People v. Eason

Case Date: 11/13/2001
Court: 1st District Appellate
Docket No: 1-99-4176 Rel

FIRST DIVISION
November 13, 2001



No. 1-99-4176


THE PEOPLE OF THE STATE OF ILLINOIS,

          Plaintiff-Appellee,

               v.

FABIAN EASON,

          Defendant-Appellant.

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Appeal from the
Circuit Court of
Cook County

No. 98 CR 26003

The Honorable
Daniel J. Kelley,
Judge Presiding.

JUSTICE COUSINS delivered the opinion of the court:

Defendant-appellant, Fabian Eason, was convicted of first degree murderfor the shooting death of Lakesha Walker. He was sentenced to 45 years'imprisonment. The issues upon appeal are: (1) whether the court properlydenied defendant's request for a second degree murder instruction; and (2)whether the court properly denied defendant's request for an involuntarymanslaughter instruction.

BACKGROUND

Before the jury was selected for defendant's trial, the State moved tonol-pros Counts III, IV, and V against defendant. The State proceeded on thefirst degree charges provided in Counts I and II only.

At trial, the State published defendant's written statement, which wastaken on September 5, 1998. Defendant's mother was present while defendant'swritten statement was taken. That written statement provided the followingaccount of events. On the morning of September 4, 1998, defendant went toLincoln Park High School, where he was a sophomore. He was wearing a red andblue striped shirt and black pants. He brought an automatic handgun with himto school. The gun was black and contained seven rounds. The gun had beenhidden outside his house.

When defendant left school that day, he was with Michael Jones, AaronFrelix, Grayland Holmes, and Sedrick Pace. Defendant is a member of the P-Stones gang. As defendant and his friends walked on the east side ofLarrabee, a group of Gangster Disciple gang members (G.D.s) were walking onthe west side of the street. Defendant saw approximately nine G.D.s and fivegirls walking behind them. The G.D.s were "flashing their gang signs" andyelling "Stone killer," which is a term of disrespect to defendant's gang. Defendant did not see any guns, knives, or any other weapons with any of theG.D.s or the girls. The G.D.s were "throwing up the 'forks'" and "throwingdown" defendant's gang sign.

Defendant's statement to police further provided:

"Fabian states when they reached Blackhawk, he started to walk east. Fabian states he then turned around and ran back to the corner. Fabianstates he then pulled out the gun. Fabian states he pointed the gun atthe group and then fired seven (7) shots. Fabian states when he startedfiring, the group started running. Fabian states after he fired thegun, he put it back into his pocket and ran."

Defendant ran to his apartment, changed his clothes, and left the apartment. He left the clothes that he wore to school on the floor in his room. He putthe gun in his right pocket.

Outside, someone told defendant that the police were looking for him. He went to the Laundromat for about five minutes. Defendant then saw hismother and police officers standing outside. Defendant went to "Sunshine's"house. While at Sunshine's house, defendant spoke to Dennis Booth on thetelephone. Booth picked up defendant on Hudson Street and drove him toClybourn and Diversey. Defendant threw the gun into the river.

At trial, Theresa Simmons testified that she and Lakesha Walker, thevictim, were walking north on Larrabee Street with a group that included fiveor six boys and three girls. She saw defendant walking in the same directionon the opposite side of the street with a group that included four boys. Theresa testified that the two groups were walking from school on oppositesides of the street for 20 to 25 minutes before the shooting occurred. Shenoted that the boys walking with her were "throwing up" gang signs anddemonstrating their gang affiliation. She could see defendant in the othergroup across the street "until he cut, like out up between Orchard and thencut back through the alley." When he reappeared, Theresa saw defendant pullout a gun. When defendant pulled the gun out, the rest of his group "sort ofwalked off" except for the "dark skinned boy." She and the victim beganrunning. Theresa heard six or seven shots fired.

On cross-examination, Theresa stated that the five or six boys that shewas walking with starting making comments to the boys across the street"saying they should beat them punk niggers." She stated that the boys withher were not making hand gestures or "throwing up the gang sign, nothing likethat. They was just talking." Contrary to her direct examination testimony,Simmons testified that neither group of boys represented their gangs or usedgang words.

Tasha Simmons testified that on September 4, 1998, at about 3:15 p.m.,she and a friend were walking north on the west side of Larrabee near NearNorth High School. The west side of Larrabee is G.D. territory. As theywalked, four boys and seven girls, including the victim, were walking towardthem. The victim is Tasha Simmons' cousin. Tasha came within 12 to 15 feetof the group walking toward her. Defendant was on the other side of Larrabee,standing on the corner across the street. Tasha saw him "throwing down thefork." The "fork" is the G.D.s gang sign and "throwing it down" means "G.D.killer." After defendant threw down the fork two or three times, he pulledout a black gun from his right side and pointed it toward the group that thevictim was walking in. Tasha did not see anyone else with a gun. The groupsstarted running. Tasha saw somebody fall as she ran. She saw the victim'sgroup for four or five minutes before she heard shots fired. During thistime, she never heard the G.D.s say anything to the people across the street. Sedrick Pace testified that on September 4, 1998, at about 3:15 p.m., hewas walking home from school with three classmates, including defendant. Theywere walking on Orchard toward Larrabee. He saw about nine people across thestreet. Once Pace and his friends reached the corner of Blackhawk andLarrabee, defendant went into the street about 8 to 10 feet. Pace then sawdefendant argue for a while and then he "[d]ropped the fork." The boys on theother side started to walk over, but they never walked into the street. Defendant pulled out a black gun from his right pocket and fired six or seventimes. The people on the other side of the street scattered. Sedrick did notsee a weapon in anyone else's hands. On cross-examination, Pace testifiedthat the other group "threw down a five," which meant disrespect todefendant's gang. He also heard someone say to defendant and his friends, "Weare going to beat your ass." Pace heard one of the girls with the G.D.sacross the street say, "[I]t is only a couple of them, why don't y'all go overthere and beat them up?"

Detective Brian Killacky testified that on September 4, 1998, atapproximately 3:50 p.m., he received a call indicating that a girl had beenshot on the property of Near North High School. Killacky proceeded to thehospital and spoke to the physician attending to the victim. The doctorinformed the detective that the victim died from the gunshot wound. Killackythen went to the intersection of Blackhawk and Larrabee. At the scene, heobserved six bullet casings lying on the ground, which indicated to him thatsix shots had been fired from a semi-automatic gun. At the station, Killackyinterviewed several witnesses to the shooting. Theresa Simmons wasinterviewed and she identified defendant as the shooter.

Melissa Rapoza testified that she was traveling westbound on Blackhawkat about 3:30 p.m. on September 4, 1998. She stated that as she attempted toturn down an alley she "heard two pops" coming from the west that she thoughtto be gunfire. As she slowed her vehicle, she "saw a young man walking,eventually running with his arm pointing west" in front of her car. Rapozaimmediately stopped. She noticed "like a sulfur smell" in the air. She saw ahandgun in the young man's hand. She could see his face. Rapoza saw him putthe gun into the right front pocket of his pants. She recalled that he waswearing dark pants, navy to black in color, and he was wearing a shirt withwide, horizontal red and dark stripes. Days after the incident, Rapozaidentified the photograph of the young man she saw with the handgun. Incourt, Rapoza identified defendant as the person that she saw holding thehandgun.

Officer Loren Stenson testified for the State that on September 4, 1998,while working as a plainclothes patrolman in the Cabrini Green area, atapproximately 3:15 p.m., he heard gunfire coming from the 1500 block of NorthLarrabee. Stenson and two other officers proceeded in the direction of theshots. As they were driving, they saw a teenage African-American female whowas crying and breathing hard. The girl told the officers that her friend hadjust been shot and that "Fabian had shot her." He went to defendant'sresidence. Debra Eason's fiancé, Stanley Thomas, answered the door. Heindicated to the officers that defendant was not home. The officers retrieveda red and black striped shirt, black jeans, and defendant's schoolidentification card.

Detective Lawrence Aikin testified that, pursuant to the investigationof the shooting, he interviewed Michael Jones. At about 4:30 p.m. onSeptember 5, 1998, defendant was brought into the Area 3 Violent Crimesoffice. Detective Aikin testified that defendant was placed in a lineup room,but did not participate in a lineup. Defendant was not in handcuffs. Aikinstated that because defendant was 16 years old, defendant's mother wascontacted. Defendant's mother arrived at about 5:15 p.m. While at thestation, defendant gave a written statement of his involvement in the presenceof his mother and an assistant State's Attorney.

Debra Eason testified on behalf of the defendant. On September 4, 1998,Ms. Eason saw her son, the defendant, in the courtyard of her apartmentcomplex with his friend Michael. Ms. Eason went to a local convenience storeand the Laundromat. When she returned home, she learned that the police werelooking for her son. Defendant was not in their apartment, so the officers searched for him in the apartments that he was known to visit. Ms. Eason wasnot able to find her son that evening. The following day, on September 5,1998, she received a phone call from the police station indicating that theyarrested defendant. Ms. Eason went to the police station. Eventually, anofficer brought defendant into the same room as Ms. Eason.

Ms. Eason testified that she knew that at some time her son belonged tothe Blackstone street gang. She never saw defendant with a gun in September1998. Ms. Eason recalled that during police questioning, defendant said thatthe other group was "trying to kill him and he wasn't trying to kill nobody." She was aware that defendant had trouble with the G.D.s previously. Shetestified that the G.D.s shot at defendant on the first day of school and afew days after that, but she did not report the incidents to the police"because they didn't care."

The State presented the testimony of Officer Marie Murphy in rebuttal. Officer Murphy testified that on September 5, 1998, she was present during thequestioning of defendant. She stated that she did not hear the defendantstate that the G.D.s were trying to kill him or that he didn't want to killanyone.

Defendant testified at trial that he told his mother that he had beenshot at while walking home from school, but he never told the police or anyschool officials about the alleged shootings. He testified that he placed thegun outside his home in the garbage the night before taking it to school withhim on September 4, 1998. He stated that he did not carry that gun to schooleveryday. Once at school on September 4, 1998, defendant put the gun in hislocker.

As he walked home from school on September 4, 1998, he noticed some boysand girls on the other side of Larrabee, some of whom he knew from highschool. Defendant testified that some of the boys in the other group startedthrowing up gang signs when his group got to the corner of Larrabee andBlackhawk. His group went down an alley and came out during the walk. Hetestified that the boys in the other group came off the curb and came into thestreet about 5 or 10 feet. Additionally, he testified as follows:

"Q. They didn't have anything in their hands, did they?

A. No.

Q. You didn't see a gun?

A. No.

Q. You didn't see a knife?

A. No.

Q. No weapons?

A. No.

Q. The young ladies didn't come off of the curb, did they?

A. No.

Q. Lakesha Walker didn't come off of the curb, did she?

A. No.

* * *

Q. How far away from you were they when you fired at them?

A. They was about -- it's a distance.

Q. I'll tell you what, I'll start walking backwards, and you tell mewhen to stop. How's that?

A. All right. Stop.

Q. Right here?

A. Yes.

Q. So they were about 25 feet?

MR. JOHNSON [Assistant State's Attorney]: Sure.

* * *

Q. Well, you fired at the group, didn't you?

A. I fired at the group to scare them off.

Q. We'll get to that. You fired seven shots right at them, is thatright?

A. Yes.

Q. And you say to scare them off?

A. Yes.

Q. You didn't shoot in the air, did you?

A. No.

Q. You didn't shoot over their heads, did you?

A. No.

Q. You didn't shoot to the side?

A. No.

Q. You didn't say stop, I got a gun, did you?

A. No.

Q. In fact, you pointed the gun at them and you shot at the group;isn't that right?

A. Yes.

* * *

Q. Fabian states that when they reached Blackhawk, you started towalk east. And then Fabian states that he turned around and ran back tothe corner. And Fabian states that he pulled out his gun and started toshoot; isn't that what you did?

A. Yes.

Q. You were starting to --

A. I didn't run. I didn't run to the corner, and turned around.

Q. You started to walk east this way, isn't that right?

A. Yes.

Q. East is away from where these people were, isn't that right?

A. Yes.

Q. And instead of keeping going east, you turned and -- and you cameback and shot at them; isn't that right?

A. I -- when I came back, I saw them running toward me.

* * *

Q. And then he gave you a pen, isn't that right?

A. Yes.

Q. And he told you to mark where you were and where you went toshoot, isn't that right?

A. Yes.

Q. And you put a dotted line from the corner out to the middle of thestreet, isn't that right?

A. Probably did.

Q. Well, did you draw this or didn't you?

A. Yeah, I drew that.

Q. Okay. And then you 'X'd' there indicating where you were standing when you were shooting, isn't that right.

A. Yes.

Q. That's not on the corner, is it?

A. No.

Q. That puts you in the middle of the street, doesn't it?

A. Yes.

Q. So if you were in the middle of the street and the boys were inthe middle of the street, you must have been facing each other?

A. I wasn't in the middle of the street.

Q. So this is not true?

A. No. I know I wasn't in the middle of the street.

Q. So this is not true?

A. No.

Q. So you lied to [Detective] Aikin?

A. Yeah, if that's how you want to put it."

When initially brought to the police station, defendant told a detectivethat he was in school detention at the time of the shooting. He also told thedetective that he heard that Sedrick Pace shot the victim.

Defendant tendered second degree murder and involuntary manslaughterinstructions. The judge heard argument regarding the inclusion of seconddegree murder and involuntary manslaughter instructions. The requests weredenied.

Defendant was found guilty of first degree murder. Defendant filed amotion for a new trial on October 19, 1999, based on various contentions,including "[t]he Court erred in giving certain jury instructions over theDefendants [sic] objection" and "[t]he Court erred in refusing to give certainjury instructions requested by the Defendant." Defendant's motion for a newtrial was denied. The trial court sentenced defendant to 45 years'imprisonment. Defendant appeals. We affirm.

ANALYSIS

I

Defendant initially contends that the trial court abused its discretionby refusing to tender to the jury second degree murder instructions. TheState responds that the trial court's refusal to tender the second degreemurder instructions was not an abuse of discretion because the evidence didnot support a theory of self-defense.

Whether to issue a jury instruction is within the province of the trialcourt, and such a decision will not be reversed unless it is an abuse ofdiscretion. People v. Garcia, 165 Ill. 2d 409, 432, 651 N.E.2d 100 (1995). If there is evidence that, if believed by the jury, would reduce a crime fromfirst degree murder to some lesser degree of murder, defendant's requestedinstruction must be given; however, the defendant has the burden of provingthat at least "some evidence" exists. People v. Toney, 309 Ill. App. 3d 28,39, 722 N.E.2d 643 (1999).

An instructive case is People v. Everette, 141 Ill. 2d 147, 565 N.E.2d1295 (1990). In that case, three men, including the victim, were standing inthe breezeway of a housing project where Everette, the defendant, lived. Everette approached his mailbox near the entrance to his building. InEverette's presence, the victim and his companions referred to an altercationbetween the victim and Everette that occurred in June 1985, wherein the victimstruck Everette on the side of the head with a wine bottle. Everette, 141Ill. 2d at 152. The victim and Everette exchanged words regarding the Juneincident, but Everette retrieved his mail and returned to his apartmentwithout any physical confrontation.

Everette returned to his mailbox a short time later while the victim andhis companions were still in the area. One of the men testified that he sawEverette pull a black revolver from his pants as he ran toward the men andpointed it at the victim. Everette, 141 Ill. 2d at 152. The victim turnedand began to run away from Everette, but slipped and fell.

Everette testified that the victim and his companions were gathered inthe breezeway and began to taunt him about the June 1985 incident. Everette,141 Ill. 2d at 153. After he returned to his apartment from the mailbox, henoticed that he had some misdelivered letters, so he left his apartment toreturn the letters and took his gun with him. Everette, 141 Ill. 2d at 153. The victim asked Everette what he was doing back downstairs, and when heturned to answer the victim, Everette noticed what he thought was a beer canin the victim's hand. Everette, 141 Ill. 2d at 153. Everette testified thatthe victim's hand was at his waist and angled behind his back in what appelleethought was a striking position. Everette testified that he thought that thevictim was about to hit him. Everette, 141 Ill. 2d at 153. He took out hisgun, cocked the trigger and pointed it at the victim. As he did so, he tooktwo steps backwards and bumped his shoulder into the mailboxes. The collisioncaused him to fire the gun. He testified that the gun discharged accidentallyand that he had only meant to scare the victim with the gun. Everette, 141Ill. 2d at 154. In Everette, the court wrote, "Threats alone will not justifythe use of deadly force in a killing [citation] ***." Everette, 141 Ill. 2dat 161. In Everette, the Illinois Supreme Court held that the trial court'srefusal to tender the jury instructions of self-defense was correct. Everette, 141 Ill. 2d at 157.

Another instructive case is People v. King, 293 Ill. App. 3d 739, 688N.E.2d 825 (1997). In that case, King, the defendant, was a 16-year-old whowas asked to "go take care of business" for an associate. The associate droveKing down an alley and pointed out the group of people on a porch that hewanted King to shoot. King, 293 Ill. App. 3d at 741. King exited the car andbegan walking down the alley. As King was walking down the alley, he saw oneof the people in the group on the porch "reaching" as if for a weapon. King,293 Ill. App. 3d at 741. The reaching motion caused King to pull out his gunand fire six shots in the direction of the porch. King, 293 Ill. App. 3d at741. In the instant case, defendant claimed that he felt threatened when thegroup of boys allegedly crossed the street and came toward him, so he pulledout his gun and fired seven shots in the direction of the group. Similar tothe defendant in King, defendant in the instant case did not see a gun in thehands of anyone in the group at which he fired. The court in King held thatthe trial court had properly declined to instruct the jury on second degreemurder. King, 293 Ill. App. 3d at 743.

The Criminal Code of 1961 provides that a person commits second degreemurder when "[a]t the time of the killing he is acting under a sudden andintense passion resulting from serious provocation by the individual killed oranother whom the offender endeavors to kill, but he negligently oraccidentally causes the death of the individual killed." 720 ILCS 5/9-2(a)(1)(West 1998). The defendant must be acting under a sudden and intense passionspurred from serious provocation that the law recognizes as reasonable. Garcia, 165 Ill. 2d at 429. "The only categories of provocation recognized by[the Illinois Supreme Court] are substantial physical injury or substantialphysical assault, mutual quarrel or combat, illegal arrest, and adultery withthe offender's spouse." Garcia, 165 Ill. 2d at 429.

Defendant here relies on People v. Toney, 309 Ill. App. 3d 28, 722N.E.2d 643 (1999), to support his contention that the trial court abused itsdiscretion by refusing to tender to the jury second degree murderinstructions. We conclude that his reliance is misplaced. In Toney, whiledefendant Donald Toney was driving his car, rival gang members yelled gang-related threats him. The rival gang members then threw a bottle at Toney'svehicle and fired shots at him and his two passengers. Toney's passengersthen shot at the other vehicle. Toney, 309 Ill. App. 3d at 32. One of therival gang members was killed. Although all witnesses stated that Toneyremained in the car while his passengers fired their guns at their opposers,Toney was found guilty of first degree murder, attempted murder, andaggravated discharge of a firearm. Toney, 309 Ill. App. 3d at 33. Because ofthe "competing theories factually at issue," the trial judge held that Toneywas entitled to an instruction on self-defense since that instruction wassupported by the evidence. Toney, 309 Ill. App. 3d at 42.

One of the issues upon appeal in Toney was whether the trial court erredby failing to instruct the jury on the charged offense of intentional andknowing first degree murder and on the mitigating offense of second degreemurder. Toney, 309 Ill. App. 3d at 32. The appellate court reasoned thatwhen the evidence supports giving the jury an instruction on the justifiableuse of force in self-defense, then an instruction for second degree murdershould likewise be given. Toney, 309 Ill. App. 3d at 43. The appellate courtbased its holding on the recent history of violence between the rival gangs,the previous confrontation between Toney and two men in the opposing vehiclefour days prior to the shooting (which was corroborated by police and anambulance coming to the scene), the trial testimony of Toney and otherwitnesses, and the firearm evidence. Toney, 309 Ill. App. 3d at 43. Unlikethe instant case, Toney presented testimony that he believed he was inimminent danger, which was corroborated by witnesses and firearm evidence thatpersons other than Toney's passengers were firing weapons. Toney, 309 Ill.App. 3d at 41. Importantly, Toney did not start the shooting, and when heheard shots fired, he drove away from the scene. Toney, 309 Ill. App. 3d at41. Additionally, unlike the instant case, Toney's assertion that he had beenshot at by rival gang members only days before the shooting was corroboratedby police and ambulance reports.

In the instant case, there was no evidence of physical contact betweendefendant and the victim's group on the afternoon of the shooting or at anytime prior. Defendant states that he "took the G.D.s' threats, taunts,disrespect, and intimidation for blocks without retaliating, and only did sowhen the G.D.s started coming towards him." While defendant testified thatthe G.D.s started coming toward him, defendant's statement to police provided,in pertinent part: "Fabian states when they reached Blackhawk, he started towalk east. Fabian states he then turned around and ran back to the corner. Fabian states he then pulled out the gun. Fabian states he pointed the gun atthe group and then fired seven (7) shots." No testimony was given that anyonein the other group either possessed a gun or was threatening the use of a gunon this occasion. In our view, defendant's statements negate the existence ofserious provocation. See Garcia, 165 Ill. 2d at 429. Threats alone will notjustify use of force in a killing, especially where the threats are made bysomeone other than the victim. Everette, 141 Ill. 2d at 161. We hold thatthe trial court did not err in denying defendant's request for a seconddegree murder instruction.

II

Defendant also contends that the trial court abused its discretion byrefusing to present the involuntary manslaughter instructions tendered by thedefendant. The State counters that the trial court did not abuse itsdiscretion because the evidence did not support defendant's contention that hemerely acted recklessly.

An instruction is justified on a lesser offense where there is someevidence to support the giving of the instruction. People v. Jones, 175 Ill.2d 126, 132, 676 N.E.2d 646 (1997). An involuntary manslaughter instructionis not warranted where the evidence reveals that the defendant voluntarily andwillfully commits an act that has the natural tendency to cause death or greatbodily harm, as such acts demonstrate an intent to kill or injure the victim. People v. Foster, 119 Ill. 2d 69, 87-88, 518 N.E.2d 82 (1987).

The basic difference between involuntary manslaughter and first degreemurder is the mental state that accompanies the conduct resulting in thevictim's death. People v. DiVincenzo, 183 Ill. 2d 239, 249, 700 N.E.2d 981(1998). A defendant commits first degree murder when he kills an individualwithout lawful justification and he knows that his acts create a strongprobability of death or great bodily harm. 720 ILCS 5/9-1(a)(2) (West 1998). In contrast, a defendant commits involuntary manslaughter when he performsacts that are likely to cause death or great bodily harm to another and heperforms these acts recklessly. 720 ILCS 5/9-3(a) (West 1998). Accordingly,involuntary manslaughter requires a less culpable mental state than firstdegree murder. DiVincenzo, 183 Ill. 2d at 249.

In general, a defendant acts recklessly, when he is aware that hisconduct might result in death or great bodily harm, although that result isnot substantially certain to occur. DiVincenzo, 183 Ill. 2d at 249. Thestatute provides:

"A person is reckless or acts recklessly, when he consciouslydisregards a substantial and unjustifiable risk that circumstances existor that a result will follow, described by the statute defining theoffense; and such disregard constitutes a gross deviation from thestandard of care which a reasonable person would exercise in thesituation." 720 ILCS 5/4-6 (West 1998).

While a defendant is entitled to an involuntary manslaughter instructionif there is "slight" evidence upon which a given theory could be based, theremust be some evidence of the reckless conduct. People v. Trotter, 178 Ill.App. 3d 292, 298, 533 N.E.2d 89 (1988). Certain factors may suggest whether adefendant acted recklessly and whether an involuntary manslaughter instructionis appropriate: disparity in size and strength between the defendant and thevictim, the severity of the victim's injuries, whether the defendant used hisbare fists or a weapon, whether there were multiple wounds, or whether thevictim was defenseless. DiVincenzo, 183 Ill. 2d at 251.

While some courts have speculated that where the defendant is shooting"aimlessly" at no one and shoots someone by accident, that situation might besufficient for an instruction on involuntary manslaughter (see People v.Fuller, 292 Ill. App. 3d 651, 668, 686 N.E.2d 6 (1997)), the evidence in theinstant case established that defendant pointed the gun at the group and firedseven times.

Defendant's testimony that he did not intend to kill anyone wasinsufficient to create a jury question on the issue of recklessness. Thefemale victim who was shot in the back was not targeted specifically. However, defendant's statements establish that the group was targeted. Hisstatement to the police is written as follows: "Fabian states when theyreached Blackhawk, he started to walk east. Fabian states he then turnedaround and ran back to the corner. Fabian states he then pulled out the gun. Fabian states he pointed the gun at the group and then fired seven (7) shots."Also, in his testimony at trial, he testified that he did not shoot in theair, the gun was pointed at the group and he shot at the group seven times. Illinois courts have consistently held that when the defendant intends to firea gun, points it in the general direction of his or her intended victim, andshoots, such conduct is not reckless, regardless of the defendant's assertionthat he or she did not intend to kill anyone. People v. Jefferson, 260 Ill.App. 3d 895, 912, 631 N.E.2d 1374 (1994).

For the foregoing reasons, we hold that the trial court did not err indenying defendant's request for an involuntary manslaughter instruction. Defendant's first degree murder conviction is affirmed. Also, the State'srequest for fees in the amount of $100 for defending this appeal is granted. See 55 ILCS 5/4-2002.1 (West 1998).

The judgment of the trial court is affirmed.

Affirmed.

GORDON and McBRIDE, JJ., concur.