People v. Harris

377 N.E.2d 28, 72 Ill. 2d 16, 17 Ill. Dec. 838, 1978 Ill. LEXIS 286

• Court: Illinois Supreme Court
• Decided: May 26, 1978
• Docket: 49909, 50340
• Status: Published

Opinions

MR. CHIEF JUSTICE WARD

delivered the opinion of the court:

Each of these two appeals, which were consolidated here for decision, involves a conviction on a charge of attempted murder in which the adequacy of the instructions given on the element of intent is put in issue.

In cause No. 49909, People v. William Myers Harris, the defendant was convicted on a charge, made by information, of the attempted murder of Joyce Baker on the night of November 18, 1975, in a country area east of Champaign. In a separate count the defendant was charged with aggravated kidnapping.

The alleged murder attempt took place while Miss Baker was sitting inside her car and the defendant was standing behind the car with a pistol in his hand. The defendant and Miss Baker had been keeping company. For much of the evening they had been engaged in an argument in which the defendant accused the victim of infidelity. As the argument became more heated, the defendant, who was driving, reached down and picked up a revolver from the floor of the car and placed it in his lap with the barrel pointed toward Miss Baker. He made several remarks which Miss Baker interpreted as threats to kill her.

Alarmed, she opened the door on her side of the car, got out and began to run away, but ran into a barbed wire fence, injuring her leg. The defendant also got out of the car. He did not pursue her, but remained standing by the car. After her collision with the fence, Miss Baker returned to the car, and made an unsuccessful attempt to capture the gun, which the defendant was holding in his hand and pointing in her general direction. Miss Baker then got into the car on the driver’s side, and drove off toward a nearby farmhouse. She testified that as she drove off she looked in the rear vision mirror and saw the defendant standing behind the car. He was holding the gun with both hands, and pointing it at her. Then she heard something strike the rear window, and the broken pane of glass in the rear window fell out of its . frame. There were no other witnesses, but following this episode the police were summoned, and they found the defendant walking down the road near the scene of the episode just described. When the car was located, the police officers testified, the rear glass was broken, and a bullet fragment was found on the left side of the rear seat.

The jury returned a verdict of guilty on the charge of attempted murder and a verdict of not guilty on the aggravated kidnapping charge. The defendant was sentenced to serve a term of not less than 4 years and not more than 12 years.

The information charged that the defendant “committed the offense of ATTEMPTED MURDER (CLASS 1 FELONY), in violation of Section 8 — 4 of Chapter 38 of the Illinois Revised Statutes of 1973, as amended, in that he, with the intent to commit the crime of murder of Joyce A. Baker did an act which constituted a substantial step toward the commission of that offense by shooting a gun at her.” No complaint is made as to the information.

The following instructions to the jury were tendered by the State and were given, over the objection of the defendant:

“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.”

“To sustain the charge of attempt, the State must prove the following propositions:

First: That the defendant performed an act which constituted a substantial step toward the commission of the crime of murder; and

Second: That the ^defendant did so with intent to commit the crime of murder.

* * * ”

“A person commits the crime of murder who kills an individual if, in performing >the acts which cause the death, he intends to kill or dd great bodily harm to that individual. ”

The defendant objected to the last of the instructions on the ground that it told the jury it could find him guilty of attempted murder if the jury found that he had acted only with the intent to do great bodily harm and did not have the intent to cause death.

The Appellate Court for the Fourth District, whose opinion issued before People v. Trinkle (1977), 68 Ill. 2d 198, was decided, held that the defendant’s objections had been waived since they were not renewed in his post-trial motion. The court also stated that the last instruction was proper under our decision in People v. Muir (1977), 67 Ill. 2d 86. The court therefore affirmed the conviction. People v. Harris (1977), 48 Ill. App. 3d 1074 (order under Supreme Court Rule 23).

The appellate court nevertheless held that the minimum sentence of four years was improper, since the record showed that that sentence was imposed because the trial court believed it was mandatory, a view which the appellate court found erroneous. The court accordingly remanded the cause for resentencing. The State appealed from this part of the judgment. This court subsequently decided in People v. Moore (1978), 69 Ill. 2d 520, that a minimum sentence of four years is not required on conviction of attempted murder, and in its reply brief the State has confessed error on this point. In his answering brief the defendant, as he may do under Rule 318(a) (58 111. 2d R. 318(a)), challenges the portion of the decision relating to the instructions.

In cause No. 50340, People v. Johnnie E. Shields, the defendant was indicted for the attempted murder of Marion Bradley and for aggravated battery arising out of the same act. The offense was the aftermath of a fight between the defendant and the victim’s son, Robert, which took place in the defendant’s apartment (which adjoined the apartment occupied by Mrs. Bradley and her son) in the early morning hours of New Year’s day. The testimony is in conflict on many points. It requires only a brief summary, however, since its sufficiency to sustain the conviction is not challenged here.

It appears that Robert was highly intoxicated, that he had stumbled against a table and broken it, and that the defendant was attempting to subdue him. After the fight Robert and his mother went back to their apartment. A short time later the defendant appeared at their door armed with a shotgun, and said, “I’m going to kill you.” Robert and the victim fled outdoors, pursued by the defendant. The victim then stationed herself in front of Robert to shield him. The defendant told her to move aside, or he would blow her brains out, and after a short scuffle over the possession of the gun, he fired, wounding her.

The jury found the defendant guilty of both attempted murder and aggravated battery, but the trial court entered judgment only on the former. It imposed a sentence of imprisonment of not less than 7 and not more than 21 years.

The count of the indictment relating to attempted murder charged that the defendant had committed the offense of attempted murder “in that with the intent to commit the offense of MURDER *** he did an act which constitutes a substantial step toward the commission of that offense, in that he did shoot Marion Bradley in the chest with a shotgun, knowing that such act created a strong probability of death or great bodily harm to Marion Bradley.” The defendant makes no complaint to the indictment.

The State tendered the following instructions which were given:

“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.”

“To sustain the charge of attempt, the State must prove the following propositions:

FIRST: That the defendant performed an act which constituted a substantial step toward the commission of the crime of Murder; and

SECOND: That the defendant did so with intent to commit the crime of Murder. ”

“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 probability of death or great bodily harm to that individual.”

No objection to these instructions pertinent to the issue on this appeal was made by the defendant.

On appeal the Appellate Court for the Third District affirmed. (People v. Shields (1977), 54 Ill. App. 3d 1020.) In so doing it held that the instruction concerning the “probability of death or great bodily harm’’ was proper in the light of People v. Muir (1977), 67 Ill. 2d 86, which was at that time our most recent pronouncement on that subject. On rehearing, however, the appellate court altered its opinion and reversed, holding that instruction improper in view of this court’s later decision in People v. Trinkle (1977), 68 Ill. 2d 198, which had by then been filed.

The central difficulty common to these cases arises out of the difference between the elements of the offense of attempt and those of the specific offense attempted, murder. The definition of attempt, contained in section 8— 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 8 — 4(a)), is:

“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.”

The statutory definition of murder is found in section 9— 1(a) of the Code (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a)), and reads:

“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.”

The crime of murder is thus committed not only when a person intends to kill another individual, but also when he intends to do great bodily harm (par. 9 — 1(a)(1)), or when he knows that his acts create a strong probability of death or great bodily harm (par. 9 — 1(a)(2)), or when he is attempting or committing a forcible felony (par. 9 — 1(a)(3)).

This court held in People v. Koshiol (1970), 45 Ill. 2d 573, that in a trial for attempted murder it is not error to give an instruction defining the elements of murder. As was stated there, “[I] t would seem utterly meaningless to instruct a jury on attempt to commit a ‘specific offense’ without defining the specific offense ***.” (45 Ill. 2d 573, 579.) Since an attempted murder requires an intent to kill, however, it is obvious that the “specific offense” referred to in section 8 — 4(a) cannot be construed as incorporating the alternative definitions of murder contained in section 9 — 1(a) in their entirety.

The point is illustrated by People v. Viser (1975), 62 Ill. 2d 568, in which the indictment in a prosecution for attempted murder charged that the defendants’ acts were committed while they were engaged in a forcible felony. With respect to the indictment in Viser, it was observed: “[T] he offense of attempt requires ‘an intent to commit a specific offense’ *** while the distinctive characteristic of felony murder is that it does not involve an intention to kill. There is no such criminal offense as an attempt to achieve an unintended result.” 62 111. 2d 568, 581.

This court in People v. Muir (1977), 67 Ill. 2d 86, and People v. Trinkle (1977), 68 Ill. 2d 198, considered, among other questions, whether it was proper in prosecutions for attempted murder to include in instructions to the jury the definition of murder under section 9 — 1(a)(2), that is, that one commits murder if he knows that his acts “create a strong probability of death or great bodily harm.”

In Muir the evidence was that the defendant was being approached by a police officer who was investigating a reported burglary at a nearby building. When the officer was about 30 feet away, the defendant pointed a pistol at him and pulled the trigger, but the gun failed to discharge. The defendant then began to run away. While running he pointed his gun at the officer for a second time, and pulled the trigger. Again the pistol failed to go off. It was subsequently ascertained that the barrel of the pistol contained two cartridges which were jammed in the barrel.

The indictment charged that the defendant “*** did with the intent to commit the offense of Murder in violation of Section 9 — la2 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.

The appellate court had reversed the conviction (People v. Muir (1976), 38 Ill. App. 3d 1051) on the ground that the necessary ingredient of specific intent was lacking in the indictment. This court in turn reversed the decision of the appellate court. It approved those parts of the appellate court opinion which held that it was necessary in a charge of attempted murder to allege a specific intent to commit murder, and that such intent could be inferred from the character of the defendant’s actions. It was held, however, that since the indictment did charge that the defendant intended to commit murder, the additional charge that the defendant had acted with the knowledge that his acts created a strong probability of death or great bodily harm did not invalidate the indictment.

In Muir the court also rejected a contention by the defendant that it was error for the court to have given at the request of the prosecution an instruction that “[a] person commits the crime of murder who kiHs an individual if, in performing the acts which cause the death, he knows that such acts create a strong probability of death or great bodily harm to that individual.” 67 Ill. 2d 86, 94.

The circumstances in Trinkle were these: The defendant had been refused further service at a tavern after the bartender concluded that he was already intoxicated. The defendant, after threatening to “shoot or blow up the bar,” left the premises, purchased a gun, returned to the vicinity of the tavern and fired a shot at the front door of the building. The shot struck a patron who, without the defendant’s knowing of it, was standing behind the door. The indictment in Trinkle charged in part:

“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, 199-200.

The following instructions were given to the jury:

“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.” 68 Ill. 2d 198, 200.

“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.”

‘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 createda strong probability of causing death or great bodily harm to Gayle E. Lane, or another; ***.” 68 Ill. 2d 198, 200.

This court correctly held that both the indictment and the instructions were defective in that they permitted the jury to find the defendant guilty of attempted murder if it concluded that the defendant knew that his acts created a strong probability óf great bodily harm to another person even if the evidence did not show that the defendant had acted with an intent to kill.

In one of the two appeals now before us, People v. Shields, one of the instructions to the jury is identical to that which was disapproved in Trinkle. In the other appeal, People v. Harris, the third instruction states that a person is guilty of the crime of murder “if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual.”

Although this instruction follows the language of section 9 — 1(a)(1) rather than that of section 9 — 1(a)(2), as in Trinkle, it is subject to the same objection that it permits the jury to return a verdict of guilty upon evidence that the defendant intended only to cause great bodily harm short of death. An instruction must make it clear that to convict for attempted murder nothing less than a criminal intent to kill must be shown.

The part of the holding in Muir that an instruction was, not erroneous which charged that proof only that a defendant knowingly and intentionally created a strong probability of death or great bodily harm to another person satisfies the intent element required for attempted murder was error and is hereby overruled. Erroneous also was that part of the holding that an indictment for attempted murder was not defective which alleged that the defendant’s acts to his knowledge created a strong probability of death or great bodily harm to another person. That part too of the holding in Muir is overruled. Observations of LaFave and Scott (Criminal Law sec. 59, at 428-29 (1972)) are representative of authority that it is not sufficient to prove attempted murder to show that the accused intended to cause serious bodily harm:

“Some crimes, such as murder, are defined in terms of acts causing a particular result plus some mental state which need not be an intent to bring about that result. Thus, if A, B, and C have each taken the life of another, A acting with intent to kill, B with an intent to do serious bodily injury, and C with a reckless disregard of human life, all three are guilty of murder because the crime of murder is defined in such a way that any one of these mental states will suffice. However, if the victims do not die from their injuries, then only A is guilty of attempted murder; on a charge of attempted murder it is not sufficient to show that the defendant intended to do serious bodily harm or that he acted in reckless disregard for human life. Again, this is because intent is needed for the crime of attempt, so that attempted murder requires an intent to bring about that result described by the crime of murder [i.e., the death of another).”

In Harris the defendant, although he objected to the instruction in question, did not renew his objection in his written post-trial motion. Under Rule 615(a) (58 Ill. 2d R. 615(a)), “[pjlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” Rule 451(c) provides regarding instructions that “substantial defects are not waived by failure to make timely objections thereto if the interests of justice require.” (58 Ill. 2d R. 451(c). See People v. Pickett (1973), 54 Ill. 2d 280, 283.) Considering all the circumstances, we are of the opinion that the adequacy of the instruction may be considered here. Cf People v. Jenkins (1977), 69 Ill. 2d 61, 66-67.

. In cause No. 49909, People v. Harris, we therefore reverse the judgments of the appellate and circuit courts, and remand the cause to the circuit court of Champaign County for a new trial not inconsistent with this opinion. In cause No. 50340, People v. Shields, we affirm the appellate court.

49909 — Reversed and remanded.

503.40 — Judgment affirmed.