People v. Moore

• Citation: 832 N.E.2d 431
• Decision Date: 30 June 2005
• Docket Number: No. 1-03-2436.,1-03-2436.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tyrone MOORE, Defendant-Appellant.
• Court: Supreme Court of Illinois

832 N.E.2d 431

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tyrone MOORE, Defendant-Appellant.

No. 1-03-2436.

Appellate Court of Illinois, First District, Fourth Division.

June 30, 2005.

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Michael J. Pelletier, State Appellate Defender, Paul Rathburn, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney, Renee Goldfarb, Alan J. Spellberg, Rafi Jafri, Assistant State's Attorneys, Chicago, for Appellee.

Justice THEIS delivered the opinion of the court:

Following a jury trial, defendant, Tyrone Moore, was convicted of aggravated battery with a firearm and possession of cannabis, and sentenced to concurrent terms of imprisonment of nine years and five years, respectively. On appeal, defendant contends that: (1) he was not proven guilty of aggravated battery with a firearm beyond a reasonable doubt because the State failed to prove that he acted with the requisite mens rea; (2) he was denied his sixth amendment right to effective assistance of counsel because his trial attorney failed to request that the jury be instructed on the lesser included offense of reckless discharge of a firearm; and (3) the State committed misconduct by making improper comments in opening statement and closing argument which inflamed the passions of the jury, misstated the evidence, and misstated the law. We affirm.

Defendant was charged with attempt to commit first degree murder (720 ILCS 5/8-4(a) (West 2004); 720 ILCS 5/9-1(a) (West 2004)), aggravated battery with a firearm (720 ILCS 5/12-4.2(a) (West 2004)), aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2004)), and aggravated battery (720 ILCS 5/12-4(a) (West 2004)) in connection with the shooting of Addie Lee on December 5, 2001. Defendant was also charged with possession of a cannabis with intent to deliver (720 ILCS 550/5(e) (West 2004)) and possession of cannabis (720 ILCS 550/4(e) (West 2004)) based on a related incident. In this appeal, defendant challenges the evidence to sustain his conviction of aggravated battery with a firearm, but does not challenge his conviction of possession of cannabis.

The following evidence was adduced at defendant's trial. Lee testified that during the early morning hours of December 5, 2001, she was entertaining a few friends at her house in Blue Island, Illinois. Defendant, with whom Lee had a two-year-old daughter, stopped by Lee's house while Lee's friends were visiting. When defendant saw that one of the visitors was Lee's ex-boyfriend, he became upset and left.

Sometime later, defendant returned. At that time, only Lee's friend Shawn remained at her house. Raising his voice, defendant directed Lee to tell Shawn to leave, and Lee complied. Defendant then snatched the telephone that Lee was holding and threw it to the floor, causing it to break. Defendant and Lee "had a few words," culminating in defendant drawing a loaded, cocked handgun and pointing it at Lee. Lee, who was seated on the couch, grabbed a pillow to shield her face as defendant stood over her with the gun. The next thing Lee remembered was being shot in the face.

On cross-examination, Lee admitted that she then told defendant to leave before the police arrived because she "really didn't want him to get in trouble." She also admitted that she did not see whether defendant pulled the trigger because she had the pillow over her face.

Blue Island police responded to Lee's home. Based on information from Lee, they located defendant later that afternoon at the Best Motel in Chicago. When defendant answered the door, the smell of burning cannabis emanated from his room. Defendant admitted that he and a female friend had been smoking marijuana and informed the police that he had more marijuana in the bathroom. Police subsequently located a plastic bag containing 567 grams of cannabis inside the toilet tank.¹

Following his arrest, defendant spoke with Detective John McSweeney and Assistant State's Attorney (ASA) Shawn Concannon at the police station.² ASA Concannon reduced defendant's statement to writing. In that statement, defendant related substantially the same chronology of the events culminating in the shooting. Defendant added that he and Lee were in a relationship at that time and that he became upset when he arrived at Lee's house and three men were there. As a result, he went home, got his loaded .38 caliber revolver, and returned to Lee's home to find out what was going on. After arguing with Lee for a short time, defendant drew his gun to scare her. The gun was cocked. When Lee saw the gun she slid off of the couch onto the floor and shielded her face with a pillow. Defendant stood over Lee, holding the gun by the butt and pointing it at her. The gun then "went off" once, striking Lee in the face.

The jury ultimately found defendant not guilty of attempt to commit first degree murder, guilty of aggravated battery with a firearm, and guilty of possession of cannabis. The court subsequently sentenced defendant to concurrent terms of imprisonment of nine years and five years, on the aggravated battery with a firearm and possession counts, respectively.

In this appeal from that judgment, defendant first contends that the State failed to prove him guilty of aggravated battery with a firearm beyond a reasonable doubt because it failed to prove that he acted with the requisite mens rea. Defendant specifically claims that the evidence established that he acted with a reckless state of mind, rather than with knowledge or intent, as a conviction for aggravated battery with a firearm would require. Therefore, he maintains that we should reduce his conviction to reckless discharge of a firearm (720 ILCS 5/24-1.5 (West 2004)), which he claims is a lesser included offense.

Where a defendant challenges the sufficiency of the evidence to sustain his conviction, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Campbell, 146 Ill.2d 363, 374, 166 Ill.Dec. 932, 586 N.E.2d 1261, 1265-66 (1992). The reasonable inferences to be drawn from the evidence are the responsibility of the trier of fact; therefore, a conviction will not be set aside unless the evidence is so improbable or unsatisfactory that there remains a reasonable doubt of defendant's guilt. Campbell, 146 Ill.2d at 374, 166 Ill.Dec. 932, 586 N.E.2d at 1266.

In order to sustain a charge of aggravated battery with a firearm, the State was required to prove that defendant "knowingly or intentionally by means of the discharging of a firearm" caused injury to another person. 720 ILCS 5/12-4.2(a) (West 2004). A person acts knowingly if he is consciously aware that his conduct is practically certain to cause injury. 720 ILCS 5/4-5 (West 2004); People v. Vazquez, 315 Ill.App.3d 1131, 1133, 248 Ill.Dec. 732, 734 N.E.2d 1023, 1026 (2000). In contrast, a person acts recklessly if he consciously disregards a substantial and unjustifiable risk that the victim would be harmed. 720 ILCS 5/4-6 (West 2004). Determination of defendant's mental state may be inferred from circumstantial evidence, and this task is particularly suited to the jury. People v. DiVincenzo, 183 Ill.2d 239, 252, 233 Ill.Dec. 273, 700 N.E.2d 981, 988 (1998).

Here, viewed in the light most favorable to the State, the evidence adduced at defendant's trial established that defendant was angry that other men were at Lee's house during the early morning hours. Thus, defendant went home, retrieved a loaded revolver, and returned to Lee's house to find out what was going on. Still angry, defendant incited an argument with Lee, then drew his cocked, loaded gun and pointed it at her face to scare her. The gun then "went off," shooting Lee in the face.

Based on this evidence, we find that the jury could have rationally inferred that defendant fired the gun at Lee. See Vazquez, 315 Ill.App.3d at 1134, 248 Ill.Dec. 732, 734 N.E.2d at 1026. Although defendant indicated in his statement to ASA Concannon that he had his hand on the butt of the gun and that the gun apparently "went off" on its own, the jury was free to find that statement self-serving and incredible based on the circumstances. See, e.g., People v. Gilliam, 172 Ill.2d 484, 515-16, 218 Ill.Dec. 884, 670 N.E.2d 606, 620-21 (1996) (observing that although the function of the jury is to draw inferences based on the evidence, it is not required to accept any possible explanation compatible with defendant's innocence and elevate it to the status of a reasonable doubt).

In reaching this conclusion, we find defendant's reliance on People v. Hoover, 250 Ill.App.3d 338, 189 Ill.Dec. 835, 620 N.E.2d 1152 (1993), People v. Franklin, 189 Ill.App.3d 425, 136 Ill.Dec. 822, 545 N.E.2d 346 (1989), and People v. Andersch, 107 Ill.App.3d 810, 63 Ill.Dec. 551, 438 N.E.2d 482 (1982), to be misplaced. In those cases, the defendants were convicted of involuntary manslaughter after the loaded weapons they were holding discharged as they wrestled with their victims, and the defendants claimed that their actions were accidental. On appeal, the courts considered only whether the evidence was sufficient to sustain the defendants' convictions of involuntary manslaughter. Because those cases did not address whether the evidence was sufficient to establish the mental states of intent or knowledge, they are not instructive here.

We further find People v. Lemke, 349 Ill.App.3d 391, 285 Ill.Dec. 221, 811 N.E.2d 708 (2004), upon which defendant also relies, to be inapposite because in that case, the court rejected the defendant's contention that the evidence was insufficient to sustain his first degree murder conviction. We therefore find the evidence sufficient to establish defendant's guilt of aggravated...