People v. Okundaye
| Decision Date | 29 September 1989 |
| Docket Number | No. 1-86-3415,1-86-3415 |
| Citation | 189 Ill.App.3d 601,545 N.E.2d 505 |
| Parties | , 136 Ill.Dec. 981 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Femi OKUNDAYE, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Randolph N. Stone, Public Defender of Cook County (Frances Sowa, Asst. Public Defender, of counsel), Chicago, for defendant-appellant.
Cecil A. Partee, State's Atty. of Cook County (Inge Fryklund, James E. Fitzgerald and Craig J. Jensen, Asst. State's Attys., of counsel), Chicago, for plaintiff-appellee.
A jury found defendant, FEMI OKUNDAYE, guilty of attempted murder and guilty of possession of controlled substances, heroin and cocaine with intent to deliver. The trial court sentenced defendant to concurrent eight years' imprisonment terms. On this appeal the defendant claims for reversal that, (1) the trial court erred in instructing the jury that it could find defendant guilty of attempted murder upon a finding that defendant intended to do great bodily harm; (2) the evidence failed to establish his guilt beyond a reasonable doubt of attempted murder; (3) his conviction and sentence for possession of controlled substances with intent to deliver should be reduced to mere possession of controlled substances; and (4)(a) the prosecutor's opening statement to the jury, (b) the voluminous irrelevant prejudicial inadmissible evidence, and (c) the prosecutor's capacious argument to the jury on the facts and circumstances surrounding the issuance of the search warrant denied the defendant a fair and impartial trial. We reverse and remand for a new trial for the following reasons.
The State's trial evidence established that Chicago police officer Richard Rowan, the alleged attempted murder victim, and ten additional Chicago police officers went to 1110 West 50th Street, Chicago, Illinois, to execute a search warrant for narcotic drugs. The officers knocked on the apartment door and announced their office. Officer Rowan testified that he heard a commotion inside the premises which sounded to him like someone running. Rowan smashed in the apartment door with a battering ram and gained entry into the apartment.
Upon entering the apartment, Officer Rowan related that he saw the defendant run up the stairs to the second floor. Officer Rowan stated that he yelled, "police officer," drew his weapon and ran up the stairs in pursuit of the defendant. Upon arriving at the top of the stairs, Officer Rowan stated that he saw the defendant, at the end of a hallway, cross over from one bedroom into another. Rowan ran down the hallway to the bedroom door that the defendant had entered. The bedroom door was partially open. Rowan related that the defendant was in a crouched stance behind the door with a gun in his hand pointed at Officer Rowan's head, and that the defendant struck him in his face with the gun. Officer Rowan further stated that he attempted to knock the defendant's gun away but that defendant continued to point the gun at his head and simultaneously grabbed Officer Rowan's gun with his left hand. It was at this time, Officer Rowan testified, that he shot the defendant in his abdomen. Officer Rowan testified on cross-examination, however:
"Q You also had occasion to make a report of this, did you not?
A Yes.
Q I ask you to take a look at that. Do you recognize what Defense Exhibit No. 9 for identification is, officer?
A Yes, this would be the second page of a case report, on a vice case report.
Q Who is the author of it?
A If you mean who typed it, I am not sure, probably Officer Ramirez.
Q Is the name of Richard Rowan on that report?
A Yes, it is.
Q Did you tell Officer Ramirez what was in--what to put in this report?
A Yes.
Q Anywhere in this report, officer, is it that you were hit in the face with the defendant's gun?
A No.
Q Is it anywhere in this report, in your report, did you say that the defendant was crouched?
A No.
Q Is it anywhere in this report that you state that the defendant grabbed your gun?
A Not in the narcotics report, no.
Q Is it in any report that you made did you make mention of the fact on any reports that you made, did you make a report of the fact that the defendant grabbed your gun?
[assistant State's Attorney]: Object, Your Honor, to the form of the question.
THE COURT: He can answer the question, did you write any reports wherein you indicated that the defendant had grabbed your gun, is that correct Mr. [defense attorney]?
[Defense Attorney]: Yes. Judge.
A That is the only report I prepared, all the other reports were prepared by the detectives.
[Defense Attorney]: Q So, is it true, officer that the answer is no, I did not make a report that contained those answers?
A I made no other reports, no."
A brief struggle ensued between Officer Rowan and the defendant until the other officers, who were immediately following behind Officer Rowan by five or six feet, arrived and assisted Rowan in subduing the defendant. Officer Rowan yanked the gun out of the defendant's hand.
The officers searched and seized from the defendant's person a plastic bag containing 7.71 grams of heroin and another plastic bag containing .45 grams of cocaine. In the bedroom across the hallway from the bedroom in which Officer Rowan shot the defendant, the officers found an Illinois Bell Telephone bill in the name and address of Femi Okundaye, apartment 11, 1110 West 50th Street, a triple-beam scale used to measure cocaine and heroin, a glass pipe used to smoke cocaine, a hypodermic needle used for the intravenous injection of heroin, two plastic bags of 49.85 grams and .55 grams of cocaine, respectively.
Officer Michael Duffin examined the gun that Officer Rowan said the defendant pointed at his head. Duffin stated that the cylinder of the gun had three live rounds in three of the five chambers; that the chambers directly in front of and directly to the left of the firing pen were empty and the gun could be fired only by pulling the trigger three times for firing.
Mary Cook, a defense witness, testified that she was in the apartment, and that the defendant was in the bathroom on the second floor when the police entered.
The defendant also testified that he was in the second-floor bathroom when the officers entered the apartment and ran up the stairs to him. The defendant related that one of the officers rushed up to him, pointed a gun at his stomach and asked him for the "money and dope." Defendant asked the officer if he had a search warrant. With his teeth clenched, the officer angrily responded, "This is my search warrant," referring to the gun the officer had pointed at defendant's abdomen. The officer shoved the gun into defendant's abdomen. The officer further pressed his gun against the defendant's abdomen and it went off. The defendant fell wounded to the floor and as he was lying there, the officer tried to put a gun in his hand and told him, "If you don't hold it--do you want to be shot again?" The defendant denied that he ever had a gun in his possession.
On rebuttal, assistant State's Attorney Stuart Palmer testified that he questioned defendant at the hospital after the defendant's surgery there for his gunshot wound, that the defendant initially denied that he owned the gun, but later admitted the gun belonged to him. Palmer admitted that the defendant's post-surgery statement was never reduced to writing, that he did not tell the defendant that he could end his questioning when he desired and that his interrogation of the defendant terminated when the defendant's attorney arrived at the hospital.
We initially sua sponte note that count I of the indictment, the purported attempted murder count, alleges in pertinent part, that:
"[O]n or about May 7, 1985, at and within the County of Cook Femi Okundaye committed the offense of attempt in that he without lawful justification with intent to commit the offense of murder, intentionally and knowingly attempted to kill Richard Rowan by pointing a loaded handgun into his face, in violation of Chapter 38, Section 8-4/(38-9-1) of the Illinois Revised Statutes 1983 * * *."
Said chapter 38, par. 8-4(a) of the Illinois Revised Statutes 1983 alleged in count I to have been violated by the defendant, defines "attempt" as follows:
"A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense." (Emphasis added.)
Count I of the instant indictment failed to allege that the defendant committed "any act which constitutes a substantial step toward the commission of that [attempt murder] offense." Our research does not reveal a single case of appellate review of a conviction for attempted murder in which the indictment or information failed to allege, (1) "that the defendant committed '[an] act which constitute[d] a substantial step toward the commission of that offense; and (2) the specific act which constituted the substantial step toward the commission of the attempted murder offense." Our research reveals that in every case of appellate review of an attempted murder conviction, the indictment or information alleged that the defendant committed an act which constituted a substantial step toward the commission of the attempted murder, and also alleged the specific act committed by the defendant which constituted the substantial step toward the commission of the attempted murder. (People v. Roberts (1978), 56 Ill.App.3d 667, 14 Ill.Dec. 338, 372 N.E.2d 143, reversed on other grounds; People v. Roberts (1979), 75 Ill.2d 1, 25 Ill.Dec. 675, 387 N.E.2d 331; People v. Harris (1978), 72 Ill.2d 16, 19-20, 17 Ill.Dec. 838, 377 N.E.2d 28; People v. Muir (1977), 67 Ill.2d 86, 90, 8 Ill.Dec. 94, 365 N.E.2d 332; People v. Trinkle (1977), 68 Ill.2d 198, 199-200, 12 Ill.Dec. 181, 369 N.E.2d 888; and People v. Viser (1975), 62 Ill.2d...
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