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People v. Myers

OPINION FILED JUNE 4, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

LEONARD MYERS, APPELLEE.



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Will County, the Hon. Angelo F. Pistilli, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 19, 1981.

Defendant, Leonard Myers, was convicted by a Will County jury of attempted murder, armed violence, armed robbery, and aggravated kidnaping. He received concurrent sentences of 20 years' imprisonment for each offense. The appellate court vacated the conviction and sentence for attempted murder and otherwise affirmed. (83 Ill. App.3d 1073.) We granted the State's petition for leave to appeal from the reversal of the attempted-murder judgment.

Testimony of the State's witnesses, Melvin Schmidt, Kevin Jensen and Dr. William Sims, as to the following events was uncontradicted. On the night of June 15, 1978, three young men, Rick Landeen, Jensen, and Schmidt, were returning, in Jensen's Thunderbird, from a baseball game in Chicago. Jensen offered a ride to three men, Elijah Barfield, Jerry DeLooch, and the defendant, who were walking along I-55. The three accepted, and Jensen proceeded to deliver Landeen to his home in La Grange. The other five then continued, making one stop so that Jensen, Barfield, DeLooch, and defendant could steal some gas. The auto traveled generally southward, with Jensen driving, Schmidt in the right-front passenger seat, and the other three in the rear seat. Realizing that he would not have enough gas to reach his own home if he took the three hitchhikers any farther toward their Joliet-Lockport destination, Jensen stopped the car near an I-55 interchange to let them out.

At that point, defendant, who was seated behind Schmidt, and who apparently had concealed in his clothing an old rusty machete with a blade approximately 10 to 12 inches in length, placed the machete against Schmidt's throat and held it there with his hands cupped, underhanded, cutting the neck almost immediately. Jensen then agreed to take the defendant farther and pulled onto I-55. Barfield, who was seated behind Jensen, held a gun to Jensen's head. Schmidt had instinctively grabbed defendant's wrists and struggled for approximately a minute in an attempt to pull the machete away from his throat, but submitted when defendant told him, "Get your hands down or I am going to cut your head off." After Schmidt lowered his hands, he testified that defendant started "yanking" even harder "twisting or working the knife into me." Defendant ignored Schmidt's ruse in requesting a cigarette, as well as his appeal that defendant put the knife down.

According to Jensen's testimony, the defendant twice moved the knife from Schmidt's throat in order to menace Jensen. Defendant, apparently fearing that consulting a map was intended to enable those in passing cars to see him with a knife at Schmidt's throat, first threatened Jensen with the knife when Jensen started to turn on the car's map light. Jensen did not turn on the light at that point, but both Jensen and Schmidt testified that, when Jensen later turned it on, defendant moved the knife from Schmidt's throat and cut Jensen's fingernail by "flicking" the knife across Jensen's thumb. Defendant then moved the knife back to Schmidt's throat and gave "a pretty hefty yank" on it. Schmidt asked the defendant if he could spit blood out the window, because it felt as if his throat was filling with blood, and he couldn't breathe. Although defendant refused permission, Schmidt tried to spit anyway. Jensen then told defendant to take the car, "Just take it, let us off." Defendant, however, told Barfield, referring to Schmidt, to "Knock him out" or "Put him out." Barfield then struck Schmidt's head approximately six times with the gun, while defendant was vigorously "yanking" on Schmidt's throat with the knife. As the gun was taken from Jensen's head to strike Schmidt, Jensen heard air whistling through Schmidt's wound, indicating that the windpipe had been cut.

Defendant then ordered Jensen to drive off I-55 onto a highway, and onto a side road, and the car then began to run out of gas. Defendant lowered the knife from Schmidt's throat and asked for his wallet, which Schmidt gave him. Thereafter Schmidt used both hands to try to hold his neck together. The car stopped completely at a point on the road where some house lights were visible in the distance. Defendant then dragged Schmidt by the neck from the car, frisked him, and took him to the front of the car, Schmidt stumbling several times against it. There Schmidt leaned against Jensen, whom Barfield had forced to stand in front of the still-burning headlights. Defendant told Jensen and Schmidt, "Don't run towards the lights or you will be finished off."

Both Jensen and Schmidt testified that they had believed that Schmidt would die of his injuries. Schmidt testified that he had been "really woozy" and unable to walk to the lights. Since the cars on the road would not stop for them, Jensen finally jumped in front of one in order to stop it. Schmidt got into the car and asked to be taken to a hospital. At the hospital he was taken immediately to an operating room because of the seriousness of his injuries. The surgeon who treated him testified that he had suffered a 4 1/2 inch wound, which was "gaping wide." The wound, which was approximately 5/8 inch to 3/4 inch deep at its deepest point, had opened Schmidt's windpipe, and, had it penetrated just a little more deeply, would have hit the carotid artery and jugular vein. The surgeon testified that there was an immediate danger of suffocation from blood being taken into the lungs. It is apparent from the testimony and exhibits, including Schmidt's blood-soaked shirt and T-shirt and photographs of the interior and exterior of the car that he had lost a substantial amount of blood.

The definitions of the crimes of attempt, armed violence, and aggravated battery are relevant in our consideration of this case:

"Sec. 8-4. Attempt. (a) Elements of the Offense.

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." Ill. Rev. Stat., 1978 Supp., ch. 38, par. 8-4.

"Sec. 33A-2. Armed violence — Elements of the offense. A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law." Ill. Rev. Stat., 1978 Supp., ch. 38, par. 33A-2.

"Sec. 12-4. Aggravated Battery.

(a) A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or ...


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