Appeal from the Circuit Court of La Salle County; the Hon.
William P. Denny, Judge, presiding.
JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
The defendant was charged with three counts of attempted murder and three counts of armed violence based on the underlying offenses of attempted murder. A jury convicted the defendant of attempted voluntary manslaughter and armed violence. The trial court sentenced the defendant to eight years in prison for the convictions of armed violence. The defendant now appeals.
According to the State's evidence, the State Police were keeping the defendant and his automobile under surveillance on July 27, 1980. At 6 p.m., Officer Lawrence Stalter, driving an unmarked police car, was following the defendant. The defendant, at some point, made two turns without using his turn signals. Stalter turned on his flashing red light and followed the defendant. The defendant, however, continued to drive at a normal speed and continued to obey all stop signs. At one stop sign, Officer Robert Current, driving a marked police car, drove past the defendant without attempting to stop him. Current's lights were not turned on. Stalter continued to follow the defendant as he made another turn. Suddenly, the defendant accelerated his car and Stalter began a high speed chase. Officer Patrick O'Connor driving a marked squad car, joined Stalter in the pursuit.
The chase ended when the defendant drove into a ditch. He got out of his car holding a rifle and shot at Stalter. O'Connor arrived at the scene a moment later and fired back at the defendant. Tonica police officer Dennis Appelbee, driving a marked squad car, came to the scene to help O'Connor and Stalter. The defendant shot at Applebee as he was arriving at the scene of the gun battle. The three officers surrounded the defendant and exchanged shots with him for several minutes. The gun battle ended after the defendant was seriously wounded. Officer Applebee was injured. The defendant received several gunshot wounds.
The defendant testified that he knew a car was following him, but did not know it was a police car. He claimed that he did not see a flashing red light nor did he hear any siren. The defendant also claimed he tried to evade the car that was following him, because he believes he has been repeatedly followed since 1978. The defendant also testified that he has been shot at several times over the past few years. The defendant also stated that he thought someone had shot at him before the chase that led to his arrest began. The defendant denied seeing any marked police cars other than Officer Current's car. The defendant testified that Current appeared to be chasing another car at the moment Current passed him. The defendant also stated that the police opened fire at him after his car ran into the ditch and that he returned the shots only in self-defense.
The trial court instructed the jury on the elements of an attempted murder and of an attempted voluntary manslaughter based on an unreasonable belief in the need for self-defense. The jury acquitted the defendant of attempted murder, but convicted him of three counts of attempted voluntary manslaughter and three counts of armed violence. The trial court sentenced him to three concurrent terms of eight years in prison on the armed violence convictions.
The defendant urges this court to reverse his convictions because, he contends, attempted voluntary manslaughter based on an imperfect self-defense is not a crime. Voluntary manslaughter based on an imperfect self-defense is defined in section 9-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9-2(b)):
"A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable."
An attempt to commit a crime is also an 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. 1979, ch. 38, par. 8-4.)
An attempt to commit an offense requires a specific intent, regardless of whether the completed crime itself requires a general intent or a specific intent. In an attempted rape, for example, the defendant must intend to accomplish intercourse with a female by force and against her will. (People v. Hanley (1977), 50 Ill. App.3d 651, 365 N.E.2d 676.) In an attempted armed robbery, the defendant must intend to take property from a person by force or threat of force while armed with a dangerous weapon. (People v. Robinson (1981), 92 Ill. App.3d 397, 416 N.E.2d 65.) In the case at bar, the essence of the defendant's argument focuses on the need for a specific intent to commit a crime. He claims that he intended to kill in self-defense, and however unreasonable his belief may have been, he still intended to commit no crime.
The State argues that all that it would have to show is an intent to kill, in a prosecution for attempted voluntary manslaughter under section 9-2(b) of the Criminal Code of 1961. Relying upon People v. Harris (1978), 72 Ill.2d 16, 377 N.E.2d 28, the State argues that in an attempted murder case, the prosecution need prove only that the defendant intended to kill, not that he intended to murder. By analogy, the State argues that it must only prove an intent to bring about the prohibited end result — a death — in an attempted voluntary manslaughter case. According to the State's argument, the intent to kill, which can exist even in the context of self-defense, is the only specific intent necessary in a prosecution for attempted voluntary manslaughter.
Whether the crime of attempted voluntary manslaughter based on an imperfect self-defense exists in this State is a question of first impression. In People ex rel. Bassin v. Isreal (1975), 31 Ill. App.3d 744, 335 N.E.2d 53, the defendant sought to withdraw a guilty plea to attempted voluntary manslaughter based on an imperfect self-defense. The defendant argued no such crime existed, but the court refused to address this question, noting that the defendant — originally indicted for attempted murder — negotiated a plea of attempted voluntary manslaughter. The court ruled that the defendant received the benefit of his bargain and should not be permitted to renounce it. In dicta the court suggested there was no logical inconsistency in holding that one can attempt a voluntary manslaughter. (People ex rel. Bassin v. Isreal (1975), 31 Ill. App.3d 744, 747.) Similarly, in People v. Perez (1977), 50 Ill. App.3d 959, 366 N.E.2d 1, the State argued the trial court erred when it released the defendant on the mistaken belief that there was no crime of attempted voluntary manslaughter under section 9-2(b). The appellate court declined to rule on the merits of the argument, finding that the trial court acquitted the defendant of the charges. The State could not appeal a judgment of acquittal.
One appellate court has ruled that there is no such crime of attempted voluntary manslaughter under section 9-2(a) — the "intense and sudden passion" voluntary manslaughter. (People v. Weeks (1967), 86 Ill. App.2d 480, 230 N.E.2d 12.) The court, relying on People v. Moore (1893), 146 Ill. 600, 35 N.E. 166, ruled that the "intense passion" of a voluntary manslaughter under section 9-2(a) precludes any element of calculation. Since a person cannot specifically intend a sudden and intense passion, the court ruled that there is no crime of attempted voluntary manslaughter. In Moore, our supreme court ruled there was no crime of "assault with intent to commit voluntary manslaughter." In 1893, voluntary manslaughter was defined as "the unlawful killing of a human being without malice, express or implied, and without any mixture of deliberation whatever." (Hurd's Rev. Stat. 1891, ch. 38, par. 143.) The ...