                                 2015 IL App (1st) 133874
                                       No. 1-13-3874
                              Opinion filed September 18, 2015

                                                                           FIFTH DIVISION

                                             IN THE

                            APPELLATE COURT OF ILLINOIS

                                       FIRST DISTRICT


     THE PEOPLE OF THE STATE OF                   )      Appeal from the Circuit Court
     ILLINOIS,                                    )      of Cook County.
                                                  )
          Plaintiff-Appellee,                     )
                                                  )
          v.                                      )      No. 08 CR 4784
                                                  )
     IGNACIO CASTELLANO,                          )      The Honorable
                                                  )      Timothy Joseph Joyce,
          Defendant-Appellant.                    )      Judge, presiding.


               JUSTICE GORDON delivered the judgment of the court, with opinion.
               Presiding Justice Reyes and Justice McBride concurred in the judgment and opinion.




                                          OPINION

¶1             Defendant Ignacio Castellano, age 34 and mentally retarded, was

       convicted after a bench trial of first-degree murder and two counts of

       aggravated battery, and sentenced on November 21, 2013, to a total of 32 years

       with the Illinois Department of Corrections.
     No. 1-13-3874

¶2           On this direct appeal, defendant asks this court to reduce his murder

       conviction to second-degree murder, arguing that he proved by a preponderance

       of the evidence a mitigating factor, namely, that he had an actual, although

       unreasonable, belief in the need to act with deadly force to defend himself and

       another. 720 ILCS 5/9-2(a)(2) (West 2008).

¶3           With respect to second-degree murder, the factfinder must first conclude

       that the State proved beyond a reasonable doubt that the defendant committed

       first-degree murder before the factfinder considers whether defendant proved by

       a preponderance of the evidence one of the mitigating factors required for

       second-degree murder. 720 ILCS 5/9-2(c) (West 2008); People v. Thompson,

       354 Ill. App. 3d 579, 586 (2004). On this appeal, defendant does not claim that

       the State failed in its initial burden of proving him guilty beyond a reasonable

       doubt of first-degree murder.

¶4           Since defendant challenges neither the State's satisfaction of this initial

       burden nor the aggravated battery convictions, the sole issue on appeal is

       whether the trial court should have reduced the murder charge to second-degree

       murder based on defendant's claim of imperfect self-defense. People v. Jeffries,

       164 Ill. 2d 104, 113 (1995) ("The imperfect self-defense form of second degree

       murder occurs when there is sufficient evidence that the defendant believed he

       was acting in self-defense, but that belief is objectively unreasonable.").

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     No. 1-13-3874

¶5           In reviewing defendant's claim, we do not consider what we would have

       done if we had been standing in the trial court's shoes. Instead, we consider

       whether any rational trier of fact could have reached the same conclusion that

       the trial court did. People v. Blackwell, 171 Ill. 2d 338, 357 (1996) (the

       question is whether "any rational trier of fact" could have reached the same

       conclusion) (emphasis and internal quotation marks omitted). A careful review

       of the trial record shows that a rational trier of fact could have reached the same

       conclusion. Thus, for the reasons explained in greater detail below, we affirm.

¶6                                   BACKGROUND

¶7           On February 9, 2008, a fight among five men in a gangway on South

       Drake Avenue ended with two men fatally stabbed. The two decedents were

       Ramiro Landa, defendant's brother-in-law, and Rafael Villagrana.               The

       remaining three men were: defendant; Javier Cahue; and Jesus Sanchez. Both

       defendant and Javier Cahue testified at trial, but Jesus Sanchez did not. The trial

       court concluded that it "simply" did not "believe [defendant's] testimony," while

       "Cahue was testifying "credibly."

¶8           Defendant was indicted for:          (1) the first degree murder of Rafael

       Villagrana; (2) the first-degree murder of Ramiro Landa; (3) the attempted first-

       degree murder of Jesus Sanchez; (4) the aggravated battery of Jesus Sanchez;

       (5) the aggravated battery of Javier Cahue. The trial court found defendant not

                                              3
       No. 1-13-3874

          guilty of the murder Ramiro Landa and not guilty of the attempt murder of

          Jesus Sanchez, but guilty of the murder of Villagrana and guilty of the

          aggravated battery of both Jesus Sanchez and Javier Cahue.

¶9                                     I. Evidence at Trial

¶ 10             As stated above, our review demands a careful consideration of the

          evidence at trial, which we describe in detail below.          As this court has

          emphasized, our review must not be a "mindless rubber stamp on every bench

          trial guilty verdict we address." People v. Hernandez, 312 Ill. App. 3d 1032,

          1037 (2000).

¶ 11                                 A. State's Case-In-Chief

¶ 12                                     1. Javier Cahue

¶ 13             Javier Cahue testified that, in February 2008, he lived alone in a coach

          house in a rear yard on South Drake Avenue. A gangway ran along the side of

          the main building which led to the rear yard. Cahue was at home watching

          videos with Jesus Sanchez1 and Rafael Villagrana when they decided to depart

          at 9:20 p.m. on February 9, 2008, to attend a birthday party. Villagrana went

          down the stairs first, with Jesus Sanchez following and Cahue behind Jesus

          Sanchez. When Cahue reached the bottom of the stairs, he observed two men

             1
              Since Willie Sanchez, Jesus' brother, and Chicago police officer Mario
       Sanchez testified at trial, we will refer to Jesus Sanchez by his full name to avoid
       confusion.
                                                 4
       No. 1-13-3874

         approaching from the street to the gangway. Cahue recognized one of the men

         as Ramiro whom Cahue had previously sold marijuana to. Although Cahue had

         not previously encountered the other man, Cahue identified him in court as

         defendant. Cahue testified that he had no problems with Ramiro Landa.

¶ 14           Cahue testified that Landa moved to Villagrana's side and defendant

         stabbed Villagrana in the chest, swinging more than once at Villagrana.

         Villagrana then moved toward the street. As Jesus Sanchez was running toward

         the street, defendant stabbed him in the back. After Jesus Sanchez was stabbed,

         he also moved toward the street, and defendant moved to "slash towards" Cahue

         with a punching motion but defendant caught Landa on the left side of the neck

         under the ear and blood started spurting. Defendant froze in apparent disbelief

         over what he had done to Landa. Cahue then started struggling with defendant

         trying to take the knife from defendant's hand, and Cahue did not feel the blade

         when his hand was cut. Defendant told Cahue "my beef ain't with you." Cahue

         let go of the knife, gave defendant a push toward the street and then closed the

         gate which was now between them. Defendant ran off towards the street.

¶ 15           Cahue testified that he waited a minute before walking to the street,

         where he observed Villagrana lying dead on the sidewalk and Landa lying

         further south on the sidewalk, but Cahue did not observe defendant or Jesus

         Sanchez. Cahue asked a neighbor to call the police and started walking away

                                              5
       No. 1-13-3874

         out of fear that defendant would return. He called his brother who subsequently

         transported him to Mt. Sinai Hospital, where Jesus Sanchez was also being

         treated. Cahue needed stitches and his hands were bandaged. The police then

         transported him to a police station where he spoke with detectives and

         identified defendant from a lineup as the person who stabbed Jesus Sanchez,

         Villagrana, and Landa, and cut Cahue's hands.

¶ 16             Cahue testified that he did not observe words or gang signs exchanged

         before defendant drew his knife, and that no one but defendant possessed a

         knife or weapon. Cahue admitted that he sold drugs, that he had disposed of the

         cocaine and marijuana in his home before his brother transported him to the

         hospital, and that he had been convicted in 2005 for the manufacture and

         delivery of 500 grams or more of marijuana. He also admitted that he,

         Villagrana and Sanchez were all Latin Kings but stated that he was no longer in

         the gang. At the time of the incident Cahue weighed 280 pounds.

¶ 17                        2. Chicago Police Officer Mario Sanchez

¶ 18             Chicago police officer Mario Sanchez testified that he was in uniform

         and in a marked police vehicle at 9:20 p.m. on February 9, 2008, with Officer

         Perez2 when he was dispatched to South Drake Avenue. When he arrived, he

         observed two bodies lying on the ground, and defendant kneeling over one of

            2
                Officer Sanchez did not provide a first name for his partner, Officer Perez.
                                                  6
       No. 1-13-3874

          the bodies. Officer Sanchez, who is fluent in Spanish, heard defendant state

          "get up, come on, let's go, are you okay, get up."

¶ 19               Sanchez testified that, when the officers approached, defendant

          appeared to be in shock and asked Sanchez to call an ambulance for his brother-

          in-law which Sanchez did. Sanchez then asked defendant if they could speak to

          him in the police vehicle since it was cold outside. Defendant stated that it was

          better for him to speak to the officers in their vehicle because he did not want

          gang members to observe him speaking to the officers. Sanchez testified that

          the crime scene was located in "a high infested gang area" which included the

          Latin Kings.

¶ 20             After defendant entered the back of the vehicle and Sanchez and his

          partner entered the front, the officers asked what happened.           Defendant

          responded that his brother-in-law wanted to buy drugs at a South Drake

          address3 and instructed defendant to wait nearby. Subsequently, his brother-in-

          law ran out of the gangway stating that he had been stabbed and asking

          defendant to call the police. Defendant then ran across the street to his house to

          call 911 and returned to find his brother-in-law lying on the sidewalk. Another

          man ran out of the gangway and fell nearby. Then two more men ran out of the



             3
              Officer Sanchez testified to the precise address, which was the address
       where Cahue testified he lived.
                                                 7
       No. 1-13-3874

          gangway, entered a black SUV and drove south on South Drake Avenue. The

          men also appeared injured.

¶ 21                 Sanchez testified that defendant stated that he lived at a South Drake

          address where his brother-in-law also lived, and that defendant's wife was

          Ramiro Landa's sister.

¶ 22                                  3. Detective Greg Swiderek

¶ 23                  Detective Greg Swiderek testified that he and his partner David Roberts

          were assigned to investigate the stabbing of two people near South Drake

          Avenue on February 9, 2008. When they arrived, they observed two dead

          bodies and blood trails which led to and from a gangway by a South Drake

          address.4 At 4 a.m. on February 10, they returned to Area 4 where they

          interviewed defendant from 4:30 to 5 a.m., with Detective Jose Garcia acting as

          a translator. After observing small cuts on defendant's left middle finger and

          index finger and after interviewing Cahue, Swiderek decided to activate the

          electronic recording interview system and interview defendant again.            With

          Officer Garcia translating, Swiderek advised defendant of his Miranda rights

          and interviewed defendant for 20 minutes starting at 5:55 a.m. on February 10,

          2008. See generally Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.

          2d 694 (1966).
                4
                    This was the same South Drake address where Cahue testified that he
       lived.
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       No. 1-13-3874

¶ 24             On cross, Swiderek testified that defendant's arrest report reflected that

         defendant was 5 feet 5 inches tall and weighed 130 pounds.

¶ 25                                 4. Sergeant Jose Garcia

¶ 26             Sergeant Jose Garcia testified that he was fluent in Spanish and he acted

         as a translator during Detective Swiderek's interview of defedant at 4:30 a.m. on

         February 10, 2008. After the interview, Garcia and his partner Detective Rios

         traveled to an address on South Drake Avenue, where defendant had stated that

         he resided and which was across the street from where the bodies were found.

         Garcia and Rios entered a gangway5 on the south side of defendant's building

         and walked toward the rear entrance of the basement apartment. At the end of

         the gangway, there was an enclosed porch with a common stairway. There

         were concrete steps leading down toward the basement apartment and stairs

         leading up to the first floor. There was a door between the gangway and the

         common area which Swiderek had described. This door was open. At the

         bottom of the concrete steps, directly in front of the door to the basement

         apartment, they found a bloody black jacket. With respect to the door to the

         basement apartment, they observed blood stains around the lock area in the

         middle of the door, on the door jamb and on the light switch to the right of the

         door. The officers then knocked on the door but no one responded. Then

            5
                This is not the gangway where the fight occurred.
                                                9
       No. 1-13-3874

         Garcia walked to the front of defendant's building and then to the front of the

         house immediately to the north on South Drake Avenue. In the front yard of

         the house immediately to the north and just inside a fence, he observed a bloody

         knife laying in the snow.

¶ 27                         5. Forensic Investigator Brian Smith

¶ 28           Chicago police investigator Brian Smith testified that he and his partner

         Detra Gross processed the crime scene, including the bloody knife found in the

         front yard of the house immediately to the north of defendant's building and the

         bloody jacket found near defendant's apartment.

¶ 29               6. Marisol and Willie Sanchez, Siblings of Jesus Sanchez

¶ 30           Marisol Sanchez, the sister of Jesus Sanchez, testified that she visited

         Jesus at Mt. Sinai Hospital on February 10, 2008, and that he had a stab wound

         in his back. Jesus was 17 years old, 5 feet 7 inches tall and weighed 130

         pounds.

¶ 31               Willie Sanchez testified that he was Jesus' older brother and that he

         was a member of the Latin King gang. Willie was serving a one-year sentence

         for felony criminal damage to property at the time of the trial. On New Year's

         Eve 2007 and into New Year's Day 2008, Willie was in front of his house on




                                              10
       No. 1-13-3874

          South Drake Avenue6 with his brother Jesus and another person named Jose

          James. At that time, Willie observed a person whom he later learned was

          named Ignacio. Although defendant's first name is Ignacio, Willie did not

          identify defendant in court as Ignacio. The following exchange occurred:

                    "ASSISTANT STATE'S ATTORNEY (ASA): And [at] some point

                 did you see a person who you later learned was Ignacio?

                    WILLIE SANCHEZ: Yes.

                    ASA: Do you see Ignacio in court today?

                    WILLIE SANCHEZ: No.

                    ASA:    Stand up and look around and tell me if you recognize

                 anybody. If you do or you don't. Stand up please.

                    WILLIE SANCHEZ: No, I don't."

          However, Willie subsequently identified People's Exhibit No. 49 as a

          photograph of Ignacio as Ignacio appeared when he was at Willie's house on

          New Year's Eve 2007, and Exhibit No. 49 is a photograph of defendant.

¶ 32             Willie testified that, when he observed Ignacio on New Year's Eve,

          Ignacio was drunk and carrying a 24 pack of beer down the street. Willie asked

          Ignacio if he wanted to come up and have a beer with them, and Ignacio agreed.

             6
              Both Willie Sanchez and Javier Cahue testified that they lived on a
       property with the same street number on Drake Avenue. Sanchez lived in the front
       house, while Cahue testified that he lived alone in a coach house in the rear yard.
                                               11
       No. 1-13-3874

         Later, Willie was asleep on the couch when Jesus woke him to say that Ignacio

         had urinated on Willie's daughter's toys. Willie observed liquid that appeared to

         be urine on the toys and observed Ignacio pulling up his pants. Willie told him

         to leave and a fight ensued, with Willie and Jesus both punching Ignacio in the

         face. Ignacio's left eyebrow was bleeding and he left. In 2008, Willie was 6 feet

         tall and 200 pounds.

¶ 33                         7. Stipulations Regarding Biological Evidence

¶ 34                The parties entered into a number of stipulations concerning the

         biological evidence and analysis in the case. The stipulations themselves were

         marked as People's Exhibits.

¶ 35                People's Exhibit Nos. 56 and 57 were stipulations to the blood standards

         obtained from decedents, Ramiro Landa and Rafael Villagrana, respectively;

         and Nos. 58, 59 and 60 were stipulations to the buccal swabs obtained from

         Jesus Sanchez, Javier Cahue and defendant, respectively.

¶ 36                No. 61 was a stipulation that Jennifer Belna, a forensic biologist with the

         Illinois State Police, had obtained DNA profiles suitable for comparison for:

         (1) Rafael Villagrana; (2) Jesus Sanchez; (3) Ramiro Landa; (4) Javier Cahue;

         and (5) defendant.7         In No. 61, the parties also stipulated: (1) that DNA


               7
                   These five men were the five who participated in the fight on February 9,
       2008.
                                                   12
       No. 1-13-3874

         obtained from blood stains on Javier Cahue's blue jeans matched the DNA

         profiles of both defendant and defendant's brother-in-law, Ramiro Landa; and

         (2) that DNA obtained from blood stains on the knife matched the DNA profiles

         of defendant and the two decedents, Ramiro Landa and Rafael Villagrana, and

         Javier Cahue could not be excluded from one of the mixtures found on the

         knife.

¶ 37              No. 62 was a stipulation that Debra Klebacha, a forensic biologist with

         the Illinois State Police, received defendant's jeans, a black jacket, a knife, and

         swabs from a light switch and door, and she processed and preserved these

         items for future DNA analysis. No. 63 was a stipulation that Nicholas Richert,

         a DNA analyst employed with the Illinois State Police had analyzed the swabs

         from the black jacket, door and light switch and reached the following

         conclusions. DNA obtained from blood stains on the jacket matched the DNA

         profiles of Ramiro Landa, Javier Cahue, and defendant. DNA obtained from

         the blood stain on the light switch matched the profile of defendant, and DNA

         obtained from the basement door matched the profile of Javier Cahue.

¶ 38              Nos. 64 and 65 were stipulations regarding the testimony of Dr. Michel

         Humilier, a forensic pathologist employed by the Cook County medical

         examiner's office. Humilier performed the autopsies of both Rafael Villagrana

         and Ramiro Landa and concluded that Villagrana's death was the result of

                                               13
       No. 1-13-3874

          multiple stab wounds and that Landa's death was the result of a stab wound to

          the left side of the lower neck. Villagrana suffered three stab wounds, including

          a stab wound to the chest, a stab wound to the upper back, and a stab wound to

          the lower back.

¶ 39             After reading the stipulations and moving exhibits into evidence, the

          State rested its case in chief. Defendant then moved for a directed finding

          which the trial court denied.

¶ 40                               B. The Defense's Evidence

¶ 41                                      1. Brian Miskell

¶ 42             Brian Miskell, a Chicago fire department paramedic, testified that on

          January 1, 2008, at 5 a.m. he was dispatched with his partner, Grace Flores

          Pacowixz, to South Drake Avenue 8 where he observed a battery victim. The

          victim was defendant who had a laceration above his left eye which was bruised

          and swollen shut, and a swollen left cheek. The victim also had an odor of

          alcohol on his breath. Miskel was told that defendant had lost consciousness at

          one point but Miskel did not testify who provided this information. Miskel and

          his partner then transported him to the emergency room of Mt. Sinai Hospital.


             8
              The street number provided by Miskell was the same street number for the
       property occupied by Javier Cahue, who lived in the rear coach house, and Willie
       Sanchez, who lived in the front house. This was also the location where the fight
       on February 9, 2008, later occurred.
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       No. 1-13-3874

¶ 43                               2. Dr. Amardeep Singh

¶ 44           Dr. Singh testified that he was the emergency room doctor at Mt. Sinai

         Hospital who treated defendant on January 1, 2008 at 5 a.m. Defendant, who

         was intoxicated, suffered a fracture to the upper left cheek bone, head trauma,

         and a facial laceration. Dr. Singh stitched the laceration but testified that it

         would still leave scarring. He testified that, according to his contemporaneous

         notes, defendant presented to the emergency room "with alcohol intoxication,

         assault with a pipe, possible loss of consciousness. Facial laceration,

         complaining of face pain and swelling." Based on his notes, Dr. Singh could

         not be certain that defendant was discharged the same day.

¶ 45                    3. Chicago Police Officer Ramiro Gonzalez

¶ 46           Chicago police officer Ramiro Gonzalez testified that he was in the gang

         enforcement unit.    At the time of trial, his assignment concerned gangs

         throughout the city of Chicago.     However, from December 2007 through

         February 2008, his assignment was limited to the 10th District which is from

         Roosevelt Road to "55 River" and from Cicero Avenue to Ashland Avenue.

         This area includes South Drake Avenue. Gonzalez testified that he was familiar

         with Javier Cahue, Willie Sanchez and Jesus Sanchez, and that they were all

         members of the Latin Kings.



                                              15
       No. 1-13-3874

¶ 47             Gonzalez testified that he routinely provided his cell phone number to

          victims of crimes and anyone else who wanted to provide information to the

          police. On February 9, 2008, at 9:16 p.m., Gonzalez received a call to his cell

          phone number from a phone number that he later learned belonged to

          defendant. When he asked whether he had an "independent recollection" of

          how he responded to that call, Gonzalez replied "[y]es" and then explained that

          he "always" told people to call 911.

¶ 48             In January 2011, Gonzalez was asked to obtain and did, in fact, obtain a

          police report regarding a robbery and battery on New Year's Eve 2007 or New

          Year's Day 2008 which occurred on South Drake Avenue. 9

¶ 49                        4. Stipulation Regarding Phone Records

¶ 50             The parties stipulated that, if an AT&T employee were called to testify,

          she would testify that a particular landline phone number was registered to an

          "Ignacio Garsellano" at defendant's address on South Drake Avenue and that a

          call was placed on February 9, 2008 at 9:16 p.m. from this landline to a phone

          number, which Officer Gonzalez had previously testified was his cell phone

          number. The call lasted 34 seconds. Two calls were then placed from the same

          landline to 911 at 9:17 p.m. lasting 41 seconds, and at 9:18 p.m. lasting 33

          seconds.
             9
              The street number was the street number of the property where both Javier
       Cahue and Willie Sanchez lived.
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       No. 1-13-3874

¶ 51                                       5. Defendant

¶ 52                                  a. Direct Examination

¶ 53              Defendant, who testified through a Spanish interpreter, testified that his

          full name was Ignacio Garcia Castellano, that he was 34 years old and that he

          had never attended school, either in Mexico or in the United States. In 2007 and

          2008, he was in a serious relationship with Petra Landa and they had three

          children together. Petra's brother was Ramiro Landa. In 2007, defendant was

          working at a company packing meat and living in a basement apartment on

          South Drake Avenue 10 with Petra, their three children, his brother-in-law and

          one of Petra's nephews.

¶ 54              Defendant testified that, on New Year's Eve 2007, he walked to the house

          of his friends Juan and Graciella on Drake Avenue where he had been invited

          for dinner. Defendant carried with him $600 which he had saved to purchase a

          vehicle, and he hoped to purchase it from them. Petra was not ready to leave, so

          she told defendant to call her later. When defendant called, Petra said it was too

          cold for the youngest to go outside. After dinner, defendant started walking

          home on Drake Avenue when he observed two men, whom he did not know,

          standing on the sidewalk. As he approached, he heard them talking about being

             10
                 Defendant provided the same address which Officer Mario Sanchez
       testified that defendant had provided on the day of the fight, and which was the
       subject of the stipulation regarding phone records.
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       No. 1-13-3874

         glad that they had beaten someone up. They told defendant that if he wanted to

         pass, he had to give them a beer. Defendant responded that he had only one

         beer and that he had already taken a drink from it. Defendant identified one of

         the men from a photograph as Willie Sanchez. When defendant walked away,

         Willie Sanchez told him not to talk about what he heard Sanchez saying or

         Sanchez would kill him.

¶ 55           Defendant testified that he was afraid and crossed to the other side of

         street where he kept walking. Defendant observed another man whom he did

         not know but whom he identified in court from a photograph as Jesus Sanchez.

         Jesus Sanchez asked if defendant wanted a beer and defendant said no, thanks.

         Jesus Sanchez then grabbed defendant stating that he was a Latin King and that

         defendant was disrespecting him. Defendant was aware that area of Drake

         Avenue was controlled by the Latin Kings. Jesus Sanchez held defendant and

         the two other men ran over and all three hit defendant.           Then they took

         defendant into a house and to the second floor. Willie Sanchez stated that

         defendant had just disrespected his brother and hit defendant in the forehead

         with a bottle.

¶ 56           Defendant testified that, after he was hit in the face with a bottle, the next

         thing he remembered was waking up downstairs, between the stairs and the

         door, laying face down. He felt pain in his back and his face, and he could hear

                                               18
       No. 1-13-3874

         two men talking behind him. The third man was in front of him. Defendant did

         not move because he was afraid that, if he moved, they would attack him again.

         The two men behind him were arguing over who had hit him. The third man,

         who was by the door, said that he would take defendant to the alley. Defendant

         heard a vehicle pull up, and someone knocked, and a fourth man said he was

         going to pick something up and he needed money. The man by the door said

         that "paisas have money always." Defendant explained that "paisas" are from

         Mexico. The fourth man then stepped over defendant, removed defendant's

         wallet from defendant's pocket, removed the money and replaced the wallet.

         Then he exited and defendant heard the vehicle leaving. Then defendant heard

         the man by the door trying to light a cigarette, and the man by the stairs told

         him to bring it over here and he would light it. After the man by the door

         stepped over defendant, defendant rose and ran toward the open door.

¶ 57           Defendant testified that, once outside, he stumbled on the ice as he ran

         toward his brother's house. His brother, Juan Garcia Castellano, lived on Drake

         Avenue. The three men chased him and threw things at him as they ran. When

         he reached his brother's house, he opened the gate and knocked hard but the

         three men fell on top of him and were hitting him on his face, head and the back

         of his head. When his brother opened the door, the three of them ran. His

         brother picked him up and brought him in the house. When defendant asked to

                                              19
       No. 1-13-3874

         use his phone, his brother advised him against it because they would kill

         defendant. However, defendant did not listen and called the police. After the

         police arrived, defendant showed them where he had been beaten. Police

         vehicles arrived and officers knocked on the door but no one answered. The

         police then placed defendant into an ambulance.

¶ 58           Defendant testified that he had his birthdate tattoed on his hand:

         "[b]ecause I don't know about letters or numbers and I forget." The ambulance

         transported him to Mt. Sinai Hospital and he was released later that day. As a

         result of the beating, he had a lasting scar above his left eyebrow. After

         defendant was released from the hospital, he experienced a great deal of pain

         and he could not stay sitting, laying down or standing up for very long. On the

         third day after his release, he returned to work. A day or two after the beating,

         defendant observed some men standing outside, and defendant recognized one

         of them and called the police. Officer Gonzalez came to talk to defendant, and

         he provided defendant with his phone number and instructed defendant to call

         again if defendant observed his attackers.

¶ 59           Defendant testified that, on February 9, 2009, in the evening, he was at

         home at his home on South Drake Avenue, watching television with his

         children. His brother Juan was over with his wife, and two of Petra's nephews

         were also there. At 9 p.m. Petra's brother, Ramiro Landa, asked defendant to

                                               20
       No. 1-13-3874

         accompany him to obtain an identification (ID). Defendant responded that he

         was afraid to go out, but Landa replied that, when defendant asked Landa to go

         somewhere, he did; so defendant agreed. Before leaving the house, defendant

         did not take any weapons and he did not observe Landa take any. After they

         exited the house, defendant walked behind Landa stating that it was dangerous

         for him to be on the street. After the beating on New Year's Day, defendant had

         stayed inside for long periods of time. Defendant and Landa were walking on

         Drake Avenue, when Landa walked into a yard. Defendant recognized the

         house as the house where he was beaten and he told Landa not to do that

         because this was the house where he was beaten. Landa replied that, as long as

         defendant was with Landa, defendant was safe. Landa then lifted up his jacket

         and defendant observed a knife. Landa stated that if they tried anything, he

         would "teach them a lesson." Landa told defendant that, if he was scared,

         defendant could go back. Defendant started to go back to his house but he was

         "very afraid" for Landa and defendant tried to pull Landa away. At this point,

         Landa was in the gangway and defendant was trying to pull Landa out of it.

¶ 60           Defendant testified that, as he was trying to pull Landa away, three men

         came running toward them and surrounded defendant. One of the three men

         was Jesus Sanchez who told defendant "all right, paisa, now I'm really going to

         kill you." Then defendant heard a whistle which he recognized as a signal that

                                             21
No. 1-13-3874

   gang members used to call others. When he heard the whistle, defendant

   became very scared and grabbed his brother-in-law's knife. Defendant was

   asked "[a]t the time that you grabbed the knife *** where were those men?" and

   he replied "[t]hey came at me and they started hitting me." 11 Defendant was

   then asked "[c]ould you tell whether any of them had weapons at that point?"

   and he replied "[n]o, no, no." 12 Defendant tried to push them, and he felt that he

   had cut one of them. Then he tried moving back. Defendant identified one of

   the three men from a photograph as Javier Cahue. The three men continued to

   beat him down the back of the gangway. When defendant moved back,

   "something in the shadow came at me" and defendant heard "you cut me

   already brother-in-law." Then Javier Cahue was behind defendant and hitting

   defendant, and defendant swung the knife back, and Cahue said that defendant

   had cut him. Cahue grabbed defendant's hands with both his hands, and Cahue

   was pushing the knife toward defendant's chest. At first, defendant could not do

   anything but then he grabbed the knife. Cahue held on to defendant with a lot of

   force but defendant was able to move a little to the side and Cahue let go.



      11
         Defendant's testimony seems to indicate that he grabbed the knife before
the three men "came at" him. However, on cross, he was asked to clarify this fact,
and he responded that they started beating him before he grabbed the knife.
      12
         It is ambiguous whether defendant's "no" was a response to whether he
could tell or whether the men had weapons.
                                         22
       No. 1-13-3874

         Cahue said "don't kill me, please don't kill me," and defendant replied that he

         did not want to kill anyone and that he was just defending himself.

¶ 61           Defendant testified that he then grabbed his brother-in-law but his

         brother-in-law said he could not walk and that he had lost a lot of blood.

         Defendant "got him out of that place" and then ran toward his house. After

         reaching his house, defendant took off his jacket and "threw it where [he]

         always thr[e]w it in [his] house," opened the door and called Officer Gonzalez

         from his home phone. Gonzalez replied that he was at home and instructed

         defendant to call 911. When defendant called 911, he told them that several

         people were injured and they should send two or three ambulances. After

         calling 911 and telling his girlfriend that her brother had been "cut," defendant

         ran back toward where his brother-in-law was laying and began to lift him up,

         but officers were already on the scene and one of them told him not to do that.

         Defendant told him that he "need[ed] to talk to an officer" because he "kn[e]w

         what happened," and the officer instructed defendant to enter the squad vehicle,

         which he did.

¶ 62           Defendant then identified a photograph of his jacket and the place where

         it was found, which he testified was "the little alley where I always come out."

         Prior to February 9, 2008, he was not aware that there was a house behind the




                                              23
       No. 1-13-3874

          front house at that location on South Drake Avenue.13 After defendant entered

          the back of the squad vehicle, he agreed to go to the police station at Area 4.

          When he first talked to the police at Area 4, "[o]ne of the officers threatened

          me. He told me that that he was going to put his hand in my behind." The

          officer claimed: "I do that to all the people who don't want to talk and they end

          up talking." The officer further threatened that "the judge was going to give

          [defendant] 70 to 80 years and that [the officer] was just going to go home."

          After those threats, defendant was very afraid but he eventually told the police

          the truth.

¶ 63              Defendant testified that, when he first grabbed the knife from his brother-

          in-law, he "grabbed it so they could see that [he] had a knife, for them to let

          [him] get away." If those three men had not threatened and "c[o]me at" him, he

          would not have removed the knife and he would have gone home. He did not

          want to stab anyone. When asked "[w]hy did you hold up the knife and stab?"

          he replied: "I was scared because they were going to kill me, so I was just

          trying to get them away from me."

¶ 64                                         b. Cross

¶ 65              On cross, defendant testified that, although he had brought $600 with him

          on New Year's Eve in the hope of purchasing a vehicle from his hosts, they
             13
               That location was where Willie Sanchez lived in the front house and
       Javier Cahue lived in the rear coach house.
                                                 24
       No. 1-13-3874

         began talking and completely forgot about the vehicle. Defendant admitted that

         he stabbed his brother-in-law on February 9, 2008. After defendant was

         attacked on January 1, 2008, he was not angry but scared and thankful that he

         was able to escape. Although his brother told him not to call the police since it

         would anger the gang members, defendant believed "it would be a good thing

         for them to be arrested because [he] live[d] in the area." On February 9, 2008,

         which was a Saturday, defendant was at home watching television with his

         children and he had four or five beers. His brother-in-law was also drinking.

¶ 66           Defendant testified that he had never viewed the videotape of his

         statements to the police or reviewed the transcript. When the police arrived on

         February 9, 2008, one of the first police officers asked defendant to enter the

         squad vehicle which he did. At that point, his brother-in-law and another man

         were laying on the ground, and defendant admitted at trial that he had stabbed

         both of those men. However, defendant did not inform the officer that he had

         stabbed those men, and he did not recall what he told the officer. After the fight,

         defendant had cuts on his hands, but he did not receive stitches and did not go

         to the hospital. Defendant did not know whether he stabbed Jesus Sanchez, who

         was one of the men who had previously beaten defendant on January 1, 2008.

         Defendant did not observe anyone else with a weapon in the gangway on

         February 9, 2008, because "it was too dark." However, when he was leaving to

                                               25
       No. 1-13-3874

         head to his home, someone hit him "really hard" on his back and he did not

         know what he was hit with.

¶ 67           Defendant testified that, when his brother-in-law was standing in the

         gangway, defendant "was going home, but he turned around to get [his brother-

         in-law] because [he] didn’t want to leave him there." Defendant had walked

         away but he came back and "tried to pull" his brother-in-law "but he was too

         heavy." The brother-in-law had the knife "inside his pants at the waist." They

         had "that knife at home to cut tomatoes or chili's [sic] or anything." When the

         three men first approached, defendant was holding on to his brother-in-law's

         jacket and the three men were running toward them. When he was asked

         whether he grabbed the knife before or after the three men started beating him,

         defendant stated before:

                  "ASA: Did you start getting beat up before or after you grabbed the

               knife from Ramiro's waistband?

                  DEFENDANT: The second before I grabbed it.

                  ASA: They started hitting you beforehand?

                  DEFENDANT: Yes."

¶ 68              When defendant was asked why Ramiro did not reach for his own

         knife, defendant replied that his brother-in-law was "very high." Although

         defendant did not observe him using drugs that day, defendant testified that

                                             26
       No. 1-13-3874

          "[h]e liked to smoke a lot of weed and did cocaine" but he always went outside

          to do it. After the three men started beating defendant, defendant felt "all the

          blows from everywhere" and he did not "know which one was hitting me

          where." The first blow landed on defendant's head. Defendant admitted that he

          stabbed one of the men in the chest:

                     "ASA: Where did you stab the guy that passed you first, what part of

                  his body did you stab him?

                     DEFENDANT: I think in his chest because I pushed him. 14

                     ASA: When you say you pushed him, did you push the knife into his

                  chest?

                     DEFENDANT: Yes, I had the knife in my hands and I was pushing

                  him and I was moving and I was swinging and I was pushing them

                  away."

¶ 69                 On cross, the State played an audiotape of a 911 call but defendant

          could not identify his voice on the tape. 15 Defendant admitted telling the

          detectives: that "Ramiro was gone for six or seven minutes, and then he came


             14
               In a stipulation, the parties agreed that the medical examiner who
       performed the autopsy on Villagrana would testify that Villagrana received a stab
       wound to the chest.
             15
               Both parties agreed that the translation and transcript of the 911 call was
       not accurate.
                                                 27
       No. 1-13-3874

          and told [defendant] to call the police"; that defendant had cuts on his hands

          from cutting an apple in the morning and working in a butcher shop; that

          Ramiro had the knife tucked inside his sleeve; and that the men had threatened

          defendant's life and to burn his house. However, defendant testified that he was

          "saying anything" because he had been threatened and he was very scared.

          Defendant recalled that, after a lineup, the police informed him that his jacket

          had been found by the door of his house. Defendant testified that he always left

          his jacket there, that it was his work jacket and that he always threw it under the

          stairs because it was always dirty.

¶ 70              Defendant admitted that he mistakenly told the police that the first time

          he was beaten was on Thanksgiving rather than New Year's Eve:

                     "ASA: By the way, when you were talking to the Detectives about

                  the time that you had gotten beaten up before, you told them it happened

                  on Thanksgiving Day, not New Year's Day?

                     DEFENDANT: Yes.

                     ASA: And that was just a mistake?

                     DEFENDANT: I don't really have any kind of education. I don't

                  really know about dates, but dinner is a dinner." 16


             16
                Defendant had previously testified that he had his birthdate tattoed on his
       hand: "[b]ecause I don't know about letters or numbers and I forget."
                                                  28
       No. 1-13-3874

¶ 71                The State also asked defendant about his interview at 3:15 p.m. with

          an assistant State's attorney (ASA) and Detective Jose Garcia. Defendant

          admitted that he told them that he had been drinking with his brother-in-law and

          had finished almost five beers, and that one of the men said he was going to kill

          defendant. The State then asked defendant about an interview later in the

          afternoon 17 with Detective Jose Garcia and another ASA. Defendant admitted

          stating that the first two men who came at him did not have anything in their

          hands.

¶ 72                                  6. Heriberto Orozco

¶ 73              Defendant's next witness was Heriberto Orozco who testified that, on

          December 13, 2010, at 9:30 p.m. he was at the home of his girlfriend, Marisol

          Sanchez, the sister of Jesus Sanchez. Jesus was there with his girlfriend Leslie

          Brown. Orozco observed Jesus and Brown arguing and rolling around in the

          snow outside, which Orozco described as fighting. When Orozco separated

          them, Jesus pushed Orozco away and punched Brown in the face. The police

          were called, and Jesus was arrested. Orozco did not know the outcome of the

          case.




             17
                The ASA in court stated that the interview was "at about 5:30 p.m. in the
       afternoon" but then the subsequent times given, which are all in 24-hour time, are
       shortly after 3:30 p.m.
                                               29
       No. 1-13-3874



¶ 74                    7. Chicago Police Officer Benjamin Martinez

¶ 75           Chicago police officer Benjamin Martinez testified that, shortly after

         midnight on January 26, 2013, he arrested Jesus Sanchez, who was standing

         with several other people outside the K'Oz Nightclub near 3551 West 25th

         Street, Chicago. They were flashing gang signs and yelling gang slogans at the

         patrons of the club. Specifically, Jesus was yelling: "Raza killer, SD killer,

         Two Six Killer and Ambrose killer."

¶ 76                         8. Chicago Police Officer Mario Uribe

¶ 77        Chicago police officer Mario Uribe testified that he interviewed Javier

         Cahue at Mt. Sinai Hospital on February 9, 2008. at sometime after 11 p.m.

         about a stabbing.

¶ 78           First, Uribe responded yes when asked by defense counsel if Cahue

         stated that "he, Javier Cahue grabbed at the offender's neck to stop him and in

         the process stabbed the victim," and that Cahue "grabbed the person with the

         knife, who then stabbed the second man who the offender had come to the

         scene with." This testimony left the impression that Cahue admitted to stabbing

         a victim.

¶ 79           However on cross, Uribe testified that Cahue stated that defendant

         stabbed everyone in the gangway. Uribe responded yes when asked by the

                                               30
       No. 1-13-3874

         ASA if Cahue stated that "the offender approached Cahue with another man,

         male Hispanic, and started to stab Sanchez and another victim and the victim,

         Cahue" and that "the offender also stabbed the male Hispanic that came with

         him." Uribe testified that Cahue was being treated by the hospital staff as Uribe

         spoke with him.

¶ 80           The trial court then asked questions in order to clarify the testimony.

         Uribe agreed that Cahue had told him that Cahue grabbed the offender's neck.

         Then the court asked what "happened as a result or after he grabbed the

         offender's neck?" Uribe replied: "Cahue said the offender stabbed Sanchez in

         the back and that he cut Cahue's hands with his knife. I guess he was trying to

         wrestle the knife away from him, and then he – the offender stabbed the other

         unknown man he came with."

¶ 81                                   9. Stipulations

¶ 82           The defense read three stipulations between the parties regarding Willie

         and Jesus Sanchez.

¶ 83           In the first stipulation, which was labeled Defense Exhibt No. 43, the

         parties stipulated that an ASA would testify that on February 11, 2008, at 4:50

         p.m. he interviewed Willie Sanchez; and that Willie Sanchez's oral statement

         was memorialized in a written statement which Willie Sanchez signed on every

         page. The statement recited, among other things, that "Willie states that he,

                                              31
       No. 1-13-3874

         Willie, was pretty high and drunk from cocaine, so he was just laying back,"

         and "Willie states that Ignacio was then thrown out of the apartment." The

         stipulation did not provide a further context for these remarks.

¶ 84           In the second stipulation which was labeled Defense Exhibit No. 44, the

         parties stipulated that, if the court reporter for the grand jury proceeding on

         February 20, 2008, was called to testify, he would state that Willie Sanchez was

         asked the following questions and provided the following answers:

               "ASA: Do you see anybody on the street at that point that you invite into

               the party?

               WILLIE SANCHEZ: Yes, ma'am. Ignacio.

               ASA: Had you ever seen this person named Ignacio before?

               WILLIE SANCHEZ: No, ma'am."

¶ 85           The third stipulation, Defense Exhibit No. 45 stated that, if an

         investigator with the public defender's office was called to testify, she would

         state that she interviewed Willie Sanchez on June 2, 2011, in the kitchen of his

         parents' home and he stated " that Ignacio, the guy with the beer, was not a gang

         member," "that he and his friends were so mad that they beat the guy with their

         fists and bottles," and "that the beating started upstairs, and they continued to

         beat him all the way downstairs and outside."



                                               32
       No. 1-13-3874

¶ 86             The fourth stipulation, stated that, if Edith Sanchez were called to testify,

         she would state that she called the police on December 24, 2012, because her

         brother, Jesus Sanchez, came home drunk and started arguing with her, and

         placed his hands on her in an offensive manner and pushed her into a tree

         causing her pain.

¶ 87             After the stipulations, the defense rested and the State began its rebuttal

         case.

¶ 88                               C. The State's Rebuttal Case

¶ 89             The State's rebuttal case consisted mainly of the introduction of

         statements made by defendant to police.

¶ 90                           1. Detectives Matias and Swiderik

¶ 91             Prior to introducing the statements, the State called Detective Christopher

         Matias who testified: that he spoke Spanish, that he interacted intermittently

         with defendant from 4:30 a.m. to 4:15 p.m. on February 10, 2008: that he acted

         as a translator for defendant during certain procedures such as obtaining buccal

         swabs and photographs; and that neither he nor other officers in Matia's

         presence threatened to place a hand on defendant's behind. The State then

         recalled Detective Gregory Swiderik who testified: that his first interview of

         defendant began at 4:30 a.m. at Area 4 and was not recorded; that, at 6 a.m.,

         defendant was taken into a recorded interview room; that defendant was there

                                                 33
       No. 1-13-3874

         until 4:15 p.m. and all the interviews between 6 a.m. and 4:15 p.m. were

         recorded; that Detective Garcia translated the interviews at 4:30 a.m. and 6

         a.m.; and that Detectives Matias and Garcia were the only officers who

         translated for defendant at Area 4.

¶ 92                             2. Stipulation Re: Videotape

¶ 93           The State then read a stipulation between the parties that People's Exhibit

         No. 66 was an accurate two-hour video recording of the interviews of defendant

         on February 10, 2008, including: (1) two interviews conducted by Detectives

         Swiderek and Garcia; and (2) a third interview conducted by an ASA starting at

         3:13 p.m. The parties also stipulated that People's Exhibit No. 67 is a 143-page

         English translation and transcript of the video.

¶ 94                                3. Sergeant Jose Garcia

¶ 95           Sergeant Jose Garcia testified that he is fluent in English and Spanish,

         and that he acted as a translator for defendant during the interview which began

         at 4:30 a.m. and lasted 20 minutes. At that time, the police did not consider

         defendant to be in custody and regarded him as a witness.           During that

         interview, defendant stated that his brother-in-law entered a gangway and exited

         after sustaining injuries but defendant did not state whether he observed the

         person who stabbed his brother. Defendant stated that he did not know how



                                               34
       No. 1-13-3874

         Rafael Villagrana was stabbed; that he (defendant) never entered the gangway;

         that two men ran out of the gangway and entered a black Blazer-type vehicle.

¶ 96            Garcia testified that, after this interview, he left Area 4 and returned to

         the crime scene.    After discovering the knife in the yard north of defendant's

         home, Garcia returned to Area 4 at 5:40 p.m. and defendant was moved into a

         recorded interview room. Neither Garcia nor any officer in Garcia's presence

         threatened to place his hand in defendant's behind. Garcia had listened to the

         911 tape in this case and recognized the voice as defendant's voice.

¶ 97            Next Garcia testified about the substance of the 911 tape. After the call

         was received, the call operator informed defendant that the operator did not

         speak Spanish and he placed defendant on hold waiting for a Spanish speaker.

         Then defendant said that he hit Ramiro and swore. When a Spanish-speaking

         operator came on the line, defendant asked for an ambulance because a man

         was hurt. Defendant stated that they "got into a fight with some gangbangers"

         and the gangbangers hit Ramiro. Then defendant stated there were three injured

         men.    The Spanish interpreter stated that "two gangs fought and he got

         stabbed," but Garcia believed that interpretation was incorrect.

¶ 98            On cross, Garcia testified that he did not take any notes during the first

         interview at 4:30 a.m. that he did not write a report about it, and that if any

         notes were taken, that would have been done by Detective Swiderek.

                                               35
        No. 1-13-3874

¶ 99            The State then marked the 911 tape as People's Exhibit No. 68, and it was

          admitted into evidence.

¶ 100                                     4. The Videotape

¶ 101           After Garcia testified, the judge stated that they would adjourn for the

          day, and he would review the videotape and the transcript before the parties

          returned to argue the case on another day. When court resumed, the judge

          stated:

                "the State had requested that I review with the Defense agreement,

                portions of the electronically recorded interrogation as specified on the

                sheet that the parties brought to my chambers the next day together. That

                was from 5:56 a.m. to 6:19 a.m. on February [10]th, from 6:32 a.m. to

                7:35 on the same date and from 3:13 p.m. to 6 – it should be to 3:39 p.m.

                on the same date. I've reviewed that.

                    I've also reviewed the transcript that the parties jointly presented to

                the Court. I've reviewed those portions of the ERI and the transcripts,

                neither more nor less."

¶ 102               The parties had previously stipulated on the record that People's

          Exhibit No. 66 was an accurate video recording of interviews with defendant




                                                 36
        No. 1-13-3874

           and that People's Exhibit No. 67 was an accurate English translation and

           transcript of the video. 18

¶ 103                                    a. First Interview

¶ 104              The first interview, which began at 5:56 a.m. on February 10, 2008, was

           conducted by Detective Swiderek with Detective Garcia acting as an interpreter.

¶ 105              At the start of that first interview, Detective Swiderek informed

           defendant that they were going to place him in a lineup, and defendant was read

           his Miranda rights. Detective Swiderek stated that he had showed defendant a

           photograph of Rafael Villagrana, one of the stabbing victims, and defendant

           responded that he did not know him and had "hardly seen him."

¶ 106              Defendant stated that his brother-in-law asked defendant to accompany

           him while his brother-in-law was going to "get" something but his brother-in-

           law did not specify what or where. Defendant left his home on South Drake,

           and followed behind his brother-in-law. As they walked, the brother-in-law

           instructed defendant to wait at a certain location, and the brother-in-law kept

           walking. After 10 minutes, the brother-in-law returned, again told defendant to



              18
                  The State's brief states that the transcript is also included in the common
        law record. However, the transcript in the common law record and the transcript
        labeled Exhibit No. 67 are not identical. Exhibit No. 67 contains corrections in pen
        to the translation which the transcript in the common law record lacks. We will
        rely on Exhibit No. 67.
                                                 37
        No. 1-13-3874

           wait, then walked two houses away, opened a gate and entered a gangway,

           walking toward the back of a house. This time defendant followed.

¶ 107                 Defendant testified that it was the same place where defendant had

           been beaten up and robbed by three men on Thanksgiving Day. 19 Defendant had

           a scar from the incident and made a police report about it. The incident

           occurred in the front house on the property.

¶ 108              Defendant stated that, after his brother-in-law walked down the gangway

           a second time, defendant did not hear anything and then, six or seven minutes

           later, his brother-in-law came running out and grabbed defendant and told him

           to call the police. Defendant held his brother-in-law and laid him on the

           ground. Then defendant ran to his house and told his wife "they hit your

           brother." After retrieving an officer's phone number from his wallet, defendant

           called the officer who told him to call 911, which he did. Defendant told the

           911 operator to send two ambulances for two or three people. After calling

           911, defendant ran back to his brother-in-law and started lifting him up, but a

           police vehicle arrived and an officer instructed defendant not to do that.

¶ 109              Defendant stated, after the officer asked him what he was doing,

           defendant explained that the man was his brother-in-law and that defendant had


              19
               Defendant testified that he mistakenly said Thanksgiving Day when he
        meant New Year's Day.
                                                 38
        No. 1-13-3874

          been with him earlier. The officer replied that defendant was an important

          witness and instructed him to enter the police vehicle, which defendant did.

¶ 110           Defendant stated that, after his brother-in-law ran out of the gangway,

          another man exited and was holding onto the fence. Then two men ran out,

          entered a black Blazer truck and departed. In the interview, Detective Swiderek

          asked defendant why he told the 911 operator there were two or three people

          injured. Defendant said that he "called fast" and said he needed "[t]wo – three."

          The detective also asked defendant how he had received the cuts that the

          detective observed on defendant's hands. Defendant replied: "This cut is from

          an apple I cut in the morning and this one is because I work at a butcher shop."

          When the defendant asked about the blood on his pants and shoes, defendant

          replied: "I don't know if it's from my brother-in-law."

¶ 111                                 b. Second Interview

¶ 112           The second interview, which began at 6:32 a.m. and lasted approximately

          an hour, was conducted again by Detectives Swiderek and Garcia.

¶ 113           At the start of the second interview, they told defendant that he had been

          identified "as the guy that did this," and that "[y]our brother-in-law died for

          nothing." The detectives told him that now was his chance to explain himself,

          that he did not look like a bad person, but that if he did not explain himself he

          would look like a cold-blooded killer. The detectives also told him that a knife

                                                39
        No. 1-13-3874

          had been found next to his house and a bloody jacket or sweatshirt outside his

          apartment door. The detectives said that they were going to take defendant's

          clothes and test the blood on them to see if it "c[a]me back to the people that

          got stabbed." The detectives told him that, if he did not explain himself, it

          "looks bad for" him.

¶ 114           The detectives then said that Ramiro was like his brother and asked:

          "You're going to let Ramiro die for nothing?" When defendant said "I never

          went all the way over there," Detective Swiderek replied "[y]eah he did" and

          "you could be looking at spending a lot of years in jail." The detective said they

          found the knife next to defendant's house because that is where defendant put it.

          When they asked about the black jacket, defendant replied that he wore a black

          jacket but he did not remember when he took it off. Detective Swiderek

          responded that defendant took it off because "those guys are dead" and it's got

          blood all over it." Defendant stated that he had the jacket on when he ran

          across the street to his house but he did not have it on when the police arrived.

¶ 115           The detectives then stated that the knife they found was "going to match

          these cuts" and it was found "next to [defendant's] house," and that it was

          "going to have blood on it from people that got stabbed." They repeated that, if

          defendant did not explain himself, he would "look like a cold-blooded killer,"

          and they repeated several times that Ramiro was dead. Then Detective

                                                40
        No. 1-13-3874

          Swiderek stated: "if you don't explain yourself you could be going away for a

          long time."

¶ 116           Detective Swiderek added: "You know those guys robbed and beat you.

          You were mad. Sometimes things happen. But you better explain yourself here.

          We have people that saw you. Picked you out. We have blood. There's blood

          on your hands. We have the knife. Next to your house. We don't think you're a

          bad guy. But sometimes things happen. And if you don't explain yourself, it

          looks like you went over there just to kill a whole bunch of people. *** Now is

          the time to explain yourself."

¶ 117           Detective Garcia, who was acting as the interpreter, then asked,

          independent of any question posed by Detective Swiderek, "why did Ramiro

          have to die? Did you kill him on purpose?" To which, defendant replied no.

¶ 118           Then Detective Swiderek continued: "Your friend, your brother. You

          know, Ignacio, things happen. We don't think you're a bad guy. You've never

          been in a lot of trouble. *** You know maybe you were drinking a little bit[,]

          things happen." Defendant replied: "Yes, I drank about four almost five

          beers."

¶ 119           Then Detective Garcia, not acting as an interpreter for Detective

          Swiderek, stated: "Alcohol makes you do things that later you regret. *** But

          things happen. You have to explain it. You have to explain it to him."

                                               41
        No. 1-13-3874

¶ 120           Detective Swiderek said that he would be mad too if someone robbed

          him and asked what they robbed defendant of. Defendant said $600 dollars.

          Detective Swiderek said "[o]kay[,] so maybe you just wanted to get your money

          back," but defendant replied no.

¶ 121           Then Detective Garcia, not acting as an interpreter, asked defendant

          several times why he went there with a knife. Detective Swiderek then stated

          that they knew that defendant did not "want it to go this way," and added "[w]e

          told you these guys – some of these guys were in a gang, right?" Detective

          Swiderek said "if you don't want to explain yourself we have to go on – we

          have to go on with what other people are telling us. And they're not saying –

          They're not saying nice things."

¶ 122           Detective Garcia, not acting as an interpreter, stated: "They're saying it

          occurred differently from what you're saying. They're going to say how the

          story happened. Here is your opportunity to tell us how you saw things happen.

          Explain how Ramiro died. Did he die at your cold-blooded hand? Did you

          assassinate him? Then how did Ramiro die? How is it that Ramiro died? How

          did Ramiro die? Did you assassinate him? Did you kill him? How did he die?"

¶ 123           Detective Garcia continued: "How are you going to ask Ramiro's family

          for forgiveness, your own family?         How are you going to ask them for

          forgiveness for what happened to him? Are you going to let them believe that

                                               42
        No. 1-13-3874

          you cold-bloodedly killed him? *** Don’t you want to ask them for forgiveness

          for what happened to Ramiro?"         When defendant indicated yes, Detective

          Garcia stated: "Then explain to us how it happened."

¶ 124           Then defendant stated:      "We came out of the house.         He tells me

          accompany me brother-in-law. Weeks before he had mentioned that he wanted

          to get an ID." Defendant stated that Ramiro "was very upset because he said he

          wasn't interested in anything in life. *** Because his father doesn't love him."

          When Detective Garcia asked what that had to do with "going with the guys

          about an ID," defendant replied: "They also took money from him." When they

          arrived at the house, his brother-in-law told defendant to wait, and then the

          brother-in-law left and returned and said "come on dude let's go f*** them up."

          Ramiro was carrying a small knife with a red handle, and defendant told him no

          and tried to take the knife from him. But defendant was not able to take the

          knife, so defendant went after him. When they arrived at the gangway to the

          house, two men were coming toward them, and his brother-in-law pushed him

          away. Defendant stated: "Then he took the knife and the guy yelled. One of

          the guys yelled and he took – I didn't know if he had hit him or not." In the

          prior quote, it is not clear who "he" is but "he" seems to refer to the brother-in-

          law and "him" seems to refer to one of the three men. Then defendant stated: "I

          just heard him say paisa I don't want to die paisa."

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        No. 1-13-3874

¶ 125           Defendant then stated: "Then when I saw him coming back – He didn't

          have the knife anymore. He was coming back without anything. He was

          coming back with his hand like this. I don't remember if it was this hand. Then

          I grabbed him and brought him back and let him go there on the sidewalk. I

          went back. The knife was just thrown on the ground and a fat guy went running

          towards the other side. I think – I'm not sure what happened. I then grabbed

          the knife and went to get my brother-in-law and I took him out of there. I then

          let him go and went outside to a make a call" by phone. The "him" and "he" at

          the start of this quote appear to refer to his brother-in-law.

¶ 126           Defendant stated that he left running, threw away the knife, threw down

          the jacket and called the police. Detective Garcia told him that what he related

          was "not possible," that defendant was "not telling [them] something" and that

          he had to tell them "the whole truth." Detective Garcia added: "the only thing

          that is going to help you is the truth. I know you're scared. I know you didn't

          plan this." Detective Swiderk told him: "The witnesses have you Ignacio with

          the knife." Then the detectives stated:

                    "DETECTIVE SWIDEREK: Don't do that to him.

                    DETECTIVE GARCIA: Don't do Ramiro like that. Don't blame him.

                    DETECTIVE SWIDEREK: You don't want to disgrace him.



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        No. 1-13-3874

                   DETECTIVE GARCIA: You don't want to disgrace him. You don't

                want him to take the blame for that disgrace. No, right.

                   DETECTIVE SWIDEREK: The witnesses have the knife in your

                hand."

¶ 127           Then defendant stated that when he went with Ramiro, he did not know

          what Ramiro was going to do, and that he did not do the stabbing. Then the

          police argued with defendant that defendant was the one who was robbed, that

          Ramiro did not have a problem with these men; and that defendant was "the one

          with the problem." Detective Swiderek stated: "There was one knife out there

          and your brother was stabbed, an accident. And you stabbed him. It was an

          accident. It was an accident. It was an accident yes. Yes – yeah – yeah. Well

          guess what? If it wasn't then you're going to go down as a cold-blooded killer

          of your own brother-in-law. 'Cause everybody's got the knife in your hands."

¶ 128           Detective Swiderek then stated: "The knife has your fingerprints on it."

          Both detectives then repeated a number of times that defendant could not blame

          Ramiro. Defendant then explained that Ramiro was mad because he gave these

          men money to obtain an ID but they never gave him the ID. The police then

          argued with him that he was the one who was robbed and beaten, and that the

          witnesses said that defendant had the knife not Ramiro. Defendant stated: "I



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        No. 1-13-3874

          already explained myself. I already told you what happened." The police

          repeated several times that he should let Ramiro rest in peace.

¶ 129           Defendant then stated that the other men threatened to burn down

          defendant's house and Ramiro took the knife. Defendant then said, "When we

          got there" and Detective Garcia interrupted and said: "Hmm-hmm. When you

          got there – you took it? You took it from him?" Defendant then repeated: "I

          took it from him." Defendant stated that, when they entered the gangway, the

          men jumped on him and defendant grabbed the knife to defend himself.

          Defendant continued that, when the men passed by him, he turned around and

          "threw the hit" which accidentally hit his brother-in-law. Defendant stated that,

          when one of the other men came at him, defendant hit him, and that when one

          of the men grabbed him, he stabbed him.

¶ 130              The following exchange occurred:

                "DETECTIVE GARCIA: So you think you that you stabbed two and

                then you accidentally stabbed your brother-in-law?

                DETECTIVE GARCIA: Yes?

                DETECTIVE SWIDEREK: Say yes.

                DETECTIVE GARCIA: I'm sorry I don't hear you. You have to tell me –

                DEFENDANT: Yes. "



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        No. 1-13-3874

¶ 131           Defendant stated that if the men had not thrown themselves on him, he

          wouldn't have done anything, and "I didn't want to hit anybody. I had the knife

          and I didn't mean to hit the chubby one" and "I didn't want to stick anyone."

          Defendant stated that Ramiro did not tell him that Ramiro had a knife until they

          arrived at the scene. Defendant did not see whether anyone else had a knife

          because it was dark.     After defendant told the detectives that he did the

          stabbing, the detectives told him "[n]ow your brother can rest," and they offered

          him a soda.

¶ 132                                  c. Third Interview

¶ 133        The third interview, which began at 3:13 p.m., was conducted by an ASA

          with Detective Jose Garcia acting as an interpreter. The ASA began by reading

          defendant his Miranda rights. When the ASA then asked defendant if he would

          like to relate what happened last night, Detective Garcia translated that as: "Do

          you want to tell him what happened yesterday? What you told us. What you

          told us."

¶ 134           Defendant then related: that his brother-in-law lives in defendant's home;

          that defendant was at home watching television and had consumed almost five

          beers; that his brother-in-law invited defendant to accompany him to obtain an

          ID; that the brother-in-law had already paid for the ID but had not received it;

          that they walked to the place where defendant had been previously beaten up;

                                               47
        No. 1-13-3874

          that, when they arrived, his brother-in-law said that he wanted to teach them a

          lesson and that was when defendant first observed his brother-in-law with a

          knife; that defendant grabbed him and said "no—no—no"; that defendant

          continued to follow him saying no and they entered the gangway through a

          gate; that suddenly men appeared in the gangway; that one of the men

          recognized defendant, ran toward defendant and jumped him; that defendant

          then took the knife from his brother-in-law and defended himself with it; that a

          second man attacked defendant; that defendant turned around and accidentally

          stabbed his brother-in-law; that a "chubby" man grabbed the knife and said

          "don't kill me paisa"; that defendant replied that he did not want to hurt anyone

          and he did not "know what's going on with me"; that it was like defendant was

          "dizzy" and he "snapped out of it" when the chubby man grabbed defendant's

          hand; that the chubby man let defendant go; that defendant grabbed his brother-

          in-law and left and laid him on the sidewalk; that his brother-in-law told him to

          call the police; that defendant ran towards his house and threw the knife away;

          that when he arrived at his house, he took off his jacket and called an officer

          who stated that he could not attend to him and to call 911; that defendant called

          911 and requested an ambulance for 2 or 3 people.

¶ 135           When the ASA asked defendant when he was beaten up, defendant

          replied "[i]t was on Thanksgivng Day or how do you say that?" and Detective

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        No. 1-13-3874

          Garcia replied "Thanksgiving. On Thanksgiving" and defendant agreed with

          him. When the ASA asked "[n]ot New Year's Eve," defendant replied that "it

          was on the day of the dinner." Defendant stated on the day he was beaten, his

          brother-in-law later pointed to defendant's eye and asked what happened.

¶ 136           When the ASA asked defendant if he had stabbed the first man in the

          chest, defendant responded he did not see the area where the man was hurt.

          Then Detective Garcia stated "you told us you *** stabbed him more or less

          right around" here and that defendant should show the ASA where, which he

          did. Defendant stated that he did not know if he cut the second man. Defendant

          also related that he worked at Sam's assembling boxes to pack meat.

¶ 137           As stated above, after watching the videotape and reading the transcript

          of the three interviews, the court proceeded to oral argument and then verdict.

¶ 138                             II. Conviction and Sentence

¶ 139           The trial court found defendant guilty of first-degree murder and two

          counts of aggravated battery, and rejected defendant's claims of self-defense

          and second-degree murder predicated on imperfect self-defense The

          presentence report indicated that defendant was 34 years old, with no gang

          affiliation and only one conviction for driving while intoxicated. A

          psychological evaluation concluded that defendant had "mild mental

          retardation."

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        No. 1-13-3874

¶ 140           After hearing factors in mitigation and aggravation, the trial court

          sentenced defendant on November 21, 2013, to a total of 32 years with the

          Illinois Department of Corrections. The sentence included 30 years for the

          first-degree murder, and 2 years for each aggravated battery, with the

          aggravated battery sentences to run concurrently to each other but consecutively

          to the murder sentence. This appeal followed.

¶ 141                                    ANALYSIS

¶ 142           On this direct appeal, defendant asks this court to reduce his murder

          conviction to second-degree murder, arguing that he proved by a preponderance

          of the evidence a mitigating factor, namely, that he had an actual, although

          unreasonable, belief in the need to act with deadly force to defend himself and

          another. 720 ILCS 5/9-2(a)(2) (West 2008). For the following reasons, we

          affirm.

¶ 143                               I. Standard of Review

¶ 144           "The question of whether a defendant's actions were committed under

          mitigating    circumstances—here,    the   question   of   whether    defendant

          unreasonably believed that circumstances justifying the use of lethal force were

          present—presentd a question of fact." People v. Romero, 387 Ill. App. 3d 954,

          967-68 (2008).    In the case at bar, the trial court found that the mitigating

          factor was not present. "In an appeal challenging a factual determination that

                                               50
        No. 1-13-3874

          no mitigating factor was present, the question presented is *** whether the fact

          finder correctly concluded that the defendant did not prove the existence of a

          mitigating factor by a preponderance of the evidence." Romero, 387 Ill. App.

          3d at 967. When a trial court determines that the defendant failed to prove the

          presence of a mitigating factor by a preponderance of the evidence, the

          reviewing court will not reverse if it determines that "after viewing the evidence

          in the light most favorable to the prosecution, any rational trier of fact could

          have found that the mitigating factors were not present." People v. Blackwell,

          171 Ill. 2d 338, 358 (1996).

¶ 145              In a bench trial, the responsibility of weighing the credibility of the

          witnesses rests with the trial court. People v. Coleman, 301 Ill. App. 3d 37, 42

          (1998). "This court will not substitute its judgment for that of the trial court on

          questions involving the credibility of witnesses." In re Jessica M., 399 Ill. App.

          3d 730, 738 (2010). A trial court's decision to believe one witness's account of

          an attack over another "is virtually unassailable on appeal." In re Jessica M.,

          399 Ill. App. 3d at 738.

¶ 146           "[T]his deference does not require a mindless rubber stamp on every

          bench trial guilty verdict we address." People v. Hernandez, 312 Ill. App. 3d

          1032, 1037 (2000). The trial judge must "consider all the evidence presented in

          determining the matter before it," and a reviewing court will review the record

                                                51
        No. 1-13-3874

          to ensure this was done. People v. Mitchell, 152 Ill. 2d 274, 322 (1992). A

          "trial court's failure to recall and consider testimony crucial to defendant's

          defense result[s] in a denial of defendant's due process rights." Mitchell, 152

          Ill. 2d at 323. Likewise, "[a]lthough the trial court's findings of fact are given

          great weight, they are not conclusive where *** the finding is unsupported by

          the testimony given at trial." People v. Jones, 404 Ill. App. 3d 734, 746 (2010).

¶ 147                              II. Imperfect Self-Defense

¶ 148           Section 9-2 of the Criminal Code of 1961provides for two forms of

          second-degree murder, the second of which occurs when: "[a]t the time of the

          killing [defendant] believes the circumstances to be such that, if they existed,

          would justify or exonerate the killing under the principles stated in Article 7 of

          this Code, but his belief is unreasonable." 720 ILCS 5/9-2 (West 2008). This

          second form of second-degree murder is known as imperfect self-defense, and

          "occurs when there is sufficient evidence that the defendant believed he was

          acting in self-defense, but that belief is objectively unreasonable." People v.

          Jeffries, 164 Ill. 2d 104, 113 (1995).

¶ 149           Self-defense consists of six factors: "(1) force is threatened against a

          person, (2) the person is not the aggressor, (3) the danger of harm was

          imminent, (4) the threatened force was unlawful, (5) the person actually and

          subjectively believed a danger existed that required the use of the force applied,

                                                   52
        No. 1-13-3874

          and (6) the person's beliefs were objectively reasonable."             People v.

          Washington, 2012 IL 110283, ¶ 35. To sustain a charge of first-degree murder

          after the defendant raises the issue of self-defense, the State must prove beyond

          a reasonable doubt that at least one of the six factors was not present. Jeffries,

          164 Ill. 2d at 128. However, to be found guilty of second-degree murder, the

          defendant must prove by a preponderance of the evidence that all of the first

          five factors were present. Jeffries, 164 Ill. 2d at 129.

¶ 150                                   III. Burden of Proof

¶ 151           Defendant argues that his conviction for first-degree murder should be

          reduced to second-degree murder because he proved, by a preponderance of the

          evidence, that he had an actual, but unreasonable, belief in the need to act with

          deadly force for self-defense.

¶ 152           Section 9-1 of the Criminal Code defines the offense of first-degree

          murder, in pertinent part:

                        "(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

                                                 53
        No. 1-13-3874

                           (2) he knows that such acts create a strong probability of death

                        or great bodily harm to that individual or another[.]" 720 ILCS

                        5/9-1 (West 2008).

¶ 153           Section 9-2 of the Criminal Code defines the offense of 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) section 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

                        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 Article 7 of this Code, but his belief

                        is unreasonable.

                        (b) Serious provocation is conduct sufficient to excite an intense

                    passion in a reasonable person.

                        (c) When a defendant is on trial for first degree murder and

                    evidence of either of the mitigating factors defined in subsection (a) of

                                                    54
        No. 1-13-3874

                   this Section 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. However, the burden of proof remains on the State to prove

                   beyond a reasonable doubt each of the elements of first degree murder

                   and, when appropriately raised, the absence of circumstances at the

                   time of the killing that would justify or exonerate the killing under the

                   principles stated in Article 7 of this Code." 720 ILCS 5/9-2 (West

                   2008).

          "[T]he elements of first degree and second degree murder are identical, and it is

          the presence of statutory mitigating factors that reduces an unlawful homicide

          from first degree to second degree murder." People v. Thompson, 354 Ill. App.

          3d 579, 587 (2004).

¶ 154           "[T]he second degree murder statute requires the State to prove, beyond a

          reasonable doubt, each element of first degree murder before the burden shifts

          to the defendant to prove, by a preponderance of the evidence, any of the

          factors in mitigation that must be present to reduce the offense from first degree

          to second degree murder." Thompson, 354 Ill. App. 3d at 586. This court has

          held that, once the defendant proves a mitigating factor by a preponderance of

          the evidence, the State has a burden to disprove it beyond a reasonable doubt.

                                                55
        No. 1-13-3874

          Thompson, 354 Ill. App. 3d at 586 ("Once the defendant carries his burden of

          proving any of the factors in mitigation, the burden shifts back to the State to

          prove the absence of the implicated mitigating factors beyond a reasonable

          doubt."); People v. Golden, 244 Ill. App. 3d 908, 919 (1993) (If defendant

          presents mitigating evidence "the State must disprove those factors beyond a

          reasonable doubt."). In People v. Buckner, 203 Ill. App. 3d 525 (1990), the

          court explained that "the second-degree murder statute functions as a defense

          against the first-degree murder charge, which the State is still required to prove

          before the trier of fact considers whether the mitigating factors were shown by a

          preponderance and, if it so finds, the State must disprove such factor(s) by proof

          beyond a reasonable doubt." (Emphasis in original.) Buckner, 203 Ill. App. 3d

          at 533-34.

¶ 155           However, the Second District has held that "[t]hese cases misstate the

          law" and "Illinois's statutory scheme nowhere provides that the State must

          disprove a mitigating factor beyond a reasonable doubt after a defendant has

          established a mitigating factor by a preponderance of the evidence." People v.

          Romero, 387 Ill. App. 3d 954, 966 (2008). In the 1980's, shortly after the

          Criminal Code was amended to replace the offence of voluntary manslaughter

          with the offence of second-degree murder, the Illinois Supreme Court held that

          "the new Act not only requires the defendant to come forward with some

                                                56
        No. 1-13-3874

           evidence of a factor in mitigation; it requires the defendant to prove, by a

           preponderance of the evidence, a factor in mitigation. Furthermore, the State is

           no longer required to prove, beyond a reasonable doubt, the absence of the

           factor in mitigation." (Emphasis in original.) People v. Shumpert, 126 Ill. 2d

           344, 352 (1989). See also People v. Simon¸ 2011 IL App (1st) 091197, ¶ 51

           ("The State is not required to prove the absence of the mitigating factor beyond

           a reasonable doubt."). 20

¶ 156              In the case at bar, defendant argues that the State failed to disprove the

           mitigating factor beyond a reasonable doubt, and the State argues that it did.

           However, we need not resolve the issue of whether this is required — an issue

           that is not addressed by the parties — because the factfinder stated that he did

           not find defendant credible and thus defendant failed to satisfy his initial burden

           of proving the mitigating factor by a preponderance of the evidence.

¶ 157              First, the State satisfied its burden of proving defendant guilty of first-

           degree murder beyond a reasonable doubt, a fact that defendant does not dispute

           on appeal. The State satisfied this burden by calling Javier Cahoe, one of the

           survivors of the brawl, as well as other witnesses. Then, defendant attempted to

           satisfy his preponderance burden by calling several witnesses including himself.

           Like Cahoe, defendant was one of the survivors of the event.
              20
                The issue of burden of proof was not briefed by the parties in Simon, and
        was not dispositive to this court's holding in that case.
                                                  57
        No. 1-13-3874

¶ 158           However, defendant failed in his attempt to satisfy his preponderance

          burden because the trial court found: "I simply don't believe his testimony. I do

          not believe the changing circumstances of those statements to the police." For

          example, Officer Sanchez, who was the first officer to arrive at the scene,

          testified that defendant claimed he was merely standing on the sidewalk when

          four men, including his brother-in-law, ran out of the gangway, all injured.

          Even defendant admitted at trial that he lied to the police at first, claiming that

          an unidentified officer threatened him, and that he told the truth only later. By

          contrast, the trial court "conclude[d] that Cahoe was testifying credibly." After

          listening to defendant's own admittedly conflicting statements, the trial court

          concluded that defendant "did not act out of any belief, even unreasonable, that

          self-defense was necessary that would lead to him being found guilty of second-

          degree murder." Since the trial court found that defendant failed in his attempt

          to satisfy his initial preponderance-of-the-evidence burden, we will analyze

          below whether any rational trier of fact could have reached the same

          conclusion. Blackwell, 171 Ill. 2d at 357.

¶ 159                            IV. Any Rational Trier of Fact

¶ 160           As we stated earlier, the burden was on defendant to prove by a

          preponderance of the evidence the following five factors: "(1) force is

          threatened against a person, (2) the person is not the aggressor, (3) the danger of

                                                58
        No. 1-13-3874

          harm was imminent, (4) the threatened force was unlawful, [and] (5) the person

          actually and subjectively believed a danger existed that required the use of the

          force applied." Washington, 2012 IL 110283, ¶ 35 (listing the factors of self-

          defense); Jeffries, 164 Ill. 2d at 129 (burden is on defendant to prove by a

          preponderance). We must affirm if "any rational trier of fact" could have found

          that defendant failed to prove any one of these factors by a preponderance.

          Blackwell, 171 Ill. 2d at 357.

¶ 161           Our review of the record shows that a rational trier of fact could have

          found that defendant failed to prove by a preponderance that he was not the

          aggressor. Defendant testified that he and his brother-in-law walked to the

          same house where defendant had been previously beaten, and his brother-in-law

          showed defendant a knife and stated that he would "teach them a lesson."

          Defendant testified that he had an opportunity to leave at that point but decided

          to remain.    According to defendant's own testimony, if defendant had not

          grabbed the knife from his brother-in-law when the three men approached, then

          the resulting fight would have been a fist fight of two men against three men.

          The medical examiner testified that the murder victim, Rafael Villagrana, died

          of multiple stab wounds, and defendant's own testimony indicated that no one

          succeeded in taking the knife from defendant during the fight and no one else

          had a knife. Defendant admitted that he stabbed both of the men who died, both

                                               59
        No. 1-13-3874

          Villagrana and his brother-in-law. Based on defendant's own testimony alone, a

          rational trier of fact could have concluded that defendant failed to show by a

          preponderance of the evidence that he was not the agressor.

¶ 162           In reaching this conclusion, we do not overlook defendant's assertion that

          he was threatened by the police and that, after being threatened by them, he

          would "say[] anything." Defendant testified that the police threatened him with

          70 to 80 years in jail if he did not talk to them, a claim that none of the officers

          denied when they testified. The officers denied that they threatened to place a

          hand in his behind, but they did not address this other threat, of decades in jail.

          Defendant's assertion of this second threat finds support in the transcript of the

          second interview where the detective, who was in charge of the questioning,

          told defendant "if you don't explain yourself you could be going away for a long

          time" and where the detective who acted as a Spanish interpreter told defendant:

          "You have to explain it to [the other detective]."          Statements like these

          contradict and undercut the Miranda warnings which defendant received at the

          start of the first interview and should not be encouraged. However, no issue

          with respect to the statements is raised on appeal, and the trial judge read the

          transcript and took these statements into consideration when making his

          credibility determination of defendant whom he had the opportunity to observe

          in person — an opportunity which we lack.

                                                 60
        No. 1-13-3874

¶ 163           Based on our careful and detailed review of the record, we cannot

          conclude that no rational trier of fact could have found as the trial court did with

          respect to the second degree murder charge, and thus we must affirm.

¶ 164                                    CONCLUSION

¶ 165           For the foregoing reasons, we affirm defendant's conviction and sentence

          on this direct appeal.

¶ 166           Affirmed.




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