{ "id": 249117, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE MARTIN, Defendant-Appellant", "name_abbreviation": "People v. Martin", "decision_date": "1995-03-28", "docket_number": "No. 1\u201493\u20140187", "first_page": "346", "last_page": "358", "citations": [ { "type": "official", "cite": "271 Ill. App. 3d 346" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "564 N.E.2d 221", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "223-24" } ], "opinion_index": 0 }, { "cite": "206 Ill. App. 3d 428", "category": "reporters:state", "reporter": "Ill. 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EUGENE MARTIN, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE SCARIANO\ndelivered the opinion of the court:\nDefendant, Eugene Martin, was convicted by a jury of the murder of Byron Jones (Jones) under an accountability theory and was sentenced to a term of 25 years in the custody of the Department of Corrections.\nDefendant now appeals claiming that: he was not proved guilty beyond a reasonable doubt; the voir dire at his trial was inadequately conducted; gang evidence was improperly admitted; the State improperly questioned him regarding the veracity of other witnesses; the prosecution misstated evidence in closing argument; and failure to instruct the jury properly amounted to either reversible error or ineffective assistance of counsel.\nAt trial Enona Mason (Mason) testified that on the afternoon of April 28, 1991, she purchased cocaine from defendant and Tyrice Hubbard (Hubbard). Later that afternoon, Mason looked out of her window and noticed a gathering of people on the street. The police had pulled over a \"burnt orange\u201d-colored car, a photo of which Mason identified at trial, and they were talking to defendant and Hubbard. After speaking with the officers, defendant and Hubbard \"stayed out and [talked] with some girls across the street.\u201d\nStill later that afternoon when, again through her window, Mason saw defendant and Hubbard arguing with Jones amidst a gathering of 50 or 60 neighbors, she left her apartment to help diffuse the situation. According to her, the argument was about \"the girls and them being in that neighborhood.\u201d It was then that someone, either defendant or Hubbard, pulled out a semi-automatic pistol and held it in his hand. At trial, Mason identified a semi-automatic pistol as the one she saw that afternoon and testified that Jones told the holder of the gun, \"If you\u2019re going to pull the gun you\u2019d better use it.\u201d However, after the gun was displayed, the crowd backed off and defendant and Hubbard drove away.\nAround midnight of that same day, Jones whistled up to Mason\u2019s apartment and asked her if she wanted some drugs. When she told him that she did not, he walked across the street into the building of one of his girlfriends. Soon thereafter, Mason heard several shots fired in the street. Upon looking out her window, she saw two people in the same \"burnt orange\u201d-colored car she had seen earlier that afternoon; she stated, however, that she could not identify either of the two people in the car.\nMason also testified that she bought drugs from defendant and Hubbard on the day of the shooting. Cross-examination revealed that she was convicted in 1993 of theft and in 1991 of possession of a controlled substance. She admitted that she recognized Jones as a \"dope dealer\u201d and that she had purchased cocaine from him when she was a cocaine addict.\nThe day after the shooting, Mason was a passenger in a car that was pulled over by police. The police found \"paraphernalia\u201d and took her to the station. It was then that she gave her first statement to Detective Peter Satriano (Satriano) regarding the shooting. At that time she failed to inform the detective that defendant and Hubbard had sold her drugs on the day of the shooting.\nLarry Yates (Yates) testified that he had been convicted of possession of a controlled substance as well as for the unlawful use of weapons. He also stated that he and Jones were members of the Blackstone gang, which controlled drug sales in the area surrounding the shooting.\nAt trial, Yates identified the defendant and the same photo of the car that Mason had testified to. He also testified that on the afternoon before the shooting he witnessed Jones arguing with defendant and Hubbard near that car. According to Yates, the three were arguing about drug sales. Walking up to the scene, he heard Jones say: \"You can\u2019t sell out here.\u201d Defendant responded: \"I can sell wherever I want to.\u201d Defendant then withdrew a gun from under the car seat, clicked it back, pointed it at Jones and kept repeating he could sell drugs wherever he wanted. Yates testified that Jones responded: \"If you pull the gun out, you\u2019d better use it.\u201d Yates then heard Hubbard say: \"Naw, it\u2019s too many people out here. Let\u2019s go.\u201d Thereafter, defendant and Hubbard got in the car and drove away.\nYates also testified that, in 1991 at a Blackstone party, defendant greeted him with a Blackstone gang sign, signifying that he was a fellow Blackstone. Thereafter, however, he heard that defendant had left the Blackstones. Cross-examination revealed that at Hubbard\u2019s trial, Yates testified that he had never seen defendant before the day of the shooting. Yates explained that at the time of Hubbard\u2019s trial he did not know defendant by his real name but only by his nickname: \"Newkie.\u201d\nOfficer Michael Horn (Horn) testified, consistent with Mason\u2019s testimony, that on April 28, 1991, just after 4 p.m., he pulled over a car because there was no evident registration, spoke with both Hubbard (the driver) and defendant (the passenger), and recorded the information according to standard procedure. He did not issue a citation because there was a temporary registration tag in the back window. At trial, he also identified a photo of the car and testified that he spoke with Detective Satriano regarding the traffic stop.\nDetective Satriano testified that he was assigned to investigate Jones\u2019 death and spoke with both Yates and Mason. Mason told him that a car pulled over by the police about eight or nine hours before the incident was involved in the shooting. Detective Satriano pulled the police log for that day and reviewed the information contained in Officer Horn\u2019s report. He next proceeded to Gang Crimes South, a police division specializing exclusively in gang activity, and spoke with Officer David Snethen (Snethen). Together, they then proceeded to apartment 908 on 3519 South Federal, the address recorded in Officer Horn\u2019s report, and arrested defendant and Hubbard. At that time, defendant told Satriano that he was a Blackstone.\nOfficer Snethen testified that a gang known as the Gangster Disciples controlled the building in which defendant and Hubbard were arrested. Furthermore, when asked whether the Gangster Disciples and the Blackstones were either allies or rivals, Snethen responded: \"They wouldn\u2019t be too friendly to each other, no sir.\u201d\nThe identical photo of a car identified by Mason and Yates and which matched Officer Horn\u2019s description in his police report was identified at trial by Satriano as having been the one that was located outside the building at 3519 South Federal. A later search of that car uncovered a Cobra 9-mm semi-automatic pistol, which was also identified at trial by both Mason and Yates. Furthermore, shell casings and projectiles retrieved at the scene of Jones\u2019 murder were determined to have been fired from that same pistol.\nAfter his arrest, defendant was interviewed by Assistant State\u2019s Attorney Colleen McSweeney Moore and made a voluntary written statement consisting of the following information: Defendant and Hubbard drove a maroon car with gold rims owned by Hubbard and were on their way to Mason\u2019s apartment to collect some money she owed Hubbard when they were stopped by police. Thereafter, they encountered another woman on the street who informed them that: \"[Jones] said [you] better not come to [this area] anymore to sell drugs because he sells drugs [here].\u201d Soon, there was yelling and screaming, and a crowd, including friends of Jones who were Blackstone members, gathered around them. Defendant \"got the Tech-9 out of the car and showed it the [the crowd] and they backed away.\u201d Defendant and Hubbard then left.\nNext, they went to defendant\u2019s mother\u2019s house, then to get something to eat, and subsequently met four other men: Chili, Big \"D,\u201d Junior, and Antoine. After discussing the earlier incident, they decided to return to that area and \"see what was going on.\u201d They drove in two cars: defendant went in a car with Big \"D,\u201d Junior, and Antoine; Hubbard drove his car, and Chili was his passenger. Defendant\u2019s car first drove through the area of the shooting while Hubbard and Chili waited at a gas station. After the occupants in defendant\u2019s car had failed to see anyone, they returned to the gas station.\nBoth cars then proceeded to the scene of the shooting, approaching it from different ends of the street. Jones walked out of a building, began walking toward defendant\u2019s car and said \"you came back.\u201d Jones then ran down the sidewalk, and defendant\u2019s car drove alongside him. Defendant then heard a shot. He thought Chili had fired his .38 pistol. Then he heard the \"Tech-9\u201d shoot nine times. Later, Hubbard told defendant that he had fired the automatic pistol at Jones but did not believe he had hit him, placed the pistol back in the trunk of his car, and returned to 3519 Federal.\nDefendant\u2019s testimony at trial tracked his written statement. He also testified that he was never a member of a gang, and that on the night of the shooting, Jones looked as though he was reaching into his waistband. Further, he stated that Hubbard, who was only 16 at the time, was his brother-in-law, and that he accompanied Hubbard back to the scene of the crime because he wanted to insure his safety.\nFirst, defendant contends that a reasonable jury could not have found him guilty beyond a reasonable doubt because the State failed to present sufficient proof that he had the requisite intent to promote or facilitate the commission of a criminal act when no one but defendant testified as to why he returned to the scene of the crime.\nIn reviewing the sufficiency of the evidence, \" 'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\u2019 \u201d (Emphasis omitted.) (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453, 472, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.) The fact finders\u2019 role as the weigher of the evidence is preserved through a legal conclusion that upon judicial review, all the evidence is to be considered in a light most favorable to the prosecution. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) Minor discrepancies in the testimony of witnesses go to the issue of credibility, which must be judged by the trier of fact. (People v. Thomas (1981), 96 Ill. App. 3d 443, 450, 421 N.E.2d 357, 362.) A reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence. People v. Geneva (1990), 196 Ill. App. 3d 1017, 1026, 554 N.E.2d 556, 562.\nTo convict a person of an offense based on a theory of accountability (720 ILCS 5/5 \u2014 2(c) (West 1992)), the State must prove beyond a reasonable doubt that (1) the defendant solicited, aided, abetted, agreed or attempted to aid another person in the commission of the offense, (2) the participation took place either before or during the commission of the offense, and (3) the defendant had a concurrent, specific intent to promote or facilitate the commission of the offense. People v. Morales (1993), 251 Ill. App. 3d 1001, 1011, 623 N.E.2d 864, 871; 720 ILCS 5/5 \u2014 2(c) (West 1992).\nAdditionally, the \"common design rule\u201d provides that where two or more people engage in a common criminal design, any acts in furtherance thereof committed by one party are considered to be the acts of all parties to the common design and all are accountable for those acts. (People v. Deason (1991), 223 Ill. App. 3d 320, 328, 584 N.E.2d 829, 834.) Factors considered in determining the defendant\u2019s legal accountability include the defendant\u2019s presence during the commission of the crime without opposition or disapproving it, the defendant\u2019s failure to report the crime, and the defendant\u2019s continued association with the perpetrator or perpetrators after the criminal act. Morales, 251 Ill. App. 3d at 1012, 623 N.E.2d at 871-72.\nDefendant argues that circumstantial evidence presented at trial failed to establish a plan to kill Jones, or any other criminal scheme, and was inconsistent with a reasonable hypothesis of his innocence. (People v. Beathea (1992), 229 Ill. App. 3d 1010, 1012, 594 N.E.2d 386, 389.) Specifically, defendant contends that because his testimony was the only occurrence evidence presented at trial, and because he stated that they went back only to collect the money Hubbard was due from Mason, the jury was provided with a reasonable explanation of his involvement that should not have been rejected. We disagree.\nDefendant analogizes his case to People v. Taylor (1993), 244 Ill. App. 3d 152, 614 N.E.2d 79, appeal allowed (1993), 152 Ill. 2d 577, 622 N.E.2d 1224, but since he filed his brief, Taylor has been reversed by our supreme court, which, we note, supports our decision here. People v. Taylor (1995), 164 Ill. 2d 131, 140-41.\nAccording to defendant\u2019s own statement, on the afternoon before the shooting, and after he and Hubbard were informed that Jones claimed that they were not to sell drugs in what he regarded as his territory, defendant pulled out a semi-automatic pistol and brandished it before a crowd that had gathered around them. Later that day, after defendant, Big \"D,\u201d Junior, and Antoine checked and found that no one was around, defendant and Hubbard returned to the same area in two separate cars. All five men were aware of the prior argument, two of whom defendant knew to be armed. The two cars approached from separate directions, and when Jones began running away from defendant\u2019s car, the car kept abreast of him; shots were fired, and defendant fled the scene. The jury surely must have found defendant\u2019s and Hubbard\u2019s employment of these tactics in attempting to collect Mason\u2019s debt to Hubbard rather quaint \u2014 and at midnight to boot!\nFurthermore, defendant did not notify the police about the incident, nor did he even try to disassociate himself from the shooter. He was later arrested with Hubbard, and shells found at the scene of the shooting were discovered to have been fired from the automatic pistol found in the trunk of Hubbard\u2019s car.\nUnder an accountability theory, evidence of events surrounding and following the commission of a crime is sufficient to show participation in the crime itself. (People v. Coleman (1991), 223 Ill. App. 3d 975, 992, 586 N.E.2d 270, 281, citing People v. Ruiz (1982), 94 Ill. 2d 254, 257, 447 N.E.2d 148, 152, and People v. Morgan (1977), 67 Ill. 2d 1, 9, 364 N.E.2d 56, 60.) Moreover, the jury is not compelled to believe defendant\u2019s version of the events surrounding the homicide even if uncontradicted. People v. Schaefer (1980), 87 Ill. App. 3d 192, 194, 409 N.E.2d 129, 131; People v. Bell (1977), 49 Ill. App. 3d 140, 143, 363 N.E.2d 1202, 1205.\nIn any event, defendant\u2019s account was not the only version the jury heard and, in a case in which the facts could lead to two or more reasonable inferences, a reviewing court will not upset the judgment of the jury unless the inference accepted by the jury is inherently impossible. People v. Althide (1979), 71 Ill. App. 3d 963, 967, 389 N.E.2d 240, 243.\nMason testified that on the day of the shooting defendant and Hubbard sold her drugs and that both argued with Jones about \"them being in that neighborhood.\u201d She also testified that during the argument either defendant or Hubbard pulled out the semi-automatic pistol identified at trial and displayed it to the crowd. Finally, Mason testified that the same car in which she saw defendant earlier that afternoon was involved in the shooting.\nYates testified that on the day of the shooting defendant and Hubbard were arguing with Jones about drug sales, that defendant clicked the semi-automatic pistol back, pointed it at Jones and kept repeating he could sell drugs wherever he wanted, and that Jones responded by telling defendant that if he was going to pull a gun out, he had better use it. Finally, Yates testified that Hubbard apparently told defendant there were too many people around and that they should leave. Consequently, we have no difficulty in concluding that the jury was justified in finding defendant to be guilty beyond a reasonable doubt.\nDefendant next argues that the trial judge abused his discretion on voir dire in not questioning juror Hamah Christian (Christian) further because he (1) equivocated in some of his answers, (2) indicated that he was inclined to give more weight to a police officer\u2019s testimony, and (3) failed to respond directly to a question. Defendant bases his argument on the following interchange between the trial judge and Christian:\n\"Q. Is there anything about this type of case that would prevent you from being fair and impartial?\nA. I don\u2019t think so.\u201d\nThe court then told Christian he needed to be certain and had to be fair. He responded: \"Like I said, I don\u2019t think so. I haven\u2019t heard any testimony yet.\u201d The court then asked him if he could be fair and impartial and keep an open mind. Christian unequivocally responded that he could.\nFurther, the trial judge was given Christian\u2019s assurance that he understood and would abide by four essential juror qualifications: that defendant was presumed innocent; that he was not required to offer any evidence on his own behalf; that he must be proven guilty beyond a reasonable doubt; and that his failure to testify in his own behalf could not be held against him. (People v. Zehr (1984), 103 Ill. 2d 472, 477, 469 N.E.2d 1062,1064.) Subsequently, Christian indicated that he would give more weight to the testimony of a police officer \"[b]ecause he is a police officer.\u201d\nDefendant failed to raise this issue during his trial and in his post-trial motion; consequently, he has waived consideration of it on review. (People v. Enoch (1988), 122 Ill. 2d 176, 185-92, 522 N.E.2d 1124, 1129-32.) Notwithstanding waiver, a defendant has a constitutional right to a fair trial and an impartial jury. People v. Johnson (1991), 215 Ill. App. 3d 713, 723, 575 N.E.2d 1247, 1253.\nHowever, a prospective juror is not excusable unless his views prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and the oath he takes. Furthermore, remarks of a prospective juror are to be considered as a whole, and he need not express himself with \"meticulous preciseness.\u201d (People v. Pitsonbarger (1990), 142 Ill. 2d 353, 385-86, 568 N.E.2d 783, 796.) Finally, impartiality is not a technical concept, but a state of mind, or a mental attitude, and the challenging party bears the burden of showing that a potential juror has a disqualifying state of mind. (People v. Cole (1973), 54 Ill. 2d 401, 413, 298 N.E.2d 705, 712.) We hold, therefore, that the trial court\u2019s determination to permit Christian to serve on the jury was not an abuse of discretion. People v. Tipton (1991), 222 Ill. App. 3d 657, 664, 584 N.E.2d 310, 314, citing People v. Pecina (1985), 132 Ill. App. 3d 948, 477 N.E.2d 811.\nBased on the same interchange between the trial judge and Christian, defendant alternatively argues that his defense counsel was ineffective because he failed to (1) ask the court to question Christian further, (2) challenge Christian for cause or (3) exercise a peremptory challenge.\nHowever, to prove ineffective assistance of counsel defendant must demonstrate that counsel\u2019s representation fell outside \"the range of competence demanded of attorneys in criminal cases\u201d (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064) and that \" 'there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u2019 \u201d (People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246, 1255-56, quoting Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.) This burden is heavier to bear than showing that the trial court abused its discretion.\nAdditionally, a court may dispose of such a claim due to lack of sufficient prejudice alone. (Albanese, 104 Ill. 2d at 527, 473 N.E.2d at 1255-56.) Furthermore, the decision whether or not to use a peremptory challenge is often a strategic one. (People v. Asteri (1990), 196 Ill. App. 3d 885, 890, 554 N.E.2d 1059, 1063.) Defendant fails to demonstrate that the outcome of his case would have been different but for the inclusion of Christian as a member of the jury, or that defense counsel\u2019s decision not to use a peremptory challenge was not tactical.\nDefendant also contends that evidence regarding his possible membership in a rival gang \u2014 Satriano\u2019s and Snethen\u2019s testimony that the building in which defendant and Hubbard lived and were arrested was controlled by Gangster Disciples \u2014 was improperly admitted.\nEvidence regarding a defendant\u2019s gang membership or gang-related activity is admissible to prove a common purpose or design, or to provide a motive for an otherwise inexplicable act. However, such evidence is admissible only if the membership or activity is sufficiently related to the crime charged. (People v. Smith (1990), 141 Ill. 2d 40, 57-58, 565 N.E.2d 900, 907; People v. Knox (1993), 241 Ill. App. 3d 205, 211, 608 N.E.2d 659, 662.) While entirely proper for the State to prove a motive, it may not do so in the abstract. Otherwise, through the guise of motive evidence, the jury may be exposed to highly inflammatory evidence which has very little, if any, probative value. Smith, 141 Ill. 2d at 58, 565 N.E.2d at 907.\nAssuming, without deciding, that the evidence regarding defendant\u2019s membership in a rival gang was inadmissible, we conclude it to be harmless error. While there is widespread prejudice against street gangs, the erroneous admission at trial of gang evidence does not automatically warrant reversal. A reviewing court may hold such an error to be harmless when it is satisfied that the error did not contribute to the defendant\u2019s conviction. People v. Easley (1992), 148 Ill. 2d 281, 330, 592 N.E.2d 1036, 1058.\nDefendant admitted that the initial confrontation with Jones involved drugs and Jones\u2019 claim that defendant was encroaching on Jones\u2019 drug territory. Yates corroborated defendant\u2019s admission, and Mason testified that Jones was a \"dope dealer\u201d from whom she had purchased drugs in the past. She also stated that she had purchased drugs from both defendant and Hubbard on the day of the shooting.\nRivalry between drug dealers over their respective drug territory, whether or not related to gang rivalry, establishes enough of a motive to explain defendant\u2019s involvement in the events surrounding the murder, indeed, a more damning one than mere gang rivalry. Consequently, we are not persuaded by defendant\u2019s argument.\nNext, defendant contends that he was denied a fair trial, because the State asked him to comment on the veracity of other witnesses, and that the prosecutor misstated evidence during closing argument. Defendant failed to raise these errors in his motion for a new trial and therefore waived them on appeal. Enoch, 122 Ill. 2d at 185-92, 522 N.E.2d at 1129-32.\nNotwithstanding waiver, it is improper to ask a criminal defendant to opine regarding the truthfulness of other witnesses because such questions invade the jury\u2019s function of determining for itself the credibility of witnesses. However, while such questioning is improper, the prejudice resulting therefrom must be substantial to mandate reversal. People v. Robinson (1991), 219 Ill. App. 3d 235, 239-40, 579 N.E.2d 579, 582; People v. Mitchell (1990), 200 Ill. App. 3d 969, 978, 558 N.E.2d 559, 565.\nWe find that the State asked defendant three improper but harmless questions. On two occasions the State asked him if Mason had lied when she testified that defendant sold her drugs. The State also asked defendant if Detective Satriano had lied in testifying that defendant admitted that he was a former member of the Blackstones. In each instance defendant indicated that the witness had lied. Defendant cites People v. Weinstein (1966), 35 Ill. 2d 467, 220 N.E.2d 432, for support, but there the State\u2019s conduct was more egregious than in defendant\u2019s case.\nIn Weinstein, the prosecutor repeatedly misstated that the burden of proof was on the defendant, and the trial court repeatedly sustained the defense counsel\u2019s objections. (Weinstein, 35 Ill. 2d at 470-71, 220 N.E.2d at 433-34.) Here, the defendant failed to object to the first question regarding veracity, and after his objection to the second question was sustained, the State asked only one additional veracity-type question.\nDefendant further claims that ineffective assistance of counsel compounded the prejudicial effect of the improper questioning because defense counsel neglected to request that the jury be instructed to consider Mason\u2019s drug addiction when weighing her credibility. Defendant maintains Mason\u2019s credibility was crucial to the outcome of the case.\nThis claim is without merit. An ineffectiveness claim, as outlined above, is an exceedingly high hurdle to overcome. Moreover, in People v. Jackson (1990), 195 Ill. App. 3d 104, 551 N.E.2d 1025, the defense counsel\u2019s decision not to request an instruction regarding the veracity of a witness who was a drug addict was held to be tactical in nature and not ineffectiveness of counsel. Jackson, 195 Ill. App. 3d at 119, 551 N.E.2d at 1033-34.\nDefendant also contends that he was denied a fair trial because the prosecutor improperly stated in his closing argument that Mason owed defendant money, and theorized that this explained why defendant and Hubbard were at the scene together.\nA prosecutor has great latitude in making closing arguments and in drawing reasonable inferences from the evidence. (People v. Gil (1992), 240 Ill. App. 3d 151, 163, 608 N.E.2d 197, 206; People v. Wallace (1981), 100 Ill. App. 3d 424, 432, 426 N.E.2d 1017, 1024.) In the instant case, Mason testified that she had purchased drugs from both defendant and Hubbard on the day of the murder, as well as from Hubbard in the past. Furthermore, in his testimony, defendant characterized his involvement in the shooting as that of accompanying Hubbard to collect a debt. Therefore, we conclude that the jury could have reasonably inferred that Mason was in debt to defendant as well as Hubbard. Assuming, arguendo, that the State\u2019s remark was improper, in light of the towering evidence of defendant\u2019s guilt, the argument incurred him no prejudice.\nAlthough not raised below, defendant further argues that the trial court\u2019s failure to instruct the jury regarding the lesser offense of second degree murder and self-defense constituted plain error.\nAn instruction on either self-defense or second degree murder based on an unreasonable belief is warranted when the defendant presents some evidence of unlawful force used against him, and that he was not the aggressor. In the case of self-defense, he must also show that he reasonably believed that (1) he was in danger of imminent harm, (2) the use of force was necessary to avert danger, and (3) the kind and amount of force used were necessary. People v. Jerome (1990), 206 Ill. App. 3d 428, 432, 564 N.E.2d 221, 223-24.\nDefendant failed to establish any such evidence. Some eight hours before the shooting, he aimed a semi-automatic pistol in the direction of Jones, who was unarmed. Furthermore, although defendant testified that Jones was reaching in his waistband as if for a gun, he also stated that Jones had turned away from the car that defendant was in and started running down the street, which parallels defendant's statement to the police that his car followed Jones after he had turned around and started running away. Finally, in that same statement, defendant significantly failed to mention that Jones was reaching into his waistband.\nAccordingly, we find that defendant did not make a proper showing of the elements required to establish either self-defense or second degree murder; he thus was not entitled to have the jury instructed on either. Consequently, defendant\u2019s last contention, that his trial counsel\u2019s failure to request that the jury be instructed on the lesser offense of second degree murder and self-defense amounted to ineffective assistance of counsel, is unavailing as well. Albanese, 104 Ill. 2d at 527, 473 N.E.2d at 1256.\nFor all of the aforementioned reasons, we affirm the judgment of the trial court.\nAffirmed.\nDiVITO and McCORMICK, JJ\u201e concur.\n\"[T]hem\u201d seems to refer to defendant and Hubbard.\nWhen asked during cross-examination why he accompanied Hubbard back to the scene, defendant responded: \"I did not want anything to happen to him ***. He left my house with me ***. I wanted to take him back alive.\u201d", "type": "majority", "author": "PRESIDING JUSTICE SCARIANO" } ], "attorneys": [ "Rita A. Fry, Public Defender, of Chicago (Lisa S. Ottenfeld, Assistant Public Defender, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Kathleen Bom, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE MARTIN, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201493\u20140187\nOpinion filed March 28, 1995.\nRita A. Fry, Public Defender, of Chicago (Lisa S. Ottenfeld, Assistant Public Defender, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Kathleen Bom, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0346-01", "first_page_order": 366, "last_page_order": 378 }