People v. Lopez

655 N.E.2d 864, 166 Ill. 2d 441, 211 Ill. Dec. 481, 1995 Ill. LEXIS 88

• Court: Illinois Supreme Court
• Decided: May 18, 1995
• Docket: 75467, 75798 cons.
• Status: Published

Opinions

JUSTICE NICKELS

delivered the opinion of the court:

These consolidated appeals present separate issues concerning the existence of the offense of attempted second degree murder in Illinois. In cause No. 75467, defendant Denis Lopez was convicted after a jury trial of attempted first degree murder and armed violence. Lopez requested an instruction on the crime of attempted second degree murder based on provocation, but the trial and appellate courts found that no such crime existed in Illinois. (245 Ill. App. 3d 41.) In cause No. 75798, defendant Juan Cruz was convicted after a jury trial of attempted first degree murder, armed

violence, and possession of a controlled substance with intent to deliver. Cruz also requested an instruction on attempted second degree murder, but based on imperfect self-defense. As in the case of Lopez, the trial and appellate courts found no such crime existed in Illinois. (248 Ill. App. 3d 473.) We granted leave to appeal in both cases pursuant to Supreme Court Rule 315 (145 Ill. 2d R. 315) and consolidated the cases for review.

FACTS

No. 75467

In cause No. 75467, Lopez was charged with and convicted by a jury of attempted first degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4, 9 — 1) and armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A — 2) and sentenced to 25 years’ imprisonment. Lopez admitted shooting his wife, Nancy Lopez, but argued that he had done so due to a sudden and intense passion due to serious provocation. Lopez and his wife had been married for 10 years and had been having marital trouble for the last two or three years. In December 1989, Lopez’s wife informed him that she had been involved in an extramarital affair and that the man with whom she was having the affair was the father of their son.

Ms. Lopez informed Lopez in March 1990 that she was filing for divorce and later that month took her children and moved in with her mother. On March 22, 1990, Lopez shot his wife after she accompanied her daughter to school. Ms. Lopez survived the shooting.

The trial court refused defendant’s tendered instruction on attempted second degree murder based on provocation. The appellate court, relying on People v. Aliwoli (1992), 238 Ill. App. 3d 602, found that the crime of attempted second degree murder does not exist in Illinois. 245 Ill. App. 3d at 44.

No. 75798

In cause No. 75798, Cruz was charged with and convicted by a jury of attempted first degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4, 9: — 1), armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A — 2), and possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1401(b)(2)). The evidence at trial shows that Cruz was distributing drugs at a Chicago housing project when two plain-clothed policemen attempted to apprehend him. Cruz ran and fired shots at the officers, hitting both. The officers survived. Cruz admitted firing at the officers, but testified he did not hear them say "police” or see them wearing badges.

Cruz tendered an instruction on attempted second degree, murder based on an imperfect self-defense, the unreasonable belief in the need to use deadly force. The trial court refused the instruction. The appellate court affirmed, relying on Aliwoli and the decision in Lopez. 248 Ill. App. 3d at 477.

Appellate Decisions

The question before us is whether attempted second degree murder is an offense recognized in Illinois. The districts of the appellate court are split on this issue. The First District has held that no offense of attempted second degree murder exists in Illinois. (Lopez, 245 Ill. App. 3d 41; People v. Aliwoli (1992), 238 Ill. App. 3d 602 (provocation); Cruz, 248 Ill. App. 3d 473; People v. Williams (1991), 220 Ill. App. 3d 460 (imperfect self-defense).) However, the Second District (People v. Austin (1991), 215 Ill. App. 3d 323 (imperfect self-defense)) and Third District (People v. Moore (1990), 204 Ill. App. 3d 694 (provocation)) have found that such a crime does exist. The Fourth District has not addressed the issue, but has assumed that the crime exists. (See People v. Flaugher (1992), 232 Ill. App. 3d 864, 876 (provocation).) Finally, the Fifth District has concluded that attempted second degree murder does not exist in Illinois. People v. Fletcher (1993), 255 Ill. App. 3d 206 (imperfect self-defense).

Statutes

We begin our discussion with the pertinent statutes. The attempt statute provides:

"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.” (Emphasis added.) (720 ILCS 5/8 — 4(a) (West 1992).)

The second degree murder statute provides in pertinent part:

"(a) A person commits the offense of second degree murder when he commits the offense of first degree murder as defined in paragraph! ] (1) *** of subsection (a) of Section 9 — 1 of this Code and either of the following mitigating factors are present:

(1) [Provocation] At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed; or

(2) [Imperfect self-defense] At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code [self-defense], but his belief is unreasonable.” (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a).)

The first degree murder statute provides in pertinent part:

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

(1) He *** intends to kill *** that individual or another ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a).)

We note that because the crime of attempted first degree murder requires, and attempted second degree murder would require if it exists, the specific intent to kill (see People v. Barker (1980), 83 Ill. 2d 319, 324), we limit our discussion of the murder statutes to the mental state of intent to kill.

Attempted Voluntary Manslaughter

We begin our analysis with this court’s previous holding that the crime of attempted voluntary manslaughter based upon an imperfect self-defense does not exist in Illinois. (People v. Reagan (1983), 99 Ill. 2d 238.) This analysis is helpful because second degree murder replaced voluntary manslaughter. (See People v. Jeffries (1995), 164 Ill. 2d 104, 111.) In Reagan, this court concluded:

"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 by the People, 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.

We agree with the appellate court that 'there is no crime of attempted voluntary manslaughter under section 9 — 2(b). To commit an attempted voluntary manslaughter, the defendant could not merely have an intent to kill, for that is not a crime. [.People v. Barker (1980), 83 111. 2d 319.] The defendant would have to specifically intend to kill with an unreasonable belief in the need to use deadly force in self-defense. As the State concedes, it is impossible to intend an unreasonable belief. If a defendant intended to kill with the knowledge that such action was unwarranted, he has intended to kill without lawful justification and could be prosecuted for attempted murder. In the case at bar, the defendant intended to defend himself. Although his belief in the need to defend himself or in the need to use deadly force was unreasonable, his intent was not to commit a crime. His intent was to engage in self-defense, which is not a criminal offense.’ 111 Ill. App. 3d 945, 950-51.” Reagan, 99 Ill. 2d at 240-41.

Second Degree Murder

We now turn to the offense of second degree murder. The legislature amended section 9 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2) in 1986. This revision renamed the offense of murder and abolished voluntary manslaughter. Murder is now known as first degree murder, and voluntary manslaughter has been replaced by second degree murder. See Jeffries, 164 Ill. 2d at 111.

As defined by statute, second degree murder is first degree murder plus the existence of one of the two statutory mitigating circumstances. As noted in Jeffries, first and second degree murder are similar in that they have the same mental states. What distinguishes the two offenses is the presence of the mitigating circumstance, which reduces first degree murder to second degree murder. However, the mitigating circumstances are not elements of the crime. In fact, first and second degree murder have the same elements. Second degree murder is simply a lesser mitigated offense, a concept new to Illinois. Jeffries, 164 Ill. 2d at 122.

We further noted in Jeffries that for a conviction on second degree murder, the State must prove beyond a reasonable doubt the elements of first degree murder. The defendant then has the burden to prove the existence of one of the mitigating factors. The jury is instructed "not [to] consider whether the defendant has met his burden of proof with regard to second degree murder until and unless it has first determined that the State has proven beyond a reasonable doubt each of the elements of first degree murder.” Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(c).

Attempt

We now examine the mental state required for attempted second degree murder, if such crime were to exist. As the attempt statute provides, for a defendant to commit an attempted offense, he must intend to commit a specific offense. Defendants argue that the intent required for attempted second degree murder is simply the intent to kill. The State responds that under the specific language of Illinois’ attempt statute, the intent required for attempted second degree murder, if it exists, would be the intent to kill without lawful justification and with either a sudden passion or an unreasonable belief in the need to use deadly force. We agree with the State.

The Reagan decision is helpful here. As noted in Reagan, the mental state required for attempted voluntary manslaughter, if such crime existed, would not simply have been the intent to kill, but the intent to kill without lawful justification. This is because the attempt statute requires the intent to commit a specific offense, and simply intending to kill is not an offense. For example, killing in self-defense is not a crime. This court further noted in Reagan that a defendant intending to defend himself, although unreasonably, would not have the intent to unlawfully kill. Such a defendant would have the intent to lawfully kill using self-defense. The two different intents, intent to kill unlawfully and intent to kill in self-defense, cannot coexist in the same crime.

Turning now to attempted second degree murder, we note that the crime of attempted second degree murder would require the intent to commit the specific offense of second degree murder. Thus, the intent required for attempted second degree murder, if it existed, would be the intent to kill without lawful justification, plus the intent to have a mitigating circumstance present. However, one cannot intend either a sudden and intense passion due to serious provocation or an unreasonable belief in the need to use deadly force. Moreover, concerning the mitigating factor of an imperfect self-defense, one cannot intend to unlawfully kill while at the same time intending to justifiably use deadly force. Thus, the offense of attempted second degree murder does not exist in this State.

Defendants, however, argue that this analysis is faulty. Defendants contend:

"Since second degree murder is first degree murder plus mitigation, it follows that attempt[ed] second degree murder is nothing more than attempt[ed] first degree murder plus mitigation. Thus, the correct analysis is first whether the defendant attempted to commit attempted] first degree murder and then whether he was acting under a sudden and intense passion.”

This, however, is not what the attempt statute specifies.

Attempt requires the intent to commit a specific offense, and first and second degree murder are separate offenses. While they share the same elements, second degree murder requires the presence of a mitigating circumstance, which, while not an element or mental state, does reduce the culpability and thus the sentencing range. (See Jeffries, 164 Ill. 2d at 121-22.) We hold that for an attempted second degree murder, the defendant must intend the presence of a mitigating factor, which is an impossibility.

We note that while defendants and legal commentators have argued (see O’Neill, An Analysis of Illinois’ New Offense of Second Degree Murder, 20 J. Marshall L. Rev. 209, 223; see also Steigmann, First and Second Degree Murder in Illinois, 75 Ill. B.J. 494, 498, 511 (1987)) that the specific intent required for attempted second degree murder is simply the intent to kill, their assertion is without merit. These arguments fail to consider the specific language of Illinois’ attempt statute, which plainly requires the intent to commit a specific offense, not simply the intent required to commit the predicate offense. Thus, our decision is based on the wording of our attempt statute rather than some notion of how the crime of attempt should be defined. These arguments concerning the intent required for attempt are better addressed to the State legislature than to this court.

Finally, defendant Lopez argues that this court’s failure to recognize the crime of attempted second degree murder results in the possibility that a defendant would be sentenced to a greater term of imprisonment if the victim lives than if the victim dies. Lopez notes that attempted first degree murder is a Class X felony punishable by a term of imprisonment ranging from 6 to 30 years. (720 ILCS 5/8 — 4(c)(1) (West 1992); 730 ILCS 5/5 — 8—1(a)(3) (West 1992).) However, had Lopez actually killed his wife and the jury believed he acted under a sudden and intense passion due to serious provocation, he would have been guilty of second degree murder, a Class 1 felony, which is punishable by a term of imprisonment ranging from 4 to 15 years. (720 ILCS 5/9 — 2(d) (West 1992); 730 ILCS 5/5 — 8—1(a)(4) (West 1992).) (The legislature has increased the sentencing range for second degree murder to 4 to 20 years effective January 1, 1994. (730 ILCS 5/5 — 8—l(a)(1.5) (West Supp. 1993).) Lopez argues that this possibility violates the Illinois Constitution’s requirement that "[a]ll penalties *** be determined *** according to the seriousness of the offense.” Ill. Const. 1970, art. I, § 11.

We disagree. As this court noted in People v. Step-pan (1985), 105 Ill. 2d 310:

" 'This court has traditionally been reluctant to override the judgment of the General Assembly with respect to criminal penalties. It indicated at an early date that the constitutional command that “penalties shall be proportioned to the nature of the offense” would justify interference with the legislative judgment only if the punishment was "cruel,” “degrading” or “so wholly disproportionate to the offense committed as to shock the moral sense of the community.” ’ (25 Ill. 2d 235, 240.)” (Steppan, 105 Ill. 2d at 320.)

We do not believe that the disparity in sentencing range here is cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community.

Accordingly, we hold that under the Illinois attempt statute, no crime of attempted second degree murder exists. The judgments of the appellate court are affirmed.

Nos. 75467 & 75798 — Affirmed.