No attempt second degree murder in Illinois. So, Defendant was sentenced to more years on an attempt murder than he received on second degree murder where someone actually died!
Defendant was charged by way of indictment with first degree murder, attempted first degree murder, aggravated discharge of a firearm, and unlawful use of a weapon by a felon.
Following deliberations, the jury returned a verdict of guilty of second degree murder, attempted first degree murder, aggravated discharge of a firearm, and unlawful use of a weapon by a felon.
People v. Guyton, 2014 IL App (1st) 110450 (July).
There is a traffic accident and an argument. Defendant comes back with a gun and kills the driver of the other car and injures the passenger.
The jury found that defendant had personally discharged a firearm during the attempted murder. Defendant was sentenced to a total of 54 years’ imprisonment.
Five shots were fired. But the State did not differentiate between the different shots fired.
Under the one-act one-crime rule, multiple convictions arising out of a single physical act are prohibited. Defendant’s conviction for aggravated discharge of a firearm was vacated.
Defendant argues that the jury verdicts in this case reflect that defendant thought he was acting in self-defense when he committed the shooting. Therefore, he could not have the requisite intent to be convicted of both attempted first degree murder and second degree murder and his attempted first degree murder conviction must be vacated.
The jury agreed with Defendant that the first degree murder of one victim should be mitigated to second degree murder because he acted in unreasonable self-defense.
Second degree murder is a “lesser mitigated offense” of first degree murder and is distinguished from self-defense only in terms of the nature of the defendant’s belief at the time of the killing.
But Defendant was also charged with the attempted first degree murder of the passenger.
To be convicted of attempt, the State must prove beyond a reasonable doubt the intent to commit a specific offense, in this case first degree murder under 720 ILCS 5/8-4(a). Defendant claims that no reasonable argument exists that his mental state changed between when he fired the bullet that hit and killed the driver, which resulted in a second degree murder conviction, and when he fired the bullet that hit and injured the passenger, which resulted in an attempted murder conviction.
In short, defendant argues that he cannot have had an unreasonable belief in the need for self-defense as to the passenger, but not as to the driver.
There is no difference between the mental states required to prove attempted first degree murder and second degree murder.
First degree murder and second degree murder share the same elements, including the same mental states, but second degree murder requires the presence of a mitigating circumstance.
The presence of a mitigating factor does not negate the mental state of murder because mitigating factors are not elements of the crime.
No Attempt Second Degree Murder in Illinois
There is no offense of attempt second degree murder in Illinois because the legislature has not chosen to create a mitigating factor for an “imperfect” self defense claim for an attempted murder conviction. They did exactly that for an attempted murder that resulted from a sudden and intense passion resulting from serious provocation. See 720 ILCS 5/8-4(c)(1)(E).
The jury’s verdict on second degree murder in this case indeed shows that it found defendant acted under the unreasonable belief in the need for self-defense as to the driver. Because there is no offense of attempted second degree murder, the jury could not be instructed and could not find the defendant guilty of attempted second degree murder of the passenger based on the same unreasonable belief in the need for self-defense.
Legislature Can Change This
In other words, because the defendant did not actually kill the passenger, the legislature determined he could not lawfully mitigate his attempt to murder him because he had the same unreasonable belief in the need for self-defense. Defendant’s mental state at the time of performing the act giving rise to the attempted murder of the passenger and the second degree murder of the driver were the same. The evidence established, and the jury found, the intent required to sustain an attempted first degree murder conviction.
The determination by the jury that mitigating circumstances existed to allow for a conviction of a lesser second degree murder offense because of defendant’s unreasonable belief in the need to defend does not invalidate the attempted murder conviction.
The issue is whether the trial court erred when it ruled that the defense had to bring up the issue of self-defense in its case in chief before any Lynch evidence could be introduced.
Generally, the defendant must first introduce evidence of self defense before the victim’s character evidence is admitted. The trial judge has wide desecration in determining the order of evidence. Thus, a judge who has forbidden the defense from mentioning the victim’s character in opening statements is not likely going to be overruled.