People v. Cruz

• Decision Date: 11 June 1993
• Docket Number: No. 1-91-0603,1-91-0603
• Citation: 248 Ill.App.3d 473,618 N.E.2d 591
• Parties: , 188 Ill.Dec. 21 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Juan CRUZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 591

618 N.E.2d 591

248 Ill.App.3d 473, 188 Ill.Dec. 21

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Juan CRUZ, Defendant-Appellant.

No. 1-91-0603.

Appellate Court of Illinois First District, Sixth Division.

June 11, 1993.

Rita A. Fry, Public Defender Cook County (Stephanie L. Ellbogen, Asst. Public Defender, of counsel), Chicago, for appellant.

Jack O'Malley, State's Atty. Cook County (Renee Goldfarb, Laura L. Morrison, Rogelio Pena, Asst. State's Attys. of counsel), Chicago, for appellee.

Justice GIANNIS delivered the opinion of the court:

Following jury trial defendant was found guilty of attempt (first degree murder) (Ill.Rev.Stat.1989, ch. 38 par. 8-4 (ch. 38 par. 9-1), armed violence (Ill.Rev.Stat.1989, ch. 38 par. 33A-2 (class I weapon, ch. 56.5 par. 1401(B)(2)), and possession of a controlled substance with intent to deliver (Ill.Rev.Stat.1989, ch. 56.5 par. 1401(B)(2)). The armed violence and possession charges were merged following conviction and defendant was sentenced to a prison term of 30 years on the attempt conviction and a 15-year prison term on the armed violence conviction, both sentences to run concurrently.

The facts of this case may be fairly summarized as follows. At approximately 9:40 p.m. on January 6, 1990, police officers Franco and Harris observed defendant distributing drugs at a Chicago housing project. At the time, the officers were in civilian clothing. As Harris attempted to apprehend defendant, both men "bounced" into one another; defendant ran and was pursued by Franco into a nearby parking lot as Harris followed. When the defendant and Franco were very close to one another, defendant turned and fired one shot into Franco's bullet-proof vest, then a second shot which entered Harris' elbow and struck his abdomen. Harris stopped to check on his partner, then continued the chase of defendant. A second pair of officers officers Bonner and Ford, rendered assistance to Franco.

Defendant ran into a nearby building. Harris followed, but soon lost sight of defendant. Harris met up with officers Feldman, Jackson and Doby and these policemen split up and entered the building. Defendant was ultimately arrested on the 13th floor by officer Doby. A search of defendant revealed several small plastic bags containing cocaine. Defendant took the officers to a stairwell to recover a gun on the 12th floor which was later shown to have been used to shoot Franco.

Defendant testified that on January 6, 1990, at approximately 9 p.m., he was on his way home from his girlfriend's house when he was approached by Mike Stone, a leader of a local street-gang. Stone was accompanied by three others whom defendant referred to as "foot soldiers." According to defendant, he was given a gun as well as cocaine and ordered to work as a "holder." He stated that a holder keeps drugs for the people who actually sell them and that sellers go to the holders to replenish their supply. Defendant testified that he accepted the drugs because he feared getting shot and because Stone had threatened to hurt his family. Stone also told defendant to protect the drugs "at any costs" and that defendant should shoot anyone who attempted to take them.

Defendant testified that as he stood outside that night, he handed out three packages of drugs to Stone's foot soldiers. Later, he noticed two men wearing starter jackets and blue jeans running toward him. Defendant immediately ran. He testified that he glanced back and noticed the person behind him make a motion toward his chest where defendant claims to have seen a gun. Defendant took out his gun and fired a shot as he ran. Defendant was still being pursued when he fired a second shot. Defendant testified that he did not hear anyone say "police" or see that the men chasing him were wearing badges.

At the police station defendant gave a written statement where he indicated that he was selling drugs to make money and had the gun for protection because he did not want his drugs stolen. Defendant further stated that after he sold his drugs he noticed two policemen coming towards him and he started running. As one of the policemen got closer, defendant fired two shots at the officer. Nothing in defendant's statement indicated that he had been forced to hold the drugs or the gun given by Mike Stone or that any gang members had threatened him.

Defendant raises the following issues for review: (1) whether the trial court committed reversible error in refusing a tendered instruction for the crime of attempt (second degree murder); (2) whether defendant was deprived of a fair trial by comments made by the prosecutor during closing argument; and (3) whether the trial court abused its discretion in sentencing defendant to a 30-year prison term.

The defendant first argues that the trial court erred in not tendering instructions to the jury on the crime of attempt (second degree murder). In Illinois, the crime of attempt requires the specific intent to commit an offense. People v. Reagan (1983), 99 Ill.2d 238, 240, 75 Ill.Dec. 701, 457 N.E.2d 1260.

In 1987 the Illinois General Assembly replaced the statutory offense of voluntary manslaughter with the offense of second degree murder. (Ill.Rev.Stat.1987, ch. 38, par. 9-2.) To be convicted of second degree murder, a defendant's action must have been motivated by either: (1) a sudden and intense passion resulting from serious provocation; or (2) an actual but unreasonable belief that the circumstances required the use of deadly force as a means of self-defense. (Ill.Rev.Stat.1989, ch. 38, par. 9-2(a)(1), (a)(2).) Under the former statute the State had the burden of disproving either provocation or unreasonable belief beyond a reasonable doubt. The new statute requires the State to prove the elements of first degree murder beyond a reasonable doubt (that defendant knowingly or intentionally killed without legal justification) and thereafter the defendant has the burden to prove by a preponderance of evidence one of the two mitigating factors.

In the present case, defendant claims that at the time he acted in shooting officer Franco he believed himself to be acting in self-defense, i.e., with lawful justification. The State claims that this belief, if genuine, is inconsistent with any jury instruction on the offense of attempt (second degree murder). As the supreme court stated in Reagan, "The requirement of the attempt statute is not that there be an intent to kill, but that there be an intent to kill without lawful justification. If, as suggested * * *, defendant at the time of the shooting believed the circumstances to be such that if they existed would justify the killing, then there was no intent to commit an offense." Reagan, 99 Ill.2d at 240, 75 Ill.Dec. 701, 457 N.E.2d 1260.

Defendant cites People v. Austin (1991), 215 Ill.App.3d 323, 158 Ill.Dec. 904, 574 N.E.2d 1297 and People v. Moore (1990), 204 Ill.App.3d 694, 149 Ill.Dec. 751, 562 N.E.2d 215, to support his claim that the crime of attempt (second degree murder) exists in Illinois. In Austin, the court concluded that the Reagan decision should not apply to the new offense of second degree murder. "[E]ven the Reagan court acknowledged that there could be such an offense [as attempt (second degree murder) ] but for the fact that our attempt statute requires specific intent and voluntary manslaughter is not a specific intent crime." (Austin, 215 Ill.App.3d at 332, 158 Ill.Dec. 904, 574 N.E.2d 1297.) Both Austin and Moore justified their result by deciding that the second degree murder statute had substantively altered the voluntary manslaughter statute. Under the new statute, according to these decisions, the intent element should be considered unrelated to the mitigating factors of provocation or unreasonable belief. Moore, 204 Ill.App.3d at 698, 149 Ill.Dec. 751, 562 N.E.2d 215; Austin, 215 Ill.App.3d at 332-33, 158 Ill.Dec. 904, 574 N.E.2d 1297. Defendant also notes that the Illinois Supreme Court Committee on Jury Instructions in Criminal Cases has recently promulgated instructions on the offense of attempt (second degree murder). Illinois Pattern Jury Instructions, Criminal, Nos. 6.05Y, 6.05Z (3d ed.1992).

However, the question of whether attempt (second degree murder) is a crime in Illinois was recently addressed by the appellate court in People v. Aliwoli (1992), 238 Ill.App.3d 602, 179 Ill.Dec. 515, 606 N.E.2d 347. After reviewing the relevant cases, academic commentary and legislative history, and after recognizing the various splits in these authorities, the Aliwoli court concluded that the only change affected by Illinois General Assembly's shift from the offense of voluntary manslaughter to the offense of second degree murder "was a shift in the burden of proving the mitigating factors from the State to the defendant." (Aliwoli, 238 Ill.App.3d at 621 & n. 4, 179 Ill.Dec. 515, 606 N.E.2d 347.) Aliwoli relied, therefore, upon the analysis provided the supreme court in Reagan and concluded that "the crime of attempted second degree murder is not a crime in Illinois." (Aliwoli, 238 Ill.App.3d at 623, 179 Ill.Dec. 515, 606 N.E.2d 347.) See also People v. Lopez (1993), 245 Ill.App.3d 41, 185 Ill.Dec. 195, 614 N.E.2d 329 (following Aliwoli).

Because we agree that the legislature has not changed the substance of the former voluntary manslaughter statute in enacting the second degree murder statute, we follow Reagan and conclude that attempt (second degree murder) is not a crime in our State. The trial court's refusal to tender such an instruction is therefore upheld.

Defendant next argues that the prosecution unfairly prejudiced his case by making certain comments during closing arguments. During the initial portion of closing argument, the prosecutor argued the following without objection: "The defendant is charged with attempted murder. When you attempt something, you try something. When you murder someone, you kill someone. Try to...