People v. Petermon, 2014 IL App (1st) 113536 (September).
How to prove attempted murder in Illinois?
Attempt murder is a specific attempt crime.
That means the state has to show Defendant wanted the victim dead. Defendant, here says, they can’t prove that because he missed shooting the victim even though he was only standing 10 feet away.
Did the state prove beyond a reasonable doubt that defendant attempted to kill the officer given that the shots were fired at close range and no bullets actually hit the officer? Because there was no physical evidence, no arrest at the scene, no admissions or statements by Defendant, and no evidence of gang affiliation or drug involvement, the primary issue is whether the eyewitness testimony supports a finding of guilt beyond a reasonable doubt.
Essentially, Defendant is asking how to prove attempted murder.
Off duty police officer sees a man getting beat by other men. Before the officer can stop it, Defendant shoots the victim. The officer identifies himself and pulls out his own weapon. Defendant then shoots at the cop but misses.
The Unreliable Eyewitnesses
In evaluating the reliability of an eyewitness identification, Illinois courts rely on the five factors set forth by the United States Supreme Court in Neil v. Biggers, 409 U.S. 188 (1972).
Those factors include:
(1) the witness’s opportunity to view the criminal at the time of the offense;
(2) the witness’s degree of attention;
(3) the accuracy of the witness’s prior description of the criminal;
(4) the level of certainty demonstrated by the witness when first identifying the defendant as the criminal and
(5) the length of time between the crime and the initial identification.
Id. at 199-200; People v. Hernandez, 312 Ill. App. 3d 1032, 1036 (2000).
How To Prove Attempted Murder?
To support a conviction for attempted murder, the State must establish beyond a reasonable doubt that:
(1) the defendant performed an act constituting a “substantial step” toward the commission of murder, and
(2) the defendant possessed the criminal intent to kill the victim.
People v. Green, 339 Ill. App. 3d 443, 451 (2003).
” ‘Intent is a state of mind which, if not admitted, can be established by proof of surrounding circumstances, including the character of the assault, the use of a deadly weapon, and other matters from which an intent to kill may be inferred. Such intent may be inferred when it has been demonstrated that the defendant voluntarily and willingly committed an act, the natural tendency of which is to destroy another’s life.’ ” Id. at 451; quoting People v. Winters, 151 Ill. App. 3d 402, 405 (1986).
Generally, the act of firing a gun, with nothing more, is not sufficient to prove intent to kill. People v. Ephraim, 323 Ill. App. 3d 1097, 1110 (2001). But an intent to kill may be proven where the surrounding circumstances show that the defendant “fired a gun at or towards another person with either malice or a total disregard for human life.”
This court has previously found that “the very fact of firing a gun at a person supports the conclusion that the person doing so acted with an intent to kill.” Id. It falls to the trier of fact to determine if the requisite intent to kill existed, and that determination will not be disturbed on appeal unless there is a reasonable doubt as to defendant’s guilt. Green, 339 Ill. App. 3d at 451.
Defendant argued that the fact that the officer was not actually shot when standing only 10 feet away shows Defendant did not want to kill him. Rather, these facts show that Defendant just wanted to distract the officer so that the men could get away.
Defendant was not a skilled shooter.
So it is plausible that even at such close range he simply missed the target he was aiming at. It is up to the trier of fact to decide the issue. Here, the judge clearly thought, Defendant was trying to shoot the officer.
Double attempt murder convictions stand. However, conviction for aggravated battery and aggravated discharge of a firearm were vacated under the one-act one crime rule.