People v. Roberts

• Court: Appellate Court of Illinois
• Writing for the Court: GREEN
• Citation: People v. Roberts, 372 N.E.2d 143, 56 Ill.App.3d 667, 14 Ill.Dec. 338 (Ill. App. 1978)
• Decision Date: 20 January 1978
• Docket Number: Nos. 13276,13826 and 14187,s. 13276
• Parties: , 14 Ill.Dec. 338 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Arthur A. ROBERTS, Impleaded, Defendant-Appellant. The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Chester L. GRIZZLE.

Page 143

372 N.E.2d 143

56 Ill.App.3d 667, 14 Ill.Dec. 338

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Arthur A. ROBERTS, Impleaded, Defendant-Appellant.

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Chester L. GRIZZLE.

Nos. 13276, 13826 and 14187.

Appellate Court of Illinois, Fourth District.

Jan. 20, 1978.

Richard J. Wilson, Deputy State Appellate Defender, Barbara A. Chasnoff and Edward R. Green, Asst. State Appellate Defenders, Springfield, for defendant-appellant Roberts.

Richard J. Wilson, Deputy State Appellate Defender, John L. Swartz, Asst. State Appellate Defender, Springfield, for defendant-appellant Grizzle.

Roger W. Thompson, State's Atty., Lincoln, Robert C. Perry, Principal Atty., State's Attys. Appellate Service, Springfield, of counsel, for plaintiff-appellee.

Lee J. Plummer, State's Atty., Jerseyville, Robert C. Perry, Principal Atty., State's Attys. Appellate Service, Springfield, of counsel, for plaintiff-appellee.

GREEN, Presiding Justice.

The three cases before us concern the common question of whether an individual who without actual intent to kill commits an unjustified act knowing that the act creates a strong probability of killing another is guilty of attempt murder when death does not result from his acts.

Two related questions are involved: (1) Is an allegation that with the intent to commit murder, but not killing anyone, a person acted as described in section 9-1(a)(2) of the Criminal Code (Ill.Rev.Stat.1975, ch. 38 par. 9-1(a) (2)) sufficient to charge the offense of attempt murder? (2) In an attempt murder case, are jury instructions proper which describe the commission of attempt murder in terms of section 9-1(a)(2) conduct done with the intent to commit murder but not resulting in death?

Section 8-4 of the Criminal Code (Ill.Rev.Stat.1975, ch. 38, par. 8-4) defines the offense of 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."

Section 9-1(a) of the Code (Ill.Rev.Stat.1975, ch. 38, par. 9-1(a)) defines murder:

"A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:

(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or

(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or

(3) He is attempting or committing a forcible felony other than voluntary manslaughter."

Any attempt to answer the questions at issue requires an examination of three recent supreme court decisions, People v. Viser (1975), 62 Ill.2d 568, 343 N.E.2d 903; People v. Muir (1977), 67 Ill.2d 86, 8 Ill.Dec. 94, 365 N.E.2d 332, and People v. Trinkle (1977), 68 Ill.2d 198, 12 Ill.Dec. 181, 369 N.E.2d 888. All of these cases concerned appeals from attempt murder convictions.

In Viser, the court held to be erroneous instructions which stated that the prosecution was required to prove beyond a reasonable doubt that, with intent to commit murder, the defendant took a substantial step towards committing murder. The instructions then defined murder as any of the three types of conduct listed in the disjunctive in section 9-1(a). The court ruled that this improperly permitted the jury to find the defendant guilty by reason of his participation in a forcible felony as described in section 9-1(a)(3) but without any actual intent to kill anyone. The rationale of the ruling was that without an intent to kill, there could be no attempt murder for "(t)here is no such criminal offense as an attempt to achieve an unintended result." (62 Ill. 568, 581, 343 N.E.2d 903, 910.) The court expressly refrained from ruling upon the sufficiency of the charge which listed the substantial step towards the commission of the offense as any of the three types of conduct listed in the disjunctive in section 9-1(a). The opinion made no reference to any error in the provision of the instruction defining murder which would have permitted the conviction of the defendant for engaging in section 9-1(a)(2) conduct.

The relationship between section 9-1(a)(2) conduct and the offense of attempt murder was dealt with extensively in Muir. There the indictment stated in significant part that the accused committed the offense of attempt murder in that:

"(H)e did with the intent to commit the offense of Murder in violation of Section 9-1a2 of Chapter 38, Illinois Revised Statutes take a substantial step towards the commission of said offense in that he did without lawful justification point a loaded gun at (name of officer) and pull the trigger knowing such acts created a strong probability of death or great bodily harm * * *." 67 Ill.2d 86, 90, 8 Ill.Dec. 94, 96, 365 N.E.2d 332, 334.

Neither the supreme court opinion in Muir nor that of the appellate court from which leave to appeal had been granted (38 Ill.App.3d 1051, 349 N.E.2d 423) set forth all of the instructions given concerning the mental state of the accused required to be proved in order to convict, but the supreme court opinion stated that the elements of the offense of murder were defined to the jury in the language of section 9-1(a)(2).

The supreme court ruled that the allegation in the charge stating that defendant knew that his conduct created a strong probability of causing death or great bodily harm should be construed as if the italicized portion was stated death or death and great bodily harm, thus avoiding an attempt murder conviction for an ordinary aggravated battery. The court also extensively discussed the question at issue here of whether conduct performed without actual intent to kill but committed with a knowledge that it created a strong probability of causing death or great bodily harm supports a conviction for attempt murder. The court concluded that it did because, although section 9-1(a)(2) does not describe a "subjective intent to kill" (67 Ill.2d 86, 93, 8 Ill.Dec. 94, 97, 365 N.E.2d 332, 335), it describes conduct of such a malicious nature that the intent to kill is implied. The opinion relied upon comments of the committee drafting the Criminal Code (Ill.Ann.Stat., ch. 38, par. 9-1, Committee Comments, at pp. 8-10 (Smith-Hurd 1972)) and cases holding that proof of conduct described in section 9-1(a)(2) is sufficient proof of an intent by the actor to kill. The court disagreed with a statement in LaFave and Scott, Criminal Law, sec. 81, at 607 (1972), that conduct by an accused known by him to create a high risk of death, although sufficient as an ultimate fact to support a murder conviction, is not sufficient to support an attempt murder conviction.

A few months after Muir, the supreme court decided Trinkle. There the indictment charged:

"David Francis Trinkle committed the offense of ATTEMPT (MURDER) in that said defendant did perform a substantial step toward the commission of that offense in that he did without lawful justification shoot Gayle Lane with a gun knowing that such act created a strong probability of death or great bodily harm to Gayle Lane or another * * *." 68 Ill.2d 198, 199, 12 Ill.Dec. 181, 182, 369 N.E.2d 888, 889.

The jury was instructed:

"A person commits the crime of attempt who, with intent to commit the crime of murder, does any act which constitutes a substantial step toward the commission of the crime of murder.

The crime attempted need not have been committed."

"A person commits the crime of murder who kills an individual if, in performing the acts which cause the death he knows that such acts create a strong possibility of death or great bodily harm to that individual or another." 68 Ill.2d 198, 200, 12 Ill.Dec. 181, 182, 369 N.E.2d 888, 889.

"To sustain the charge of attempted murder, the State must prove the following propositions:

First: That the defendant performed the acts which caused the injury of Gayle E. Lane;

Second: That when the defendant did so, he knew that his act created a strong probability of causing death or great bodily harm to Gayle E. Lane, or another;

Third: That the defendant was then capable of acting knowingly and intentionally. * * * " 68 Ill.2d 198, 200, 12 Ill.Dec. 181, 182, 369 N.E.2d 888, 889.

The Trinkle opinion stated:

"The State would urge that actual intention to kill is not a requisite mental state for attempted murder, and it suffices so long as the accused acted with such disregard of human life knowing his conduct created a strong probability of bodily harm.

Here, under the terms of the indictment as well as the instructions, the jury could have found the defendant guilty of attempted murder sans specific intent to kill. So long as he shot a gun 'knowing such act created a strong probability of death or great bodily harm to Gayle Lane or another,' the defendant could be guilty of attempted murder. But the General Assembly has exacted that the defendant must be guilty of an action 'with intent to commit a specific offense' (Ill.Rev.Stat.1973, ch. 38, par. 8-4(a)), namely, to kill. Hence the indictment and the instructions did not meet the criterion of the law. It is not sufficient that the defendant shot a gun 'knowing such act created a strong probability of death or great bodily harm to Gayle Lane or another.'

If this were the test, then a defendant who committed a battery with knowledge that such conduct could cause great bodily harm would be guilty of attempted murder. But, in law, he would be guilty of aggravated battery, a completely different offense with a different penalty." 68 Ill.2d 198, 200, 12 Ill.Dec. 181, 183, 369 N.E.2d 888, 890.

The opinion cited with approval a statement in LaFave and Scott (Criminal Law, sec. 59, at 428-29 (1972)) pointing out that although murder may be committed without a specific intent to kill, the offense of attempt murder...