APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
510 N.E.2d 1183, 157 Ill. App. 3d 934, 110 Ill. Dec. 152 1987.IL.938
Appeal from the Circuit Court of Cook County; the Hon. Richard L. Samuels, Judge, presiding.
PRESIDING JUSTICE McMORROW delivered the opinion of the court. JOHNSON and JIGANTI, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW
Following a jury trial, defendant Ramon Cantu was convicted of attempted murder (Ill. Rev. Stat. 1979, ch. 38, par. 8-4) and sentenced to 20 years' incarceration. Upon review, we conclude that the jury was erroneously instructed that it could find defendant guilty of attempted murder if the State's evidence proved beyond a reasonable doubt that defendant acted with knowledge that his acts would cause death or would create a strong probability of death or great bodily harm. As a result, we reverse defendant's conviction and remand for a new trial.
Evidence produced at trial established that on October 7, 1979, at approximately 9 p.m., Illinois State Trooper Donald Lange observed and pursued a Thunderbird automobile speeding southward down the Calumet Expressway. After being chased by Lange for about a mile and a half at high speed, the Thunderbird stopped on the right-hand side of the road. Lange stopped beyond the Thunderbird in the left-hand lane of traffic. A few seconds later, Lange heard a loud noise, looked at the Thunderbird, and saw a gun. He then saw a flash come out of the gun and the left, passenger-side window of his car shatter. The Thunderbird made a U-turn, passing nearby Lange, and proceeded north. Lange saw the driver of the automobile; it was the defendant. Illumination was provided by the Mars lights of Lange's car, and the headlights of oncoming traffic.
The Thunderbird travelled north and then pulled onto the side of the road. Lange and other State troopers arrived and surrounded the vehicle, but the driver had fled. Upon inspection, it was discovered that three bullets had been fired into Lange's car, two into the Mars lights, and one through the side window.
Lange searched the Thunderbird. He found shells from a 30/30 caliber rifle and some papers belonging to the defendant. A few weeks after the incident, Lange identified the defendant in a lineup as the individual who had fired the shots at his squad car.
Of the numerous fingerprints found in the Thunderbird, half were identified as those of the defendant. A search of the wooded area near the location where the Thunderbird was abandoned led to the discovery of a 30/30 rifle. The spent cartridge shells recovered from the Thunderbird had been fired from the rifle. Defendant purchased the weapon in 1975.
Defendant's defense was alibi. He testified at trial, as did members of his family and others, that he had been bowling with family that day and was at home that evening when the incident occurred.
Defendant also testified that the Thunderbird belonged to his brother, Steven, and that defendant had been driving the car for several months. On the day in question, defendant drove the car to the bowling alley. Steven came to the bowling alley, talked to the defendant, and then left the premises. When defendant later left the bowling alley and found the car gone, he assumed that Steven, who also had keys to the car, had taken the automobile. When the defendant arrived home, he telephoned Steven, discovered that Steven had not taken the Thunderbird, and told Steven to report the car stolen.
The next day, Steven went to the police station to fill out a report that the vehicle had been stolen. While there, he told the police that his brother, the defendant, had admitted to Steven that the defendant had shot at a State trooper the night before while on the Calumet Expressway. Steven told the police that the defendant's admission had occurred during the course of their telephone conversation the night ...