People v. Williams

• Decision Date: 27 September 1991
• Docket Number: No. 1-89-1515,1-89-1515
• Citation: 220 Ill.App.3d 460,581 N.E.2d 113,163 Ill.Dec. 162
• Parties: , 163 Ill.Dec. 162 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Vincent WILLIAMS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 113

581 N.E.2d 113

220 Ill.App.3d 460, 163 Ill.Dec. 162

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Vincent WILLIAMS, Defendant-Appellant.

No. 1-89-1515.

Appellate Court of Illinois First District, Third Division.

Sept. 27, 1991.

Blair Russell & Cole, Chicago, for defendant-appellant.

Jack O'Malley, State's Atty. of Cook County, Chicago; Renee Goldfarb, David Stabrawa and Stephen Ferrucci, of counsel, for plaintiff-appellee.

Presiding Justice CERDA delivered the opinion of the court:

After a jury trial, defendant, Vincent Williams was convicted of armed violence (Ill.Rev.Stat.1987, ch. 38, par. 33A-2) and attempted second degree murder (Ill.Rev.Stat.1987, ch. 38, pars. 8-4(a), 9-2). Before the trial began, the State nolle prossed three counts of aggravated battery. (Ill.Rev.Stat.1987, ch. 38, par. 12-4.) Defendant received concurrent sentences of seven years' imprisonment on the attempted second degree murder and 30 years' imprisonment on the armed violence. On appeal, defendant asserts that (1) the armed violence conviction and sentence should be vacated because it arose from the same act as his conviction for attempted second degree murder; (2) the attempted second degree murder conviction is void under Illinois law; and (3) the second degree murder statute is unconstitutional because it improperly shifts the burden of proof onto the defendant.

On July 18, 1987, about 11:30 p.m., Illinois State Trooper Dennis Galle was in a service station at California and Diversey Avenues in Chicago. Galle, who was in full summer uniform, was preparing to leave the station when a car came screeching into the station with its horn blaring, and crashed into the side of the building. Hearing the driver yell for help, Galle approached the car on the driver's side. When he was three and one-half to four feet from the rear of the driver's window, Galle looked into the car and asked, "What's the problem here?" Galle then saw defendant, who was the passenger, raise a gun, lean forward in his seat, extend his arm in front of the driver, and fire the gun at Galle. As defendant raised the gun, Galle stepped back and turned to his left.

After the shot, Galle did not realize he was hit. He saw some movement inside the car, drew his gun, and shouted, "Hold it right there." The driver, Nebkhepera Khuenaten, also known as Hru, handed the .38 caliber gun to Galle, who ordered both men out of the car and to lie face down on the ground. By that time, Galle realized that he had been shot, and yelled to the people in the service station to call the police and an ambulance.

At that point, a passerby approached the trooper and offered his help. The trooper gave him a gun, and told him to stay with the two men and not to let them get away. Galle went to his squad car to radio for help. Within a few minutes, Chicago police arrived, took the gun from the passerby, and handcuffed defendant and Hru. Hru told one of the police officers there was another gun under the driver's seat. Searching the car, the police found a loaded .22 caliber automatic gun. Hru was charged with unlawful use of weapons, but the charges were later dropped.

Galle was taken to the hospital, where he underwent surgery. Eventually, Galle underwent six operations, and returned to work one year later.

Police officer Thomas Bachelder, an evidence technician, testified that there was a bullet hole in the driver's side front door through which a bullet entered from the inside and exited on the outside. Bachelder also stated that there was broken window glass inside the car, and that the door rattled when moved. Detective Richard Schak testified that he determined through measurements that the bullet went from the front to the rear of the door. Richard Fournier, a Chicago police firearms examiner, testified that the bullet removed from Galle was fired from the .38 caliber gun removed from the crime scene.

Cesar Vargas, an employee at the service station, testified that after the crash, he went outside toward the car. He saw the passenger raise a gun, extend his arm toward Galle's waist, and shoot Galle as Galle stood near the driver's side door.

Hru and defendant both testified to the events leading up to the shooting. They met in a gay bar approximately two weeks earlier. At that time, defendant explained to Hru that he was a hustler; that is, he was paid by homosexuals for relationships. That night, defendant and Hru agreed that Hru would pay defendant for talking together. No sexual relationship or friendship was contemplated. For approximately two weeks, defendant stayed at Hru's home on and off, and returned to the gay bar at night to hustle money. On July 17, 1987, the two men agreed to not continue seeing each other, and Hru drove defendant back to Chicago.

From that point, the two men disagree about what occurred. Hru testified that he noticed his loaded .38 caliber gun was missing from his bedroom on July 18, 1987. That day, he drove to his parents' home in Chicago, got a .22 caliber automatic gun from his brother, put it on the side of his car's driver's seat near the door, and drove to the gay bar about 11 p.m. There, he approached defendant and told him to stay away from his house. Hru testified that he was not actually kicking him out, and would help defendant if he needed money. Hru stated that he previously had given defendant $80 to $100.

When Hru left the bar, defendant followed him to his car and asked for a ride to Kedzie and Belmont Avenues. The two men got into the car. Once they were on the Kennedy Expressway, Hru testified that defendant showed him the .38 caliber gun and said, "you probably was [sic] looking for this." Hru answered, "yes." Defendant then began yelling that Hru had dumped him and was just like everyone else, using him and other things. Hru pulled over to the side and tried to calm defendant. All of a sudden, defendant shot the gun at the driver's side window. The window, which was partially raised, shattered. Defendant then told Hru to drive to Gary. Hru exited at Diversey Avenue. When he was at the stoplight at California and Diversey Avenues, Hru noticed a state trooper's car parked in front of a service station. Hollering out the window, "help me" and blowing the horn, Hru stepped on the accelerator, sped toward the station, and ran into the side of the building.

As Hru saw Galle through the side view mirror, defendant took the gun, reached in front of Hru, and shot Galle through the window. Hru grabbed defendant's wrist, and the two men wrestled. When Galle yelled, "hold it right there," defendant relaxed his grip on the gun. Hru took the gun and handed it to Galle. Both men got out of the car, laid face down on the ground, and were later handcuffed.

Defendant testified that he went to Hru's car on July 18, 1987, to talk. When he got to the car, defendant saw a gun on the front seat. Hru picked up the gun and told defendant to sit down before he did something he would regret. When defendant asked, "what, are your crazy," Hru pointed the gun at defendant and cocked it. Defendant got into the car, and Hru began driving. On the expressway, Hru was yelling that defendant had dumped him and was like everyone else. At that time, the gun was in Hru's lap, but defendant did not try to get it away from Hru. Defendant testified that he asked Hru to pull over, and Hru drove off the exit. Just before a stoplight, defendant grabbed the gun. Hru looked at defendant and stared at the gun. Then, he accelerated the car, and the car hit the side of the building.

Defendant hit his head on the windshield and fell back in the seat. The gun was at his right side between his leg and the door. When he lifted his arm about mid-stomach level, Hru jumped and grabbed defendant's arm. To get Hru off of him, defendant thought about shooting Hru in the shoulder. Hru and defendant struggled, and the gun went off. Defendant did not know if he pulled the trigger, but his finger was on the trigger when it fired. Defendant did not see Galle and was not aiming at him. Defendant also testified that the shot was accidental while he was arguing with Hru. After the shot, Hru yelled "you shot a cop," and defendant told him to shut up. Defendant then dropped the gun and got out of the car. Once outside the car, Galle told him to lay face down on the ground, which he did.

The jury found defendant guilty of armed violence (Ill.Rev.Stat.1987, ch. 38, par. 33A-2) and attempted second degree murder (Ill.Rev.Stat.1987, ch. 38, pars. 8-4(a), 9-2). After hearing aggravating and mitigating factors, the trial judge sentenced defendant to concurrent sentences of 30 years' imprisonment on the armed violence and seven years' imprisonment on attempted second degree murder.

On appeal, defendant contends that attempted second degree murder is void under Illinois law. The State agrees. The Illinois Supreme Court in People v. Reagan (1983), 99 Ill.2d 238, 75 Ill.Dec. 701, 457 N.E.2d 1260, ruled that there was no such crime as attempted voluntary manslaughter based on an imperfect self-defense. Although Reagan was decided under the former voluntary manslaughter statute, its rationale still applies. The former voluntary manslaughter statute (Ill.Rev.Stat.1985, ch. 38, par. 9-2) and the present second degree murder statute (Ill.Rev.Stat.1987, ch. 38, par. 9-2) are similar except for the burden of proof of the mitigating factor. Voluntary manslaughter required the State to prove the mitigating factor beyond a reasonable doubt while second degree murder requires the defendant to prove the mitigating factor by a preponderance of the evidence. Reagan held that attempted murder required proof that defendant intended to kill without lawful justification. (99 Ill.2d at 240, 75 Ill.Dec. 701, 457 N.E.2d 1260.) Attempted voluntary manslaughter, however, would require the defendant to specifically intend to kill with an unreasonable belief in the need to use...