People v. Romero

• Decision Date: 29 October 2008
• Docket Number: No. 2-06-0140.,2-06-0140.
• Citation: 901 N.E.2d 399
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnathan J. ROMERO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

901 N.E.2d 399

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnathan J. ROMERO, Defendant-Appellant.

No. 2-06-0140.

Appellate Court of Illinois, Second District.

October 29, 2008.

As Modified Upon Denial of Rehearing January 14, 2009.

Thomas A. Lilien, Deputy Defender, Office of State Appellate Defender, Jaime L. Montgomery, Office of State Appellate Defender, Elgin, IL, for Appellant.

Philip J. Nicolosi, Winnebago County State's Attorney, Rockford, Lawrence M. Bauer, Deputy Director State's Attorney Appellate Prosecutor, Barry W. Jacobs, State's Attorneys Appellate Prosecutor, Elgin, IL, for Appellee.

Modified on Denial of Rehearing

Presiding Justice ZENOFF delivered the opinion of the court:

Defendant, Johnathan Romero, appeals his conviction of first degree murder (720 ILCS 5/9-1(a)(2) (West 2004)) and his subsequent sentence of 50 years' imprisonment in connection with an incident in which he fatally stabbed another young man, Eric Flynn, at a bonfire party. On appeal, defendant argues that (1) the evidence that defendant acted under an unreasonable belief in the necessity of deadly force in self-defense warrants our reducing his conviction to second degree murder; (2) his conviction should be reversed and the cause remanded for retrial due to the prosecutor's allegedly improper statements during closing rebuttal argument; (3) his sentence was excessive; and (4) the judgment must be corrected to reflect the three years of mandatory supervised release (MSR) statutorily authorized instead of the four years actually imposed. The State concedes the latter point. For the reasons that follow, we affirm as modified.

Defendant's trial took place between November 18 and November 29, 2005. The State's first witness, Flynn's mother, testified that Flynn came home from work on October 2, 2004, shortly after 9 p.m. but left home again at approximately 10:30 or 10:45 p.m. When he left he was wearing blue jeans and a gray sweatshirt.

John Peppers testified next for the State. He testified that October 2 was the night of Auburn High School's homecoming dance and that his younger brother Jeff was planning a bonfire party for that night. Shortly after 10 p.m., after the party had started and after John, who was 21 years old at the time, purchased some alcohol, he picked Flynn up and drove him to the party. When they arrived at John's house, they discovered that John's parents were breaking up the party. The group decided to join another bonfire party at the home of Eric Ellis.

Though there were no streetlights in the area and the pathway leading up to the bonfire area was dark, the bonfire clearing was "pretty bright," and, "as soon as you got into the clearing, * * * you could definitely see." John recognized most of the people at the Ellis party as either friends or "friend[s] of friend[s]" whom he had met that night, but he did not know defendant and did not see him at the party. Even though the majority of the partygoers were high school students, most of them were drinking. John stayed at the bonfire for approximately one hour before leaving to meet another friend and also to purchase more alcohol for the party. Flynn remained at the party during John's absence. When John eventually returned to the party, the atmosphere was "panicked," and "[t]here were a lot of cars kinda speeding away." John was informed by the partygoers that Flynn had been stabbed.

Chris Peppers, John's younger brother, testified that he arrived at the Ellis party at approximately 11 p.m. on October 2, after his parents had broken up his party, which had included his friend Mitch Heaslip and some of Heaslip's friends from Wisconsin. Chris drank five beers over the course of the night, but, though there were "a lot of people" using marijuana at the Ellis party, Chris testified that he did not take any drugs that night. Chris saw his brother John leave after approximately one-half hour in order to purchase more beer, and, after two more of his friends left the party 15 minutes later, Chris wandered away from the bonfire and toward the road. There, he saw an acquaintance named Christina and a person he recognized named Adan arrive with a small group of one girl and three boys whom Chris did not recognize. Chris followed the group back to the bonfire, but he was suspicious of the unknown boys because they were not interacting with the other partygoers but were instead standing to the side of the party.

A short time later, Chris again walked away from the bonfire and toward the road. While he was away, he "started hearing a bunch of noise, yelling and screaming." He ran back to the bonfire and saw what "looked like fifteen people * * * just in a big brawl." Chris could not identify any specific people in the brawl, but he noted that the group of unknown boys was no longer standing where he had last seen them. On cross-examination, Chris recalled that, during the fight, he saw Ryan Hatfield standing on a spool, with a six-foot-long metal pole in his hand.

Chris joined a group of people sitting behind some nearby cars and observed the fight from a safe distance. At some point, the group of unknown boys came rushing toward Chris, "screaming and yelling, saying `We gotta get out of here.'" Chris ran and jumped into a nearby ditch, and from there he saw two cars leave. According to Chris, his brother John arrived at the party within a minute thereafter.

Peter Miller testified next for the State. On October 2, 2004, he and several friends had traveled from Wisconsin to visit Mitch Heaslip, who took them first to the Peppers party and, after that party was broken up, to the Ellis party. At some point during the Ellis party, a group of people with whom Miller was not familiar arrived; the group did not mingle with the other partygoers. Miller "decide[d] to socialize with them," and thus approached them. Then, "this black dude asked [Miller] what [his] colors were * * * or asked [him] what [his] problem was." When Miller attempted to respond with a joke, it did not appear that the stranger "took it as a joke," and "a confrontation happened." One of the boys in the group of strangers "flicked" Miller's hat off into the fire, and Miller shoved him. Miller exchanged cross words with the group as his friends from Wisconsin and some people from Rockford rushed in to break up the fight. Miller and the group reconciled, but, a short time later, he saw a "verbal" argument break out between "the guy in the hoodie and that group." Some people were pulling back the "guy in the hoodie," who Miller later learned was Eric Flynn, when the group "kinda bull rushed him." (When asked what it meant when someone "gets bull rushed," Miller answered, "Self-defense, running back, trying to protect himself, he's in the defensive.") A large fight, involving what Miller estimated on cross-examination as "fifteen, twenty people," broke out. The next time Miller saw Eric Flynn was "[w]hen he * * * pulled his hand off of his shirt and said * * * `help' or something" before falling to the ground, bleeding. Miller "could hear him breathing hard and * * * could see blood squirting out."

Eric Stone, another partygoer from Wisconsin, was the next witness for the State. He testified that, after Miller's confrontation with the group that was not interacting with the other partygoers, he saw Flynn "standing there" when a "chair [was] thrown right by him and a Mexican started rushing after him, and he was kinda running backwards and stuff." Stone later testified that two people approached Flynn-one wearing an orange shirt and one wearing a gray shirt. Stone testified that the confrontation was "about fifteen, twenty feet away," and that he could "pretty much see" or could see "pretty clearly." When Flynn was being rushed, he was "rushing backwards," and Stone's imitation of his hand movements was described as follows: "his palms are up at sort of shoulder height with the palms facing out." During redirect examination, Stone indicated that Flynn swung at the two adversaries with the palms of his hands up and his elbows in front of his face. It appeared as if one of Flynn's assailants, who was wearing a gray shirt and gray pants, was punching him in an "awkward," "downward sideways motion" while Flynn "struck out with his fists, probably to block them, trying to get them off of him." Stone was distracted by noises behind him, and, when he turned back around, he saw Flynn, who was on the ground, get up, "take[] like four or five steps * * * and fall[] on his face." On cross-examination, Stone agreed that he was intoxicated at the time of the altercations. He also agreed on cross-examination that he never saw a knife.

Brian Coy, another Wisconsin partygoer, testified that he saw the confrontation between Miller and the group of strangers during the Ellis party and that he "kind of stepped forward, [to] make sure nothing was going to happen." When he turned around, he saw "someone stand on [a nearby wooden spool] with a gray sweatshirt on saying everyone needs to respect everybody." Then, "[s]omeone pushed the spool over and he fell down," and three people began "kicking him, beating him up" while he was on the ground. Though he testified that he was not intoxicated at the time of the incident, Coy stated that he could not "really see" who was involved in the altercations that followed, because it was dark and the three people had their backs turned to him. When next he saw the person in the gray sweatshirt (which he also described as a hooded sweatshirt) approximately 10 minutes later, the person "stumbled over by [him] and fell over by [his] feet."

John Gillitzer, yet another partygoer from Wisconsin, testified that he met Flynn, who was wearing a gray hooded sweatshirt, that night at the Ellis party. After Miller's confrontation with the group of strangers, Gillitzer saw someone yelling at the group, "`Don't disrespect me, we're here to have fun.'" Gillitzer...