{ "id": 5769511, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAUL GOMEZ, Defendant-Appellant", "name_abbreviation": "People v. Gomez", "decision_date": "2010-06-30", "docket_number": "No. 1\u201408\u20142266", "first_page": "945", "last_page": "960", "citations": [ { "type": "official", "cite": "402 Ill. App. 3d 945" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "359 N.E.2d 736", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "739" } ], "opinion_index": 0 }, { "cite": "45 Ill. App. 3d 338", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2892819 ], "year": 1977, "pin_cites": [ { "page": "343" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0338-01" ] }, { "cite": "391 N.E.2d 85", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "pin_cites": [ { "page": "88" } ], "opinion_index": 0 }, { "cite": "72 Ill. App. 3d 664", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5584177 ], "year": 1979, "pin_cites": [ { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0664-01" ] }, { "cite": "134 N.E.2d 315", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1956, "pin_cites": [ { "page": "318" }, { "page": "318" } ], "opinion_index": 0 }, { "cite": "8 Ill. 2d 431", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2715940 ], "weight": 2, "year": 1956, "pin_cites": [ { "page": "436" }, { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/8/0431-01" ] }, { "cite": "871 N.E.2d 728", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "pin_cites": [ { "page": "750" } ], "opinion_index": 0 }, { "cite": "226 Ill. 2d 92", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3610581 ], "year": 2007, "pin_cites": [ { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/226/0092-01" ] }, { "cite": "665 N.E.2d 782", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "791" } ], "opinion_index": 0 }, { "cite": "171 Ill. 2d 338", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57329 ], "year": 1996, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0338-01" ] }, { "cite": "544 N.E.2d 942", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "944" } ], "opinion_index": 0 }, { "cite": "131 Ill. 2d 66", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5569514 ], "year": 1989, "pin_cites": [ { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0066-01" ] }, { "cite": "908 N.E.2d 120", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2009, "pin_cites": [ { "page": "135" } ], "opinion_index": 0 }, { "cite": "391 Ill. App. 3d 161", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4285573 ], "year": 2009, "pin_cites": [ { "page": "178-79" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/391/0161-01" ] }, { "cite": "485 U.S. 58", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 13492 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "63" }, { "page": "61" }, { "page": "887" } ], "opinion_index": 0, "case_paths": [ "/us/485/0058-01" ] }, { "cite": "349 N.E.2d 31", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "page": "34" } ], "opinion_index": 0 }, { "cite": "63 Ill. 2d 534", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5427013 ], "year": 1976, "pin_cites": [ { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0534-01" ] }, { "cite": "676 N.E.2d 646", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "649" }, { "page": "649" } ], "opinion_index": 0 }, { "cite": "175 Ill. 2d 126", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295771 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "132" }, { "page": "131-32" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/175/0126-01" ] }, { "cite": "565 N.E.2d 1295", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "1298" }, { "page": "1299" }, { "page": "1299" } ], "opinion_index": 0 }, { "cite": "141 Ill. 2d 147", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238453 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "156" }, { "page": "156-57" }, { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0147-01" ] }, { "cite": "821 N.E.2d 1154", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "1165" } ], "opinion_index": 0 }, { "cite": "213 Ill. 2d 459", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8449012 ], "year": 2004, "pin_cites": [ { "page": "478" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0459-01" ] }, { "cite": "861 N.E.2d 936", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "pin_cites": [ { "page": "939" } ], "opinion_index": 0 }, { "cite": "223 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3605030 ], "year": 2006, "pin_cites": [ { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/223/0494-01" ] }, { "cite": "692 N.E.2d 1109", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "1121" } ], "opinion_index": 0 }, { "cite": "181 Ill. 2d 297", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821396 ], "year": 1998, "pin_cites": [ { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0297-01" ] }, { "cite": "877 N.E.2d 408", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2007, "pin_cites": [ { "page": "410" }, { "page": "410" }, { "page": "410" } ], "opinion_index": 0 }, { "cite": "226 Ill. 2d 470", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3610849 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "475" }, { "page": "475" }, { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/226/0470-01" ] }, { "cite": "900 N.E.2d 1095", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "pin_cites": [ { "page": "1102" } ], "opinion_index": 0 }, { "cite": "231 Ill. 2d 593", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3617266 ], "year": 2008, "pin_cites": [ { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/231/0593-01" ] }, { "cite": "753 N.E.2d 1170", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "1173", "parenthetical": "\"[Pjrior convictions for impeachment purposes should be limited to crimes punishable by imprisonment for more than one year (felonies) or any crimes involving dishonesty\"" } ], "opinion_index": 0 }, { "cite": "323 Ill. App. 3d 723", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171746 ], "year": 2001, "pin_cites": [ { "page": "726", "parenthetical": "\"[Pjrior convictions for impeachment purposes should be limited to crimes punishable by imprisonment for more than one year (felonies) or any crimes involving dishonesty\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/323/0723-01" ] }, { "cite": "641 N.E.2d 296", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "161 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783181 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-2d/161/0001-01" ] }, { "cite": "893 N.E.2d 653", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "pin_cites": [ { "page": "660" } ], "opinion_index": 0 }, { "cite": "229 Ill. 2d 584", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3615113 ], "year": 2008, "pin_cites": [ { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/229/0584-01" ] }, { "cite": "268 N.E.2d 695", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "699" }, { "page": "698-99" } ], "opinion_index": 0 }, { "cite": "41 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1971, "pin_cites": [ { "page": "517" } ], "opinion_index": 0 }, { "cite": "908 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 2009, "pin_cites": [ { "page": "5" }, { "page": "5" }, { "page": "5" }, { "page": "5" } ], "opinion_index": 0 }, { "cite": "233 Ill. 2d 62", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3621356 ], "weight": 4, "year": 2009, "pin_cites": [ { "page": "68" }, { "page": "68" }, { "page": "69" }, { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/233/0062-01" ] }, { "cite": "749 N.E.2d 1047", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "1058" }, { "page": "1058" } ], "opinion_index": 0 }, { "cite": "322 Ill. App. 3d 541", "category": "reporters:state", "reporter": "Ill. 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RAUL GOMEZ, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE TOOMIN\ndelivered the opinion of the court:\nWe are called upon to determine whether the trial court\u2019s in limine ruling curtailed defendant\u2019s ability to corroborate his claim of self-defense through his former girlfriend. Defendant maintains the ruling, allowing introduction of defendant\u2019s alleged threat on her life if she testified at variance with her grand jury testimony, effectively precluded him from calling her and furthering his defensive strategy.\nFollowing a jury trial, defendant, Raul Gomez, was convicted of first degree murder and attempted first degree murder and sentenced to consecutive terms of 50 and 40 years\u2019 imprisonment, respectively. Defendant now appeals contending the trial court erred by: (1) denying defendant\u2019s motion in limine seeking to limit cross-examination of a defense witness; (2) allowing the introduction of his prior conviction; (3) refusing to instruct the jury on his provocation-passion theory of second degree murder; and (4) limiting the scope of the direct examination of the defendant. For the reasons that follow, we affirm.\nBACKGROUND\nDefendant, Raul Gomez, was charged by indictment with first degree murder, attempted first degree murder, aggravated battery with a firearm, and unlawful use of a weapon by a felon. The charges stemmed from an occurrence wherein Rafael Trujillo was fatally shot and Luis Aguirre sustained nonfatal gunshot wounds. Defendant was tried before a jury and convicted of first degree murder and attempted first degree murder. He was then sentenced to 50 years\u2019 imprisonment for murder and a consecutive term of 40 years\u2019 imprisonment for attempted first degree murder. Defendant does not challenge the sufficiency of the evidence or the sentence imposed. Consequently, we review only those facts necessary to understand and analyze the issues presented.\nIn October 2005, Luis Aguirre lived at 6217 South Taiman in Chicago, Illinois. Though the surrounding neighborhood was traditionally quiet, during the summer of 2005 changes occurred. Aguirre attributed them significantly to his neighbor\u2019s son inviting young people over to congregate and drink on his property and adjoining residences. On several occasions, Aguirre complained to his neighbor, Pedro \u201cG\u00fcero\u201d Troncoso, who was in his mid to late teens, asking that he keep his friends off of Aguirre\u2019s porch. The Troncosos lived in the house immediately to the south of the Aguirres. After Aguirre approached Troncoso about this issue, the problem temporarily abated, but reappeared when Greg Harris, who lived next door to the north, told Aguirre that people were hanging out on Aguirre\u2019s porch in his absence. According to Aguirre, bottles were left in his bushes and in between his house and Harris\u2019s house. Additionally, Troncoso\u2019s visitors would urinate \u201call over the place. I couldn\u2019t even sit in the front of my house because of the flies.\u201d The problem continued.\nOn October 8, 2005, Aguirre and his close friend, Rafael Trujillo, attended a birthday party in Schaumburg, Illinois. Trujillo drove them in his Durango. They consumed approximately six or seven beers over about two to three hours at the party. En route home, they stopped at an establishment where Aguirre\u2019s cousin worked and drank a \u201ccouple\u201d more beers. Aguirre testified that he was \u201cbuzzed,\u201d but not stumbling. He denied Trujillo, a physically larger man, was drunk.\nThey returned to Aguirre\u2019s home around 1:40 a.m. on October 9. Eventually, Trujillo double-parked in front of Aguirre\u2019s house. Trujillo exited the car, leaving the keys inside with the engine running. Aguirre observed a number of people congregating on his porch, Troncoso\u2019s porch, and around the area. He was upset and angered by the scene and began yelling for G\u00fcero, to no avail.\nAguirre saw a number of unknown males and females gathered around his stairs and porch, \u201cLaughing, drinking, getting loud.\u201d Beer bottles were \u201ceverywhere.\u201d He recalled:\n\u201cI was a little upset, and I told them to get the \u2014 I told them to get the fuck off my property, that I didn\u2019t want them there. I told them, I kept screaming for G\u00fcero, because I knew those were his friends, so I told them to get the fuck out of here, and I was just pretty loud with them.\u201d\nThereafter, Aguirre returned to Trujillo\u2019s car to retrieve the keys because he was concerned someone would try to take the vehicle.\nAs he was yelling and swearing at the group, they began coming down the stairs. Defendant, whom Aguirre had never seen before, walked up to Aguirre and stared at him. Defendant asked if Aguirre knew who he was. In response, Aguirre asked defendant his name and what his problem was and told him to get off the property. In turn, defendant uttered something that Aguirre was unable to understand.\nAguirre then heard someone running through the gangway between his home and the Troncosos\u2019 home. Defendant turned toward the gangway, and then back to Aguirre, put a gun against Aguirre\u2019s chest, and fired. Aguirre heard ringing after the shot and felt pressure in his chest. He denied hearing defendant speak before firing. Aguirre then turned, saw blood on his hands and squirting from his chest, and fell to the ground. As he lay on the ground, Aguirre heard additional shots and heard Trujillo moan each time he was hit. Prior to the final two shots, defendant said something, which Aguirre could not hear. Aguirre never saw anyone else with a gun.\nAguirre and Trujillo were unarmed throughout the confrontation. Aguirre did not recall having anything in his hands and denied threatening, using force against, or touching defendant. Instead, he recalled, \u201cI was just loud, that\u2019s all. I just wanted them off my porch.\u201d According to Aguirre, Trujillo was \u201cmad\u201d and screamed and yelled to disperse the group from Aguirre\u2019s property.\nOn cross-examination, Aguirre denied telling a detective that he grabbed defendant\u2019s arm. Also, he did not recall writing a statement the following day in his hospital bed, though he did recall talking to detectives. Aguirre noted the handwriting was \u201cvery sloppy\u201d and that it was not like his handwriting. In the statement, Aguirre purportedly recalled that defendant got angry because Aguirre was leading him by the arm. Aguirre likewise denied that Harris attempted to intervene and that Aguirre responded that he did not need to call the police.\nGreg Harris testified that friends of G\u00fcero Troncoso had been sitting on Aguirre\u2019s porch when he was not at home. Starting at about 10 p.m. on October 8, Harris saw teenagers and young adults congregating on Aguirre\u2019s porch. At around 1:30 a.m., while watching television, his attention was drawn to yelling at Aguirre\u2019s porch. According to Harris, it \u201c[s]ounded like [Aguirre], I knew he was probably just telling them to get off his porch as he\u2019d done before.\u201d Aguirre was yelling and swearing at the group. Harris looked out the window and saw Aguirre and his friend, with their car double-parked. Believing Aguirre was going to solve the problem, Harris went back to watching television.\nThe yelling did not stop and exchanges of words were heard. Harris returned to the window and \u201cheard [Aguirre] on the porch area.\u201d Harris also saw a light-complected, bald male \u201csquaring off\u201d with Aguirre, \u201cvery macho like arguing.\u201d Just then Harris saw a young, thin Latin male run past his bushes. He then heard three shots and saw smoke. Harris ran to the rear of his house and called 9-1-1. Harris never saw a weapon in the hands of Aguirre or Trujillo.\nPedro \u201cG\u00fcero\u201d Troncoso recounted approximately five occasions when he spoke to Aguirre about people hanging out on Aguirre\u2019s property. Troncoso denied having control over the group, as some were his friends but others, including defendant, were not. According to G\u00fcero, he told his friends to stay off of Aguirre\u2019s property. During the evening of October 8, G\u00fcero saw defendant carrying beers and heading to Aguirre\u2019s front porch. Later that night, G\u00fcero left the premises and when he returned he saw defendant and Aguirre arguing. Aguirre was pointing his finger at defendant. He estimated the men were three feet apart as they argued. G\u00fcero had remained in his car and could not hear what they were saying. Trujillo was standing behind Aguirre \u201ctrying to defend [Aguirre] too,\u201d but was not saying anything. G\u00fcero never saw Aguirre grab defendant by the arm or Aguirre return to Trujillo\u2019s Durango. G\u00fcero did not see weapons in Aguirre\u2019s or Trujillo\u2019s hands. Edgar Serrano attempted to intervene in the argument by pushing defendant back and endeavoring to calm him. G\u00fcero then saw defendant push Edgar out of the way, draw a pistol, and fire at Aguirre and then at Trujillo. The gun was not pressed against Aguirre, as three feet separated him and defendant. G\u00fcero heard gunshots coming from the area where defendant was. Because he was trying to park his car, G\u00fcero could not see the entire confrontation.\nJose Moreno testified that he saw three or four men, including defendant, Jesse \u201cBaby\u201d Medina, Aguirre and Trujillo, in a confrontation. Moreno could tell by the gestures the men were making that they were arguing. Aguirre and defendant were \u201ceye to eye,\u201d less than five feet apart. Trujillo was \u201cgetting crazy\u201d and the men were all gesturing at one another. Moreno described Trujillo\u2019s gesturing as \u201clifting up his shirt pumping on his chest like hitting \u2014 hitting himself.\u201d Moreno never saw any of the parties touch one another. Moreno remained in the car because when he started to exit, he heard gunfire. He could not say how many shots he heard, though it was less than 10. Moreno did not see Aguirre or Trujillo holding weapons at any time during the confrontation.\nErica Lujano arrived at the scene sometime in the late evening of October 8, or in the early morning hours of October 9, with her friend Marie Sell, her sister Amy, and her cousin Sabrina Aponte. They, along with defendant and others, were hanging out in front of a house. About 15 minutes after arriving, a Dodge Durango pulled up in front of the house and two men exited. Prior to their arrival, Lujano spoke with defendant and he did not appear intoxicated. The two men approached the house and asked defendant why he was \u201cdisrespecting\u201d in front of their house. Defendant responded, \u201c[IJt\u2019s fine. We\u2019ll leave.\u201d Lujano and the other women returned to Marie\u2019s car while defendant picked up the beer from the porch and stairs. Thereafter, Lujano stated: \u201cI saw when Sabrina was standing by the door, and I looked, I glanced back and I saw the guy with the long hair ran to his truck and Sabrina said get in the car, [defendant], watch it.\u201d Lujano omitted Sabrina\u2019s statement when she was interviewed prior to her grand jury appearance and when she testified therein. However, she remembered the statement in the week after she was subpoenaed for trial. She discussed it in the presence of Aponte and defense counsel.\nLujano did not recall seeing anything in the man\u2019s hands after he reached into the car. The man then returned to the altercation involving defendant. According to Lujano, defendant and Baby were about five feet from the other two men. Aguirre and Trujillo appeared drunk, were moving their arms a lot, and were fidgety as they argued, while defendant and Baby were still. Lujano saw defendant pull the gun from near his belt and point it at Aguirre and Trujillo. Lujano and her sister ducked down and she heard gunshots. Lujano estimated defendant had the gun out for one to two minutes, while the men argued and approached him, before firing. She estimated 5 to 10 shots were fired.\nDuring trial, defense counsel moved in limine to bar questioning of Sabrina Aponte regarding a threat she received. Counsel explained how Aponte filed a police report concerning a phone call wherein a female voice conveyed a threat to Aponte\u2019s life, allegedly originating from defendant. According to the State, the threat occurred between Aponte\u2019s grand jury testimony and trial. If Aponte testified and it differed from her previous testimony, the State asserted it should be able to bring out the threat to explain any change in her testimony. When the issue was initially addressed, the State had not determined whether Aponte would be called as a witness. Ultimately, the trial judge concluded, \u201cI can\u2019t really rule without seeing exactly how this unfolds, but it would seem to me that this kind of evidence could and very well might be admissible depending on how her testimony goes if she even testifies.\u201d\nThe issue arose again near the close of the State\u2019s case-in-chief, when defense counsel indicated he planned to call Aponte as a witness. Counsel sought to bar any cross-examination regarding the threat because it could not be linked to defendant and allowing it would be prejudicial, by painting defendant in a negative light. Additionally, defense counsel claimed that if the threat were to come out during cross-examination, \u201cit could have a chilling affect [sic] on the defendant\u2019s lawyer\u2019s decision as to whether to call this *** witness or not and I think [Aponte] does add something to the defendant\u2019s claim of justifiable use of force.\u201d The State again maintained that it would be important to examine this matter if Aponte\u2019s testimony differed from her grand jury testimony or if she denied having been threatened. Once again, the court observed that much depended upon how Aponte testified and denied the motion to bar cross-examination of Aponte as to the alleged threat. The State would be permitted to use threat evidence to establish why Aponte\u2019s testimony at trial differed from her grand jury testimony, if such a situation arose.\nFollowing denial of defendant\u2019s motion for a directed verdict, the issue arose again. The trial judge confirmed his earlier ruling that impeachment with the alleged threat would be permitted only if the State sufficiently established that Aponte\u2019s testimony differed from her previous testimony. Defense counsel then indicated:\n\u201cJudge, maybe I can put this to rest on behalf of the defendant. Given the Court\u2019s ruling you just articulated regarding the so-called report of a threat, based on that ruling, the defendant is not going to be calling Sabrina Aponte as a witness because we believe the prejudicial effect that would have on the jury towards my client *** greatly would outweigh any probative effect her testimony would have.\u201d\nThe defense then called Detective Daniel McNally, who visited Aguirre in the hospital after the shooting. According to McNally, on October 10, 2005, Aguirre was intubated at the time and unable to speak, but wrote out a statement about what happened. A portion of the statement read, \u201cHe got pissed off because I was leading him by the arm.\u201d\nDefendant testified that, on October 8, 2005, he did not possess anything to protect himself. When he arrived at Guero\u2019s house, he had not consumed any alcohol, but had smoked marijuana. Around midnight, his fianc\u00e9e, Sabrina Aponte, arrived with three other females, including Erica Lujano. Approximately 10 minutes later a Dodge Durango drove down the street on two occasions, \u201cthe second time they had came through, they started reversing, I guess like double parking.\u201d Defendant did not know the men in the car. Then, Baby suggested that defendant watch the Durango. In turn, defendant told Aponte to watch out.\nTwo men got out of the Durango and began \u201cyelling and cursing at us.\u201d Specifically, Trujillo, the driver, was yelling and cursing. Trujillo first said, \u201cYou and your bitches get the fuck out of here.\u201d Defendant responded, \u201cHold on, who are you?\u201d Trujillo claimed it was his house and told defendant and his cohorts to leave. Defendant replied, \u201cCalm down, we leaving anyway\u201d and told the women to get in the car. As defendant collected the beer, Trujillo and Aguirre complained about people coming over and making a mess on Aguirre\u2019s property. One of the men said he had told G\u00fcero and a man named Dean to stop people from congregating on the property. Defendant asked about the connection to Dean, who was one of defendant\u2019s \u201colder associates.\u201d\nThereafter, Sabrina exited the car and told defendant to \u201cwatch out\u201d and that one of the men was \u201cgetting something.\u201d According to defendant, \u201cSo, I turned my attention back towards their direction and I saw Luis Aguirre in the passenger side of the Durango like underneath the passenger seat.\u201d Someone mentioned the word \u201cpolice,\u201d but defendant did not know who said it. Aguirre said words to the effect that he did not need the police. Defendant further testified:\n\u201cI told him what are you on. And after that, you know, when the Durango was reversing backwards, Jesse handed me a firearm, you know. And that\u2019s when I went back to ask Luis and them what are you on. I had grabbed the firearm out of my waistband and I pointed it at them, like man put your hands up, man, what you all on, we leaving, you know. Calm down.\u201d\nAguirre then \u201creached for his back behind his jacket and I shot him.\u201d According to defendant, he aimed for his chest. Defendant did not see a gun, but was \u201cnot going to wait to see it and get shot.\u201d Aguirre never threatened defendant. Yet, he took Aguirre\u2019s \u201cmotions\u201d as a threat.\nDefendant\u2019s attention turned to Trujillo, whom he saw coming toward him and \u201creaching for his shirt.\u201d When Trujillo did so, defendant opened fire. Defendant \u201cfelt like they were pulling a gun\u201d on him. Based upon the trip to the car and the reaching into their shirts, coupled with his experiences \u201cgrowing up in the city\u201d and having been shot before, defendant figured they were pulling guns, and he shot first. After the first shot at Trujillo, defendant held onto the trigger because Trujillo kept coming at him. Defendant continued to fire at him as he fell to the ground.\nThough defendant claimed to have frequented the area, he denied knowing Aguirre and \u201c[njever paid any attention to him.\u201d Aguirre attracted defendant\u2019s attention on October 9, 2005, because he drove down the street twice. According to defendant, anyone who did so would have received his attention. When asked if a car looking for parking, as Aguirre was, was sufficient for defendant\u2019s associate to hand him a gun, defendant responded, \u201cCould have been a drive by. You never know.\u201d\nDefendant explained that Aguirre did touch him at one point. He recounted it as follows: \u201cHe grabbed me by the arm but it was nothing like fighting type, it was more like trying to treat me like a little kid or something.\u201d In response, defendant indicated to Baby a desire to leave. At no time did Aguirre strike or hit him. Defendant denied that either he or Aguirre ever raised their voices toward one another. Likewise, defendant did not consider any of Aguirre\u2019s words threatening. However, defendant claimed Aguirre raised his voice and was threatening toward Baby.\nANALYSIS\nWe first address the claim that the trial court erred in refusing to bar cross-examination of Sabrina Aponte regarding the alleged threat on her life. Defendant maintains that the trial court\u2019s denial of the in limine motion curtailed his ability to corroborate his affirmative defense. The State asserted it would only address the threat if her trial testimony differed from her grand jury testimony. As noted, after initially holding its ruling in abeyance, the trial judge denied the motion. According to defendant: Consequently, defendant did not call Aponte as a witness and thereby was \u201cprecluded *** from perfecting a legal and supportable affirmative defense.\u201d\n\u201cThe ruling left the defendant with [the] unenviable decision of either calling Aponte as a witness and allowing the jury to hear that the defendant allegedly threatened her, or, not calling her and forfeiting the essential corroboration of the defendant\u2019s testimony that Aguirre went to the truck and that Aponte warned Gomez to be careful as it appeared Aguirre was getting something.\u201d\nGenerally, rulings on motions in limine are reserved for the discretion of the trial court and are not subject to reversal unless that discretion is abused. People v. Nelson, 235 Ill. 2d 386, 420, 922 N.E.2d 1056, 1075 (2009). A court will be found to abuse its discretion when a ruling is arbitrary, unreasonable, or fanciful or the ruling adopts a view no reasonable person would take. People v. Delvillar, 235 Ill. 2d 507, 519, 922 N.E.2d 330, 338 (2009).\nAs noted, defendant chose not to call Aponte to testify. Defendant\u2019s choice dooms his claim of error. Our conclusion finds support from the analogous line of cases addressing motions in limine to preclude admission of prior convictions against a defendant, including Luce v. United States, 469 U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984), People v. Whitehead, 116 Ill. 2d 425, 508 N.E.2d 687 (1987), and People v. Averett, 237 Ill. 2d 1 (2010). Those cases stand for the proposition that a defendant must testify in order to challenge the deferral of a ruling on an in limine motion. In the present case, the trial judge ultimately denied the motion. As the supreme court noted in Whitehead, the logical framework behind its holding was based upon the Supreme Court\u2019s ruling in Luce. There, the Supreme Court held a defendant must testify to preserve a claim of error because attempting to divine the trial court\u2019s ruling whether to allow such an attack was purely conjectural, just as it was conjecture as to whether the prosecution would endeavor to impeach with prior convictions. Whitehead, 116 Ill. 2d at 444, 508 N.E.2d at 694, quoting Luce, 469 U.S. at 42, 83 L. Ed. 2d at 448, 105 S. Ct. at 463.\nIn the case sub judice, Aponte never testified, which, consistent with Luce and its progeny, makes any analysis of what might have happened entirely conjectural. Contrary to defendant\u2019s claim, the absence of this testimony did not preclude him from corroborating his affirmative defense premised upon a warning that Aguirre grabbed something from the car. The record demonstrates that similar testimony was developed through Erica Lujano. Since Lujano\u2019s testimony was not meaningfully controverted, it could well be argued Aponte\u2019s testimony on this point would simply be cumulative of what was already before the jury. Additionally, defendant testified about Aponte\u2019s warning, lending further credence to the statement as well as corroborating Lujano\u2019s testimony. Therefore, for the reasons noted, we find this claim to be without merit.\nAdditionally, and more basically, the trial judge\u2019s ruling denying the motion was consonant with established case law. Had the situation arisen, wherein Aponte testified inconsistently with her prior testimony, impeachment by way of her prior grand jury statement would have been proper. See People v. Barajas, 322 Ill. App. 3d 541, 556, 749 N.E.2d 1047, 1058 (2001). Fear for one\u2019s own safety is properly admitted when used to illustrate why a witness had given inconsistent statements. Barajas, 322 Ill. App. 3d at 556, 749 N.E.2d at 1058. Importantly, testimony concerning the witness\u2019s concerns could easily be carefully tailored by the trial court so as to explain the reason without impugning or prejudicing defendant thereby. Nevertheless, the failure to call Aponte to testify prevents full development of this issue for our review. Consequently, the claim must fail.\nWe next consider whether the trial court erred in admitting defendant\u2019s prior conviction for aggravated discharge of a firearm. According to defendant, the State\u2019s motivation for bringing out the prior conviction, other than general impeachment, was to establish his propensity for violence, to demonstrate he was the initial aggressor, and to show his disrespect for society. As this issue stems from a ruling on a motion in limine, we review this claim of error for abuse of discretion. People v. Patrick, 233 Ill. 2d 62, 68, 908 N.E.2d 1, 5 (2009). Established precedent instructs that decisions concerning the admission of a defendant\u2019s prior convictions must be based upon the weighing of the probative value as against the danger of unfair prejudice. Patrick, 233 Ill. 2d at 68, 908 N.E.2d at 5, citing People v. Montgomery, 41 Ill. 2d 510, 517, 268 N.E.2d 695, 699 (1971). However, this balancing only occurs if the prior conviction occurred within the preceding 10 years and \u201cthe prior crime was punishable by death or imprisonment in excess of one year, or involved dishonesty or false statements, regardless of punishment.\u201d Patrick, 233 Ill. 2d at 69, 908 N.E.2d at 5.\nDefendant argues that admitting a prior conviction for the purpose of establishing defendant\u2019s disrespect for society is improper. Admittedly, the State\u2019s argument did touch upon this rationale. Yet, the record demonstrates this was not the rationale invoked by the trial judge in deciding the motion. Importantly, our task is to determine whether the trial court properly exercised discretion in its decision. See Patrick, 233 Ill. 2d at 68, 908 N.E.2d at 5. We are not persuaded, necessarily, with the arguments offered by the parties in support of their respective positions.\nAs our supreme court explained in People v. Naylor:\n\u201cWhen a defendant testifies on his own behalf, the record of the defendant\u2019s prior conviction is not introduced, and cannot be considered, for the purpose of proving the defendant\u2019s guilt or innocence of the crime for which the defendant is being tried; rather, it is admissible only for the purpose of discrediting the defendant as a witness.\u201d People v. Naylor, 229 Ill. 2d 584, 594, 893 N.E.2d 653, 660 (2008).\nThis position is consistent with the terms of section 115 \u2014 16 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115 \u2014 16 (West 2006)), which provides:\n\u201cNo person shall be disqualified as a witness in a criminal case or proceeding by reason of his or her interest in the event of the case or proceeding, as a party or otherwise, or by reason of his or her having been convicted of a crime; but the interest or conviction may be shown for the purpose of affecting the credibility of the witness.\u201d 725 ILCS 5/115 \u2014 16 (West 2006).\nIn matters such as the case sub judice, where a defendant claims self-defense or otherwise attempts to justify his actions, his testimony necessarily places his credibility at issue. The record reveals that the trial judge carefully considered the motion in limine and balanced the probative value of the prior conviction as against the danger of unfair prejudice to the defendant. Specifically, the trial judge applied the supreme court\u2019s finding in People v. Williams, 161 Ill. 2d 1, 641 N.E.2d 296 (1994), noting particularly the Williams court\u2019s holding that the prior convictions may be admissible for some other purpose. In the present case, that basis of relevance derived from defendant\u2019s indication that he would claim self-defense. Consequently, the prior conviction could be relevant to the issue of whether defendant was the initial aggressor. In sum, the trial court found the prior conviction was probative and the probative value of it outweighed any prejudice inuring from its introduction. Having considered the trial court\u2019s ruling and its bases, we conclude the trial court did not abuse its discretion in admitting the prior conviction.\nDefendant asserts a related claim of error in admitting the prior conviction based upon the \u201cinitial aggressor\u201d theory. This claim relates to the trial court\u2019s decision to allow the admission of a prior conviction of Rafael Trujillo. In support of this contention, defendant argues his conviction for aggravated discharge of a firearm was improperly admitted because it \u201chad nothing to do with dishonesty or false statement.\u201d Facially, this is accurate insofar as defendant\u2019s prior conviction is concerned. However, this argument understates the Montgomery rule. As noted, the threshold guidelines for admission involve the age and character of the prior conviction. Montgomery, 47 Ill. 2d at 516-17, 268 N.E.2d at 698-99. Moreover, precedent instructs that admissible prior convictions are either punishable by one year or more in prison \u2014 i.e., felonies \u2014 or involving dishonesty or false statement. See People v. Slabaugh, 323 Ill. App. 3d 723, 726, 753 N.E.2d 1170, 1173 (2001) (\u201c[Pjrior convictions for impeachment purposes should be limited to crimes punishable by imprisonment for more than one year (felonies) or any crimes involving dishonesty\u201d). The qualifying or admissible types of prior convictions are separated by \u201cor\u201d in each case. While our supreme court \u201chas also recognized that \u2018and\u2019 is often used interchangeably with \u2018or,\u2019 the meaning being determined by the context\u201d (County of Du Page v. Illinois Labor Relations Board, 231 Ill. 2d 593, 606, 900 N.E.2d 1095, 1102 (2008)), the context here can yield only the singular conclusion that the guideposts for admission were named in the disjunctive, rather than the conjunctive. Therefore, defendant\u2019s attempt to limit the application of this rule is unavailing, as is his claim of error.\nIn defendant\u2019s statement of the issue concerning the admission of his prior conviction, he refers to prior convictions as substantive evidence. This point is not argued in any discernible way in his brief. Moreover, no authority is cited to support any argument along these lines. Supreme Court Rule 341(h)(7) provides, in relevant part, \u201cPoints not argued are waived ***.\u201d 210 Ill. 2d R. 341(h)(7). Consequently, to the extent defendant claims the prior conviction was admitted as substantive evidence, this claim is waived.\nWe next address defendant\u2019s claim that \u201cThe trial court erred when it failed to instruct the jury on second degree murder based on provocation resulting from the aggressive and threatening conduct of Aguirre and Trujillo.\u201d It is axiomatic that \u201cfundamental fairness requires that the trial court fully and properly instruct the jury on the elements of the offense, the burden of proof, and the presumption of innocence.\u201d People v. Pierce, 226 Ill. 2d 470, 475, 877 N.E.2d 408, 410 (2007), citing People v. Williams, 181 Ill. 2d 297, 318, 692 N.E.2d 1109, 1121 (1998). Typically, issues concerning jury instructions are reviewed for abuses of discretion. Pierce, 226 Ill. 2d at 475, 877 N.E.2d at 410. However, when the issue addresses itself to whether the instruction \u201cconveyed to the jury the law applicable to the case, our review is de novo.\u201d Pierce, 226 Ill. 2d at 475, 877 N.E.2d at 410, citing People v. Parker, 223 Ill. 2d 494, 501, 861 N.E.2d 936, 939 (2006).\nGenerally, it is appropriate to instruct the jury on defense theories supported by the evidence at trial, even if it is only slight. People v. Davis, 213 Ill. 2d 459, 478, 821 N.E.2d 1154, 1165 (2004), citing People v. Everette, 141 Ill. 2d 147, 156, 565 N.E.2d 1295, 1298 (1991). \u201cVery slight evidence upon a given theory of a case will justify the giving of an instruction.\u201d People v. Jones, 175 Ill. 2d 126, 132, 676 N.E.2d 646, 649 (1997), citing People v. Bratcher, 63 Ill. 2d 534, 540, 349 N.E.2d 31, 34 (1976). Thus, where some evidence was presented, it is an abuse of discretion to refuse to instruct the jury. Jones, 175 Ill. 2d at 131-32, 676 N.E.2d at 649.\nAs the Supreme Court observed in Mathews v. United States, \u201cAs a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.\u201d Mathews v. United States, 485 U.S. 58, 63, 99 L. Ed. 2d 54, 61, 108 S. Ct. 883, 887 (1988). This proposition understandably embraces defendants charged with homicides and entitles them to an instruction on self-defense \u201cwhere there is some evidence in the record which, if believed by a jury, would support the defense.\u201d Everette, 141 Ill. 2d at 156-57, 565 N.E.2d at 1299. Yet, this entitlement is not without limits:\n\u201cThis court has held that \u2018very slight evidence upon a given theory of a case will justify the giving of an instruction,\u2019 but we must be wary so as not to permit a defendant to demand unlimited instructions based upon the merest factual reference or witness\u2019 comment. [Citation.] Where self-defense is not supported by the evidence, an instruction thereon may properly be refused.\u201d Everette, 141 Ill. 2d at 157, 565 N.E.2d at 1299.\nIn the present case the jury was instructed on both self-defense and second degree murder premised on imperfect self-defense. Defendant does not take issue with these tenets of law. Rather, he contends the trial court erred in not instructing the jury on a theory of second degree murder based on provocation-passion emanating from what he perceived as \u201caggressive and threatening conduct\u201d by the victims. Section 9 \u2014 2 of the Criminal Code of 1961 defines second degree murder as follows:\n\u201c(a) A person commits the offense of second degree murder when he commits the offense of first degree murder *** and either of the following mitigating factors are present:\n(1) At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, *** or\n(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code [(720 ILCS 5/7 \u2014 1 et seg.)], but his belief is unreasonable.\n(b) Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.\u201d 720 ILCS 5/9 \u2014 2 (West 2006).\nTo date, Illinois courts have only recognized four particular types of circumstances of serious provocation, including substantial physical injury or assault, mutual quarrel or combat, illegal arrest, and adultery with the offender\u2019s spouse. People v. Leach, 391 Ill. App. 3d 161, 178-79, 908 N.E.2d 120, 135 (2009), citing People v. Chevalier, 131 Ill. 2d 66, 71, 544 N.E.2d 942, 944 (1989). In the trial court and, once again, before us, defendant seeks to bring forth a fifth type of serious provocation. We decline to do so. Manifestly, the existing categories are based upon actual and ascertainable conduct or action. Furthermore, our supreme court has continually adhered to the principle stating, \u201cMere words and gestures, however, are not enough to constitute serious provocation.\u201d People v. Blackwell, 171 Ill. 2d 338, 358, 665 N.E.2d 782, 791 (1996). What defendant suggests is a category of serious provocation based upon a defendant\u2019s subjective interpretation of the situation, including the victims\u2019 words and gestures. Yet, defendant\u2019s own testimony undermined any claim of aggressiveness or threatening behavior on the part of the victims. Defendant did not offer any testimony to indicate that he felt threatened by the victims, even when he was allegedly taken by the arm. In defendant\u2019s words, \u201c[Aguirre] grabbed me by the arm but it was nothing like fighting type, it was more like trying to treat me like a little kid or something.\u201d The closest he can muster is a sense of annoyance or frustration, expressed to Baby by saying, \u201clet\u2019s go, fuck these niggers, man,\u201d which is not enough to constitute serious provocation.\nMoreover, even assuming the existence of a category of serious provocation to encompass defendant\u2019s claims, we find defendant did not present even slight evidence to support the giving of such an instruction. Consequently, the trial court did not abuse its discretion in denying the requested instruction. Defendant\u2019s claim is without merit.\nFinally, defendant next claims the trial court erred in sustaining the State\u2019s objections during the defendant\u2019s testimony. According to defendant, the sustained objections prevented him from fully eliciting his state of mind, which bore upon his theory of defense. As this claim of error addresses itself to evidentiary rulings, we review those rulings under the abuse of discretion standard. People v. Wheeler, 226 Ill. 2d 92, 132, 871 N.E.2d 728, 750 (2007).\nIn support of his argument, defendant cites People v. Harris, 8 Ill. 2d 431, 436, 134 N.E.2d 315, 318 (1956), for the proposition that \u201che should have been allowed to testify about his intention, motive or belief.\u201d Harris does not support defendant\u2019s argument when the full context is understood. What defendant cites represents only one-half of the cited sentence. The entire statement is as follows: \u201cIn such cases the defendant\u2019s state of mind is material and a proper subject of examination, [citations] yet this does not warrant the use of leading or other improper interrogatories.\u201d (Emphasis added.) Harris, 8 Ill. 2d at 436, 134 N.E.2d at 318. The latter clause unmistakably and absolutely undermines defendant\u2019s claim of error.\nDefendant also cites to People v. Pernell, 72 Ill. App. 3d 664, 668, 391 N.E.2d 85, 88 (1979). In Pernell, our third division found error where general objections were sustained as to questions eliciting defendant\u2019s state of mind concerning his shooting of the victim. The questions in Pernell were properly posed and in proper form. In these ways, the situation in Pernell differs importantly from the case sub judice. Defense counsel\u2019s questions of defendant were not in proper form and properly objected to \u2014 with specific objections \u2014 and the objections were properly sustained.\nLikewise, defendant cites People v. Williams, 45 Ill. App. 3d 338, 343, 359 N.E.2d 736, 739 (1977), where our second division found the trial court unduly restricted the examination of the defendant as to his state of mind. In that case, the court was unable to conclude the error was harmless because it was deemed \u201ccrucial testimony.\u201d The same cannot be said here. The evidence was devoid of any reasonable basis for defendant\u2019s actions or the magnitude thereof. Because we find the trial court\u2019s rulings were not in error, we need not engage in the harmless error assessment undertaken in Williams.\nInasmuch as the various objections to the examination of defendant were legally correct, the rulings did not constitute abuses of discretion. The evidence counsel sought to elicit was potentially relevant. However, in order to secure its admission it was incumbent upon counsel to pose proper questions. We discern no reason why doing so was uniquely difficult or unmanageable in the present case. Therefore, we find this claim of error is similarly unavailing.\nFor the foregoing reasons, we affirm the judgment of the circuit court of Cook County.\nAffirmed.\nFITZGERALD SMITH and LAVIN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE TOOMIN" } ], "attorneys": [ "Thomas C. Brandstrader, of Chicago, for appellant.", "Anita M. Alvarez, State\u2019s Attorney, of Chicago (Alan Spellberg, Mary Needham, and William Toffenetti, Assistant State\u2019s Attorneys, of counsel), for the Feople." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAUL GOMEZ, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201408\u20142266\nOpinion filed June 30, 2010.\nRehearing denied July 27, 2010.\nThomas C. Brandstrader, of Chicago, for appellant.\nAnita M. Alvarez, State\u2019s Attorney, of Chicago (Alan Spellberg, Mary Needham, and William Toffenetti, Assistant State\u2019s Attorneys, of counsel), for the Feople." }, "file_name": "0945-01", "first_page_order": 963, "last_page_order": 978 }