FOURTH DIVISION
March 24, 2005

No. 1-03-1317

JUSTICE QUINN delivered the opinion of the court:

Following a jury trial, defendant Jean Payton was found guilty of first degree murder and sentenced to 25 years in prison. On appeal, defendant contends that: (1) the trial court improperly instructed the jury regarding first degree murder and precluded the jury from considering the offense of second degree murder; (2) the trial court provided an improper response to the jury's question regarding the elements of first degree murder; (3) her conviction for first degree murder was improper where the offense of aggravated battery was insufficient to support a felony murder conviction; (4) the trial court's jury instructions on involuntary manslaughter were improper; (5) defendant was denied her right to a fair trial where the prosecutor made improper closing remarks; and (6) her sentence is excessive. For the following reasons, we reverse and remand for a new trial.

I. Background

The evidence at trial showed that on August 31, 2000, at about 1 a.m., Kiffany Davis was standing outside a liquor store near Roosevelt and Avers Streets, in Chicago, with her twin sister Tiffany Davis, Matrice Yarbrough and defendant. Samuel Clayton was inside a restaurant adjacent to the liquor store.

Defendant went into the liquor store to purchase beer for Matrice, who was underage. While Kiffany, Tiffany and Matrice waited in front of the liquor store, Brian Alford approached 18-year-old Kiffany and asked her if she would be his girlfriend. Kiffany laughed and told Alford that she was not interested. Kiffany testified that Alford appeared to be 40 years old and drunk at the time and that she thought "it was funny" that he asked her to be his girlfriend.

Defendant then came out of the liquor store and handed Matrice a bag containing beer. Defendant heard Alford speaking to Kiffany and told him to leave her alone and that he was too old for her. Kiffany testified that defendant argued with Alford and began "cussing him out." Kiffany, Tiffany and Matrice went into the liquor store to purchase cigarettes, and when they came back, Alford and defendant were still arguing. Kiffany testified that Alford called defendant a "15-cent hoe" and defendant looked like she was going to hit him. Alford then pulled a box cutter from his pocket, but the blade was not out.

While Alford was holding the box cutter, Clayton came out of the restaurant, approached Alford and exchanged words with him. Kiffany testified that Alford pushed Clayton and then ran away, but he was no longer holding the box cutter. Matrice testified that she saw Alford put the box cutter in his pocket and back up into the middle of the street while holding his hands up "like he didn't want no problem, no trouble." Matrice then saw Alford back up around a car that was parked in the street and run down the street toward a gas station. Defendant and Clayton ran after Alford and caught up to him near the gas station, about a half block away. Clayton punched Alford in the nose and the head, and Alford fell facedown onto the pavement.

Kiffany testified that she saw Alford attempt to get up and he had his upper body lifted when defendant walked over to him and started punching him in the face. Alford fell and defendant started kicking him. Kiffany further testified that defendant repeatedly kicked Alford in the head, including after Alford was lying still and no longer trying to stand up. Kiffany went inside the restaurant and asked someone to call the police. Matrice testified that she was talking to her boyfriend and did not see defendant strike Alford but saw Clayton and defendant walk back toward the liqour store together while Alford was lying on the ground. When defendant returned to the area where Matrice was standing, Matrice saw defendant shaking her hands and heard her say that her hands were swollen. Shortly thereafter, Kiffany, Tiffany, Matrice and defendant all walked to defendant's home. Tiffany testified that while the group was walking, defendant stated that she had "kicked the ---- out of that mother------."

Paramedic John Leen testified that when he arrived at the gas station, Alford was lying face down on the ground. Alford was bleeding from his nose and mouth, and had lacerations to his chin and above his eye. Alford was taken to the hospital where he remained in a coma until he died on September 9, 2000. Dr. Adrienne Segovia testified, as an expert in forensic pathology, that she reviewed the report of the examining physician, and her opinion was that Alford died as a result of cerebral injuries, caused by blunt head trauma.

Chicago police officer Clifford Russell testified that on September 11, 2000, he and other police officers went to defendant's apartment building at 1509 South Ridgeway Avenue in Chicago. Officer Russell was standing next to the building while other officers knocked on defendant's apartment door. Officer Russell then saw defendant climb out of a window and ordered her to stop. Defendant attempted to flee from the area, but Officer Russell apprehended her and placed her in custody.

Detective Wolverton testified that after defendant was arrested, he advised defendant of her Miranda rights and she agreed to an interview. Defendant told Detective Wolverton that on the date in question, she went into the liquor store to purchase beer. When she came out of the store, she heard Alford making "sexual advances" towards her friend Kiffany. Defendant told Detective Wolverton that she approached Alford and told him not to speak to Kiffany in that manner. Alford then called defendant a "15-cent hoe," and after they began arguing, Alford pulled out a box cutter. Shortly thereafter, Clayton began arguing with Alford. Defendant heard Clayton say to Alford, "you don't know me, I will kill you." Defendant saw Alford walk away and watched Clayton follow him and then hit Alford twice in the head. After being struck by Clayton, Alford fell to the ground. Defendant approached Alford and noticed that he was bleeding from his nose. Defendant stated that she stood over Alford and shook her hands in a nervous motion then walked away. In a subsequent interview, defendant told Detective Wolverton that she kicked Alford several times while he was on the ground to see if he would respond.

Assistant State's Attorney (ASA) James Papa testified that he took a written statement from defendant on September 11, 2000. In that statement, defendant provided a version of events that was substantially similar to the interview with Detective Wolverton. In the written statement, defendant also admitted that after Alford fell to the ground, she kicked him and hit him in the face with her fists.

Following this evidence, the jury was instructed on first degree murder and the lesser offenses of second degree murder and involuntary manslaughter. The jury found defendant guilty of first degree murder and defendant was sentenced to 25 years in prison.

II. ANALYSIS

On appeal, defendant first contends that the trial court's jury instructions regarding first degree murder were contradictory, confusing and improper. Defendant argues that reversal is required in this case because the trial court's improper jury instructions on first degree murder allowed the jury to convict defendant of first degree murder without considering the offense of second degree murder.

Pursuant to section 9-2(a) of the Illinois Criminal Code of 1961 (Code) (720 ILCS 5/9-2(a) (West 2000)), as amended by Public Act 84-1450 (Pub. Act 84-1450,