People v. Fletcher

• Decision Date: 30 December 1993
• Docket Number: No. 5-92-0432,5-92-0432
• Citation: 193 Ill.Dec. 64,625 N.E.2d 1185,255 Ill.App.3d 206
• Parties: , 193 Ill.Dec. 64 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Alonzo D. FLETCHER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1185

625 N.E.2d 1185

255 Ill.App.3d 206, 193 Ill.Dec. 64

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Alonzo D. FLETCHER, Defendant-Appellant.

No. 5-92-0432.

Appellate Court of Illinois Fifth District.

Dec. 30, 1993.

Daniel M. Kirwan, Deputy Defender, Dan W. Evers, Asst. Defender, Office of State Appellate Defender, Fifth Judicial Dist., Mt. Vernon, for defendant-appellant.

John Knight, State's Atty., Greenville, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, Denise M. Ambrose, Sr. Staff Atty., State's Attys. Appellate Prosecutor, Springfield, for plaintiff-appellee.

Justice RARICK delivered the opinion of the court:

Defendant, Alonzo D. Fletcher, was found guilty after a jury trial of attempted first-degree murder and was sentenced by the circuit court of Bond County to 25 years' imprisonment. Defendant appeals claiming he was denied a fair trial as a result of the court's refusal to instruct the jury on the "lesser offense" of attempted second-degree murder. We affirm.

At trial, the evidence revealed that, on the afternoon of June 8, 1991, defendant shot the victim, Dana Wright, in the head. Defendant claimed he did so in self-defense. According to defendant, he and Wright had engaged in drug deals in the past. As a result of such deals, defendant believed Wright owed him $2000. Wright did not agree. Defendant confronted Wright about the money at the house in which Wright was then residing. The two argued for awhile until defendant decided to walk outside and visit with other people who were socializing outside the residence. Defendant later reentered the house. It is at this point that the testimony of the various witnesses differs. Wright testified he stood up, with knife in hand, from the table at which he had been eating and cutting up "coke." He put the knife down on the table and stood about six feet from defendant. According to Wright, defendant pulled out a gun and "next thing you know I heard--I heard a shot, and I--I fell." Wright suffered a bullet wound to the mid-forehead with no exit wound. X rays of Wright's head later revealed bullet fragments throughout the brain at the cerebral mid-line area. Wright denied threatening defendant or making any threatening gestures to defendant.

Defendant, on the other hand, testified that when he went outside after arguing with Wright to visit with the other people present at the residence, he noticed a .22-caliber revolver lying on a box on the porch by the back door. When he decided to go back inside the residence, Wright opened the door while holding the knife he had been using to cut the cocaine. They argued again, and Wright stepped forward, in defendant's eyes, to stab him. Defendant jumped back and grabbed the revolver from the box outside. As Wright continued to come forward, defendant reached over and shot Wright. He then dropped the gun and ran into the woods. Defendant, several months later, surrendered to authorities in New Orleans.

Others present at the scene testified they observed defendant, after arguing with Wright, open the trunk of one of the cars parked outside the residence and obtain what appeared to be a revolver. According to these witnesses, defendant placed the gun in a brown bag after checking the chamber. Another witness testified to observing defendant walk back out of the house after arguing with Wright, reach up on the porch, grab a gun, and shoot back in the house. The jury returned a verdict of guilty of attempted first-degree murder.

Defendant argues he was denied a fair trial because the trial court refused to instruct the jury, at defendant's request, on the lesser offense of attempted second-degree murder based upon the unreasonable belief in the need of self-defense. The court, accepting the State's objection that there is no such offense as attempted second-degree murder, refused to give defendant's instruction. Defendant acknowledges he has failed to properly preserve the issue for review by failing to tender correct instructions on attempted second-degree murder and by failing to file a post-trial motion. (See People v. Enoch (1988), 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 270, 522 N.E.2d 1124, 1129; People v. Dixon (1982), 105 Ill.App.3d 340, 348, 61 Ill.Dec. 216, 223, 434 N.E.2d 369, 376.) Nonetheless, defendant contends the issue should be reviewed under a plain error exception or because of ineffective assistance of counsel. While we agree defendant has waived the issue (see People v. Holmes (1st Dist.1993) 254 Ill.App.3d 271, 279, 193 Ill.Dec. 939, 627 N.E.2d 98), we choose to address the matter anyway. In our opinion, the offense of attempted second-degree murder does not exist.

We recognize there is a split of authority among the appellate courts as to whether the offense of attempted second-degree murder exists under Illinois law. (Compare People v. Cruz (1993), 248 Ill.App.3d 473, 188 Ill.Dec. 21, 618 N.E.2d 591, appeal allowed (Oct. 6, 1993), 152 Ill.2d 566, 190 Ill.Dec. 897, 622 N.E.2d 1214 and People v. Aliwoli (1992), 238 Ill.App.3d 602, 179 Ill.Dec. 515, 606 N.E.2d 347 and People v. Williams (1991), 220 Ill.App.3d 460, 163 Ill.Dec. 162, 581 N.E.2d 113 with People v. Turcios (1992), 228 Ill.App.3d 583, 171 Ill.Dec. 87, 593 N.E.2d 907 and 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.) We believe those cases which hold that no such offense exists are better reasoned, and we therefore choose to follow them.

We too begin our analysis with a comparison of the voluntary manslaughter statute repealed in 1987 (Ill.Rev.Stat.1985, ch. 38, par. 9-2) and the second-degree murder statute enacted in 1987 (Ill.Rev.Stat.1987, ch. 38, par. 9-2). The primary difference between the two is that voluntary manslaughter required the State to prove the mitigating factor beyond a reasonable doubt while second-degree murder requires the defendant to prove the mitigating factor by a preponderance of the evidence. (See People v. Shumpert (1989), 126 Ill.2d 344, 351-52, 128 Ill.Dec. 18, 21, 533 N.E.2d 1106, 1109; Williams, 220 Ill.App.3d at 465, 163 Ill.Dec. at 165, 581 N.E.2d at 116.) Other than the name, the only real change was a shifting of the burden of proof of the mitigating factors from the State to the defendant. (See Aliwoli, 238 Ill.App.3d at 621, 179 Ill.Dec. at 528, 606 N.E.2d at 360.) We believe the statute defining second-degree murder was written with the specific intention of retaining all of the substantive law, both statutory and case law, previously applicable to the statute defining the offense of voluntary manslaughter. People v. Timberson (1991), 213 Ill.App.3d 1037, 1042, 157 Ill.Dec. 956, 959, 573 N.E.2d 374, 377; see also Cruz, 248 Ill.App.3d at 477, 188 Ill.Dec. at 25, 618 N.E.2d at 595. Contra People v. Austin (1991), 215 Ill.App.3d 323, 158 Ill.Dec. 904, 574 N.E.2d...