Appeal from the Circuit Court of Peoria County; the Hon.
Stephen J. Covey, Judge, presiding.
JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 21, 1985.
The defendant, Henry Spears, Jr., was convicted of attempted murder, two counts of armed violence and two counts of reckless conduct. On appeal, he challenges his convictions and his sentence. We reverse.
At trial the State presented the following evidence. On July 9, 1983, the defendant was visiting the home of his wife, Barbara Spears, from whom he was separated. During the course of the day the defendant and his wife had two arguments. At approximately 8 p.m. Barbara was playing cards on the porch of the home with Annette Keys and two other women. The defendant had called Chester Adkins, with whom the defendant was living while separated, for a ride to a party. Adkins arrived and went to the porch. Adkins' nephew then rang the doorbell. Barbara answered the door and then returned to the porch, passing by the defendant, who was leaning in the doorway.
Barbara testified that as she passed the defendant he punched her and then drew a gun from a shoulder holster and shot her twice. One of the shots also injured Annette Keys. Barbara fell to the floor. Adkins attempted to pin the defendant's arms, but could not restrain the defendant. The defendant aimed the gun at Barbara's head. Another guest, Sunny Coleman, then entered the porch and pushed the defendant's arm. A bullet struck the floor near Barbara's head. Barbara sustained bullet wounds to her chest and her arm. Keys' arm was grazed by a bullet.
The defendant left the house immediately. The police later found the gun and holster on the roof of a nearby school.
The defendant testified at trial that Barbara pushed him as she passed by him after answering the door. The other women then jumped up and knocked the card table over. Someone grabbed the defendant from behind. During the struggle with this unknown assailant, the defendant pulled his gun from the holster. The gun went off unintentionally. He then left the house. He threw his gun onto the school roof because he was scared.
Chester Adkins also testified for the defendant. Adkins testified that he struggled with the defendant. Adkins was impeached with a statement he gave to the police after the shooting. In his statement, Adkins reported that he saw the defendant remove the gun and point it at Barbara. Adkins also stated that defendant carried the gun 90% of the time.
Based upon his own testimony, the defendant tendered a jury instruction on reckless conduct. The trial court instructed the jury on reckless conduct, armed violence, and attempted murder. During deliberations, the jury sent a note to the court asking whether verdict forms had to be completed on all five charges. The trial court instructed the jury to complete a form on each charge. The jury found the defendant guilty on all five charges.
At the sentencing hearing, the trial court entered judgment on attempted murder and armed violence. The court considered as a factor in aggravation that the defendant's conduct caused or threatened serious harm. The defendant was sentenced to a 20-year term of imprisonment.
• 1 The defendant's first argument on appeal is that the court erred in entering judgment on attempted murder and armed violence. Specifically, the defendant argues that because the mental states required for attempted murder and armed violence differ from the mental state for reckless conduct, the finding of reckless conduct negates the presence of the mental state for murder. Based upon this legal inconsistency, the defendant asserts that the trial court should have entered judgment only as to the reckless conduct charges.
The defendant relies on this court's recent decision in People v. Milner (1984), 123 Ill. App.3d 656, 463 N.E.2d 148. The defendant in Milner was convicted of both murder and involuntary manslaughter. The defendant had killed his child while disciplining him. The defendant was originally charged with murder. Based upon the evidence introduced at trial, an instruction on involuntary manslaughter was given to the jury. This court held that the conviction for murder had to be vacated because the mental state required for involuntary manslaughter negated the presence of the requisite mental state for murder.
The principle set forth in Milner is controlling in the instant case. Reckless conduct requires as a mental state that the accused acted recklessly. (Ill. Rev. Stat. 1983, ch. 38, par. 12-5.) Recklessness is defined in relevant part as a conscious disregard of a substantial and unjustifiable risk. (Ill. Rev. Stat. 1983, ch. 38, par. 4-6.) Murder includes as an element that the defendant either intended to kill, knew that his act would cause death, or knew that his act would create a strong probability of death or great bodily harm. (Ill. Rev. Stat. 1983, ch. 38, par. 9-1.) The armed violence charge was based on the underlying felony of aggravated battery. Under this charge, an element of aggravated battery was that the defendant intentionally or knowingly caused great bodily harm. Ill. Rev. Stat. 1983, ch. 38, par. 12-4.
The finding by the jury that the defendant acted only recklessly negates any finding that the defendant possessed the necessary intent for murder or armed violence based on aggravated battery. Thus we find, as we did in Milner, that the trial court erred in ...