People v. Jeter
| Citation | 186 Ill.Dec. 624,247 Ill.App.3d 120,616 N.E.2d 1256 |
| Decision Date | 14 May 1993 |
| Docket Number | Nos. 1-89-1073,1-89-1238,s. 1-89-1073 |
| Parties | , 186 Ill.Dec. 624 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gerald JETER and Anthony Thomas, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Office of the State Appellate Defender, Chicago (Maria A. Harrigan, Asst. Appellate Defender, and Michael J. Pelletier, Deputy Defender, of counsel), for defendants-appellants.
Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, William D. Carroll, Asst. State's Attys., and Celeste Stewart Stack, Sp. Asst. State's Atty., of counsel), for plaintiff-appellee.
Defendants, Gerald Jeter and Anthony Thomas, were each charged with two counts of murder (Ill.Rev.Stat.1987, ch. 38, pars. 9-1(a)(1), 9-1(a)(2)) in connection with the killing of James Atkins and with two counts of attempt (murder) (Ill.Rev.Stat.1987, ch. 38, par. 8-4) in connection with the respective shootings of Raymond Spain and Darryl Davis. After separate but simultaneous jury trials, defendant Jeter was convicted of the murder of James Atkins and the attempt (murder) of Raymond Spain. Defendant Thomas was convicted of the murder of James Atkins and the attempt (murder) of Raymond Spain and Darryl Davis. The trial court subsequently vacated defendant Jeter's murder conviction and sentenced him to a 30 year penitentiary term on the attempt (murder) conviction. Defendant Thomas was sentenced to consecutive penitentiary terms of 40 years for his murder conviction and 20 year terms for each of his attempt (murder) convictions (a total term of 80 years).
Defendants raise the following issues for review: (1) whether the jury instructions given for attempt (murder) were improper; (2) whether the State proved that defendants had the specific intent required to convict for attempt (murder); (3) whether closing arguments made by the prosecution in defendant Jeter's trial requires reversal; (4) whether the trial court abused its discretion in sentencing defendants by failing to consider rehabilitative potential or by imposing excessive sentences; (5) whether the trial court abused its discretion in sentencing defendant Thomas to consecutive sentences.
The background of this case involves a gang-related shooting which occurred on April 17, 1987. Evidence indicated that defendants, then members of the Black Gangster Disciples, began shooting into a group of eight people as they exited an elevator in the lobby of a Chicago housing project. Three of the victims' group were U.S. military personnel visiting Chicago on a four day leave. One person in the group, an army soldier, died from his injuries; two others were seriously wounded. At the time of the offense, defendant Jeter was 16 years old; defendant Thomas was 15.
Defendants were tried separately but simultaneously to separate juries. The only evidence not heard by both juries was testimony concerning statements given to police.
As part of the State's case against defendant Thomas, police detective Szudarski testified as to a statement given by defendant Thomas shortly after he had been taken into custody. In this statement Thomas related that on the night of the shooting he was with other members of the Black Gangster Disciples street gang at the scene of the shooting. He further stated that he owned a .32 caliber revolver which he was carrying in his pocket. At approximately 12:30 a.m. he saw a group of people enter the building. Included in the group was a man known as "Rink" whom Thomas knew to be a Dell Viking street gang member. After watching Rink enter the elevator, Thomas told other members of his group that if Rink came down and started trouble that Thomas would shoot him. Approximately an hour later, when the victims' group returned to the lobby, Thomas removed his gun from his pocket and, after hearing gunshots, opened fire into the group of people. Detective Szudarski also testified that, after shooting into Rink's group, Thomas admitted going to a nearby building and dropping his gun down a garbage chute. This testimony was corroborated by youth officer Mohrs.
Defendant Thomas testified on his own behalf. He stated that he was at the scene of the shooting that evening because he wanted to go to a party. He denied having a gun and indicated that he had ended his affiliation with the Black Gangster Disciples in 1986. While he admitted making a statement to police, he denied its truthfulness and indicated that he made the statement only because he was scared the police would beat him up.
As part of the State's case against defendant Jeter, youth officer Mohrs testified as to a statement given by Jeter while in custody. According to Mohrs, Jeter admitted that he was a member of the Black Gangster Disciples and that he had met six other members at the scene of the shooting on April 17, 1987. Jeter then told Mohrs that one of the group, Anthony Williams, indicated that he had seen a group of people entering the building and that three of these people were Dell Vikings. Williams then gave Jeter a .32 caliber gun and told him to wait for the group to come back down. Jeter also stated that after the victims' group returned to the first floor and opened fire, he returned two shots, gave the gun back to Williams and ran. Officer Leighton corroborated this testimony. Jeter did not testify on his own behalf. In closing, his attorney admitted that Jeter had been at the scene and had shot twice, but argued self-defense.
Testimony of witnesses established that initial gunshots were fired at the group from inside the building as they walked away from the building elevator. As the group ran from the building, subsequent shots were fired from outside. Testimony indicated that as many as 30 shots were fired during the attack. Two of the victims were shot from behind, a third in the chest. Defendant Thomas was identified by several witnesses as having fired a gun into the group from inside the building.
Defendants first argue that the trial court erroneously instructed the juries that they could find defendants guilty of attempt (murder) without finding that they had the specific intent to kill Darryl Davis and Raymond Spain. The supreme court has held that a finding of specific intent to kill is required for conviction of attempt (murder). People v. Jones (1979), 81 Ill.2d 1, 39 Ill.Dec. 590, 405 N.E.2d 343; People v. Harris (1978), 72 Ill.2d 16, 17 Ill.Dec. 838, 377 N.E.2d 28.
The trial court gave the following instruction for attempt (murder) to the Jeter jury:
After giving this instruction the trial court also instructed the jury:
"To sustain the charge of attempt, the State must prove the following proposition:
First: That the defendant, or one for whose conduct he is legally responsible, performed an act which constituted a substantial step toward the commission of the offense of attempt murder against [Raymond Spain/Darryl Davis]; and
Second: That the defendant, or one for whose conduct he is legally responsible, did so, with intent to commit the offense of murder against [Raymond Spain/Darryl Davis]; and
Third: That the defendant, or one for whose conduct he is legally responsible, was not justified in using the force which he used." (IPI Criminal 2d No. 6.07.)
With regard to the charge of murder, the trial court instructed:
"A person commits the offense of murder when he kills an individual without lawful justification if, in performing the acts which cause death,
he intends to kill or do great bodily harm to that individual or another; or
he knows that such acts will cause death to that individual or another; or
he knows that such acts create a strong probability of death or great bodily harm to that individual or another and the person was not justified in using the force which he used and did not act under an unreasonable belief that circumstances existed which would have justified the killing." (IPI Criminal 2d No. 7.01.)
The trial court instructed the Thomas jury in a similar manner, absent the justification language.
It is well settled that these instructions are erroneous because they do not unambiguously reflect the fact that attempt (murder) requires a specific intent to kill. Instead, when the murder and attempt (murder) instructions are used together, they improperly leave open the possibility that a conviction could be based solely upon a showing that the defendants intended only to do great bodily harm or that defendants acted with mere knowledge that their acts would create a strong probability of death or great bodily harm. Despite the large number of reported cases which discuss this problem, these instructions continue to be used by our trial courts. (See e.g., People v. Jones (1979), 81 Ill.2d 1, 39 Ill.Dec. 590, 405 N.E.2d 343; People v. Harris (1978), 72 Ill.2d 16, 17 Ill.Dec. 838, 377 N.E.2d 28; People v. Trinkle (1977), 68 Ill.2d 198, 12 Ill.Dec. 181, 369 N.E.2d 888; People v. Carvajal (1993), 241 Ill.App.3d 886, 182 Ill.Dec. 105, 609 N.E.2d 408; People v. Mendez (1991), 221 Ill.App.3d 868, 164 Ill.Dec. 321, 582 N.E.2d 1265; People v. Deason (1991), 223 Ill.App.3d 320, 165 Ill.Dec. 395, 584 N.E.2d 829; People v. Velasco (1989), 184 Ill.App.3d 618, 132 Ill.Dec. 781, 540 N.E.2d 521; People v. Fields (1988), 170 Ill.App.3d 1, 120 Ill.Dec. 285, 523 N.E.2d 1196; People v. Page (1987), 163 Ill.App.3d 959, 115 Ill.Dec. 15, 516 N.E.2d 1371; People v. Lincoln (1987), 157 Ill.App.3d 700, 109 Ill.Dec. 958, 510 N.E.2d 1026; People v. Cloyd (1987), 152 Ill.App.3d 50, 105...
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