Appeal from the Circuit Court of Macon County; the Hon. John
L. Davis, Judge, presiding.
JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:
At night on February 9, 1983, two sheriff's deputies stationed themselves inside the defendant's house because they had received a tip that a burglary might be attempted there. After a series of misunderstandings the defendant, though he had met one of the deputies and been told of the plan, became convinced that the deputies were the expected burglars. The defendant chased them from his home, firing a gun at one of them. The defendant was then charged with attempted murder and aggravated assault, convicted of those charges in a jury trial, and sentenced to seven years' imprisonment on the more serious offense. We conclude that the State proved beyond a reasonable doubt that the defendant was not justified in using deadly force but that incorrect jury instructions entitle the defendant to a new trial.
Sheriff's deputies John Montgomery and Samuel Baum testified at the defendant's trial about their attempt to protect the defendant's house from burglars.
On February 8, 1983, the Macon County Sheriff's Department got a tip from the Decatur Police Department that a collection of firearms was going to be stolen from a house located somewhere outside Decatur. Deputy Montgomery, an investigator, knew that the defendant collected guns and believed that he might be the intended victim. That night Montgomery and two other deputies sat in a car and watched the defendant's house; nothing happened.
According to Montgomery, the next night he decided to station himself inside the defendant's house. At 8 p.m. he went there in mufti, showed the defendant his identification, and told the defendant about the planned theft. The defendant acknowledged that he owned a collection of guns. They agreed on a schedule for the evening: the defendant would go and visit his sick sister while Montgomery stayed in the house; when the defendant got back, Montgomery would drive to Decatur to pick up his partner and then return to the defendant's house to resume surveillance. First, though, Montgomery moved his car, which was unmarked, from the defendant's driveway to a less conspicuous place, a nearby church. Montgomery was gone for 10 to 15 minutes; when he returned, the defendant appeared upset and insisted on inspecting Montgomery's identification again. The defendant explained that earlier that day someone had entered the house and taken an envelope containing $500. While the defendant recounted that incident he was holding part of his gun collection, a 9-shot, .22-caliber pistol. The defendant said that the money had been in a bank envelope. Montgomery noticed an envelope in the defendant's shirt pocket, and the defendant opened it and found the missing money. The defendant set the cocked pistol on the kitchen table, and it went off accidentally, hitting a wall.
Montgomery testified that the defendant then left to visit his sister, taking the gun with him. Montgomery telephoned his supervisor. Detective Samuel Baum soon arrived; like Montgomery, he was in mufti. They sat in the kitchen in the dark, with lights burning in other rooms of the house. About midnight the defendant returned, slowly and cautiously entering by the back door. The defendant asked who Baum was, and Montgomery introduced him. Montgomery's and Baum's service revolvers were in their holsters. The defendant asked to see Baum's identification card and displayed the gun that he had taken with him. As Baum started to proffer his card, the defendant fired a shot into the kitchen floor. Montgomery and Baum scattered. The defendant fired six or eight more times toward the front of the house, which was the direction in which Baum had run. The defendant yelled at Baum, threatening to kill him and ordering him to leave the house. Baum, fearing for his life, eventually escaped through the front door, which did not open the first two tries. Montgomery, who after the first shot had retreated to a spot somewhere off the kitchen, left the house by the back door.
Montgomery and Baum regrouped outside; they could see the defendant in the kitchen, reloading his gun and talking on the telephone. Montgomery stepped in the back door; the defendant, through a telephone conversation with the sheriff's department, was able to confirm the identities of Montgomery and Baum and their purpose in being at his house. The defendant then let them inside. Montgomery and Baum testified that they did not fire their service revolvers.
The defendant testified, and his version of the events followed the same general chronology given by Montgomery and Baum but disagreed with their testimony on several important points. The defendant, who was 72 years old at the time of trial, explained that he began to suspect Montgomery because he was not in uniform. Montgomery told him that the house had been watched the previous night, but the defendant doubted it, for his neighbors would have noticed something like that and had not mentioned anything. The defendant believed that Montgomery was trying to set him up to steal his gun collection.
The defendant testified that several unusual events quickly confirmed his suspicions. Told about the missing money, Montgomery returned it by putting a bank envelope in the defendant's shirt pocket. Also, the defendant thought that Montgomery was lying when he said that the minister had given him permission to park his car at the church; according to the defendant, the minister is at the church only on Sundays and these events occurred on a weekday. As the defendant was about to leave for his sister's house, he asked Montgomery whether he should transport his gun by removing the ammunition and locking the weapon in the trunk; Montgomery said that that would be the safest way, which the defendant did not believe.
The defendant then drove to the homes of some friends and relatives; several of these persons were not at home. He did see his sister and her 20-year-old son, though. The defendant feared for his nephew's safety and told him to stay home. The defendant did not report his suspicions to the sheriff's office during this time because his complaints had been ignored in the past.
The defendant testified that on returning from Decatur he saw that Montgomery's car was still parked at the church. The car was unmarked and did not look like a law enforcement vehicle. The defendant drove to a neighbor's house and parked his car there. He thought that he saw two men carrying guns out of his house. The defendant retrieved his gun from the trunk, loaded it, and advanced on his house. Carefully, he entered through the back door; he saw a stranger — Baum — in the kitchen with Montgomery. The stranger refused to provide any identification. The defendant was puzzled, for Montgomery had said earlier that he would have to go back to Decatur to pick up his partner, yet now he was saying that the stranger in the house was the partner. The defendant told the two men to leave, but they grabbed his arms instead. The defendant managed to pull his pistol from his belt and fired it, intending only to scare them. They ran and eventually escaped from the house. Baum shot at the defendant from outside. The defendant testified that he could have killed Baum and Montgomery had he wanted to. Defense counsel did not present any other evidence.
In rebuttal, Montgomery and Baum denied stealing from the defendant or grabbing his arms. Another member of the sheriff's department testified that his examination of the two deputies' service revolvers shortly after these events occurred revealed that they had not been fired.
The defendant raises two major arguments on appeal: that the State failed to prove that he was not justified in using deadly force in defense of himself and his dwelling, and that the jury was incorrectly instructed on the mental state necessary to sustain a charge of attempted murder. The first argument pertains to the sufficiency of the evidence, and the second argument pertains to the conduct of the trial; therefore, the defendant's constitutional guarantees against double jeopardy require that we address the first argument regardless of our resolution of the second. Burks v. United States (1978), 437 U.S. 1, 57 L.Ed.2d 1, 98 S.Ct. 2141; Greene v. Massey (1978), 437 U.S. 19, 57 L.Ed.2d 15, 98 S.Ct. 2151; People v. Taylor (1979), 76 Ill.2d 289, 391 N.E.2d 366.
• 1 The defendant first argues that he was not proved guilty beyond a reasonable doubt of the offenses of attempted murder and aggravated assault. He renews the affirmative defense that he relied on at trial: that he ...