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People v. Himber, 2020 IL App (1st) 162182 Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. Caption BRIAN HIMBER, Defendant-Appellant. District & No. First District, Second Division No. 1-16-2182 Filed March 17, 2020 Rehearing denied May 14, 2020 Decision Under Appeal from the Circuit Court of Cook County, No. 12-CR-14812; the Review Hon. Gregory Robert Ginex, Judge, presiding. Judgment Affirmed. Counsel on James E. Chadd, Patricia Mysza, and Alison L.S. Shah, of State Appeal Appellate Defender’s Office, of Chicago, for appellant. Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Janet C. Mahoney, and Aline Dias, Assistant State’s Attorneys, of counsel), for the People. JUSTICE PUCINSKI delivered the judgment of the court, with Panel opinion. Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment and opinion. OPINION ¶1 Following a jury trial, defendant was convicted of first degree murder and sentenced to 50 years’ imprisonment. On appeal, defendant challenges his conviction and the sentence imposed thereon, arguing that the circuit court erred in (1) denying his request to provide the jury with an instruction on the lesser-included offense of involuntary manslaughter, (2) allowing prejudicial autopsy photographs of the victim to be published to the jury, (3) precluding him from presenting expert witness testimony, and (4) imposing an excessive sentence. For the reasons explained herein, we affirm the judgment of the circuit court. ¶2 BACKGROUND ¶3 On July 22, 2012, defendant, an Illinois state trooper, shot and killed his girlfriend, Tracy Mays, at a middle school graduation party. After shooting Mays, defendant shot himself. Defendant, however, survived his injuries and was subsequently charged with first degree murder. ¶4 At trial, Dominic Carmignani 1 testified that his parents hosted a party at their residence located at 1090 Nelson Street, in Westchester, Illinois, on July 21, 2012, to celebrate his graduation from middle school. Defendant, who was a “close friend” of his father, Scott, attended the party with his girlfriend, Tracy. Sometime around midnight, Dominic was in his living room talking with Jack Rizzi and Jeff Vitek, two of his friends, when defendant walked into the house. Dominic recalled that defendant was carrying a beer bottle and that he “was walking in a fast pace very angrily.” Tracy was following him. Defendant proceeded to walk through the house and out of the front door, slamming the door and causing a vase to fall as he exited the residence. Dominic went to pick up the vase, and after doing so, he looked out of the front door window. Through the window, he observed Tracy sitting on the front porch with her phone in her hand. Dominic then looked to his left and observed defendant walking down the street in the direction of his parked car. As he was walking, defendant threw the beer bottle that he was holding, and it shattered in a neighbor’s driveway. ¶5 At that point, Dominic walked into the kitchen and informed his father what defendant had done. He then went to speak to his mother, who was in the backyard, before he returned to the front door and resumed looking out the window. Tracy was still sitting on the front porch steps, and defendant was standing in front of her approximately four or five feet away. He also observed his father cleaning up the broken beer bottle glass in their neighbor’s driveway. Dominic testified that he then turned around and began walking back to the living room to rejoin his friends. As he was doing so, he heard four gunshots being fired from the front of his

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house. Dominic immediately walked into the garage, which faced the front of the house. The garage door was open, and he observed his father holding defendant, who was “on the ground bleeding.” Dominic’s father instructed him to call 911, and Dominic immediately screamed for someone inside the house to call 911. When Dominic reentered the house, he saw Tracy lying on the ground in the front hallway. Although she was bleeding from her chest, she was still conscious and yelled, “call 911, I’ve been shot.” Dominic testified that he walked to his bedroom, where he remained until law enforcement personnel and an ambulance arrived. ¶6 On cross-examination, Dominic testified that he had known defendant for several years prior to the shooting and that he was aware that defendant and Tracy’s relationship had some “problems”; however, he admitted that defendant and Tracy had seemed happy together on the evening of his graduation party. Dominic also acknowledged that he had heard defendant and Tracy talking in the front of the house before the shots were fired; however, he was unable to hear exactly what was being said. Finally, he admitted that he did not see the shooting itself. ¶7 Jeffrey Vitek, a neighbor of the Carmignani family and a friend of Dominic’s, testified that he attended the graduation party with several other friends. He arrived around 8 p.m. and socialized, played basketball, and ate. Around midnight, he was sitting in the house talking to several of his friends when he observed defendant, whom he had never met prior to that night, enter the house from the backyard and walk through the house toward the front door. Defendant “looked very angry” and said: “I’m going to kill that b***.” Vitek stood up and peered down the hallway and observed defendant slam the front door, which caused “something” to fall off the side table located near the door. Vitek then went into the garage to see what defendant was doing because he was “being nosey.” When he looked out of the open garage door, he observed defendant exit a parked truck and begin walking toward the front porch, where Tracy was sitting. He recalled that defendant began “screaming at her very loud and she was just standing there, listening, and seemed very upset.” Vitek could not make out the words being said and went back inside the house. Shortly thereafter, he heard three or four gunshots. When he looked toward the front door, he saw Tracy stumble into the house and heard her say, “call 911, call 911, I got shot.” Vitek testified that he began “freaking out” and hid behind the kitchen counter with Dominic’s little brother, who was crying. At some point, an adult instructed the kids to go to the basement, and Vitek and the other kids relocated to the basement until police officers arrived. Vitek provided a statement to law enforcement officers that evening as well as a written statement thereafter. He also viewed a photo array at the Westchester Police Department. Defendant’s picture was included in the array, and Vitek identified him as the man he observed standing in the front of the Carmignani house prior to the shooting. ¶8 Jack Rizzi, Dominic’s “best friend[ ],” also attended the graduation party. During the party, the “kids were in the front just playing basketball and [the] parents were mostly in the back, just talking.” Around midnight he was inside the house talking with Vitek when he observed defendant, who “looked pretty angry,” enter the house. Defendant was “walking pretty fast” and “kind of bumped into” him as he made his way to the front door. Defendant was holding a bottle of beer and said, “I’m going to kill this fu*** b***.” Rizzi testified that he “just kind of brushed it off” and “didn’t really think much of” defendant’s statement. Rizzi testified that, after grabbing food or a drink, he walked toward the front of the house where Dominic was standing by the front door. Dominic told him “don’t go out in front,” so Rizzi returned to the back of the house. He then heard three gunshots. Rizzi did not know where the shots were coming from and began trying to find a hiding place. When he “peeked” down the front

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hallway, he saw Tracy. She had been shot in the neck and was bleeding. Rizzi and the other kids then went down to the basement until police officers arrived. Rizzi testified that he spoke to one of the officers and reported what he had seen. Later, he went to the Westchester Police Department with his mother, where he viewed a photo array that contained six pictures. Defendant’s picture was included in that array, and Rizzi identified him as the man he had seen at the party who had walked through the Carmignanis’ house and out the front door shortly before the shooting. ¶9 Scott Carmignani, Dominic’s father, testified that “all of [his] closest friends” attended the graduation party that he and his wife hosted on July 21, 2012, including defendant, who attended the party with his girlfriend, Tracy. Scott had known defendant for “roughly five years” and considered him to be a “best friend, son-type to [him].” Defendant was also “very close” to Scott’s two sons, especially his eldest son, Dominic. ¶ 10 Defendant and Tracy arrived at his son’s party between 5:30 and 6 p.m. The adults, including defendant and Tracy, spent most of the party socializing in the backyard while the kids were “hanging out in the garage listening to music [and] playing basketball.” At approximately 11:36 p.m., several Westchester police officers arrived at his house in response to a noise complaint. Scott and his wife spoke to the officers and lowered the music. At that point, “the party was pretty much over,” as many of the guests began leaving. Some guests remained at the party after the noise complaint, however, including defendant and Tracy. Sometime around midnight, Dominic approached Scott in the backyard and told him that defendant was “very mad” and had broken a beer bottle in front of their neighbor’s house. In response, Scott grabbed a garbage can and broom from the garage and went to clean the broken glass. As he was sweeping, Scott noticed Tracy sitting on his front porch and defendant standing in the middle of his front yard. Defendant and Tracy were talking, but he did not hear exactly what they were saying. Defendant then “began raising his voice and getting kind of loud.” Scott approached defendant, who had begun walking away from Tracy. Scott told defendant that his kids “loved him and they didn’t need to see him as worked up as he was, and he didn’t need to be acting the way he was.” Defendant, in turn, responded: “f*** this, f*** her. I can’t take this anymore, and I’m done with this.” Scott assumed that defendant was talking about Tracy. Defendant then walked away from him. ¶ 11 After defendant walked away from the house, Scott approached Tracy, who remained sitting on the front porch. He “could tell she was emotionally upset.” Scott recalled that she was holding her cell phone in her hand and was “slouched over and very quiet.” At that point, defendant walked up beside him. Scott turned his head to the left and saw defendant raise his right arm. Scott then heard “three shots one right after another.” After the third shot, Scott realized that defendant was shooting a gun. Scott “assumed [defendant] was shooting above Tracy’s head for whatever reason.” He screamed at defendant asking him “what the f*** [he] was doing.” Defendant began to walk away but turned around quickly and shot at Tracy one more time. Defendant again began to walk away but turned around, looked at Scott, and then “shot himself underneath the chin.” Defendant remained upright for “maybe like a second” before he fell to the ground and began bleeding from underneath his chin. Scott immediately ran over to defendant and jumped on top of him. Scott held defendant’s head in an effort to slow the blood flow until the police and paramedics arrived. Scott talked to police several times after the incident.

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¶ 12 On cross-examination, Scott admitted that he and defendant had been drinking at the party. Scott estimated that he consumed four or five vodka cranberry drinks during the course of the evening but denied that he was “drunk” when the shooting occurred. He admitted, however, that in his grand jury testimony he stated that he might have been “slightly drunk” when he talked to detectives shortly after the shooting. Although Scott categorized defendant as “a heavy drinker,” it did not appear to Scott that defendant was “drunk” at the party. He admitted, however, that he was only with defendant “sporadic[ally]” during the party because he had other guests to attend to. As a result, Scott did not know how much alcohol defendant consumed that night. He admitted, however, that defendant had a beer in his hand every time that he talked to him that evening. Scott also admitted that he never sought to help Tracy after defendant shot at her because he “didn’t know she got hit.” Scott explained that he thought defendant “shot into [his] front door to scare Tracy, and then shot himself” and that he did not realize that Tracy had actually been shot until later. ¶ 13 Renato Ricchio testified that he and his family attended Dominic’s middle school graduation party. They arrived at the party around 7 p.m. His son, Francesco, and Dominic were “very good friends,” and Ricchio and his wife were friendly with Dominic’s parents. Defendant also attended the party with his girlfriend, Tracy. Ricchio had met defendant approximately three years before at another social gathering at the Carmignanis’ residence. After their initial meeting, Ricchio socialized with defendant on about six or seven other occasions at events hosted by the Carmignanis. Ricchio testified that he interacted with both defendant and Tracy at Dominic’s graduation party. ¶ 14 Sometime around 11 p.m., Ricchio noticed that defendant “looked upset.” Approximately one hour later, Ricchio was with his family in the backyard preparing to leave the party when he “heard several gunshots that came from the front of the house.” A few seconds later, several kids ran into the backyard and began yelling that “somebody had been shot.” Ricchio ran into the house and through a hallway to the front of the house and observed Tracy lying on the ground. It appeared that she had been shot in her neck. Chuck Parrilli, another party guest, was tending to her and instructed Ricchio to call 911. Ricchio used his cell phone to place the call. While he was on the phone, Ricchio heard screams “coming from the garage.” When Ricchio entered the garage, he saw Scott and defendant lying on the ground in the driveway. Defendant “was bleeding profusely from his face. And Scott had his hand on him and [was] just holding” defendant. ¶ 15 Shortly thereafter, Ricchio observed a police car driving down the street. Ricchio began walking down the driveway intending to speak with the officers to provide them with information. As he was passing Scott and defendant, he noticed a gun on the ground. The gun was located approximately 5 to 6 feet away from defendant. Ricchio directed the officers to the gun and returned to the house to check on Tracy. She “had not moved” and was still lying in the “same position” in the front hallway. Paramedics arrived approximately one minute later.

¶ 16 Westchester police officer Kevin Tierney testified that he was dispatched to the Carmignani residence in the early morning hours of July 22, 2012, in response to “a report of shots fired with two people possibly shot.” He “responded lights and siren and arrived on scene with a few [other] officers.” When he arrived at the scene, Officer Tierney observed another officer “approach what appeared to be a victim lying inside the house.” The victim was a woman, and she “appeared to be lying on her back.” He then observed two men lying on the

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ground of the driveway. One of the men was bleeding and was lying on his back, and the other man was lying on top of him. Officer Tierney also observed a small black handgun on the ground “at the feet of the male that was bleeding.” For safety purposes, Officer Tierney retrieved the gun from the ground and checked it to see whether or not there were any bullets remaining in the magazine or the chamber. He described the gun as a Ruger LCP .38 and testified that he “found that the magazine inside was empty, but there was still one round left in the chamber.” Officer Tierney secured the weapon in a container located in the trunk of his squad car. When he returned to the police station, Officer Tierney inventoried the gun, magazine, and the unfired bullet in accordance with police protocol. ¶ 17 Commander Jack Bridson of the Bellwood Police Department and a member of the West Suburb Major Crimes Task Force (WESTAF) testified he was called upon to assist the Westchester Police Department investigate the shooting that occurred at the Carmignani residence on July 22, 2012. Commander Bridson was the designated “operations supervisor” whose “primary responsibility [wa]s to oversee the whole [investigative] team.” When he arrived at the scene at approximately 3:30 a.m., it had already been “taped off” and secured. He then approached the front of the residence to “walk the scene.” As he did so, he observed a spent bullet casing in the driveway. The driveway also contained a pillow with a red stain on it, a black T-shirt, sandals, and keys. He also observed four spent shell casings on the walkway leading to the front porch of the residence and another located near the mat by the front door. Red stains were visible on the concrete leading into the doorway and into the residence. The concrete also appeared to contain some marks “that appeared to be consistent with what we would call a bullet strike or a projectile strike on the porch.” When Commander Bridson proceeded into the residence, he discovered “noticeable bloodstains” on the floor and wall of the foyer. After walking the scene, he assigned Detective Zachary Sienkiewicz, another member of his WESTAF team, to recover the bullet casings and other items of evidentiary value from the scene. Those items were then turned over to the Westchester Police Department. ¶ 18 Caryn Tucker, a forensic scientist with the Illinois State Police Division of Forensic Services and a specialist in the field of firearm and tool mark identification, received the firearms evidence collected in the case. That evidence included a semiautomatic firearm, six fired cartridge casings, two fired bullets, and several bullet fragments. After conducting tests, she confirmed that the firearm was “fully operational” with no irregularities and that the cartridge casings, bullets, and bullet fragments had been fired from the firearm. She further testified that, based on her examination of the firearm’s trigger pull, seven pounds of pressure would need to be applied to discharge the weapon. Tucker explained that, because the firearm at issue was a semiautomatic rather than an automatic weapon, seven pounds of pressure would need to be applied each time to pull the trigger and discharge a bullet. ¶ 19 Dr. Adrienne Segovia, an assistant medical examiner with the Cook County Medical Examiner’s Office and an expert in the field of forensic pathology, conducted Tracy’s autopsy, which involved an internal and external examination of Tracy’s body. The external examination revealed three “gunshot wounds of entrance” located on the left side of her body. Those wounds were found on her neck, “posterior left shoulder,” and her “left, upper, outer arm.” During her internal examination of the body, Dr. Segovia recovered three bullets. She recovered one bullet from the lower portion of Tracy’s left lung, another in the right chest cavity, and the third from Tracy’s left shoulder blade. The bullets caused multiple internal injuries, including a tear to the left basilic vein in her left upper arm, a fracture to the left

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shoulder blade, and injuries to the lower portions of both lungs. Although Dr. Segovia did not assign specific trajectories to each of the bullets, she could confirm “with certainty” that the bullets recovered from Tracy’s torso were “recovered from points lower than the entrances.” Dr. Segovia concluded that Tracy’s death was caused by multiple gunshot wounds and classified the manner of her death as a homicide. ¶ 20 Following Dr. Segovia’s testimony, the State rested its case-in-chief, and defense counsel moved for a directed verdict, but the motion was denied. Thereafter, defendant elected to take the stand and testify on his own behalf. ¶ 21 Defendant testified that he and Tracy had been romantically involved for “[o]ver three years” and that he loved her and “wanted to marry her.” He characterized their relationship as “happy.” He and Tracy spent the day together before arriving at Dominic’s graduation party at approximately 5:30 or 6 p.m. At the party, defendant and Tracy spent time socializing with other guests in the backyard, and defendant started drinking a Corona Lite. He also ate some food, including a “little bit of pasta,” a “beef sandwich with giardiniera,” and a “piece of cold chicken.” Sometime thereafter, defendant began feeling sick. He “broke out into a sweat,” “started to get a headache,” and had “extreme” diarrhea. Defendant spent about 5 to 10 minutes in the bathroom before he rejoined the other guests at the party. He began drinking again and estimated that he “probably” consumed 12 beers that evening. ¶ 22 Around 9 p.m., defendant again felt sick. He was sweating and had a headache, a bad toothache, and another bout of diarrhea. Although he had intended to leave the party around 9 p.m. to go to a bar to watch a televised UFC fight, defendant remained at the party because Tracy was dancing and having a good time. Defendant stood off to the side by the fence because he still “wasn’t feeling very well” when Tracy approached him with “a couple shots” of alcohol. Defendant believed that he consumed both shots. Tracy then went into the Carmignani residence to use the bathroom. Defendant noticed that she had left her cell phone on a table so he went to retrieve it. When he looked at the phone, he saw that she had received a Facebook message that said “too bad you are out with your boyfriend right now. I can’t even get to second base with you.” Defendant showed Tracy the message on her phone. He was not angry about the message and joked that her Facebook friend should come pick them up since they were both too intoxicated to drive. Defendant testified that he and Tracy laughed at his joke and rejoined the other guests, including his good friend, Scott, 2 who was drunk. After Scott mentioned needing more ice and cigars, defendant recalled that he walked to his car that he had parked down the street. When he did so, he remembered “dropping a bottle.” Defendant then relocated his car closer to Scott’s house and rejoined the party. ¶ 23 When he rejoined the party, defendant did not see Tracy in the backyard so he went in the house to look for her. Scott was in the house and began yelling at him about the broken beer bottle. Defendant remembered that he again returned to his vehicle, but that was the last thing he remembered doing that night. He did recall hearing sirens and feeling Scott lying on top of him sometime later that night. The next thing he knew, he woke up in the hospital. When he woke up, he did not know that Tracy was dead or how he had sustained his own injuries. Although defendant knows that his “secondary weapon” was used to kill Tracy, he denied knowing how Tracy was killed. He also denied that he ever intended to harm her. Defendant admitted that he was drunk at the graduation party.

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¶ 24 On cross-examination, defendant acknowledged that he had undergone firearms training during his tenure as an Illinois state trooper. As part of that training, he was instructed that it was not appropriate to “shoot to scare”; rather, he was trained to shoot to end a threat by firing at the threat’s “center mass” or torso. Defendant further testified that, as a state trooper, he was required to demonstrate his proficiency with his police-issued firearm twice per year. He also had to demonstrate his proficiency to shoot his police-issued shotgun, rifle, and off-duty firearm once each year. Defendant denied that he was ever informed that it was improper to carry his off-duty firearm if he was intoxicated and admitted that he had carried his off-duty firearm in his pants pocket during the graduation party, where he consumed alcohol. ¶ 25 Following defendant’s testimony, the defense rested without calling any additional witnesses, and the parties delivered closing arguments. The jury was then provided with a series of instructions. Although defense counsel requested that the jury receive an instruction on the lesser-included offense of involuntary manslaughter, the court denied the requested instruction. The jury then commenced deliberations and returned with a verdict finding defendant guilty of the offense of first degree murder. Moreover, the jury specifically found that, during the commission of the murder, defendant had personally discharged the firearm that proximately caused Tracy’s death. The cause then proceeded to a sentencing hearing, where the court was presented with aggravating and mitigating evidence. After considering the evidence, the court sentenced defendant to 25 years’ imprisonment for murder. Moreover, based on the jury’s finding that defendant personally discharged the firearm that proximately caused Tracy’s death, the court imposed an additional mandatory 25-year enhancement, for a total sentence of 50 years’ imprisonment. Defendant’s posttrial and postsentencing motions were denied. This appeal followed.

¶ 26 ANALYSIS ¶ 27 Jury Instructions ¶ 28 On appeal, defendant first argues that the circuit court denied him a fair trial when it refused to instruct the jury on the lesser-included offense of involuntary manslaughter even though there was “some evidence” that he acted recklessly, which supported giving the instruction. He argues that the court improperly engaged in fact finding and dismissed evidence to support the denial of his requested instruction. ¶ 29 The State, in turn, responds that the court properly denied defendant’s request to provide the jury with an instruction pertaining to the offense of involuntary manslaughter because there was no evidence to support giving the instruction; rather, there was “overwhelming evidence that defendant acted intentionally and knowingly” when he shot and killed Tracy. ¶ 30 “The purpose of an instruction on a lesser offense is to provide ‘an important third option to a jury which, believing that the defendant is guilty of something but uncertain whether the charged offense has been proved, might otherwise convict rather than acquit the defendant of the greater offense.’ ” People v. Hamilton, 179 Ill. 2d 319, 323-24 (1997) (quoting People v. Bryant, 113 Ill. 2d 497, 502 (1986)). As a general rule, a criminal defendant is entitled to an instruction on a lesser-included offense where there is “some evidence in the record that, if believed by the jury, will reduce the crime charged to a lesser offense.” (Emphasis in original.) People v. McDonald, 2016 IL 118882, ¶ 25. The evidence need not be credible, and “[i]t is not the province of the trial court to weigh the evidence” and assess its credibility when deciding whether a lesser-included offense jury instruction is warranted. Id. A trial court’s determination

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that insufficient evidence exists to support the giving of a lesser-included offense jury instruction will not be disturbed absent an abuse of discretion. People v. Eubanks, 2019 IL 123525, ¶ 72; McDonald, 2016 IL 118882, ¶ 42. An abuse of discretion will only be found where the court’s decision is arbitrary, fanciful, or unreasonable such that no reasonable person would agree with the court’s conclusion. People v. Rivera, 2013 IL 112467, ¶ 37. ¶ 31 The difference between first degree murder and the lesser-included offense of involuntary manslaughter is the defendant’s mental state that accompanies his conduct at the time of the killing. Eubanks, 2019 IL 123525, ¶ 74; People v. DiVincenzo, 183 Ill. 2d 239, 249 (1998), abrogated on other grounds by McDonald, 2016 IL 118882. Specifically, “[i]nvoluntary manslaughter requires a less culpable mental state than first degree murder.” DiVincenzo, 183 Ill. 2d at 249. A person commits the offense of first degree murder when he kills another individual without lawful justification and by performing actions through which he either intended to kill or inflict great bodily harm on his victim or knew that created a strong probability of death or great bodily harm to that individual. 720 ILCS 5/9-1(a)(1), (2) (West 2012). In contrast, a person commits the offense of involuntary manslaughter where he unintentionally kills another individual by performing acts that are likely to result in death or great bodily harm of that person and he performs those actions recklessly. Id. § 9-3(a). Pursuant to statute, “[a] person is reckless or acts recklessly when [he] consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense, and that disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” Id. § 4- 6. Although not dispositive, courts called upon to determine whether a defendant acted recklessly and whether an involuntary manslaughter instruction is warranted consider various factors, including (1) the existence of a disparity in size and strength of the defendant and the victim; (2) the duration of the altercation and the severity of the victim’s injuries; (3) whether the defendant employed the use of a weapon, such as a knife or a gun, to inflict the victim’s injuries; (4) whether the victim sustained multiple wounds and injuries; and (5) whether the victim was defenseless. McDonald, 2016 IL 118882, ¶ 52. Ultimately, whether an involuntary manslaughter instruction is justified depends upon the unique facts and circumstances of each case. DiVincenzo, 183 Ill. 2d at 251. As a general rule, however, “an involuntary manslaughter instruction is generally not warranted where the nature of the killing, shown by either multiple wounds or the victim’s defenselessness, shows that defendant did not act recklessly.” Id. ¶ 32 In this case, defendant submits that Scott’s trial testimony provided the requisite evidentiary support to justify an involuntary manslaughter instruction. At trial, Scott testified that he was facing Tracy, who was sitting on his front porch, when defendant walked up beside him. When Scott turned his head, he noticed that defendant had raised his right arm. Scott then recalled hearingmultiple gunshots. He testified that he “assumed” that defendant “was shooting above Tracy’s head for whatever reason” and that he did not realize that defendant had actually shot her until after police and medical personnel arrived at the scene. ¶ 33 Upon review, we disagree that Scott’s testimony provided the evidence necessary to warrant an involuntary manslaughter instruction. Put simply, Scott’s testimony about defendant’s mental state and intent at the time of the shooting was, by his own admission, based on assumption and speculation, not evidence. Illinois law is clear that “[a]dmissible

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testimony is limited to matters of which the witness has personal knowledge through his own senses ” (People v. French, 2017 IL App (1st) 141815, ¶ 68 (citing People v. Enis, 139 Ill. 2d 264, 294-95 (1990))) and that “a witness may only testify to facts within his own personal knowledge and recollection, and may not draw inferences and conclusions” (emphasis added) (People v. Hobley, 159 Ill. 2d 272, 310 (1994)). As such, Illinois courts have routinely rejected reliance on assumptions and speculation. See, e.g., People v. Smith, 141 Ill. 2d 40, 57 (1990) (recognizing that, although it is entirely proper for the State to prove a defendant’s motive to commit a crime, it is insufficient for the State to “produce evidence of motive in the abstract,” i.e., speculative evidence, to establish a defendant’s criminal motivation); People v. Day, 2011 IL App (2d) 091358, ¶ 41 (stating that a defendant’s intent cannot be proven by conjecture or speculation); People v. Patel, 2013 IL App (4th) 121111, ¶ 66 (finding that the State failed to prove the defendant’s guilt beyond a reasonable doubt when its case relied on assumptions made by an investigating officer). ¶ 34 We reiterate that Scott testified that he was standing in front of Tracy when defendant came up behind him to the side of his left shoulder. Scott then looked to his left and behind him and saw defendant’s face. He then observed defendant raise his right shoulder and arm. Scott heard three shots and only then realized that defendant was shooting a gun and screamed, “what the f*** are you doing?” ¶ 35 Scott did not testify that he observed defendant holding, aiming, or actually discharging the gun. Moreover, he did not observe the angle of the weapon relative to Tracy as she sat on the porch steps; rather, Scott’s only testimony in this regard was that he “assumed [defendant] was shooting above Tracy’s head for whatever reason.” This assumption is not based on any of his personal observations and is not supported by the evidence contained in the record. Furthermore, on cross-examination, when asked whether he had “indicated” on direct examination that defendant had been “shooting above [Tracy’s] head,” Scott’s reply was “[i]n my head, that’s what I thought.” Later in the cross-examination, Scott added the factually baseless conclusion that, after hearing the gunshots and then witnessing defendant shoot himself in the chin, he only “thought [defendant] shot into [the] front door to scare Tracy and then shot himself.” ¶ 36 Scott’s assumptions and thought process did not satisfy the requisite evidentiary threshold necessary to justify a jury instruction on the lesser-included offense of involuntary manslaughter in this case. The circuit court’s review of Scott’s testimony in this regard was accurate, inasmuch as his assumptions were quintessentially speculative. ^[3] ¶ 37 Indeed, the actual evidence that is contained in the record about defendant’s conduct does not substantiate his claim that he acted recklessly, such that he was entitled to an involuntary manslaughter instruction. Notably, shortly before the shooting, Dominic, Jeffrey Vitek, and Jack Rizzi observed defendant walking through the Carmignani residence in a manner the