People v. Lopez

• Decision Date: 31 March 1993
• Docket Number: No. 1-91-0093,1-91-0093
• Citation: 245 Ill.App.3d 41,185 Ill.Dec. 195,614 N.E.2d 329
• Parties: , 185 Ill.Dec. 195 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Denis LOPEZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 329

614 N.E.2d 329

245 Ill.App.3d 41, 185 Ill.Dec. 195

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Denis LOPEZ, Defendant-Appellant.

No. 1-91-0093.

Appellate Court of Illinois,

First District, Third Division.

March 31, 1993.

Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, Barbara Jones, Brian Holmes, of counsel), for plaintiff-appellee.

Rita A. Fry, Public Defender of Cook County, Chicago (Beth I. Solomon, Vicki Rogers, of counsel), for defendant-appellant.

Justice GREIMAN delivered the opinion of the court:

Defendant, Denis Lopez, was convicted of attempted first degree murder and armed violence and was sentenced to 25 years' imprisonment.

On appeal defendant raises three issues as error regarding the instructions to the jury: (1) refusing to give an instruction on the offense of attempted second degree murder; (2) tendering the definitional instruction for murder which defines murder as requiring either a specific intent to kill or to do great bodily harm; and (3) refusing to instruct the jury on the offense of aggravated battery. Defendant also asserts that the 25-year sentence imposed constitutes an abuse of discretion.

We affirm defendant's conviction and sentence.

Defendant admits that on March 22, 1990, he shot Nancy Lopez, his estranged wife, five times but contends that he acted under a sudden and intense passion at the time of the shooting and that he had no intent to kill.

Nancy Lopez and defendant were married for ten years prior the day defendant committed the acts of violence against his wife. At trial, Ms. Lopez testified that for two or three years prior to March 1990, she and defendant were experiencing marital difficulties. In December 1989, Ms. Lopez told defendant that she had been involved in an extramarital affair for the past 1 1/2 years and that the man with whom she was having an affair was the biological father of their son named Denis Lopez, Jr. On February 19, 1990, Ms. Lopez left defendant, went to her mother's house, but returned to him the following day.

During the first week of March 1990, Ms. Lopez informed defendant that she had filed for divorce. On March 14, 1990, while still living with defendant, she awoke to find that defendant had cut the sleeves off her jacket and cut up her waitress uniform. Ms. Lopez then took her two children and moved into her mother's house.

On March 21, 1990, Ms. Lopez called defendant and asked for three items--their checkbook, mortgage payment book, and some gym clothes for their daughter, Christine. Defendant agreed to bring these items to Ms. Lopez the next day at Christine's grade school.

The next morning, March 22, 1990, Ms. Lopez accompanied her daughter to school. Defendant, who was standing across the street from the school, indicated to Ms. Lopez that he had the requested items. Ms. Lopez, together with her daughter, crossed the street, retrieved a bag containing the items, and entered the school.

As Ms. Lopez exited the school building alone, defendant approached her and fired a gun, wounding her in the head, heart, liver, back and abdomen. When the gun jammed, defendant began to bang it on the ground, attempting to unjam it. Two off-duty police officers then intervened and arrested defendant.

Detective Hugh Conwell testified that at the police station, defendant told Assistant State's Attorney George Andrews that after his telephone conversation with Ms. Lopez on the night of March 21, he went for a ride, purchased a gun on the street for $20, smoked some marijuana, drank some beer, and returned home.

Defendant testified that he felt "[v]ery bitter, very hurt" about his wife's affair and he wanted blood tests taken to determine who was the father of Denis Lopez, Jr., but his wife and her paramour would not comply. Defendant stated that his wife moved out for the first time in January 1990 but returned one day later and then moved out again in March. Ms. Lopez told defendant that she had filed for divorce sometime in February and by phone on the night before the incident, March 21.

Defendant testified at trial that he had purchased a gun one week before the incident, not the night of March 21 as reported in the statement he gave on the day of the incident. Defendant carried the fully loaded weapon with him when he left his house to meet Ms. Lopez on March 22. After Ms. Lopez took the bag containing the items she had requested and when Ms. Lopez was leaving their daughter's school, "she gave me a smirk and that just got me angry." Defendant pulled the gun from his jacket pocket, pointed it at his wife, pulled the trigger and continued to fire until the gun jammed. Defendant stated that he was in shock after the first shot but realizes that he caused all of Ms. Lopez's injuries.

The trial court refused defendant's tendered jury instructions on the offenses of attempted second degree murder and aggravated battery. The jury found defendant guilty of attempted first degree murder and armed violence.

At the sentencing hearing, the trial court acknowledged that defendant had a good employment record, supported his family, and had no prior criminal record. However, the trial court found that these mitigating factors were "far outweighed by the aggravating factors presented" and characterized defendant's conduct as "heinous," "grossly reprehensible," and "vile." Defendant was sentenced to 25 years' imprisonment.

Defendant first asserts that the trial court erred in refusing to instruct the jury on the offense of attempted second degree murder but acknowledges that there has been a division among the appellate courts of our State as to whether such offense actually exists.

After the parties in the present case filed their respective briefs, this court specifically held that the offense of attempted second degree murder is not a crime in Illinois. (People v. Aliwoli (1992), 238 Ill.App.3d 602, 179 Ill.Dec. 515, 606 N.E.2d 347.) In our discussion of the issue now presented by defendant, this court in Aliwoli considered the legislative history of the second degree murder statute and numerous primary and secondary authorities, including the same cases and sources cited by the parties. (See People v. Reagan (1983), 99 Ill.2d 238, 75 Ill.Dec. 701, 457 N.E.2d 1260; People v. Williams (1991), 220 Ill.App.3d 460, 163 Ill.Dec. 162, 581 N.E.2d 113; People v. Austin (1991), 215 Ill.App.3d 323, 158 Ill.Dec. 904, 574 N.E.2d 1297; People v. Moore (1990), 204 Ill.App.3d 694, 149 Ill.Dec. 751, 562 N.E.2d 215; Haddad, Second Degree Murder Replaces Voluntary Manslaughter in Illinois: Problems Solved, Problems Created, 19 Loy.U.Chi.L.J. 995 (1988); Steigmann, First and Second Degree Murder in Illinois, 75 Ill.B.J. 494 (1987); O'Neill, An Analysis of Illinois' New Offense of Second Degree Murder, 20 J. Marshall L.Rev. 209 (1986).) Accordingly, we find no error in the trial court's refusal to tender a jury instruction on attempted second degree murder.

Second, defendant contends that the trial court committed reversible error by tendering the definitional instruction for murder to the jury.

The State, conceding the error, asserts that it was harmless because the evidence overwhelmingly established defendant's intent to kill. We agree.

The parties correctly agree that the offense of attempted murder requires the mental state of a specific intent to commit murder. Ill.Rev.Stat.1989, ch. 38, pars. 8-4(a), 9-1(a); People v. Jones (1979), 81 Ill.2d 1, 8, 39 Ill.Dec. 590, 405 N.E.2d 343.

Despite the specific intent requirement, the jury was given the following definition of first degree murder:

"A person commits the offense of first degree murder when he kills an individual if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual or another." (Emphasis added.) Illinois Pattern Jury Instructions, Criminal, No. 7.01A (2d ed. Supp.1989).

In an attempted murder case, an instruction which permits the jury to return a guilty verdict upon evidence that the defendant intended only to cause great bodily harm is improper because nothing less than a criminal intent to kill must be shown to convict for attempted murder. People v. Harris (1978), 72 Ill.2d 16, 27, 17 Ill.Dec. 838, 377 N.E.2d 28.

However, the giving of erroneous instructions does not always justify reversal when the evidence of the defendant's guilt is so clear and convincing that the jury could not reasonably have found him not guilty. (Jones, 81 Ill.2d at 9, 39 Ill.Dec. 590, 405 N.E.2d 343; People v. Cloyd (1987), 152 Ill.App.3d 50, 105 Ill.Dec. 257, 504 N.E.2d 126.) In Jones, the supreme court found that "the intent to commit murder was blatantly evident from the circumstances" where the "victim was shot four times in the head, peppered with buckshot in his back, and had a shotgun pointed at him by the defendant." (Jones, 81 Ill.2d at 10, 39 Ill.Dec. 590, 405 N.E.2d 343.) The court concluded that the error in the jury instructions was harmless because the intent to kill was so evident and because the error was minimized by the giving of an otherwise accurate attempted murder instruction. Jones, 81 Ill.2d at 10, 39 Ill.Dec. 590, 405 N.E.2d 343.

In Cloyd, this court followed the tenets of Jones and found the error in the jury instruction to be harmless because the evidence of the defendant's intent to kill was blatantly clear. (Cloyd, 152 Ill.App.3d at 54-56, 105 Ill.Dec. 257, 504 N.E.2d 126.) Although the defendant in Cloyd testified that he did not intend to kill the victim, the witnesses testified that the defendant held a gun against the victim's head and fired the gun at her four times at close range.

Similarly, in People v. Felder (1992), 224 Ill.App.3d 744, 166 Ill.Dec. 771, 586 N.E.2d 729, the court held that the evidence of the defendant's intent to kill was overwhelming and thus, the erroneous jury instruction on the full definition of murder was harmless.

Even the most...