People v. Cruz

618 N.E.2d 591, 248 Ill. App. 3d 473, 188 Ill. Dec. 21
Appellate Court of Illinois·Decided June 11, 1993·No. 1-91-0603·Published·Cited by 5 cases

Opinion

618 N.E.2d 591 (1993)
248 Ill. App.3d 473
188 Ill.Dec. 21

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Juan CRUZ, Defendant-Appellant.

No. 1-91-0603.

Appellate Court of Illinois, First District, Sixth Division.

June 11, 1993.

*593 Rita A. Fry, Public Defender Cook County (Stephanie L. Ellbogen, Asst. Public Defender, of counsel), Chicago, for appellant.

Jack O'Malley, State's Atty. Cook County (Renee Goldfarb, Laura L. Morrison, Rogelio Pena, Asst. State's Attys. of counsel), Chicago, for appellee.

Justice GIANNIS delivered the opinion of the court:

Following jury trial defendant was found guilty of attempt (first degree murder) (111. Rev.Stat.1989, ch. 38 par. 8-4 (ch. 38 par. 9-1), armed violence (Ill.Rev.Stat.1989, ch. 38 par. 33A-2 (class I weapon, ch. 56.5 par. 1401(B)(2)), and possession of a controlled substance with intent to deliver (Ill.Rev. Stat.1989, ch. 56.5 par. 1401(B)(2)). The armed violence and possession charges were merged following conviction and defendant was sentenced to a prison term of 30 years on the attempt conviction and a 15-year prison term on the armed violence conviction, both sentences to run concurrently.

The facts of this case may be fairly summarized as follows. At approximately 9:40 p.m. on January 6, 1990, police officers Franco and Harris observed defendant distributing drugs at a Chicago housing project. At the time, the officers were in civilian clothing. As Harris attempted to apprehend defendant, both men "bounced" into one another; defendant ran and was pursued by Franco into a nearby parking lot as Harris followed. When the defendant and Franco were very close to one another, defendant turned and fired one shot into Franco's bullet-proof vest, then a second shot which entered Harris' elbow and struck his abdomen. Harris stopped to check on his partner, then continued the chase of defendant. A second pair of officers, *594 officers Bonner and Ford, rendered assistance to Franco.

Defendant ran into a nearby building. Harris followed, but soon lost sight of defendant. Harris met up with officers Feldman, Jackson and Doby and these policemen split up and entered the building. Defendant was ultimately arrested on the 13th floor by officer Doby. A search of defendant revealed several small plastic bags containing cocaine. Defendant took the officers to a stairwell to recover a gun on the 12th floor which was later shown to have been used to shoot Franco.

Defendant testified that on January 6, 1990, at approximately 9 p.m., he was on his way home from his girlfriend's house when he was approached by Mike Stone, a leader of a local street-gang. Stone was accompanied by three others whom defendant referred to as "foot soldiers." According to defendant, he was given a gun as well as cocaine and ordered to work as a "holder." He stated that a holder keeps drugs for the people who actually sell them and that sellers go to the holders to replenish their supply. Defendant testified that he accepted the drugs because he feared getting shot and because Stone had threatened to hurt his family. Stone also told defendant to protect the drugs "at any costs" and that defendant should shoot anyone who attempted to take them.

Defendant testified that as he stood outside that night, he handed out three packages of drugs to Stone's foot soldiers. Later, he noticed two men wearing starter jackets and blue jeans running toward him. Defendant immediately ran. He testified that he glanced back and noticed the person behind him make a motion toward his chest where defendant claims to have seen a gun. Defendant took out his gun and fired a shot as he ran. Defendant was still being pursued when he fired a second shot. Defendant testified that he did not hear anyone say "police" or see that the men chasing him were wearing badges.

At the police station defendant gave a written statement where he indicated that he was selling drugs to make money and had the gun for protection because he did not want his drugs stolen. Defendant further stated that after he sold his drugs he noticed two policemen coming towards him and he started running. As one of the policemen got closer, defendant fired two shots at the officer. Nothing in defendant's statement indicated that he had been forced to hold the drugs or the gun given by Mike Stone or that any gang members had threatened him.

Defendant raises the following issues for review: (1) whether the trial court committed reversible error in refusing a tendered instruction for the crime of attempt (second degree murder); (2) whether defendant was deprived of a fair trial by comments made by the prosecutor during closing argument; and (3) whether the trial court abused its discretion in sentencing defendant to a 30-year prison term.

The defendant first argues that the trial court erred in not tendering instructions to the jury on the crime of attempt (second degree murder). In Illinois, the crime of attempt requires the specific intent to commit an offense. People v. Reagan (1983), 99 Ill.2d 238, 240, 75 Ill.Dec. 701, 457 N.E.2d 1260.

In 1987 the Illinois General Assembly replaced the statutory offense of voluntary manslaughter with the offense of second degree murder. (Ill.Rev.Stat.1987, ch. 38, par. 9-2.) To be convicted of second degree murder, a defendant's action must have been motivated by either: (1) a sudden and intense passion resulting from serious provocation; or (2) an actual but unreasonable belief that the circumstances required the use of deadly force as a means of self-defense. (Ill.Rev.Stat.1989, ch. 38, par. 9-2(a)(l), (a)(2).) Under the former statute the State had the burden of disproving either provocation or unreasonable belief beyond a reasonable doubt. The new statute requires the State to prove the elements of first degree murder beyond a reasonable doubt (that defendant knowingly or intentionally killed without legal justification) and thereafter the defendant has the burden to prove by a preponderance of evidence one of the two mitigating factors.

*595 In the present case, defendant claims that at the time he acted in shooting officer Franco he believed himself to be acting in self-defense, i.e., with lawful justification. The State claims that this belief, if genuine, is inconsistent with any jury instruction on the offense of attempt (second degree murder). As the supreme court stated in Reagan, "The requirement of the attempt statute is not that there be an intent to kill, but that there be an intent to kill without lawful justification. If, as suggested * * *, defendant at the time of the shooting believed the circumstances to be such that if they existed would justify the killing, then there was no intent to commit an offense." Reagan, 99 Ill.2d at 240, 75 Ill.Dec. 701, 457 N.E.2d 1260.

Defendant cites People v. Austin (1991), 215 Ill.App.3d 323, 158 Ill.Dec. 904, 574 N.E.2d 1297 and People v. Moore (1990), 204 Ill.App.3d 694, 149 Ill.Dec. 751, 562 N.E.2d 215, to support his claim that the crime of attempt (second degree murder) exists in Illinois. In Austin, the court concluded that the Reagan decision should not apply to the new offense of second degree murder. "[E]ven the Reagan

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People v. Cruz, 618 N.E.2d 591, 248 Ill. App. 3d 473, 188 Ill. Dec. 21 (Ill. Ct. App. 1993).

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