1st Degree Murder in Illinois

People v. Morgan, January 24, 2003
Direct appeal from the circuit court of Sangamon County.
Opinion by McMORROW, C.J. RARICK, J., took no part THOMAS, J., joined by
KILBRIDE, J., dissenting

In Sangamon County, this defendant was accused
in connection with an incident that took place in 2000 in which he
allegedly went to another man's house and shot him with intent to rob.
He was charged with aggravated battery with a firearm, attempted armed
robbery, and attempted first degree murder.

On January 1, 2000, statutory amendments had become effective which
increased the penalties for attempted first degree murder when a firearm
is involved. The available 6-to-30-year sentencing range for attempted
first degree murder was increased by 15 years for carrying a firearm, 20
years for discharging it, and 25 years to life for seriously injuring
the victim. Meanwhile, second degree murder, which is applicable where
mitigating factors are present, remained subject to only a 4-to-20-year
penalty, with probation available. Statute permits no attempted second
degree murder in Illinois, and this precludes a defendant charged with
attempted first degree murder from presenting mitigating evidence.

Thus, in cases in which mitigating circumstances are present and a
firearm is involved, a defendant can be subjected to more severe
penalties if the victim survives than if he dies.

The Illinois Supreme Court held the sentencing ranges created by the
amended attempt statute are disproportionate, in violation of the
Illinois Constitution of 1970, and therefore invalid. The circuit
court's similar finding, which had been directly appealed by the State,
was affirmed.

SELF DEFENSE/JURY INSTRUCTIONS

1st Dist. People v. EDMONDSON, 1-98-0210 (March 18, 2002) 1st div.
(JUSTICE TULLY) Reversed and remanded.

Following a jury trial, defendant, Kyle Edmondson, was convicted of two
counts of first- degree murder and two counts of attempted first-degree
murder.

Defendant argued that the trial court erred in refusing to give an
instruction for second degree murder where defendant presented evidence
of self-defense and where the jury questioned the meaning of
self-defense.

At trial, defendant claimed he acted out of self-defense against the
victims who were the actual aggressors in this case. At trial, the
defendant admitted to firing his gun; however, he asserted the
affirmative defense of self-defense. The defendant described incidents
with the Gangster Disciples in which various gang members threatened
defendant during the two months prior to the murders. Defendant
portrayed Darnell Harris as one of the aggressors in this case who
chased the defendant on several occasions and instructed other gang
members to attack the defendant. The defendant testified that Harris did
not want him to leave the gang and was trying to force the defendant to
stay. Defendant related that Harris, Buford and several other Gangster
Disciples beat him up two weeks prior to the murders.

Whether the conduct here qualified as first degree murder, second degree
murder or self-defense was a question of fact for the jury to resolve.

There was sufficient evidence in this case that a trier of fact could
believe demonstrated that defendant was not the aggressor.
Identifying the initial aggressor is a question of fact for the jury to
resolve. People v. Johnson, 247 Ill. App. 3d 578, 585, 616 N.E.2d 1026
(1993). When the evidence conflicts on the issue of who initiated the
violence, the trial court must instruct the jury on the defendant's
justifiable defenses supported by the evidence. People v. Robinson, 163
Ill. App. 3d 754, 761, 516 N.E.2d 1292 (1987). Even if inconsistencies
exist in defendant's testimony, the defendant is entitled to the benefit
of any defense and instruction supported by the entire evidence.

The trial judge recognized that there were competing theories factually
at issue in this case and found the defendant was entitled to an
instruction on self-defense because that instruction was supported by
the evidence. The submission of the self-defense instruction by the
trial judge indicates his determination that the jury could conclude
defendant acted with the subjective belief his conduct was in
self-defense. There was sufficient evidence in the record to support
that determination. However, the refusal to instruct the jury on second
degree murder prevented the jury from determining whether defendant's
subjective belief that he was justified in self-defense was a reasonable
or unreasonable belief.

When the evidence supports giving the jury an instruction on the
justifiable use of force in self-defense, then an instruction for second
degree murder should likewise be given. People v. Lockett, 82 Ill. 2d
546, 552, 413 N.E.2d 378 (1980). In Lockett, the court determined that a
self-defense and voluntary manslaughter (now second degree murder)
instruction should be given when any evidence is presented showing the
defendant's subjective belief that use of force is necessary. Lockett,
82 Ill. 2d at 552. The court noted the judge's duty is to determine if
any evidence is presented that the defendant had a subjective belief
that use of force is necessary, while it is the duty of the jury to
weigh the evidence and determine if the belief existed and if so whether
that belief was reasonable or unreasonable.

There is a factual dispute as to whether defendant, Buford or another
Gangster Disciple was the initial aggressor who set into motion a course
of felonious conduct. There is evidence that a jury could believe and
find that defendant did not commit first degree murder, but fired the
weapon under the unreasonable belief that circumstances justified the
use of deadly force and was, therefore, guilty of second degree murder.
Therefore, based on the record, including the history of aggression
between defendant and the Gangster Disciples, the previous
confrontations and the testimony of defendant, there is sufficient
evidence of self-defense to warrant an instruction on second degree
murder.

The trial court committed reversible error in failing to instruct the
jury on second degree murder.

The judgment of the trial court is reversed and the cause is remanded
for a new trial.

1st Dist. People v. Lima, No. 1-98-3778, (February 1, 2002)
5th Division (JUSTICE REID) affirmed. MURDER, EVIDENCE OF OTHER CRIMES,
SENTENCING, CREDIT

Following a jury trial, Ricardo Lima (Lima) was convicted of one count
of first degree murder (720 ILCS 5/9-1 (West 1992)) and three counts of
attempted first degree murder (720 ILCS 5/8-4, 9-1) (West 1992)) . He
was first sentenced to 60 years for the murder and to a 10-year
concurrent sentence for the attempted murder. Following a motion to
reduce the sentence, Lima's sentence was reduced to 50 years for the
first degree murder and to a 10-year consecutive sentence for the
attempted first degree murder. He appealed the conviction and the
revised sentence. The court affirmed defendant's convictions and
sentence for first degree murder and modified defendant's sentence for
attempted first degree murder to run concurrently.

Lima argued that the trial court erred in denying the motion to
suppress. Lima contended that his Miranda warnings became stale and
should have been repeated during the investigation. He also argued that
he was prevented from seeing his mother within a reasonable time of her
arrival at the police station.

"'Whether a statement is voluntarily given depends upon the totality of
the circumstances. The test of voluntariness is whether the statement
was made freely, voluntarily and without compulsion or inducement of any
sort, or whether the defendant's will was overcome at the time he
confessed.'" People v. Miller, 173 Ill. 2d 167, 181 (1996), quoting
People v. Clark, 114 Ill. 2d 450, 457 (1986). In the case of a juvenile
confession, there are extra factors to consider. "'Factors to consider
include the [juvenile's] age, intelligence, background, experience,
mental capacity, education, and physical condition at the time of
questioning; the legality and duration of the detention; the duration of
the questioning; and any physical or mental abuse by police, including
the existence of threats or promises.'" People v. Golden, 323 Ill. App.
3d 892, 900 (2001), quoting G.O., 191 Ill. 2d at 54. "Also relevant is
the 'concerned adult' factor: whether the juvenile before or during
interrogation, had an opportunity to consult with an adult interested in
his welfare. This factor is especially relevant 'in situations in which
the juvenile has demonstrated trouble understanding the interrogation
process, he asks to speak with his parents or another "concerned adult,"
or the police prevent the juvenile's parents from speaking with him.'"
Golden, 323 Ill. App. 3d at 900, quoting G.O., 191 Ill. 2d at 55. It is
important to remember, however, "[n]o single factor is dispositive, and
the failure to confer with a parent before or during interrogation does
not per se render a juvenile's statement involuntary." Golden, 323 Ill.
App. 3d at 900; citing G.O., 191 Ill. 2d at 55.

The Illinois Supreme Court has recently stated that "'fresh Miranda
warnings are not required after the passage of several hours.'" Miller,
173 Ill. 2d at 182, quoting People v. Garcia, 165 Ill. 2d 409, 425
(1995). "A new set of Miranda warnings is required `only in those
situations where a substantial probability exists that warnings given at
a previous interrogation are so stale and remote that a substantial
possibility exists that the suspect was unaware of his or her
constitutional rights at the time subsequent interrogation occurs.'
[citation.] The totality of the circumstances should be considered in
determining whether a defendant understands his constitutional rights in
post-Miranda questioning." Miller, 173 Ill. 2d at 182-83, quoting
Garcia, 165 Ill. 2d at 425-26.

Lima next argued that the State violated the trial court's ruling on a
motion in limine in its cross-examination of the defendant by
introducing evidence of another crime for which Lima was not on trial.

Specifically, the motion sought to bar the State from having Walsh
testify that Lima told him that he had bought a gun to protect himself
from a drug dealer from whom Lima had previously stolen money. The
motion was granted and the State did not use the statement in its case
in chief.

Evidence of collateral crimes, i.e., crimes for which the defendant is
not on trial, is inadmissible if relevant merely to establish the
defendant's propensity to commit crimes. People v. Lindgren, 79 Ill. 2d
129, 137 (1980), citing Michelson v. United States, 335 U.S. 469,
475-76, 93 L. Ed. 168, 173-74, 69 S. Ct. 213, 218-19 (1948). As an
exception to the above rule, "[e]vidence of a defendant's commission of
other crimes is generally admissible when it is relevant to prove a
material question other than the defendant's propensity to commit the
crime charged, such as modus operandi, intent, identity, motive, or
absence of mistake." People v. Wassell, 321 Ill. App. 3d 1013, 1017
(2001), citing People v. Kliner, 185 Ill. 2d 81, 146 (1998). Evidence is
relevant if it has any tendency to make the existence of a fact that is
of consequence in the case more probable or less probable than it would
be without the evidence. Bedoya, 325 Ill. App. 3d at 937, citing People
v. Green, 322 Ill. App. 3d 747, 757 (2001).

Section 5-8-4(a)(i) of the Unified Code of Corrections (730 ILCS
5/5-8-4(a) (West 1996)) required consecutive sentences for "a Class X or
Class 1 felony and the defendant inflicted severe bodily harm." "First
degree murder is not a Class X or Class 1 felony; rather, it is its own
class of felony. Aggravated discharge of a firearm is a Class 1 felony.
Defendant's conduct, however, in committing the offense of aggravated
discharge of a firearm did not result in severe bodily injury to the
victim of that felony, [the passenger]. Therefore, the requirements for
the first exception under section 5-8-4(a) have not been satisfied.
Consequently, consecutive sentences are not warranted in this case."
Whitney, 188 Ill. 2d at 100.

This court will leave the business of calculating appropriate
day-for-day good-conduct credit to the Illinois Department of
Corrections. "Recalculation of the sentence credit to which defendant is
entitled is a matter for the Illinois Department of Corrections." People
v. Davis, 303 Ill. App. 3d 684, 688 (1999).