Appeal from the Circuit Court of Cook County; the Hon. Fred G.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Cook County, defendant, Donald Coleman, was convicted of attempted murder, aggravated battery, armed violence predicated on attempted murder, armed violence predicated on aggravated assault, and reckless conduct. The trial judge vacated all convictions with the exception of attempted murder, for which he imposed a 12-year term of imprisonment.
On appeal, defendant claims, inter alia, that the verdicts finding him guilty of attempted murder and reckless conduct are legally inconsistent and thereby warrant a reversal and a new trial on all counts.
We agree, and, accordingly, we reverse the convictions and remand for a new trial on all counts.
The following evidence was adduced at trial:
Defendant, Donald Coleman, had been involved in a relationship with the victim, Rosita McClain, for over a year and a half when the shooting incident out of which this case arises took place. Defendant rented a room in the victim's sister's house and was present in that room with the victim on the night of August 28, 1982. Rosita and defendant started arguing. Defendant grabbed a shotgun and stated to the victim, "I ought to blow your head off." When the victim heard this, she stood up.
The testimony as to what occurred from that point on is disputed. The victim testified that she was standing across the room from defendant and that he then fired the gun at her. Defendant testified that he was close to the victim and that when he pointed the gun at her, she grabbed it, and it went off.
The victim was severely injured when the gun discharged and she fell to the couch. Defendant called the police and initially denied knowing anything about the shooting. During repeated interrogation by the police, defendant related many different versions of the incident.
The victim remained in the hospital for six months. Some four months after she entered the hospital, the victim was interviewed by the police concerning the shooting. They asked her if it was an accident. The victim first nodded yes, then said that she did not know. Detectives testified at trial that the victim was lapsing in and out of consciousness during this questioning. At trial, the victim unequivocally testified that defendant shot her and that she never touched the gun.
Following a jury trial, defendant was convicted of attempted murder, armed violence, aggravated battery and reckless conduct. The trial judge vacated sua sponte all convictions except that for attempted murder and sentenced defendant to a 12-year term in the Illinois Department of Corrections. Defendant now appeals.
On appeal, defendant claims as error that (1) he was denied effective assistance of counsel; (2) he was not proved guilty beyond a reasonable doubt; (3) he was denied a fair trial by repeated instances of prosecutorial misconduct; and (4) that the case must be reversed and remanded due to the jury's finding of legally inconsistent verdicts. We find defendant's last claim to be dispositive of this appeal and to warrant reversal and remand for a new trial on all counts.
Defendant was found guilty of attempted murder (Ill. Rev. Stat. 1983, ch. 38, par. 8-4) and of reckless conduct (Ill. Rev. Stat. 1983, ch. 38, par. 12-5). Defendant contends that these verdicts are legally inconsistent and that under People v. Frias (1983), 99 Ill.2d 193, 457 N.E.2d 1233, where juries return such inconsistent verdicts on separate indictments or separate counts of a single indictment, a reversal and a new trial must follow. The State, on the other hand, argues that verdicts of guilty for attempted murder and for reckless conduct are not legally inconsistent because the mental state of "reckless" is merely a lesser included mental state of "intent." The jury apparently understood recklessness to be a lesser included mental state of intent and found that the evidence was sufficient to prove defendant guilty beyond a reasonable doubt of all the crimes of which he was convicted. We do not quarrel with the jury's conclusion as to the sufficiency of evidence, aware that this does not mean we are making a finding as to defendant's guilt or innocence which would be binding on retrial. (People v. Taylor (1979), 76 Ill.2d 289, 391 N.E.2d 366.) The basis of our disagreement here is not with the jury's factual findings but rather with their legal understanding. While we agree that recklessness is indeed one of the mental states set forth in the Criminal Code of 1961 that may satisfy ...