People v. Grayson

JUSTICE COOK, dissenting.

I respectfully dissent and would reverse.

If there are three witnesses in a criminal case, and they all testify that defendant did not commit the offense, can the jury, taking into account the witnesses’ reluctance to testify, disbelieve them and find the defendant guilty?

First of all, I disagree that this was a mutual combat situation where the defense of self-defense was not available. “A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.” Illinois Pattern Jury Instructions, Criminal, No. 24—25.06 (4th ed. 2000) (hereinafter IPI Criminal 4th). “A person who has not initially provoked the usé of force against himself has no duty to attempt to escape the danger before using force against the aggressor.” IPI Criminal 4th No. 24—25.09X. An initial aggressor, a person who initially provokes the use of force against himself, is justified in the use of force only if he (1) reasonably believes he is in imminent danger of death or great bodily harm and has exhausted all other means to escape or (2) indicates clearly his withdrawal but the other person continues the use of force. IPI Criminal 4th No. 24—25.09.

There is no right of self-defense in a mutual combat situation. Where two individuals in a bar agree to step outside and fight, either or both may be charged with battery. The fact that one of them strikes the first blow does not give the other the right to respond. The agreement to fight constitutes a provocation to the use of force, making each party an initial aggressor. See IPI Criminal 4th No. 24—25.09. Both fighters are guilty of battery unless one of them qualifies to use force as an initial aggressor. See State v. Allred, 129 N.C. App. 232, 235 , 498 S.E.2d 204, 206 (1998) (if a person voluntarily enters into a fight he cannot invoke the doctrine of self-defense unless he withdraws from the fight and notifies his adversary that he has done so). There is no evidence the individuals here agreed to enter into a fight. The evidence is that there was a dispute over money which led to blows being struck.

Jesse testified that he and defendant were playing cards, that Jesse had been winning, that defendant grabbed his money, that Jesse wanted his money back, that an altercation ensued, and his nose was broken by defendant, perhaps when Jesse fell against the coffee table rail. Jesse testified he had not made any physical contact with defendant prior to his nose being broken. (What physical contact did he make? When did he make it? How did he go about getting his money back? Why would defendant, who had the money, strike Jesse?) Jesse told the investigating officer that defendant hit him in the nose after a dispute over some money. At trial, Jesse testified that he did not know how his nose was broken, that May had written his statement for him, and that he signed the statement because he was mad at defendant and wanted his money back.

May testified that her brothers, Jesse and defendant, had a fight because defendant grabbed the money, that she thought Jesse made the first contact in the fight, that defendant was tossed into a coffee table, and that she did not see Jesse’s nose being broken. May testified that both Jesse and defendant started the fight. May testified she gave a written statement to police in which she stated that, after defendant lost money in a card game, he became upset and “startled] jumping” Jesse.

The investigating officer, McCoy, testified that defendant told him that he hit Jesse because Jesse grabbed him around the neck.

The majority complains that “the only evidence suggesting that defendant acted in self-defense came from Officer McCoy.” 321 Ill. App. 3d at 402. The more appropriate question is, what evidence was there that defendant did not act in self-defense? The fact that a fight occurred is not evidence there was no self-defense. Once a defendant raises self-defense as an affirmative defense, the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. People v. Jeffries, 164 Ill. 2d 104, 127-28 , 646 N.E.2d 587, 597-98 (1995). Where there is no evidence one way or the other, the State loses. While credibility of a witness is within the province of the trier of fact and the finding of the jury on such matters is entitled to great weight, the jury’s determination is not conclusive. Rather, we will reverse a conviction where the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant’s guilt. People v. Smith, 185 Ill. 2d 532, 541-42 , 708 N.E.2d 365, 369-70 (1999); People v. Minniweather, 301 Ill. App. 3d 574, 577-78 , 703 N.E.2d 912, 913-14 (1998); People v. De Oca, 238 Ill. App. 3d 362, 367-68 , 606 N.E.2d 332, 336 (1992) (question whether defendant was the initial aggressor).

What was the evidence that defendant was the aggressor? Defendant took the money Jesse had won from defendant. Jesse tried to get it back. Even if Jesse’s testimony is believed, that he had not made any physical contact before his nose was broken, that testimony does not establish that Jesse was not the initial aggressor. Even the mere utterance of words may be enough to qualify one as an initial aggressor. People v. Dunlap, 315 Ill. App. 3d 1017, 1025-26 , 734 N.E.2d 973, 981 (2000). The fact that defendant took the money, and the fight would not have happened if he had not done so, does not make defendant the initial aggressor. Not every utterance of words or other conduct that results in a fight makes one the initial aggressor. Where a victim tells defendant to stop and that she is going to call the police, those actions do not make the victim the initial aggressor. Dunlap, 315 Ill. App. 3d at 1025-26 , 734 N.E.2d at 981 . Defendant’s taking his money back, accomplished by grabbing it, did not give Jesse the right to use force. The majority’s complaint that Jesse’s testimony was “internally inconsistent” does not aid the State. 321 Ill. App. 3d at 402. Jesse was the State’s witness.

The majority’s argument, that “[t]he apparent one-sided nature of the struggle supported the State’s theory that defendant did not act in self-defense” (321 Ill. App. 3d at 402), is simply grasping for straws. The victim of an attack may land a blow that ends the attack. The most that can be said about this case is that we do not know whether defendant or Jesse was the aggressor. We do not know whether defendant reasonably believed his conduct was necessary to defend himself against the imminent use of unlawful force. The evidence was not sufficient to disprove self-defense beyond a reasonable doubt.

Nor does May’s prior statement that defendant became upset and “start[ed] jumping” Jesse provide any assistance to the State. The evidence indicated that defendant was upset about Jesse winning his money and that defendant grabbed the money. The words, “start[ed] jumping” Jesse, do not add anything to that, particularly in light of May’s testimony at trial. Again, the State has impeached its own witness here. The fact that May’s prior inconsistent statement is admissible substantively under section 115—10.1 does not mean that that statement is accurate or must be accepted over the testimony that May presented at trial. The State’s evidence is so unreasonable, improbable, or unsatisfactory in this case that there is a reasonable doubt of defendant’s guilt.

Section 115—10.1 is useful to prevent State’s witnesses from disavowal of their statements made during the pretrial investigation of the case, which statements may have been very thorough and specific. Section 115—10.1 should not be used in a case where there is little or no evidence, in an attempt to bolster weak evidence by repetition, even where the witness is an unwilling one. Where not even the victim is willing to testify that a crime has occurred, it is difficult to see how the State has proved its case beyond a reasonable doubt.