People v. Taylor

• Decision Date: 18 October 2016
• Docket Number: No. 1–14–1251.,1–14–1251.
• Citation: 65 N.E.3d 514,408 Ill.Dec. 292
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Romaro TAYLOR, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

65 N.E.3d 514
408 Ill.Dec. 292

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Romaro TAYLOR, Defendant–Appellant.

No. 1–14–1251.

Appellate Court of Illinois, First District, Second Division.

Oct. 18, 2016.

65 N.E.3d 516

Michael J. Pelletier, Patricia Mysza, and Michael Gentithes, all of State Appellate

65 N.E.3d 517

Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Mary P. Needham, and Caitlin M. Valiulis, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

408 Ill.Dec. 295

¶ 1 Following a 2014 jury trial, defendant Romaro Taylor was convicted of attempted murder and aggravated battery with a firearm and sentenced as a Class X offender to 36 years of imprisonment. On appeal, he argues that (1) the trial court erred in refusing to instruct the jury on defense of others, (2) trial counsel was ineffective for failing to request a jury instruction that Taylor could not be found guilty of attempted first degree murder if he unreasonably believed he needed to use force in defense of others, (3) the trial court erroneously refused to sentence Taylor as a Class 1 offender on his attempted murder conviction, and (4) the trial court improperly imposed certain fines and fees. For the reasons that follow, we affirm Taylor's conviction, vacate the $2 Public Defender Automation Fee, and remand for resentencing.

¶ 2 BACKGROUND

¶ 3 On December 20, 2010, Taylor shot his then-girlfriend, Lashae Depratto, after her car hit his ex-girlfriend's car, in which Taylor's seven-year-old daughter was a passenger. Depratto and an eyewitness identified Taylor as the shooter, but he evaded arrest until September 2011. Following his arrest, Taylor was charged with, inter alia, attempted first degree murder and aggravated battery with a firearm.

¶ 4 At a March 2014 jury trial, Depratto testified that on December 20, she drove Taylor to his mother's house on 8th Avenue in Phoenix, Illinois because Taylor's niece was coming over to pick up clothes. Once they arrived at the house, Taylor went inside, but he asked Depratto to leave because his mother did not like her. Depratto did not leave, but remained in her car, which was parked on the west side of the street directly in front of Taylor's mother's house, for approximately 20 minutes. She then went to the front door of the house and asked Taylor if she could use the bathroom. Taylor allowed her inside, and the two then argued over Depratto's request that Taylor return his set of keys to her house and car. During their exchange, Taylor's niece and his daughter arrived, having been driven over by Erica Braxton, Taylor's ex-girlfriend and mother of his child. Braxton did not come into the home, but waited in her car, which was parked on the east side of 8th Avenue, across from Taylor's mother's house.

¶ 5 Eventually, Depratto obtained her keys from Taylor and left the house, but instead of driving home, she circled the block. As she approached Taylor's mother's house, driving southbound, she saw Taylor leaning inside Braxton's car "fondling" and "playing" with her. Angered, Depratto drove past them, but then made a U-turn and drove northbound on the east side of 8th Avenue. When she returned to the scene, Taylor was no longer standing by Braxton's car. As Depratto neared Braxton's car, she testified that she swerved to avoid a pothole or speed bump (though there was no evidence of either near the site of the occurrence) and sideswiped the driver's side of Braxton's car. The collision caused Depratto's right axle and tire to "break" and her airbags to deploy. Additionally, the front bumper of Braxton's car was pulled off. When Depratto's

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65 N.E.3d 518

car came to a stop in front of Braxton's vehicle, Depratto put the car in park, turned it off, and tried, unsuccessfully, to restart it. She then heard Taylor say either "bitch you tried to kill my kid," or "bitch you trying to kill my kid." When Depratto turned her head, Taylor had emerged from his mother's yard, 10 feet away, and was approaching her car with a gun in his hand. As Taylor stood at her closed car window, he shot at Depratto three times, hitting her arm as she raised her hands to cover her face. She was eventually taken to the hospital and treated for her injuries.

¶ 6 On cross-examination, Depratto admitted telling investigators who spoke to her while she was hospitalized that she was upset at Taylor because she believed he and Braxton were talking about her behind her back. Although she denied telling investigators that she was driving 30 to 35 miles per hour when she collided with Braxton's parked car, she was impeached on this point by the stipulated testimony of Investigator Paul Jimos and Detective Sergeant Valadez of the Phoenix police department, who interviewed her on December 23, 2010.

¶ 7 At the jury instruction conference following the conclusion of testimony, Taylor sought an instruction that he was acting in defense of others, which the court declined to give, stating: "The [d]anger had subsided. There was no more danger. When the car stopped, the car wasn't going anywhere. So at that point in time self defense is no longer available. So I'm not giving them the self defense instruction or * * * the defense of others * * *."

¶ 8 The jury ultimately convicted Taylor of attempted first degree murder and aggravated battery with a firearm, and the court merged the two convictions for sentencing purposes.

¶ 9 A defendant convicted of attempted first degree murder is generally subject to Class X sentencing (720 ILCS 5/8–4(c)(1) (West 2012)), but at Taylor's sentencing hearing, defense counsel argued that he should be sentenced as a Class 1 offender pursuant to section 8–4(c)(1)(E) of the Criminal Code, which reads:

"[I]f the defendant proves by a preponderance of the evidence at sentencing that, at the time of the attempted murder, he or she was acting under a sudden and intense passion resulting from serious provocation by the individual whom the defendant endeavored to kill, or another, and, had the individual the defendant endeavored to kill died, the defendant would have negligently or accidentally caused that death, then the sentence for the attempted murder is the sentence for a Class 1 felony." 720 ILCS 5/8–4(c)(1)(E) (West 2012).

The trial court found this section inapplicable because it did not believe that had Depratto died, Taylor's conduct could have been described as accidental or negligent. Alternatively, the court found that Taylor was not acting under a "sudden and intense passion." The court sentenced Taylor to 36 years of imprisonment. Taylor unsuccessfully moved to reconsider his sentence.

¶ 10 ANALYSIS

¶ 11 We first address the claimed error in the jury instructions. Taylor contends that the trial court erred in refusing to instruct the jury on defense of others, which is an affirmative defense requiring some evidence that (1) unlawful force was threatened against defendant or others, (2) defendant was not the aggressor, (3) the danger of harm was imminent, (4) the use of force was necessary, (5) defendant subjectively believed a danger existed requiring the use of force applied, and (6) defendant's belief was objectively reasonable.

408 Ill.Dec. 297

65 N.E.3d 519

See People v. Jeffries, 164 Ill.2d 104, 127–28, 207 Ill.Dec. 21, 646 N.E.2d 587 (1995) ; (720 ILCS 5/7–1(a) (West 2012)). The overarching question is whether the defendant's subjective belief in the necessity of using deadly force was reasonable under the circumstances. People v. Holman, 2014 IL App (3d) 120905, ¶ 58, 386 Ill.Dec. 288, 20 N.E.3d 450. A defendant is entitled to a self-defense or defense of others instruction so long as there is slight evidence adduced at trial to support his theory. People v. Lee, 213 Ill.2d 218, 224, 290 Ill.Dec. 256, 821 N.E.2d 307 (2004).

¶ 12 Our supreme court has expressed divergent views as to what standard of review we apply to a trial court's refusal to give a specific jury instruction. Compare People v. Everette, 141 Ill.2d 147, 157, 152 Ill.Dec. 377, 565 N.E.2d 1295 (1990) (applying de novo standard of review to issue of whether defendant was entitled to jury instructions on self-defense) and People v. Washington, 2012 IL 110283, ¶ 19, 357 Ill.Dec. 1, 962 N.E.2d 902 (reviewing de novo trial court's refusal to instruct jury on second degree murder), with People v. Mohr, 228 Ill.2d 53, 65, 319 Ill.Dec. 339, 885 N.E.2d 1019 (2008) (reviewing trial court's decision to give instruction defining provocation for abuse of discretion) and People v. Jones, 219 Ill.2d 1, 31, 300 Ill.Dec. 709, 845 N.E.2d 598 (2006) ("The giving of jury instructions is a matter within the sound discretion of the trial court."). This court has examined this conflict in recent cases and determined that abuse of discretion is the appropriate standard of review. See, e.g., People v. Cacini, 2015 IL App (1st) 130135,...