People v. Harmon

Decision Date30 December 2015
Docket NumberNo. 1–12–2345.,1–12–2345.
Citation2015 IL App (1st) 122345,401 Ill.Dec. 82,49 N.E.3d 470
Parties The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Austin HARMON, Defendant–Appellant.
CourtUnited States Appellate Court of Illinois
OPINION

Justice PUCINSKI delivered the judgment of the court, with opinion.

¶ 1 In this case, we review a first-degree murder conviction and sentence where the defendant shot the victim in alleged self-defense or defense of others after the victim punched one of his friends while on a public way. We hold the following:

1. The State proved beyond a reasonable doubt that defendant was not acting in self-defense or defense of others from death or great bodily harm. Defendant's use of deadly force was also not justified to prevent the commission of a forcible felony, as simple battery on a public way, elevated to aggravated battery under section 12–4(b)(8) of the Criminal Code of 1961 ( 720 ILCS 5/12–4(b)(8) (West 2008)) (now renumbered as 720 ILCS 5/12–3.05 by Pub. Act 96–1551, art. 1, § 5 (eff. July 1, 2011)), does not suffice to satisfy section 2–8 to constitute a forcible felony ( 720 ILCS 5/2–8 (West 2008) ) of the type that would justify using deadly force under section 7–1(a) for justified use of deadly force ( 720 ILCS 5/7–1(a) (West 2008)).

2. Defendant also failed to demonstrate the mitigating factors for reduction of his conviction to second degree murder where the defendant's testimony that he believed the victim's punch of his friend was a gunshot was incredible, and there was no other evidence that defendant had even an unreasonable belief in self-defense or defense of others or that he was acting under sudden and intense passion resulting from provocation.

3. The trial court erred in not allowing any questioning of a prosecution witness regarding potential bias stemming from any hope of a deal with the State for his pending criminal charges, but this error was harmless beyond a reasonable doubt because the testimony of the other witnesses in the case corroborated witness's testimony and the State's case was strong overall.

4. The trial court did not abuse its discretion in sustaining several objections to defense counsel's questions concerning what defendant thought would happen during the incident, where the majority of the objections were on valid grounds, only one objection specifically concerned what defendant thought would happen, and defendant otherwise testified extensively to his state of mind.

5. Defendant did not show any reversible error in sentencing where the record as a whole established that the court considered all relevant mitigating and aggravating factors and did not abuse its discretion in imposing a sentence of 65 years' imprisonment.

¶ 2 We affirm defendant's conviction and sentence.

¶ 3 BACKGROUND

¶ 4 Defendant, Austin Harmon, was found guilty of first degree murder of London Clark in a bench trial. Defendant was sentenced to 65 years' imprisonment. The following background facts are from defendant's and the State's briefs, the majority being from the State's brief where the facts are presented "accurately and fairly without argument or comment" ( Ill.S.Ct. R. 341(h)(6) (eff. Feb. 6, 2013)) regarding the trial testimony, and without any argument disputing the presentation of facts in defendant's reply brief.

¶ 5 On July 25, 2009, at around 7 p.m., defendant was walking with three friends through the streets of Broadview, Illinois. Defendant was 18 years old and had just graduated from high school. The three friends defendant was walking with were: Dion Flowers; Marcus Calloway; and Darrell Williams.

¶ 6 At trial, Jason Morris testified that he was at his relative's house in the 2100 block of 22nd Avenue in Broadview around 7 p.m. on July 25, 2009. While there, he saw London Clark. Jason was friends with London's older brother, Eddie Clark, and also knew London from the neighborhood. London told Jason that he had just "got into it with some fugazies," which meant fake people and is a disrespectful term. Jason and London went out and walked together on 22nd Avenue while talking about the incident. A lot of people were outside. Jason and London then saw the same group of individuals London was talking about when they got closer to the corner. Jason recognized defendant, Marcus, and Dion in that group. He did not know the fourth person. Jason testified that Marcus was wearing his hat tilted to the left, which represented a gang. Jason testified that it seemed Marcus was looking for trouble because Marcus was never in that part of town. Jason told Marcus to straighten his "mother f* * *ing" hat because Marcus' hat was tilted to the left. Tilting one's hat to the left signifies the For Corner Hustlers, or Vice Lord, gang. Jason is a Gangster Disciple. Dion and London were within two feet of each other at this point. Dion smirked and so London punched him in the face. Dion's legs buckled like he was going to fall, but Dion caught himself. London stepped back after he punched Dion. Jason stepped off to the side in a fighting stance in order to help London fight, which blocked his view of defendant, but he heard gunshots and took off running. Jason was about 20 feet away when he noticed that London was not next to him. Jason turned around and saw London on the ground. Defendant, Marcus, Dion, and the fourth individual were running in the opposite direction. Jason went back to London and used his cell phone to call an ambulance. Jason's cell phone was in a cell phone holder connected to the belt loop on his pants. Eddie came to the area, but could not view London in that condition, so he walked down the block and sat in his car.

¶ 7 The police and an ambulance arrived. Jason spoke to the police on the scene but only provided Marcus' name at that time. Jason did not see a gun in anyone's hand that night. Jason did not have a gun in his possession, and he did not see London with a gun either. Jason went to the police station and viewed two separate photo arrays. Jason identified defendant and Dion as two of the individuals who were at the scene.

¶ 8 On cross-examination, Jason explained that he was a member of the Gangster Disciples gang and that defendant and his group were in Gangster Disciple territory that night. Jason testified that it is considered disrespectful to have one's hat tilted to the left while walking through Gangster Disciple territory. This signal indicated to Jason that Marcus wanted to start some trouble. Jason testified that he was 6'1? tall and weighed 225 pounds in July 2009. Jason also acknowledged that he had criminal charges pending against him at the time of trial, but that the State did not make any promises to him in exchange for his testimony with regard to those charges.

¶ 9 Dion testified that he was 18 years old and a freshman in college at the time of trial, that he grew up in the Broadview/Maywood area, and that he had known defendant since grammar school.

Dion testified that defendant was a good friend of his and that he visited him during the pendency of this criminal case and did not want to testify against defendant but received a subpoena to testify in court. Dion testified that Marcus was another friend of his, and that he knew Darrell Williams, the fourth individual in the group, through Marcus. Dion testified that he used to be involved with the Four Corner Hustlers, and that defendant and Marcus were both also members of the Four Corner Hustlers. Darrell was associated with the Four Corner Hustlers as well. Dion knew Jason from the neighborhood and knew that Jason was the leader of the Gangster Disciples. Dion also knew London but not very well.

¶ 10 Dion testified that he was walking in the area of 22nd Avenue and Fillmore Street around 7 p.m. on July 25, 2009 with defendant, Marcus, and Darrell. They all wore hats tilted to the left. Dion explained that the titled hats meant they were associated with gangs. Dion saw Jason and London walking towards them on 22nd Avenue with angry expressions on their faces. Jason yelled at them to "turn those mother f* * *ing hats straight." London said, "You all heard what he said." Dion testified that London did not have anything in his hands, but Jason hid his hand under his shirt like he had a gun. Dion testified that he thought he saw the butt of a gun, but that Jason never pulled it out so he never saw it. Dion was afraid he was going to get shot but did not run off. Instead, Dion said, "We ain't even on that," which meant that they did not want any problems. London then punched Dion in the face. Dion stumbled, but caught himself so he did not fall. Within a second of London lunging at him, Dion heard three or four gunshots. Dion testified that he did not look up while the shots were being fired but looked up after he heard the shots and saw defendant with his right arm extended and a gun in hand, and London was on the ground. Dion testified that Jason was backing away and did not have a gun in his hand. Everyone fled. Dion never saw London with a gun either. Dion further testified that neither Jason nor London ever threatened them with a gun. Dion also did not receive any injuries from the punch.

¶ 11 After Dion saw London on the ground and defendant holding a gun, he ran to Marcus' house. He ran by himself and did not know where anyone else went. Defendant, Marcus, and Darrell all ended up at Marcus' house too. All four of them went to the basement. Dion testified that defendant was sobbing and said, "[E]veryone wants to play tough out here and getting into it over nothing." Dion also testified that defendant may have said something to the effect the he "may have to serve 45 years to life for this" and told Dion and the others that he would know if someone snitched. Defendant still had the gun with him. It was a black revolver. Defendant asked the group what he was supposed to do with it, and then he went upstairs and came back without the gun....

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