People v. Austin

• Decision Date: 27 June 1991
• Docket Number: No. 2-89-0616,2-89-0616
• Citation: 215 Ill.App.3d 323,574 N.E.2d 1297
• Parties: , 158 Ill.Dec. 904 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. J.W. AUSTIN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1297

574 N.E.2d 1297

215 Ill.App.3d 323, 158 Ill.Dec. 904

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. J.W. AUSTIN, Defendant-Appellant.

No. 2-89-0616.

Appellate Court of Illinois Second District.

June 27, 1991.

Rehearing Denied July 31, 1991.

G. Joseph Weller, Deputy Defender, Paul J. Glaser, Elgin, Thomas A. Lilien, Asst. Defender, Office of State Appellate Defender, Elgin, Pumilia, Gary Pumilia, Trial Counsel, for J.W. Austin.

Paul A. Logli, Winnebago County State's Atty., Rockford, William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Cynthia N. Schneider, State's Attys. Appellate Prosecutor, Elgin, for the People.

Justice WOODWARD delivered the opinion of the court:

Defendant, J.W. Austin, appeals his convictions of and sentences for two counts of attempted first degree murder (Ill.Rev.Stat.1989, ch. 38, pars. 8-4(a), 9-1(a)(1)). Defendant raises two issues on appeal: whether he was denied the effective assistance of counsel where his attorney failed to seek jury instructions on attempted second degree murder; and whether the concurrent 10-year sentences are excessive.

At the jury trial, Lunetta "Lucy" Powell testified that she lived in the same apartment building as defendant. Lucy had known defendant for over a year prior to the incident. Defendant helped Lucy get a job at the cafeteria at Rockford College in November 1988. Defendant was employed there in food service and in maintenance. In December 1988, or January 1989, defendant loaned Lucy $50 so that she could pay her electric bill. In January, defendant told her to "forget about it" because Lucy had "bought him a half a gallon of booze and * * * gave him five or ten dollars or something[,] and he says [sic ] we'll call it even."

Lucy testified further that on February 2, 1989, she was under the influence of alcohol when she reported for work. At approximately 11 a.m., defendant noticed Lucy was intoxicated and told her that she should not have been working that day and that she ought to go home. Lucy then tried to call someone to get a ride home. Lucy was not certain, but she thought she took the bus home around noon. Lucy did not know what time it was when she got home, but she thought it was before 2 p.m. Delbert Hodges, Lucy's boyfriend, was already at her apartment, which did not have a telephone. The two began drinking beer when she got home. According to Lucy, they resumed drinking at 5 or 6 p.m. and continued to drink until defendant came over.

Lucy believed that it was between 8:30 and 9 that night that defendant arrived at the apartment. Lucy and Hodges were watching television. Lucy admitted defendant into the apartment. According to Lucy, defendant had been drinking, and his speech was slurred and he was staggering. Defendant sat in a chair by the end of the kitchen counter; Hodges was sitting on the couch, and Lucy sat on a table next to the couch. After defendant sat down, he took a gun from behind his back and put it between his legs. Lucy asked what defendant was doing with the gun, but defendant did not answer.

According to Lucy, defendant and she then discussed Lucy's "messing up at work." Hodges did not take part in the conversation. A short while later, Lucy's brother Marvin came over. He sat on the couch next to Hodges. When Marvin entered the apartment, defendant put the gun in the back of his pants. Marvin stayed for only a few minutes.

Lucy testified further that in the meantime defendant continued to discuss Lucy's work performance with her. Defendant was upset about it, and Lucy told him that she should not have come to work after drinking and that she would quit if that made defendant "look bad." Defendant then accused Lucy of having an affair in the store room with a co-worker. Lucy denied that and told defendant that she and the co-worker had gone down to the basement to get food from storage. Defendant then got ready to leave and mentioned the $50 which Lucy owed him. Lucy further testified:

"He says, 'By the way, I want my $50 back.' And I said, 'I thought we were even.' And he says, 'No.' And I says, 'Oh, you change your mind now?' And he says, 'Yeah, you're god damn right.' And then he said, 'Well,' he says, 'Well, I want it tomorrow because I didn't pick up my check Thursday.' And I told him I would pay him some of it tomorrow, you know, and he says he want [sic ] all of it. And I say, 'Well, I don't really owe you the 50 anyway, I only owe you a partial of the 50.' And he says he wanted [it] tomorrow and he don't care if he gets it from me or Delbert. And Delbert--then Delbert says--says, 'Man, how much does she owe you?' And he says, '$50.' Delbert said, 'Don't worry, I'll go to the bank and get it for you tomorrow.' "

Defendant then walked towards the door, stopped and said, " 'Well, I'll tell you guys what, I'm gonna go to jail tonight because somebody's gonna die.' " Defendant pulled the gun out and fired it at Lucy. Lucy tried to move out of the way of the bullet, but it struck her in the back of her upper left thigh. Hodges was still sitting on the couch, and defendant pointed the gun at him and fired. Defendant fired again, yet Hodges was still sitting there, so Lucy told him to get out of the way, and she "hit the floor and * * * crawled in the pantry." Lucy heard shots while she was in the pantry.

According to Lucy, she came out of the pantry and saw defendant and Hodges wrestling. Defendant saw Lucy and pointed the gun at her again. Lucy ducked back into the pantry and heard more shots. She felt like she had to do something, so she came back out. Lucy then saw that defendant was halfway out the door, which Hodges was trying to close. Lucy and Hodges pushed defendant out and closed the door. Lucy helped Hodges to the couch then went to the window and started yelling for help. Subsequently, Lucy noticed that there was a hole in one of her kitchen cabinets. Lucy denied that she or Hodges threatened or approached defendant before he started shooting.

Delbert Hodges testified that he had a rod in one of his legs which prevented him from running or bending his leg. Hodges' testimony was substantially similar to Lucy's regarding the events the night of the shooting. Marvin left the apartment after drinking one beer because Hodges sent him to the liquor store to get some more beer. According to Hodges, defendant stayed about an hour. Defendant said he was going to "kill somebody tonight." Defendant was standing by the counter when Hodges heard Lucy say defendant had a gun. Hodges heard a shot, and then defendant shot Hodges in the groin. Hodges was still sitting down. Hodges got up, not fully aware that he had been shot, and went towards defendant. Defendant kept shooting at Hodges. Hodges then pushed defendant out the door. After he was taken to the hospital, Hodges learned that he had been shot twice in the arm, and once in the wrist, groin area and chest. Hodges stated that he did not have a weapon, nor did he yell at or threaten defendant.

Hodges admitted that he had a "fifth [of wine] and a couple of beers" before noon on February 2, 1989. Hodges thought Lucy came home from work around 10 a.m. Hodges fell asleep for a while, then resumed drinking around 2 p.m. Hodges estimated that between himself and Lucy, they consumed two fifths of wine and a 12-pack of beer by 7 p.m. Hodges thought it was 6 p.m. when defendant came to the apartment and that defendant stayed for nearly two hours. Hodges believed defendant was drunk that night because he was "hollering at Lucy." According to Hodges he was not drunk that night, but he "was feeling pretty good."

Reverend George Poole testified that he was the president of the resident counsel of the building in which defendant and Lucy lived. Shortly before 9 p.m., Reverend Poole was in his office on the main floor of the building when defendant came into the office. Defendant had blood on his jacket, so Poole asked if he had been hunting. Defendant told Poole:

" 'No, Reverend, I want to surrender myself to you. I want to turn myself in. I just shot two people. * * * They're up on the eighth floor.' "

Defendant then laid a gun on the desk and said that "he just didn't like nobody to misuse him." Poole was surprised because he had never known defendant to be violent. Poole immediately called the police. He then took the gun and locked it in a desk drawer. While they were waiting for the police to arrive, defendant gave Poole $310 to give to defendant's girlfriend. According to Poole, there was an odor of alcohol on defendant's breath.

Mark West of the Rockford police department testified that he went to Reverend Poole's office following the shooting. Poole gave him the gun. Defendant told West, " 'I did it. She owed me fifty bucks. Nobody does me wrong.' "

Arlene Powell, Lucy's mother, testified that late in the morning on the day of the shooting she received a call from Lucy. Arlene went to pick up Lucy at work, but she was not there. Arlene spoke with defendant, who told her that Lucy had been drinking, and she needed to go home. Defendant asked for Arlene's telephone number and said he would call her. Defendant also said he would be getting off work at 5 p.m.

Arlene further testified that sometime before 5 o'clock that afternoon, defendant called Arlene. He told her "that he had got off early and he was in Loves Park drinking good whiskey," and he asked if Arlene had found Lucy. Arlene said she had not, and defendant told her he would call back. Defendant also told Arlene that he was mad and he had a bad day. Arlene did not know what time it was when defendant called back. According to Arlene, defendant sounded like he was drunk. He asked if Arlene had found Lucy. When she said no, defendant asked if she checked at Lucy's home and at Deborah's house. Defendant said "he was going to get his gun and go over to Deborah's house and kill up some people." Arlene told defendant she did not want to...