant saw Thompkins attack a man who won money from him
       gambling, and in an unrelated incident, Thompkins struck another man in the head with a
       gun. However, he admitted that he had never seen Thompkins threaten those men with a gun
       and that Thompkins never used a gun on his fellow gang members.
¶ 11       The defense also called three police officers who had prior encounters with Thompkins.
       Officer Davis testified that in September, 2003, he apprehended Thompkins for drinking in
       a public way, and when he and his partner placed him in the wagon after a struggle,
       Thompkins dropped a handgun on the street. Officer Riggins, the lockup officer for that 2003
       incident, testified that once Thompkins arrived at the station, he was cursing and spitting on
       officers. Thompkins struck the officer in the face, and when officers tried to close the cell
       door on Thompkins, he slammed the door on Officer Riggins’ arm, fracturing it. Lastly,
       Officer McWilliams testified that in December 1999, he responded to a domestic disturbance
       call involving Thompkins, and observed him in a fistfight with his brother. When Officer
       McWilliams’ female partner attempted to break up the fight, Thompkins struck her
       repeatedly.
¶ 12       Following closing arguments, the trial court found defendant guilty of the lesser included
       offense of second degree murder, holding that the evidence showed that while defendant was
       acting in the belief of self-defense, that belief was not reasonable. In doing so, the court
       stated that while the four occurrence witnesses’ testimony contained inconsistencies, it
       provided a clear picture of what happened the night in question and was more credible than
       defendant’s own trial testimony. In fact, the court found that the State proved that defendant
       had the intent to kill or do great bodily harm to Thompkins and was not justified in using

                                                 -4-
       deadly force. However, it also found that the defense proved by a preponderance of the
       evidence the existence of a mitigating factor so as to allow defendant to be found guilty of
       the second, rather than first, degree murder. The court further stated that since the medical
       examiner did not find evidence of close-range firing to the back of Thompkins’ head, it
       would give defendant “the benefit of the doubt” as to whether defendant kneeled over
       Thompkins on the ground. In addition, the court noted that defendant’s flight to Canada was
       further evidence that he knew he was guilty.
¶ 13       At sentencing, the State noted that defendant chose to join a fistfight with a man whom
       he had known for years and never been afraid of, chose to bring a firearm, and chose to shoot
       Thompkins three times. Defense counsel pointed out that defendant had no prior convictions
       for violent crimes, but only for drug possession. He also noted that defendant had a prior
       work history and family support. Defendant apologized to Thompkins’ family and expressed
       remorse. The court sentenced defendant to 18 years’ imprisonment, noting that it had given
       him the “benefit of the doubt” when it reduced his crime to second degree murder, and that
       such a sentence was appropriate taking into account all the factors in aggravation and
       mitigation. Defendant was then credited with 1,003 days spent in custody. He filed a motion
       to reconsider the sentence, which was denied.

¶ 14                                           ANALYSIS
¶ 15       On appeal from that judgment, defendant now contends that the State failed to prove
       beyond a reasonable doubt that he did not act in self-defense in shooting Thompkins, who
       kept coming at defendant even after he displayed a gun to break up the ongoing fistfight.
       Defendant maintains that the evidence presented at trial showed that defendant’s actions
       were justified because he believed that he and his brother were in imminent danger of death
       or great bodily harm when Thompkins kept advancing toward him.
¶ 16       Where a defendant challenges the sufficiency of the evidence to sustain a conviction, we
       determine whether any rational trier of fact, after viewing the evidence in the light most
       favorable to the State, could have found the essential elements of the crime beyond a
       reasonable doubt. People v. Siguenza-Brito, 235 Ill. 2d 213, 224, 920 N.E.2d 233, 240
       (2009). This standard recognizes the responsibility of the trier of fact to resolve conflicts in
       the evidence, to determine the credibility of the witnesses and the weight of their testimony,
       and to draw reasonable inferences therefrom. People v. Williams, 193 Ill. 2d 306, 338, 739
       N.E.2d 455, 472 (2000). Accordingly, this court will not substitute its judgment for that of
       the trier of fact as to the weight of the evidence or the credibility of the witnesses, or set aside
       a criminal conviction unless the evidence is so improbable or unsatisfactory as to create a
       reasonable doubt as to defendant’s guilt. Siguenza-Brito, 235 Ill. 2d at 224-25, 920 N.E.2d
       at 240. We do not find this to be such a case.
¶ 17       Self-defense is an affirmative defense, and once defendant raises it and provides some
       evidence of it, the State has the burden of proving beyond a reasonable doubt that defendant
       did not act in self-defense, in addition to the elements of the charged offense. People v.
       Jeffries, 164 Ill. 2d 104, 127, 646 N.E.2d 587, 597 (1995). In Illinois, a person is justified in
       using deadly force only when he reasonably believes that such force is necessary to prevent


                                                   -5-
       imminent death or great bodily harm to himself or another person, or the force threatened is
       a forcible felony. 720 ILCS 5/7-1 (West 2004). Thus, a person acts in self-defense where: (1)
       force was threatened against defendant; (2) defendant was not the aggressor; (3) the danger
       of harm was imminent; (4) the force threatened was unlawful; (5) defendant actually believed
       a danger existed and the use of force was necessary to avert it; and (6) defendant’s belief was
       reasonable. 720 ILCS 5/7-1 (West 2006); see also People v. Morgan, 187 Ill. 2d 500, 533,
       719 N.E.2d 681, 700 (1999). If the State negates any of the above elements, defendant’s
       claim of self-defense fails. Jeffries, 164 Ill. 2d at 127-28, 646 N.E.2d at 597-98. Where a
       defendant shoots an unarmed victim, who was not in a position to cause great bodily harm,
       a fact finder may rationally conclude that any belief of imminent danger so as to justify the
       use of deadly force was unreasonable. See, e.g., People v. Davis, 33 Ill. App. 3d 105, 109-10,
       337 N.E.2d 256, 260 (1975) (defendant’s belief that an unarmed man was about to cause her
       great bodily harm was unreasonable, and she was not justified in shooting him, even after he
       threatened to kill her, walked after her and snatched off her wig); People v. Lee, 243 Ill. App.
       3d 1038, 1043, 614 N.E.2d 108, 112 (1993) (fact finder may have found that unarmed victim
       could not have threatened great harm against defendant so as to justify shooting the victim,
       even after a fistfight started by the victim).
¶ 18       In this case, the evidence, shown in the light most favorable to the State, shows that
       defendant instigated his brother to fight Thompkins after their initial fistfight had been
       broken up, and then intruded upon the second fight between the two men. Further, the
       evidence shows that when defendant pulled his gun and pointed it at Thompkins, he knew
       that Thompkins was unarmed and that Thompkins had never shot at a fellow gang member
       in the past. While it appears that Thompkins told defendant that if he pulled a gun on him,
       he “better kill [Thompkins],” that statement, when viewed in the light most favorable to the
       prosecution, does not necessarily indicate that Thompkins was about to shoot defendant with
       that gun, but could have been a threat to merely hit defendant, or to seek revenge at a later
       time. Moreover, instead of reporting the incident to the police, defendant fled to Canada,
       which further indicates that he knew the shooting was not justified. Thus, even if Thompkins
       kept walking toward defendant after he pointed the gun at him, a rational trier of fact could
       have concluded that if defendant believed that deadly force was necessary to avert imminent
       danger, such belief was unreasonable.
¶ 19       Defendant’s reliance on People v. Harling, 29 Ill. App. 3d 1053, 331 N.E.2d 653 (1975),
       and People v. Bailey, 27 Ill. App. 3d 128, 326 N.E.2d 550 (1975), is misplaced. The
       defendant in Harling, 29 Ill. App. 3d at 1058, 331 N.E.2d at 558 was the only witness to the
       fatal stabbing of the victim while they were engaged in mutual combat, unlike defendant in
       this case, who shot an unarmed Thompkins from two to four feet away. In Bailey, 27 Ill.
       App. 3d at 133-34, 326 N.E.2d at 554, there were two men advancing toward defendant,
       blocking his only exit and threatening to push him out of a third-story window immediately
       behind defendant. Thompkins, by contrast, was not in a position to cause any great harm to
       defendant so as to justify the defendant’s use of a deadly weapon.
¶ 20       Defendant next contends that his 18-year sentence for second degree murder was
       excessive and that this court should reduce his sentence to a more appropriate term or remand
       his case for resentencing. He contends that a sentence that is only two years shorter than the

                                                 -6-
       maximum sentence allowed for this offense is excessive in light of the facts that he has no
       history of violent crimes, has a steady family and employment history, and has expressed
       remorse for his crime.
¶ 21        It is well established that trial courts have broad discretionary powers in imposing a
       sentence, and that their sentencing decisions are entitled to great deference. People v.
       Alexander, 239 Ill. 2d 205, 212, 940 N.E.2d 1062, 1066 (2010). A reviewing court may not
       substitute its own judgment absent an abuse of discretion, which will be found only if the
       judgment of the trial court is manifestly unjust or the defendant’s sentence constitutes a clear
       departure from fundamental law or is not proportional to the nature of the offense. People
       v. Henderson, 354 Ill. App. 3d 8, 19, 820 N.E.2d 108, 117 (2004).
¶ 22        In this case, defense counsel presented evidence of defendant’s prior employment history,
       family ties, lack of a violent criminal history and remorse for his crime. In aggravation, the
       State noted the nature and circumstances of the crime, namely, that defendant chose to join
       a fight between his brother and Thompkins, to bring a firearm, and to fire it at an unarmed
       Thompkins repeatedly. The State further noted that the trial court had already given
       defendant the benefit of the doubt in finding him guilty of second, rather than first, degree
       murder. In sentencing defendant to 18 years’ imprisonment, which is within the statutory
       limits for second degree murder (730 ILCS 5/5-8-1(a)(1.5) (West 2006)), the trial court
       stated that it considered all the factors in aggravation and mitigation, including defendant’s
       criminal history, the financial impact of his incarceration as well as his statement of remorse.
       It then noted that a sentence close to the maximum range was appropriate given the facts and
       seriousness of the crime. Under these circumstances, we conclude that the trial court did not
       abuse its discretion in imposing defendant’s sentence.
¶ 23        Lastly, defendant contends that his mittimus should be corrected to reflect 1,032 days of
       spent in presentencing custody, instead of the 1,003 days currently reflected therein. The
       question of whether defendant’s mittimus should be corrected is a purely legal issue, subject
       to de novo review (People v. Jones, 397 Ill. App. 3d 651, 656, 921 N.E.2d 768, 772 (2009)),
       and this court has the authority to order the clerk of the circuit court to issue a corrected
       mittimus (Ill. S. Ct. R. 615(b)(1)). The record shows that defendant was arrested on August
       27, 2007, and remained in custody until the day he was sentenced on June 25, 2010. The
       State correctly notes that, excluding the day that he was sentenced, defendant was in custody
       for a total of 1,033 days. Accordingly, we order the mittimus to be amended to reflect 1,033
       days of credit.
¶ 24        For the foregoing reasons, we affirm the judgment of the circuit court of Cook County,
       and order the mittimus to be amended to show 1,033 days served.

¶ 25      Affirmed, mittimus corrected.




                                                 -7-
