People v. Brown

NO. 4-09-0454 Filed 2/8/11

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from

Plaintiff-Appellee, ) Circuit Court of

v. ) McLean County

MICHAEL B. BROWN, ) No. 08CF181

Defendant-Appellant. )

) Honorable

) Robert L. Freitag,

) Judge Presiding.

_________________________________________________________________

JUSTICE POPE delivered the judgment of the court, with

opinion.

Presiding Justice Knecht and Justice Turner concurred

in the judgment and opinion.

OPINION

In April 2009, a jury found defendant, Michael B.

Brown, guilty of two counts of first degree murder (720 ILCS 5/9-

1(a)(1), (a)(2) (West 2008)) for the deaths of Calvin Walls and

David Walls and of aggravated battery with a firearm (720 ILCS

5/12-4.2(a)(1) (West 2008)) in the shooting of Levar Walls.

Additionally, defendant was found not guilty of aggravated

battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2008)) in

the shooting of Montell Jones. In June 2009, the trial court

sentenced defendant to natural life in prison on each first-

degree-murder conviction to run concurrent with a 30-year prison

term for the aggravated-battery-with-a-firearm conviction.

Defendant appeals, arguing (1) the trial court erred

when it instructed the jury mid deliberation with Illinois

Pattern Jury Instructions, Criminal, No. 24-25.09 (Illinois

Pattern Jury Instructions, Criminal, No. 24-25.09 (4th ed. 2000)

(hereinafter IPI Criminal 4th No. 24-25.09); (2) the evidence was

insufficient to convict defendant of two counts of first degree

murder and one count of aggravated battery with a firearm beyond

a reasonable doubt; and (3) defendant is entitled to a $5-per-day

credit against fines imposed for time spent in jail awaiting

trial and sentencing. We affirm as modified and remand with

directions.

I. BACKGROUND

At defendant’s jury trial, Detective Daniel Donath, a

crime-scene detective for the City of Bloomington, testified he

went to an apartment building located in the 300 block of Riley

Drive, Bloomington, Illinois, on February 12, 2008. When he

arrived, he was told by another detective two deceased persons

were found in the hallway between apartments five and six. He

entered the building and noticed a bullet shell casing on the

stairs leading to apartments five and six. As he walked up-

stairs, he saw the deceased body of David Walls on the landing

outside the apartments. To the right of David Walls, he noticed

the deceased body of Calvin Walls. He also noticed additional

shell casings in the hallway and patterns of blood on the hallway

doors and walls. Upon entering apartment six, he observed a

small spot of pooling blood on the living-room carpet. Also in

the living room of apartment six, he observed shell casings on

the floor, a black-handled knife on top of a big screen televi-

sion, and a small black-handled paring knife underneath a fish

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tank. He also noticed four holes in the front door.

Detective Donath exited the back door of apartment six

and proceeded to apartment five. He noticed a trail of blood

coming from the carpet of apartment five that continued on the

carpet and walls leading to the back door of the building. In

apartment five, he observed shell casings on the living-room

floor. He also observed a few holes in the living-room wall, a

hole by the front door that was approximately waist-high, and a

hole in the ceiling by the front door. He found a box for a

Glock handgun containing a receipt showing the gun was purchased

on October 4, 2000, by Rogers T. McElroy. He also found a

magazine for a Glock handgun in the bedroom. Outside the apart-

ment building, he observed a blood trail leading from the back

entrance of the building to 601 Bradley, Bloomington, Illinois.

Additionally, he testified in April 2008 he responded

to a call regarding a handgun found at Oakbrook Court Apartments

in Bloomington, Illinois. He retrieved the handgun that was

found on the roof of a single-story garage.

Detective Timothy Power, a detective for the City of

Bloomington, testified he was dispatched to the scene of the

incident on February 12, 2008. He observed two deceased black

males on the upstairs landing of the apartment building. The

bodies were later identified as David Walls and Calvin Walls.

The two bodies were facedown with David Walls lying on top of

Calvin Walls.

While in the hallway, he heard a male voice in apart-

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ment six crying in pain and saying he had been shot. The male

was later identified as Levar Walls. Levar was lying on the

living-room floor in a pool of blood. Levar told Detective

Powers "Bam" had shot him and his two brothers.

Detective William Buchanan, a detective with the

Bloomington police department, testified he was one of the

initial officers dispatched to the call of shots fired at Riley

Drive. While in apartment five, Detective Buchanan noticed the

entire framework of the front door, including the door, was

pushed inward. The door was still closed and undamaged

Detective Brent Smallwood, a detective with the

Bloomington police department, testified he was also dispatched

to the crime scene. Upon arrival, he parked his squad car at the

corner of Mecherle and Riley Streets to question individuals

leaving the area. When he stopped Jerry Nored’s vehicle, Nored

stated his passenger, Montell Jones, had been shot. Jones told

Detective Smallwood he had been shot in the leg and arm.

Eric Purchis, a paramedic for the City of Bloomington,

testified he was dispatched to Riley Drive to treat multiple

gunshot wounds. He testified he treated Montell Jones, who had

two gunshot wounds in his left forearm, two gunshot wounds in his

right forearm, and one gunshot wound in his outer right calf.

Tracy Miller testified she lived at 333 Riley Drive,

apartment two, in February 2008. On February 12, 2008, defendant

briefly visited the apartment Miller shared with her boyfriend,

Darron Epps. Defendant lived upstairs in the same apartment

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building. After defendant left, Miller heard a loud commotion on

the stairs outside her apartment. Both she and Epps went into

the hallway to determine the source of the commotion. While in

the hallway, she observed David, Calvin, and Levar Walls being

shoved out of defendant’s apartment. She then observed the

brothers attempt to regain entry by kicking and pushing the front

door. As she was heading back to her apartment, she heard a loud

bang that sounded like a door being kicked open. She also heard

several gunshots and a commotion down the back stairwell. She

then heard a young man screaming and two children crying. She

ran upstairs and observed two men lying on top of each other in

the doorway of Levar Walls’ apartment. She also observed Levar

Walls lying on the living-room floor in front of the fish tank,

and two children sitting on the couch. She grabbed the children

and went down the back staircase to her apartment. As she was

going downstairs, she noticed blood on the stairs and wall.

Darron Epps testified he was in his apartment watching

television with his girlfriend, Tracy Miller, on the night of the

shooting. Defendant was visiting their apartment when they heard

noises coming from defendant’s upstairs apartment. Defendant

left to check on his apartment. After defendant left, Epps

continued to hear loud noises coming from defendant’s apartment,

and he went upstairs to investigate. He observed defendant

pushing people into his apartment, while Levar Walls pushed

people into the hallway. Once defendant’s friends were inside

his apartment, the door was closed. It is unclear from Epps'

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testimony whether defendant or Levar closed the door to defen-

dant's apartment. Epps observed a man kick defendant’s front

door off its hinges and the three men enter defendant’s apart-

ment. Epps then heard gunshots, and he ran back to his apart-

ment. He stayed in his apartment until he heard Levar Walls

calling for help. As he was going upstairs, he noticed two men

lying in the hallway by the front door to apartment six. He

testified he did not observe anything in anyone’s hands during

the altercation.

Levar Walls testified in February 2008 he lived at

333 Riley Drive, apartment six, with his girlfriend, Tanesha

Phillips. On February 12, 2008, he was inside his apartment

when he heard a loud noise at his front door. He opened the

door and saw his two brothers arguing with a tall black man, a

white man, and Montell Jones in the hallway outside defendant’s

apartment. He went into the hallway and grabbed his brothers.

The tall black man attempted to hit Calvin, and the white man

and Jones grabbed David and pulled him into defendant’s apart-

ment. Because the apartment door had been locked, Calvin

kicked the door open. Levar and Calvin grabbed David and

headed to Levar’s apartment. Levar testified he was not hold-

ing anything in his hands during the confrontation, and he did

not observe anything in his brothers’ hands. He further testi-

fied he did not enter defendant’s apartment that night, and he

did not see Calvin enter the apartment.

As Levar walked back to his apartment, he heard a

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loud bang. He turned around and saw defendant shooting a gun

at him. He was shot twice in the buttocks before he was able

to reach his apartment. He entered his apartment and closed

the door, but defendant continued shooting through the closed

door. Levar was knocked down by a shot to his leg. Defendant

then entered the apartment, pointed the gun at Levar, and said

he was going to kill him. David and Calvin ran upstairs to

Levar’s apartment, and defendant turned around and immediately

started shooting at them. Calvin reached the front door of the

apartment before defendant shot him. David reached defendant

and attempted to push his left arm down before falling on top

of Calvin. Defendant then left the apartment building with his

friends.

Leonard Hosea testified he was at defendant’s apart-

ment playing video games. He testified defendant, a white guy,

Montell Jones, and defendant’s uncle were also present. Every-

one was in the living room when he heard pounding on the front

door. Defendant answered the door, and Hosea heard a man ask

defendant if his brother was in the apartment. Defendant’s

uncle claimed he knew the man from prison, but the man said he

was mistaken. When defendant’s uncle stood up, the man entered

the apartment and pushed defendant’s uncle in the face. Hosea

and defendant tried to intervene and prevent the men from

fighting. Hosea testified a second man entered the apartment

and started fighting with Jones. He further testified he did

not observe anything in the two men's hands during the confron-

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tation. Hosea exited the apartment before the gunshots oc-

curred.

Tanesha Phillips testified on February 12, 2008, she

lived at 333 Riley Drive, apartment six, with her boyfriend,

Levar Walls. That night, she heard a loud knock at the front

door. Levar opened the door and went into the hallway. He

came back into the apartment, and told Phillips his brothers

were arguing in the hallway. He then stepped back out into the

hallway. Phillips went to the open door and saw Levar, David,

and Calvin standing in the hallway. Because the argument was

getting louder, she went into the kitchen, grabbed a butcher

knife, and set it on the television in the living room. She

then heard gunshots and rushed to the front door. She observed

defendant in the hallway holding a gun and sparks coming from

the gun. Levar ran through their front door, and closed the

door behind him. She observed bullets coming through the front

door, striking Levar. Defendant entered the apartment and told

Levar not to play with him because he would kill Levar.

Defendant then turned around and started shooting into the

hallway. Defendant left the apartment after firing the gun

several more times.

Phillips was trying to locate her car keys when she

noticed David lying in her doorway. After she found the keys,

she left the apartment to bring their car around front. When

she opened the back door of her apartment, she saw defendant

and his friends running out the back door of defendant’s apart-

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ment.

David Robinson testified on the evening of February,

12, 2008, a black male knocked on his back door and asked to

use his telephone. Robinson told the man he did not own a

telephone, but he could find a phone at the local gas station.

Eric Foster testified on February 12, 2008, he was at

defendant’s apartment playing video games when he heard a knock

at the front door. Defendant answered the door, and Foster

heard Montell Jones’ uncle say he recognized one of the men at

the door. After words were exchanged, the three men in the

hall tried to enter the apartment. Foster grabbed the man who

entered the apartment in an attempt to calm him down, but the

man slammed him against the living-room wall.

He then noticed defendant walking toward the living

room with a pistol. Foster was in the kitchen when he heard

five or six gunshots. However, he did not see the person

firing the gun. Jones told Foster he had been shot, and Foster

ran out the back door of the apartment with Jones and Jones’

uncle. He returned to the apartment to retrieve his and Jones’

coats, and he saw two men lying in the hallway outside the

apartments. He went back outside and noticed Jerry Nored pull

into the parking lot, and he asked Nored for a ride to the

hospital. The police stopped the truck before they reached the

hospital.

Steven Clifford, an officer for the Bloomington

police department, testified once defendant was placed in

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custody, he repeatedly asked defendant for the location of his

weapon. Eventually, defendant informed him he had thrown it

somewhere but did not know its location. On April 17, 2008,

Officer Clifford observed a handgun on a garage roof at Number

One Oakbrook, Bloomington, Illinois.

Michael Johnson, an officer for the Bloomington

police department, testified on February 13, 2008, he was

transporting defendant to the police department when defendant

informed him he wanted to turn himself in, and it was not his

fault. Defendant also stated he felt bad about the incident.

Officer Johnson further testified defendant appeared visibly

shaken.

Montell Jones testified he was playing video games at

defendant’s apartment with defendant, Leonard Hosea, Eric

Foster, and his uncle, Andrew Walker. While they were playing

video games, two men knocked on the door. Walker said he

recognized one of the men, but the man denied knowing Walker.

Everyone in the apartment walked toward the door where the two

men were standing. After words were exchanged, the man Walker

had recognized swung at Walker, while the second man pushed

Jones into the living-room wall. Jones then noticed defendant

and Walker were holding the door closed. Jones asked for help

because the second man was choking him. Both Walker and defen-

dant were walking toward Jones when the front door was kicked

in by the men in the hallway. He observed people enter the

apartment, but his attention was returned to the man attacking

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him. When he looked down, he noticed he had been shot in the

arm. Defendant and Walker helped him leave the apartment. He

had been shot in his right arm, his left arm, and his right

leg.

Andrew Walker testified on February 12, 2008, he went

to defendant’s apartment. He was under the influence of alco-

hol when he arrived. While at defendant’s apartment, he heard

a loud knock at the door. He recognized one of the men at the

door from prison, but the man denied knowing him. Walker

responded he did know him, and the man attacked him. Defendant

was able to push the man out of the apartment and close the

door. Before the door was closed, Walker noticed Levar Walls

standing in the hallway, holding something that looked like a

knife. The front door was kicked open, and the man Walker had

recognized entered the apartment. He threw Walker to the

ground and started punching him. Walker then heard gunshots

and heard Jones say he had been shot. He helped Jones exit the

apartment through the back door, and he saw defendant standing

outside the building. He testified defendant had something in

his hand.

Dr. Edward Kolb testified he treated Levar Walls and

Montell Jones for multiple gunshot wounds. He noticed both

patients had three gunshot wounds.

Chad Wamsley, a detective for the City of

Bloomington, testified he interviewed Andrew Walker regarding

the February 12, 2008, incident. The interview was recorded

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and played for the jury. During the interview, Walker told

Detective Wamsley he ran into a man outside the apartment

building who was carrying a black-colored handgun. He also

stated he thought the man he observed standing outside the

apartment door was carrying a gun. Walker was not forthcoming

about the identity of the man with the gun.

Rogers McElroy testified on October 4, 2004, he

purchased a Glock 10-millimeter handgun at a pawnshop. McElroy

testified defendant had probably seen him with that gun. He

was unaware the gun was missing from his residence until the

police contacted him and advised it had been found.

Dr. John Scott Denton testified on February 14, 2008,

he performed autopsies on Calvin and David Walls. He testified

David Walls had a gunshot wound on the right side of the but-

tock, a gunshot wound in the left hip area, a close-range

gunshot wound on the right side of his face beneath his right

eye, a gunshot wound on the left mid-back area, and also vari-

ous bruising and scratching injuries consistent with a fight or

altercation. Additionally, he testified the gunshot wounds on

David Walls’ chest and body were consistent with a range

greater than 18 to 24 inches.

Next, Dr. Denton testified Calvin Walls had a gunshot

wound on his right wrist consistent with a range greater than

18 to 24 inches, and also a close-contact gunshot wound to the

left side of his head. Calvin also had small abrasions on the

right side of his forehead and right eyebrow consistent with

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injuries caused by a fight or altercation.

Defendant testified in February 2008 he lived at 333

Riley Drive, apartment five, Bloomington, Illinois. On the

night of the occurrence, he was in his apartment playing video

games and drinking with Montell Jones, Eric Foster, Andrew

Walker, and Leonard Hosea. While playing video games, he heard

a loud knock at his front door. When he answered the door, he

recognized Calvin Walls. Andrew Walker said he recognized

Calvin from prison, but Calvin denied knowing him. While

standing in the doorway, defendant noticed David Walls in the

hallway.

Calvin and Walker continued to exchange words, and

Calvin attempted to enter the apartment. Defendant prevented

Calvin from entering the apartment. Defendant noticed Levar

Walls approach, pull on Calvin’s jacket, and then return to his

apartment. According to defendant, Levar returned with a knife

a few seconds later. Calvin swung at Walker, and David at-

tacked Jones. Defendant attempted to push Calvin outside the

apartment, while also trying to prevent Levar from entering.

However, Calvin pushed defendant back and attacked Walker.

Levar then entered the apartment carrying a knife.

While in the apartment, Levar helped Calvin drag Walker toward

the outside hallway. Eventually, defendant was able to remove

Calvin from the apartment while keeping Walker inside. Walker

and defendant locked the front door to prevent the brothers

from getting inside the apartment, but the brothers began

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kicking the door. Defendant heard them say their brother was

still inside, and the people inside the apartment were going to

kill him. Defendant went to the kitchen to get his handgun.

After the apartment door was forced open, Walker released

David, and David exited the apartment. Calvin entered the

apartment and started threatening everyone. Defendant pleaded

with Calvin to leave the apartment. Defendant testified the

people in the hallway outside his apartment had knives.

Defendant thought he saw David and another person

enter his apartment. He fired the gun in the direction of

Calvin and David. However, the men continued attacking the

guests in his apartment. From his doorway, defendant observed

Levar reach into his own apartment, grab a knife, and swing it

at him. In response, defendant shot Levar in the lower body.

Levar fell in the doorway of his apartment, and defendant

approached to check for additional weapons. When he turned to

go back to his apartment, Calvin and David attacked him and

tried to take his gun. During the struggle, he fired the gun

several times. He went back to his apartment, but it was

empty. He exited through the back door, and he saw Walker,

Jones, and Foster on the back staircase. Once outside, he ran

from the building and threw the gun away. He knocked on a

man’s door and asked to use his phone, but the man refused. He

then knocked on a lady’s door, and she called the police for

him.

On cross-examination, defendant testified he put four

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bullet holes in Levar’s front door, but Levar was standing

outside the apartment in front of the door. Additionally, he

testified he was in close physical contact with both Calvin and

David when he fired the shots in the hallway.

During the April 2009 jury-instruction conference,

the State tendered an instruction setting forth an initial

aggressor’s responsibilities before a use of force can be

justified. The trial court refused to submit the instruction

to the jury, stating, although there was ambiguity in the

evidence regarding who initially provoked the use of force,

there was no direct testimony by any eyewitness as to who threw

the first punch.

During deliberations, the jury inquired about the

legal justification for an initial aggressor’s use of force.

The trial court allowed the initial-aggressor instruction to be

tendered to the jury over defense counsel’s objection. In

allowing the instruction, the court stated it had a duty to

appropriately respond to jury questions, and the instruction

directly answered the inquiry.

The jury found defendant guilty of two counts of

first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2008))

for the deaths of Calvin Walls and David Walls and of aggra-

vated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West

2008)) in the battery of Levar Walls. Additionally, defendant

was found not guilty of aggravated battery with a firearm (720

ILCS 5/12-4.2(a)(1) (West 2008)) in the battery of Montell

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Jones.

In May 2009, defendant filed a motion for judgment of

acquittal notwithstanding the verdict or, in the alternative,

for acquittal asking the trial court to vacate the judgment

entered on the jury’s verdict. In particular, defendant argued

the court erred in submitting the initial-aggressor instruction

to the jury mid deliberation.

In June 2009, the trial court denied defendant’s

motion. Regarding the initial-aggressor instruction, the

court stated it had a duty to provide instruction because the

jury asked a specific question. The trial court sentenced

defendant to natural life in prison on each first-degree-murder

conviction to run concurrent with a 30-year prison term for the

aggravated-battery-with-a-firearm conviction.

This appeal followed.

II. ANALYSIS

A. Jury Instruction

A trial court’s decision to answer a jury question

will not be disturbed absent an abuse of discretion. People v.

Brown, 319 Ill. App. 3d 89, 100, 745 N.E.2d 173, 184 (2001).

When faced with a jury question during deliberations, "the

general rule is that the trial court has a duty to provide

instruction to the jury where it has posed an explicit question

or requested clarification on a point of law arising from facts

about which there is doubt or confusion." People v. Childs,

159 Ill. 2d 217, 228-29, 636 N.E.2d 534, 539 (1994). Failure

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to specifically and accurately answer a jury question has been

held to be prejudicial error. Brown, 319 Ill. App. 3d at 100,

745 N.E.2d at 184.

However, under appropriate circumstances, a trial

court may exercise its discretion and properly refrain from

answering the question. Childs, 159 Ill. 2d at 228, 636 N.E.2d

at 539. The court may decline to answer a jury question when

(1) the instructions are readily understandable and suffi-

ciently explain the relevant law; (2) further instruction would

serve no useful purpose or would potentially mislead the jury;

(3) the inquiry involves a question of fact; or (4) answering

the question would cause the court to express an opinion that

could potentially direct the verdict. Childs, 159 Ill. 2d at

228, 636 N.E.2d at 539.

If the trial court provides instruction to the jury

mid deliberation, it must refrain from submitting instructions

on new case theories. People v. Millsap, 189 Ill. 2d 155, 161,

724 N.E.2d 942, 946 (2000). Both parties are entitled to

instructions pertaining to their separate theories of the case;

however, evidence must be presented on a particular theory

before an instruction may be submitted. People v. Fleming, 155

Ill. App. 3d 29, 37, 507 N.E.2d 954, 959 (1987).

An initial-aggressor instruction is warranted when

either the State presents evidence that defendant was the

aggressor or the case involves a question of whether defendant

was the aggressor. People v. Heaton, 256 Ill. App. 3d 251,

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257, 631 N.E.2d 247, 251 (1994). Tendering the self-defense

instruction, along with the initial-aggressor instruction,

allows the jury to resolve conflicts in evidence and apply the

appropriate law. Fleming, 155 Ill. App. 3d at 37, 507 N.E.2d

at 959.

Additionally, although the right of self-defense may

justify a use of force, it will not justify the killing of an

original aggressor as an act of retaliation or after the ag-

gressor has abandoned the argument. People v. De Oca, 238 Ill.

App. 3d 362, 368, 606 N.E.2d 332, 336 (1992). In De Oca, 238

Ill. App. 3d at 367-68, 606 N.E.2d at 336, the victim was the

initial aggressor in a fistfight with the defendant; however,

the evidence indicated the confrontation escalated into a

different encounter when defendant displayed a loaded shotgun

and shot the victim. Therefore, the court held the trial court

did not err in determining defendant was the aggressor at the

time of the shooting. De Oca, 238 Ill. App. 3d at 368, 606

N.E.2d at 336.

In the present case, during the April 2009 jury-

instruction conference, the State tendered IPI Criminal 4th No.

24-25.09, which stated as follows:

"A person who initially provokes

the use of force against himself is justified

in the use of force only if *** the force used

against him is so great that he reasonably

believes he is in imminent danger of death or

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great bodily harm, and he has exhausted every reason-

able means to escape the danger other

than the use of force which is likely to

cause death or great bodily harm to the

other person."

The trial court refused to tender the instruction to the jury

because the evidence regarding the origin of the fight was

ambiguous and no direct eyewitness testimony suggested who

threw the first punch.

During deliberations, the jury asked the following

question:

"Does a person who has initially provoked

the use of force against himself have a duty to

attempt to escape the danger before using force

against the aggressor?"

In response, the trial court allowed the initial-aggressor

instruction to be submitted to the jury because the instruction

specifically answered the jury question.

Defendant argues the trial court erred in tendering

the jury instruction mid deliberation because none of the

evidence suggested defendant was the initial aggressor in the

confrontation. Additionally, defendant argues the jury was

confused when it submitted the question because it was either

inquiring about the rights and duties of the Walls brothers, or

it mistakenly believed defendant was the initial aggressor.

Therefore, defendant argues the instruction served no useful

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purpose and potentially misled the jury. We disagree.

The jury was provided with a self-defense instruction

prior to deliberations. The jury was also instructed a person

who is not an aggressor has no duty to attempt escape before

using force against an aggressor. However, the jury was not

initially presented with an instruction regarding the legal

justification for an initial aggressor’s use of force. The

lack of instruction was especially significant because the

State argued defendant became the aggressor in the conflict

when he pursued and shot Levar Walls as Levar was retreating.

Additionally, the State argued defendant became the aggressor

when he shot Calvin and David Walls in the hallway.

The trial court had a duty to appropriately address

the question posed by the jury. While the evidence on the

issue of initial-aggressor status may have been ambiguous, it

was a matter for the jury to determine. The jury clearly

stated its question and there was a relevant IPI instruction on

the topic. Additionally, when the court submitted the new

instruction mid deliberation, it was not injecting a new theory

into the case. Like in De Oca, the State had argued defendant

became the aggressor when he shot three of the victims after

they had abandoned the initial confrontation. After hearing

the State’s argument, it was reasonable for the jury to con-

sider the legal justification for an initial aggressor’s use of

force. Tendering this instruction to the jury allowed it to

resolve the conflicts in testimony and apply the correct law.

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Additionally, the trial court noted the evidence did

not completely absolve defendant of being the initial

aggressor. Therefore, the jury could have reasonably concluded

defendant was the initial aggressor. It seems, however, the

trial court was thinking only in terms of the initial fistfight

in defendant's apartment when discussing the initial-aggressor

issue during the instruction conference. However, the evidence

did support the jury's determination defendant became the

aggressor when he shot each of the Walls brothers. Providing

the initial-aggressor instruction to the jury would not direct

a verdict on the issue, because the jury was presented with

both a self-defense instruction and an instruction regarding

the legal justification for a nonaggressor’s use of force.

Consequently, the trial court appropriately addressed the jury

question by tendering an instruction that provided a correct

statement of law on the issue.

B. Sufficiency of the Evidence

Next, defendant argues the evidence was insufficient

to convict him of two counts of first degree murder and aggra-

vated battery with a firearm beyond a reasonable doubt. We

disagree.

1. Self-Defense

The question on review is whether, after viewing all

of the evidence in the light most favorable to the State, any

rational trier of fact could have found beyond a reasonable

doubt defendant did not act in self-defense. People v.

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Grayson, 321 Ill. App. 3d 397, 402, 747 N.E.2d 460, 465 (2001).

A person acts in self-defense when (1) the person is threatened

with unlawful force, (2) the person threatened is not the

aggressor, (3) the danger of harm is imminent, and (4) the use

of force is necessary. Grayson, 321 Ill. App. 3d at 402, 747

N.E.2d at 464-65. It is the State’s burden to prove beyond a

reasonable doubt that defendant did not act in self-defense.

People v. Dillard, 319 Ill. App. 3d 102, 106, 745 N.E.2d 185,

188 (2001). However, a jury has discretion to reject a self-

defense claim based on the probability or improbability of

defendant’s account, the circumstances of the crime, the testi-

mony of the witnesses, and witness credibility. Dillard, 319

Ill. App. 3d at 106, 745 N.E.2d at 189.

At trial, defendant argued he was acting in self-

defense when he shot Levar Walls. According to defendant’s

testimony, Levar entered defendant’s apartment and was waving a

knife around. Later, defendant observed Levar reach into his

apartment for a knife and swing it at him. In support of his

testimony, defendant notes a knife was found on the living-room

floor underneath the fish tank in Levar's apartment. However,

the State presented evidence to explain the location of the

knife, such as testimony the living room was cluttered and the

kitchen table was near the fish tank. Additionally, the State

offered evidence no knife wounds were found on any person

involved in the altercation. Only one witness, other than

defendant, testified he observed something in Levar’s hands

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that night, but he could not specifically say whether the

object was a knife. Also, Levar testified he was not carrying

a knife. He testified he heard the gunshots and retreated to

his apartment, but defendant pursued him and shot him as he

entered his apartment. Additionally, the State argued the

location of the bullet holes in Levar’s front door and the

location of his injuries were not consistent with defendant’s

testimony.

Also at trial, defendant argued he acted in self-

defense when he shot both Calvin and David Walls in the hallway

of the apartment building. Defendant testified he had

approached Levar to check for additional weapons when he was

attacked by Calvin and David. Additionally, defendant testi-

fied he was in close physical contact with David and Calvin

when they attempted to grab his gun. However, the State pre-

sented evidence that both Calvin and David were fleeing defen-

dant’s apartment and had only returned to Levar's apartment

after hearing additional gunshots. Also, to contradict defen-

dant’s self-defense claim, the State presented evidence defen-

dant fired the gun at least 14 times resulting in 11 gunshot

wounds to the four victims, four out of five of the wounds on

Calvin and David were fired from greater than two feet away,

and the locations of the wounds on each victim were not consis-

tent with defendant’s testimony.

Conflicting evidence was presented regarding whether

defendant was the aggressor in the confrontation. After

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considering all of the evidence and observing the witness

testimony, the jury was entitled to resolve the conflicts in

testimony and reject defendant’s self-defense claim. Looking

at the evidence in the light most favorable to the State,

sufficient evidence was presented to support the jury verdict.

2. Defense of Dwelling

Deadly force in defense of a dwelling is justified

when (1) the victim’s entry is made in a "violent, riotous, or

tumultuous manner" and (2) defendant’s subjective belief that

deadly force is necessary to prevent an assault upon him or

another in the dwelling is reasonable. People v. Sawyer, 115

Ill. 2d 184, 192, 503 N.E.2d 331, 335 (1986). The reasonable-

ness of defendant’s subjective belief is a question of fact for

the jury to determine. People v. Evans, 87 Ill. 2d 77, 86, 429

N.E.2d 520, 524 (1981). Additionally, for a defense-of-dwell-

ing justification to be successful, "a defendant need only be

within the confines of his dwelling." (Emphasis in original.)

People v. Morris, 162 Ill. App. 3d 1046, 1055, 516 N.E.2d 412,

418 (1987). At trial, defendant argued his use of force was

necessary to prevent an assault upon him or another in his

dwelling. First, defendant testified the altercation was the

result of an argument between Calvin Walls and Andrew Walker.

Additionally, he testified Calvin and David entered his apart-

ment in a violent manner and proceeded to attack his guests.

In support of defendant’s testimony, both Montell Jones and

Andrew Walker testified they were in defendant’s apartment when

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the brothers attacked them. Defendant also testified at least

one of the brothers had a knife in defendant's apartment.

Additionally, defendant testified, while in the hallway, he was

prevented from returning to his apartment by the brothers’

attack.

In contrast, Levar testified defendant’s front door

was kicked open because David was locked inside the apartment.

He also testified he had not entered defendant’s apartment that

night, nor was he armed with a knife when he was shot. Addi-

tionally, he testified he was fleeing defendant’s apartment

when he was shot at the threshold of his own apartment. Also,

David and Calvin were both shot in the hallway of the apartment

building. The State presented testimony that David and Calvin

had exited defendant’s apartment and were only returning to

their brother’s apartment because they heard gunshots. The

State presented evidence of the location of their bullet wounds

to support this testimony.

As evidenced by the fact the jury found defendant not

guilty of aggravated battery with a firearm for the battery of

Montell Jones, the jury determined defendant was not the ini-

tial aggressor in the confrontation that occurred within his

apartment. However, sufficient evidence was presented to

support the State’s theory defendant became the aggressor when

he shot Levar, David, and Calvin in the hallway outside his

apartment. The question posed by the jury during deliberations

suggests the jury believed the evidence pointed to defendant

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being an aggressor in the conflict. Because sufficient evi-

dence was presented to justify a determination defendant became

an aggressor in the conflict, the jury was entitled to reject

defendant’s justification for defense of dwelling.

C. Credit for Incarceration on Bailable Offense

Defendant argues he is entitled to a $5-per-day

credit for time served against his $15 children’s-advocacy-

center fee and his $10 drug-court fee. Section 110-14(a) of

the Code of Criminal Procedure of 1963 provides:

"Any person incarcerated on a bailable of-

fense who does not supply bail and against

whom a fine is levied on conviction of such

offense shall be allowed a credit of $5 for

each day so incarcerated upon application

of the defendant. However, in no case

shall the amount so allowed or credited

exceed the amount of the fine." 725 ILCS

5/110-14(a) (West 2008).

The statutory right to a credit is mandatory, and a defendant

is entitled to this credit despite it not being requested in

the trial court. People v. Woodard, 175 Ill. 2d 435, 457-58,

677 N.E.2d 935, 946 (1997).

In this case, the trial court ordered defendant to

pay $15 for the children’s-advocacy-center fee and $10 for a

drug-court fee but failed to grant the $5-per-day credit for

time served. Although labeled a fee, the children’s-advocacy-

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center fee is a fine. People v. Jones, 397 Ill. App. 3d 651,

660, 921 N.E.2d 768, 775 (2009). Therefore, defendant is

entitled to a $5-per-day credit against the $15 fine. The

drug-court fee is also a fine, and defendant is entitled to an

additional $5-per-day credit against this $10 fine. People v.

Sulton, 395 Ill. App. 3d 186, 193, 916 N.E.2d 642, 647-48

(2009). The State concedes defendant is entitled to the $5-

per-day credit for the 475 days he spent in custody. Accord-

ingly, we remand this case and direct the trial court to amend

the judgment order to grant defendant a credit against the $15

children’s-advocacy-center fee and the $10 drug-court fee.

III. CONCLUSION

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

judgment as modified and remand with directions. As part of

our judgment, we award the State its $75 statutory assessment

against defendant as costs of this appeal.

Affirmed as modified; cause remanded with directions.

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