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FIFTH DIVISION
May 11, 2001

No. 1-98-1415

MODIFIED OPINION UPON DENIAL OF PETITION FOR REHEARING

PRESIDING JUSTICE QUINN delivered the opinion of the court:

Defendant, Nigel Pinkney, was convicted at a jury trial offirst degree murder for the beating death of George Colton. Defendant was subsequently sentenced to 45 years' imprisonment. Defendant now appeals.

On appeal, defendant argues that (1) he was deprived of hisright to a fair jury trial when the trial court gave a nonpatternjury instruction that misrepresented the law of accountability tothe jury; (2) he was deprived of his right to a fair jury trial bythe trial court's refusal to instruct the jury on the affirmativedefense of self-defense and on second degree murder based onunreasonable self-defense; (3) his conviction of first degreemurder should be reduced to second degree murder; (4) he wasdeprived of effective assistance of counsel; (5) he was denied afair trial where the prosecutor made improper remarks in rebuttalclosing argument; and (6) his 45-year sentence for first degreemurder was excessive.

We reverse the judgment of the trial court and remand thecause for a new trial, based on the two issues involving juryinstructions for those issues are dispositive. Thus, we find thatit is not necessary to address the other four issues.

Latonya Colton testified that on January 24, 1997, atapproximately 3:45 p.m., she arrived at her grandmother's home at6928 S. Loomis in Chicago. Her uncle, the victim George MurrayColton, also lived there and was present. After she arrived at thehouse, Latonya spoke with the victim about an altercation that hadtaken place between the victim, defendant, and Marlon Hammondearlier that afternoon. Latonya had known defendant forapproximately five years. She had only known Marlon for a fewmonths.

Latonya testified that at approximately 4:15 p.m., defendantcame into the house to use the telephone. While defendant was onthe telephone, the victim said that he was going to pay defendantthe money that he owed defendant and that he was going to be"through with him" and was going to "get him."

At this time, Marlon came to the door and the victim told himthat he could not come inside. Defendant hung up the telephone,walked to the door, and told Marlon that he could come in. Thevictim followed defendant to the door and an argument ensuedregarding whether Marlon would be allowed into the house. Thevictim struck defendant in the face with a closed fist, knockingoff defendant's glasses and breaking them. A physical struggleensued. Latonya testified that she could not see everything thathappened next, but she did see that the victim's shirt was up andhis back was exposed, as if he were being pulled out the frontdoor.

Latonya testified that the next time she saw the victim, hewas lying on his stomach on the concrete at the bottom of the sevenstairs leading to the front door, with one of his legs caught inthe staircase railing. She saw defendant and Marlon begin to kickand stomp on the victim as he lay on the ground. She stated thatdefendant and Marlon, both wearing boots, repeatedly kicked andstomped on the victim's back and head. She further stated that thevictim was unarmed and lay motionless on the ground during thebeating.

Latonya testified that, after about two minutes, defendantwent back up the stairs and threw his glasses into the house,stating, "So who in the hell is supposed to pay for my glasses." Latonya then watched as defendant walked back outside, walked downtwo steps, and jumped the remaining distance, landing on thevictim's back. As defendant landed on the victim's back, Latonyasaw blood coming out of the victim's mouth. She stated thatdefendant and Marlon then kicked and stomped on the victim againfor two or three more minutes before they walked outside of thegated yard area. A few moments later, defendant and Marlonreturned to the yard, kicking and shoving the victim with theirfeet as they told him to get up and that nothing was wrong withhim. Defendant and Marlon then left the yard again, got intodefendant's car and drove away. Sheila Thornton, a neighbor andfriend of the victim's, also testified for the State. Sheilatestified that she arrived home, across the street from thevictim's house, at approximately 4:15 p.m. on January 24, 1997. She stated that she heard the victim talking loudly, as he wasknown to do. Sheila said that she next heard the sound ofwrestling coming from the victim's house. Sheila then turned andlooked across the street to see what was happening.

Sheila saw the victim wrestling in the open doorway withdefendant, whom she did not know by name at that time. Sheila sawthe victim slip and fall, landing on his stomach on the concrete atthe bottom of the stairs with his face toward his house. Sheilatestified that she then saw defendant begin to kick and jump on thevictim's back. After defendant began to kick the victim, she sawanother man, who was standing outside the gate and whom Sheila didnot know, enter the yard and also begin to jump on and kick thevictim. Sheila observed defendant kicking the victim in the back,jumping onto his back, and stepping on his back several times. Sheila testified that defendant, while wearing boots, kicked thevictim between 10 and 15 times. Sheila also stated that the victimdid not have any weapons or canes in his hand at that time.

Next, Sheila stated that she saw defendant enter the house andsay something that she could not hear, while the second mancontinued to kick, step on, and jump on the victim. Defendant thenexited the house, walked down two stairs and jumped, landing on thevictim's back. After defendant landed on the victim's back, he andthe other man continued to jump on and step on the victim beforeleaving the yard together. Sheila testified that defendant and theother man turned to look at the victim, who was not moving. Themen went back inside the yard and kicked and stepped on the victimagain as they told him to get up and that nothing was wrong withhim. Sheila observed both men leave the yard, get into a car, anddrive away. Sheila then went to check the victim. Sheilatestified that the victim was bleeding badly from his nose andmouth and that his face was swollen. She stated that victim wasunable to talk and that he was not moving.

Doctor John Denton, a forensic pathologist and a deputymedical examiner for the Cook County medical examiner's officetestified that he conducted an autopsy on the victim. He learnedthat the victim had been treated at Christ Hospital and waspronounced dead on January 26, 1997. Toxicology testing conductedby the hospital upon the victim's admission revealed that thevictim had a blood-alcohol level of .166 mg/dl, and that cocaineand another Valium-like drug were present in his system. Dr.Denton described the victim's external injuries as abrasions on theface, right arm and right leg, and bruises on the shoulders. Thevictim's internal injuries included hemorrhaging in the brain andnear the thyroid, fracture of the hyoid bone, contusions on theheart muscle, a laceration and hematoma on the liver, and hematomason the spleen.

Dr. Denton testified that a severe amount of force wasnecessary to cause the victim's injuries. He testified that theinjuries were consistent with the victim having been repeatedlykicked or struck or jumped upon. Upon cross-examination, Dr.Denton stated that it was possible that the injuries to the liverand spleen were caused by falling down stairs. Dr. Denton alsosaid that some of the victim's head injuries were consistent witha fall. However, Dr. Denton testified that the fatal chest andhead injuries were caused by a beating.

The defendant was the only witness presented by the defense. Defendant was the father of two children by the victim's niece. Defendant stated that he had previously lived at 6928 S. Loomis fora little less than two years and had known the victim for eightyears. Defendant claimed that the victim was like an uncle or abrother to him. Defendant stated that the victim used cocaine andalcohol.

Defendant testified that on January 24, 1997, he dropped hischildren off at their grandmother's house, 6928 S. Loomis, atapproximately 3:15 p.m. According to defendant, when he arrived atthe house, he saw that the victim had drug dealers selling drugsfrom the porch. Defendant testified that he asked the victim to"kindly move them guys from off the porch" because his childrenwere in the house. Defendant stated that the victim swore at himand told him to take the children out of the house because he woulddo what he wanted to. Defendant and the victim then began toargue. Defendant claimed that the victim pushed him, so he pushedthe victim back, causing the victim to hit his foot against thecurb and fall backward. The victim was not injured and defendantwent inside to use the telephone. After speaking on the phone andvisiting with his children, defendant stated that he left withMarlon.

Defendant returned to the house a short time later. Heobserved the victim standing in front of the house drinking abottle of whiskey. Defendant stated that he told the victim, "Wedon't need to be fighting. I got my kids over here and I don'tneed enemies around because I come around too much." According todefendant, the victim responded, "I'm going to pay your money andI'm going to deal with you later." However, defendant testifiedthat he did not interpret the victim's remark as a threat. Defendant then went into the house and left again with Marlon ashort time later.

Defendant testified that he returned to the house with Marlonat approximately 4 p.m. Defendant went inside to use the telephoneand as he made his call, he heard the victim speaking to him. According to defendant, the victim said, "I'm going to get you ***. I'm going to get you[.] [A]fter I get you, I'm going to *** you up. My brother's going to come over here and I'm going to get you." Defendant testified that he ignored the victim's comments. Marlonthen tried to come into the house and the victim walked over andslammed the door in his face. Defendant opened the door and toldMarlon that he could come in. Defendant testified that the victimprotested and attempted to grab his mother's cane to come afterhim.

According to defendant, the victim pushed him in the face andpunched him. Defendant testified that the victim's punch causedhim to black out for a second. Defendant stated that whilestanding near the front door the victim was bent over and haddefendant's head in a headlock, from which defendant was trying tofree himself. Defendant testified that the victim hit his own headon the railing and let go of defendant. Then, both defendant andthe victim fell down the stairs.

Defendant testified that the victim fell to the bottom of thestairs, while defendant fell to the middle of the stairs, pulledhimself up, and went down the stairs behind the victim. Defendantadmitted that once he reached the bottom of the stairs, he kickedthe victim in the lower part of his body approximately six or seventimes. According to defendant, he was in a dreamlike state at thetime and just reacted because he was attacked. Defendant statedthat he stopped kicking the victim when he heard Latonya say, "Youall going to kill him." Defendant denied jumping on the victim,stomping on him, kicking him in the head or stepping on his neck.

Defendant stated that he then went into the house, determinedthat his glasses were crushed and said, "Who the hell going to payfor my glasses?" Defendant admitted that he was angry that hisglasses were broken. After he received no response, defendantthrew his glasses down and went out the door. Defendant assertedthat when he came outside again, he saw Marlon stomping on thevictim's head with the heel of his foot. Defendant explained thatthe victim, who was lying on the pathway between the stairs and thegate, was blocking his path so defendant either had to walk overhim or jump, so he chose to jump. Defendant walked down to thesecond step from the top and jumped, landing on the victim's back. Defendant explained that he did not intend to jump on the victim'sback but the stairs were slippery due to the snow and ice. Inaddition, defendant commented that if he had jumped in the bushesinstead of on the victim, he would have "messed [himself] up evenmore." Defendant testified that after he landed on the victim, heand Marlon left. Defendant denied kicking or stomping on thevictim prior to his departure.

Defendant testified that when he spoke with the victim's niecetwo days later, he learned that the victim was dead. Afterspeaking with his mother, defendant stated that he contacted thepolice because he wanted to prove his innocence. Accompanied byDetective Bunch, defendant turned himself in to police.

Defendant testified that his only intent was to defendhimself. Defendant denied that he intentionally or knowingly beat,kicked, and killed the victim. He also denied that he kicked andkilled the victim knowing that such a beating and kicking wouldcause a strong probability of death or great bodily harm to thevictim.

In rebuttal, the victim's mother testified that she waspresent in the house during the altercation and her son never triedto grab her cane.

During the jury instruction conference, defendant requestedthat the jury be instructed regarding self-defense and seconddegree murder. The trial court declined defendant's tenderedinstructions based upon the evidence presented. However, the nextmorning, defendant renewed his request for a second degree murderinstruction, this time based upon serious provocation resultingfrom mutual combat. The trial court reconsidered and deemed thata jury instruction on second degree murder based upon seriousprovocation was warranted.

After closing arguments, the jury convicted defendant of firstdegree murder. At the conclusion of a hearing, the trial courtdenied defendant's motion for a new trial. Defendant was sentencedto 45 years' imprisonment, and his motion to reduce sentence wasdenied. Defendant now appeals.

Defendant first argues that he was denied a fair trial wherethe trial court gave a nonpattern jury instruction regarding causeof death, which misrepresented the law of accountability to thejury.

The State responds that defendant has waived this issuebecause he failed to specify these grounds in his motion for a newtrial. In order to preserve a question for appellate review, botha trial objection and a written posttrial motion raising the issueare required for alleged errors that could have been raised duringtrial. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124(1988). Furthermore, a defendant's general contention in themotion for new trial that the trial court erred in giving andrefusing instructions is not sufficient to inform the court of itserror. People v. Smalley, 10 Ill. App. 3d 416, 426, 294 N.E.2d 305(1973).

In the instant case, defendant claims that he preserved thismatter for appellate review in his motion for a new trial bystating that the trial court "erred in refusing the Defendant'srequested jury instruction and giving instructions over objection." In his motion for a new trial, the quoted statement is followed bya specific reference only to the trial court's denial ofdefendant's requests for self-defense instructions. At no point inthe motion for a new trial does defendant mention the nonpatterninstruction. The posttrial motion could have specified thedisputed instruction as a basis for a new trial without consultinga transcript. Therefore, we find that defendant failed to preservethis issue for appeal.

However, where the evidence is closely balanced or the errorscomplained of are of such magnitude that they deprive defendant ofa fair trial, the reviewing court will invoke plain error andreview the alleged trial error. People v. Mullen, 141 Ill. 2d 394,402, 566 N.E.2d 222 (1990). Since the alleged instructional erroris of such magnitude that the defendant was deprived of a fairtrial, we invoke the plain error doctrine and consider the meritsof defendant's argument.

In this case, the State presented two alternative theories ofguilt. The State argued that either defendant actually caused thevictim's death by beating him or defendant was legally accountablefor the victim's death. Defendant testified that his own use offorce was nonfatal as he only kicked the victim six or seven timesin his mid-section. Defendant also argued that he should not beaccountable for the victim's death because he did not solicit, aidor abet Marlon in the beating.

After defendant's closing argument, the State proposed anonpattern jury instruction relating to the cause of death. TheState claimed that defendant made cause of death an issue when heargued that Marlon, not defendant, administered the kicks thatkilled the victim. Defendant objected to the instruction, arguingthat distinguishing defendant's actions from Marlon's actions didnot raise an issue necessitating the State's cause of deathinstruction. Over defendant's objection, the trial court issuedthe following nonpattern instruction:

"In order for you to find the acts of the defendantcaused the death of George Colton it is not necessary that youfind the acts were the sole and immediate cause of death, butyou must find beyond a reasonable doubt that they were acontributing factor such that the death did not result from asource unconnected with said acts."

During rebuttal closing argument, the State used thisinstruction to bolster the accountability theory. The Stateexplained to the jury that it should hold defendant accountable forMarlon's conduct because Marlon was not a source unconnected todefendant. In his appellate brief, defendant points to thefollowing portion of the State's rebuttal argument:

"That's why the law of responsibility is the way it is. He's not allowed to come in later on and say I'm not guiltybecause I didn't do as much as the other guy.

Well what one can think about, two can do. And two did. They both share equally in the responsibility. And you cannotlimit his responsibility on that.

The testimony was that he kicked and stomped him in thehead. Now he may pretend that didn't happen. He may pretendthat Latanya [sic] and Sheila didn't say that. He may hopeit. He may pray it. He may wish it. But they did. They sawit. You heard them tell you in no uncertain terms.

But any way, all that stuff doesn't really matter. Because it really doesn't matter. If for some reason some ofyou believe that he didn't kick him in the head -- I don'tknow why you would want to do that, but say you do. It stilldoesn't matter.

Judge Reyna will instruct you that in order for you tofind the acts of the defendant caused the death of GeorgeColton it is not necessary that you find the acts were thesole and immediate cause of death, but you must find beyond areasonable doubt that they were a contributing factor suchthat the death did not result from a source unconnected withsaid acts.

Can you sit there and honestly say even if you believethat load that the death resulted from unconnected acts? Canyou really believe that? Of course not. These acts wereconnected. They're as connected as my arms to my shoulders,as my hands in my pockets.

Were these unconnected acts? It's not like while theywere beating him he got struck by lightening [sic]. It's notlike while they were beating him some unknown strangers cameup and shot him in a drive by.

Blunt force trauma. And you know he applied the bluntforce to the head, face, body, along with Marlon, and even iffor some reason some of you believe he didn't, that he justkind of (knocking sound) a few times, he's still guilty offirst degree murder."

Defendant states that this argument used the cause of deathinstruction to argue that if the jury believed that Marlonadministered the fatal kicks, defendant should still be foundguilty of first degree murder because Marlon was not an independentsource, not because defendant was responsible for Marlon's actions.

The sole function of jury instructions is to convey to thejury the correct principles of law applicable to the evidencesubmitted to it in order that, having determined the final state offacts from the evidence, the jury may, by the application of properlegal principles, arrive at a correct conclusion according to thelaw and the evidence. People v. Gambony, 402 Ill. 74, 81-82, 83N.E.2d 321 (1948). Jury instructions should not be misleading orconfusing. People v. Bush, 157 Ill. 2d 248, 254, 623 N.E.2d 1361(1993). Moreover, there must be sufficient evidence in the recordto support an instruction, lest the jury be confused by issuesimproperly before it. People v. Clark, 32 Ill. App. 3d 926, 931,337 N.E.2d 291 (1975).

We find that the cause of death instruction was misapplied inthis case and has no basis in the evidence. Contrary to theState's assertion at trial, a cause of death instruction isprovided in Illinois Pattern Jury Instructions, Criminal, No. 7.15(3d ed. 1992) (hereinafter IPI Criminal 3d). IPI Criminal 3d No.7.15. states:

"In order for you to find that the acts of the defendantcaused the death of [the victim], the State must prove beyonda reasonable doubt that defendant's acts were a contributingcause of the death and that the death did not result from acause unconnected with the defendant. However, it is notnecessary that you find the acts of the defendant were thesole and immediate cause of death."

For example, in the hypothetical case given in IPI Criminal 3dNo. 27.06 (sample set of instructions), the defendant shot hisneighbor, who died in the hospital six weeks after the shooting andafter a second surgery. At trial, the hypothetical defendantprovided evidence that the neighbor's doctors mishandled the case,that the neighbor's second surgery was due to malpractice duringhis first surgery, and that he might have recovered from hisgunshot wounds but for this malpractice. In this sample case, acause of death instruction was proper in order to explain to thejury that the defendant could still be criminally liable, eventhough the doctors' mishandling of the case contributed to theneighbor's death.

There was no evidence or argument in the present case that anintervening event outside of the beating was the cause of thevictim's death. The defense did argue that the victim died as aresult of the beating administered by Marlon and not as a result ofthe actions of defendant. The relevant question to be answeredwas, even if the jury believed this theory, was defendantresponsible for Marlon's actions at that time. Thus, the State'sargument that defendant was criminally liable for the victim'sdeath was appropriately addressed by the instructions onaccountability, not cause of death. In the case sub judice, thecause of death instruction allowed the jury to hold defendantresponsible for Marlon's conduct without finding that the State hadproven that defendant was accountable for that conduct beyond areasonable doubt. The error caused by the instruction itself wasthen compounded by the State's rebuttal argument, which representedto the jury that if it found that Marlon actually dealt the fatalblows to the victim, it could convict defendant of murder as longas his acts were "connected" to Marlon's acts.

The jury received IPI Criminial 3d No. 5.03 which provides:

"A person is legally responsible for the conduct of anotherperson when, either before or during the commission of anoffense, and with the intent to promote or facilitate thecommission of an offense, he knowingly solicits, aids, abets,agrees to aid, or attempts to aid the other person in theplanning or commission of an offense.

The word 'conduct' includes any criminal act done infurtherance of the planned and intended act." IPI Criminal 3dNo. 5.03.

On appeal, the State argues that there is no conflict betweenthe causation instruction and the accountability instruction. Asimple reading of the two instructions belies this argument. Thisis especially apparent where the causation instruction given didnot include the accountability language as required by thecommittee note to IPI Criminal 3d No. 7.15. Had the State includedthe accountability language, the instruction would have read:

"In order for you to find that the acts of the defendant, orone for whose conduct he is legally responsible, caused thedeath of George Colton, the State must prove beyond areasonable doubt that defendant's acts, or the acts of one forwhose conduct he is legally responsible, were a contributingcause of the death and that the death did not result from acause unconnected with the defendant, or one for whose conducthe is legally responsible. However, it is not necessary thatyou find the acts of the defendant, or one for whose conducthe is legally responsible, were the sole and immediate causeof death."  See IPI Criminal 3d No. 7.15, Committee Note at 174.

When accountability language is added to IPI Criminal 3d No.7.15, it should be readily apparent that it would be confusing toa jury to receive this instruction in cases where several personsparticipate in a beating. These factual circumstances are coveredby Illinois' "common design" rule, which is incorporated by our lawon accountability. Where two or more persons engage in a commoncriminal design or agreement, any acts in the furtherance thereofcommitted by one party are considered to be the acts of all partiesto the common design, and all are equally responsible for theconsequences of those further acts, including murder. See Peoplev. Terry, 99 Ill. 2d 508, 514, 460 N.E.2d 746 (1984); People v.Zunker, 184 Ill. App. 3d 816, 823, 540 N.E.2d 884 (1989); People v.Wade, 51 Ill. App. 3d 721, 727, 366 N.E.2d 528 (1977).

The State argues that IPI Criminal 3d No. 7.15 should be givenin any case where causation of death is raised. If this were so,defendants prosecuted based on the "common design" rule could havetheir juries instructed with IPI Criminal 3d No. 7.15. Thesedefendants could then argue that their actions were not a"contributing cause of death." We reject the State's argument.

Therefore, we find that the trial court's issuance of theinstruction on cause of death was misleading to the jury and wasreversible error.

Defendant next argues that he was denied a fair trial wherethe trial court refused to instruct the jury on the affirmativedefense of self-defense and on second degree murder based onunreasonable self-defense. Defendant asserts that there wasevidence before the court that the victim threatened and assaultedhim and that defendant believed the victim was a continuing threat;thus, the lack of jury instructions based on a theory of self-defense was reversible error. We agree.

The trial court's refusal to issue a specific jury instructionis reviewed under an abuse of discretion standard. People v.Jackson, 304 Ill. App. 3d 883, 889, 711 N.E.2d 360 (1999); Peoplev. Kidd, 295 Ill. App. 3d 160, 167, 692 N.E.2d 455 (1998). Asdefendant points out, our supreme court in People v. Everette, 141Ill. 2d 147, 157, 565 N.E.2d 1295 (1990), stated that "[i]t is amatter of law whether the defendant has met the evidentiary minimumentitling him to instructions on an affirmative defense." However,no court in Illinois has interpreted that statement as an intent bythe supreme court to change the standard of review for juryinstructions to a de novo standard, as defendant argues, and werefuse to interpret it as such.

Rather we rely on a later opinion, People v. Jones, 175 Ill.2d 126, 131-32, 676 N.E.2d 646 (1997), where the court held:

"A defendant is entitled to an instruction on his theory ofthe case if there is some foundation for the instruction inthe evidence, and if there is such evidence, it is an abuse ofdiscretion for the trial court to refuse to so instruct thejury. People v. Crane, 145 Ill. 2d 520, 526 (1991). Veryslight evidence upon a given theory of a case will justify thegiving of an instruction. [Citations.] As the appellatecourt dissent noted: 'In deciding whether to instruct on acertain theory, the court's role is to determine whether thereis some evidence supporting that theory; it is not the court'srole to weigh the evidence.' 276 Ill. App. 3d at 1012 (Cook,P.J., dissenting),; [citation]."

A defendant is entitled to have the jury instructed on anylegally recognized defense theory that has some foundation in theevidence. Jackson, 304 Ill. App. 3d at 889. Whether such aninstruction is warranted depends on the facts and circumstances ofeach case. Jackson, 304 Ill. App. 3d at 890.

An instruction for self-defense is given in a homicide casewhere there is some evidence in the record which, if believed by ajury, would support a claim of self-defense. Everette, 141 Ill. 2dat 157. Self-defense is an affirmative defense, meaning thatunless the State's evidence raises the issue involving the allegeddefense, the defendant bears the burden of presenting evidencesufficient to raise the issue. 720 ILCS 5/3-2, 7-14 (West 1998).

IPI Criminal 3d No. 24-25.06 states:

"A person is justified in the use of force when and tothe extent that he reasonably believes that such conduct isnecessary to defend himself against the imminent use ofunlawful force.

However, a person is justified in the use of force whichis intended or likely to cause death or great bodily harm onlyif he reasonably believes that such force is necessary toprevent imminent death or great bodily harm to himself."

IPI Criminal 3d No. 7.05A further states:

"A mitigating factor exists so as to reduce the offenseof first degree murder to the lesser offense of second degreemurder if at the time of the killing the defendant believesthat circumstances exist which would justify the deadly forcehe uses, but his belief that such circumstances exist isunreasonable."

According to the committee comments accompanying the statutorycodification of self-defense, the general rule as to self-defensecontains several propositions: (1) the defendant was not theaggressor; (2) the danger of harm was a present one; (3) the forcethreatened must have been unlawful - either criminal or tortious;(4) the person must actually believe that the danger exists, thathis use of force is necessary to avert the danger, and that thekind and amount of force which he uses is necessary; and (5) thedefendant's belief, in each of the aspects described, is reasonableeven if it is mistaken. 720 ILCS Ann. 5/7-1, Committee Comments1961, at 292 (Smith-Hurd 1993). When the evidence supportssubmitting an instruction on justifiable use of force, a tenderedinstruction on second degree murder based on the unreasonable useof force should also be given. People v. Lockett, 82 Ill. 2d 546,553, 413 N.E.2d 378 (1980).

This court may consider the defendant's testimony, his intentor motive, whether there was any sort of physical contact betweenthe defendant and the victim, the type of wound suffered by thevictim, and the circumstances surrounding the incident to determinewhether a defendant has successfully raised the issue of self-defense. Everette, 141 Ill. 2d at 158.

We find that the evidence presented at trial was sufficient towarrant jury instructions regarding self-defense. In this case,defendant tendered IPI Criminal 3d No. 24-25.06 on the justifiableuse of force and IPI Criminal 3d No. 7.05A on second degree murderbased on the unreasonable use of force. The trial court refusedboth instructions, stating that the evidence did not warrant self-defense instructions because defendant had not shown that hebelieved he was justified in using deadly force. We disagree.

Latonya and defendant both testified that the victim madethreatening remarks directed at defendant shortly before the victimengaged defendant in a verbal argument. They also testified thatthe victim was the aggressor, throwing the first punch and hittingdefendant in the face with enough force to knock defendant'sglasses off. Defendant testified that the victim then put him ina headlock, they struggled, and they both fell down the stairs. Defendant then admitted that he got up, went over to the victim,who was lying on the ground, and kicked him six or seven times. Defendant stated that his only intent was to defend himself andthat he believed the victim was still capable of attacking him.

As shown above, evidence was before the court that the victimwas the aggressor, the danger of harm from the victim was a presentone, and the force threatened by the victim was unlawful. Defendant also testified that he believed that the danger existed,that he needed to use force to avoid the danger, and that the kindand amount of force which he used were necessary. In decidingwhether to instruct on a certain theory, the court's role is todetermine whether there is some evidence supporting that theory; itis not the court's role to weigh the evidence. Jones, 175 Ill. 2dat 132. Thus, the determination of whether the evidence wascredible, and then whether defendant's subjective belief wasreasonable, should have been left to the jury. See Lockett, 82Ill. 2d at 552.

Therefore, we hold that the trial court abused its discretionin refusing to give self-defense instructions to the jury becausedefendant presented sufficient evidence to warrant giving suchinstructions.

Based on the foregoing, we reverse the trial court's judgmentand remand the cause for a new trial.

Defendant also asserted on appeal that he received ineffectiveassistance of counsel at trial, that the prosecutor's comments inclosing arguments were improper, and that the 45-year sentence hereceived was excessive. We find it unnecessary to consider theseissues because we have reversed the judgment of the trial court andremanded the cause for a new trial on other grounds.

In a petition for rehearing defendant asked us to address hiscontention on appeal that, based on the evidence in this case, heshould have been found guilty of second degree murder. Defendantalso asks that, if we fail to reduce his conviction to seconddegree murder, we should hold that the most serious offense he maybe tried for upon remand is second degree murder. In response, wefind that all the evidence, as set forth above, provided asufficient basis for the jury to conclude beyond a reasonable doubtthat defendant was guilty of first degree murder. Accordingly, wedecline to reduce defendant's conviction to second degree murderand we find that principles of double jeopardy do not precludedefendant's retrial for first degree murder. People v. Shief, 312Ill. App. 3d 673, 680, 728 N.E. 2d 638 (2000).

Reversed and remanded.

THEIS, J., concurs.

HARTMAN, J., specially concurring in part and dissenting inpart.

I concur with the majority decision to reverse the judgment ofthe circuit court and remand the cause for a new trial, however, Idissent from the majority's finding that the court abused itsdiscretion in refusing to give self-defense instructions to thejury.

Defendant testified that he and the victim engaged in ascuffle at the top of the staircase before both fell down thestairs. After defendant fell to the middle of the stairs, he stoodup, walked to the bottom of the stairs where the victim laid, andkicked the victim approximately six or seven times; he only stoppedkicking the victim after a witness yelled. Defendant then wentinto the house, became angry about his broken glasses, went backoutside, walked down to the second stair and jumped, landing on thevictim's back. He attempted to jump over the victim so that hewould not get "messed *** up" by jumping in the bushes.

These facts and circumstances do not warrant a self-defenseinstruction. The witnesses' testimony and the wounds suffered bythe victim demonstrate that at the time defendant kicked the victimseveral times and jumped on the victim's back, the victim presentedno threat to defendant. The physical contact between the two menhad ended. In addition, defendant's own testimony indicates thathis jump onto the victim's back had nothing to do with defendinghimself. Under these facts, I cannot agree that the circuit courtabused its discretion in denying the tender of self-defenseinstructions.

Accordingly, I concur in the majority's result but dissentfrom the majority's finding that the circuit court erred in denyingdefendant's request for self-defense instructions.