People v. Mitchell

568 N.E.2d 292, 209 Ill. App. 3d 562, 154 Ill. Dec. 292, 1991 Ill. App. LEXIS 134
CourtAppellate Court of Illinois
DecidedFebruary 1, 1991
Docket1-89-1916
StatusPublished
Cited by21 cases

This text of 568 N.E.2d 292 (People v. Mitchell) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Mitchell, 568 N.E.2d 292, 209 Ill. App. 3d 562, 154 Ill. Dec. 292, 1991 Ill. App. LEXIS 134 (Ill. Ct. App. 1991).

Opinion

JUSTICE LaPORTA

delivered the opinion of the court:

Defendant Franklin Mitchell was convicted by a jury of attempted murder and sentenced to six years in prison after he admitted he fired three shotgun rounds at a man on the roof of a building near his apartment. The State successfully proved at trial that defendant fired at three people who were on the roof — two officers and the owner of the building — even after police officers identified themselves and urged defendant to stop shooting.

Defendant contended at trial that he fired two shots into the air and a third into the ground as a warning to the person he saw on the roof and only fired after the man he saw failed to respond to his request for identification. The jury convicted defendant of three counts of attempted murder..

On appeal, defendant contends the State failed to prove he had the specific intent to commit murder, as required for a conviction of attempted murder, and failed to prove he took a substantial step in furtherance of murder as required for an attempted murder conviction. Defendant also argues that the court erred in its jury instructions which pertained to an out-of-court statement made by the defendant that was admitted into evidence. Defendant argues further that the trial judge erred in failing to give Prim instructions to the jury when he learned they were deadlocked after five hours of deliberation.

In People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731 (superseded by statute as stated in People v. DeSimone (1982), 108 Ill. App. 3d 1015, 439 N.E.2d 1811), the court did not formulate a specific instruction to be given to a deadlocked jury but did express approval of section 5.4 of the American Bar Association Standards Relating to Trial by Jury (1968), which states: “If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction ***.” The directive in Prim was aimed mainly at eliminating instructions to concede to the majority. People v. Campbell (1987), 163 Ill. App. 3d 1023, 516 N.E.2d 1364.

Defendant admits and the State has proven that three shots were fired on August 30, 1987. In August 1987, Franklin Mitchell lived on Chicago’s west side across the alley from a shoe store that had been burglarized four times that summer. On the evening of August 30, defendant saw someone on the roof of the shoe store. He picked up his shotgun and fired three times. No one was injured. After the shooting, defendant went to the alley between his home and the store where police arrested him. He was tried and convicted of three counts of attempted murder.

At trial, Lt. John Farrell testified that at 8:20 p.m. on August 30, he and three other police officers went to Sun Shoe Store on Chicago’s west side to investigate a burglary that had occurred August 29. As part of the investigation, Farrell, the store owner, Hong Ja Worle, and another officer, James Jones, drove an unmarked police car around to the back of the store. They parked the car in the alley, and the three climbed a stairway onto the roof of the building to see where the burglar or burglars had entered.

Farrell testified that Jones and Worley stopped as soon as they were on the roof and that he, Farrell, proceeded to the shoe store roof next door to investigate where the illegal entry occurred. Farrell testified that he heard a shot and took cover. In the subsequent moments, Farrell heard what sounded like a round of ammunition being chambered into a shotgun and exchanged conversation with Jones, speculating about where the shot originated. Farrell testified that the sound seemed to come from south of the shoe store, across the alley on Monroe Street where a residential building was located.

Farrell testified that he yelled, “We’re police officers, don’t shoot,” and that someone across the alley yelled, “Fuck you, police officers.” He testified that after he identified himself, he saw a muzzle flash and a figure in the window of the apartment later identified as the defendant’s apartment. Farrell testified that he pulled his 9 millimeter handgun and fired one shot toward the figure, missing him. He testified that he then identified himself several more times and heard Jones yell the. same thing back at him several times and fire one more shot. He testified that each time a shot was fired he heard pellets skipping off the wall and roof nearby.

Farrell testified that after other police officers arrived and he told them where the shots came from, police officers secured the area around the apartment building. He testified that at that point, defendant came down from the second floor and asked police what was going on. Farrell noted that while defendant talked with police officers below, he and other officers went to defendant’s apartment, where they recovered three expended shells from the floor of the porch and a 12 gauge shotgun.

On cross-examination, Farrell acknowledged that there was at least one tree in the lot between the officers and the defendant’s apartment, that the incident occurred after 8:20 p.m. at night and that he could not identify the defendant as the person at the window from where the muzzle flash originated or as the person who yelled the profanities. He admitted that no shotgun pellets were recovered from the roof of the building despite his testimony that the shotgun blasts were aimed in his direction and that they had heard the pellets skipping off the wall and roof.

Hong Ja Worle testified that, at first, she didn’t know whether the noise she heard was gunfire or a firecracker. She testified that the police officers were yelling, “Police officer, don’t shoot,” but that someone kept yelling back from the other side of the alley, “Fuck you police, fuck you,” and then he would shoot again. She testified that someone shot at the police officer twice, Farrell returned with one shot and then someone shot at them once again. She also testified that she believed two different voices could be heard from across the alley but added that she kept her head down during the entire incident and saw nothing.

Sergeant James Jones testified that when they heard shots, Farrell, and then later he, yelled “Don’t shoot, we’re police,” but a male voice responded, “Fuck you, police officers.” He testified that he heard a second shotgun round being chambered, a shot and then “a crack which would account for the pellets hitting the wall behind me.” Jones testified that he felt a pebble hit his foot, which caused no injury. He testified that once again the officers announced their presence and once again a voice yelled back, “Fuck you, police officer” and another shot was fired. Jones testified that police officers and the defendant exchanged words at least three times while the shooting was going on.

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Cite This Page — Counsel Stack

Bluebook (online)
568 N.E.2d 292, 209 Ill. App. 3d 562, 154 Ill. Dec. 292, 1991 Ill. App. LEXIS 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mitchell-illappct-1991.