People v. Thomas, 1-88-2819

• Decision Date: 28 June 1991
• Docket Number: No. 1-88-2819,1-88-2819
• Parties: , 160 Ill.Dec. 66 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Curtis THOMAS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1020

576 N.E.2d 1020 216 Ill.App.3d 469, 160 Ill.Dec. 66 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Curtis THOMAS, Defendant-Appellant. No. 1-88-2819. Appellate Court of Illinois,
First District, Fourth Division. June 28, 1991.

Page 1021

[216 Ill.App.3d 470] [160 Ill.Dec. 67] Randolph N. Stone, Public Defender, Chicago (James H. Reddy, Asst. Public Defender, of counsel), for defendant-appellant.

Jack O'Malley, State's Atty., Chicago (Renee Goldfarb, Kevin Sweeney, Michael Latz, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice LINN delivered the opinion of the court:

Defendant, Curtis Thomas, was convicted of second degree murder (Ill.Rev.Stat.1987, ch. 38, par. 9-2(a)(1)) following a bench trial in the circuit court of Cook County. The trial judge sentenced defendant to the penitentiary for a term of 4 years.

On appeal, defendant attacks the constitutionality of the second degree murder statute, found in section 9-2 of the Criminal Code of 1961 (Ill.Rev.Stat.1987, ch. 38, par. 9-2). He contends Criminal Code section 9-2 denies defendants convicted of second degree murder due process of law and the equal protection of the law, and also violates the principle of separation of powers as prescribed by the Illinois Constitution. He raises no other issues.

We affirm the judgment of the trial court.

Background

The record contains the following pertinent facts. On July 15, 1987, defendant was indicted for first degree murder (Ill.Rev.Stat.1987, ch. 38, par. 9-1(a)(1), (2)) and armed violence (Ill.Rev.Stat.1987, ch. 38, par. 33A-2). On March 1, 1988, defendant received a bench trial. Defendant admitted that he fatally stabbed the victim. However, he claimed that he did so solely in fear for his life or of receiving substantial bodily harm.

At the close of the evidence, the State entered a nolle prosequi on the armed violence count. The trial judge convicted defendant of second degree murder.

At the sentencing hearing, the trial judge denied defendant's post-trial motion. The judge specifically ruled that Criminal Code section 9-2 was constitutional. At the close of the hearing, the trial judge sentenced defendant to a prison term of 4 years. Defendant appeals.

[216 Ill.App.3d 471] Opinion

A.

Defendant's sole claim on appeal is that Criminal Code section 9-2 is unconstitutional. Defendant's attack has three prongs. Defendant first contends the second degree murder statute violates the due process clause of the...