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10/09/87 the People of the State of v. Peter J. Kennedy

October 9, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

PETER J. KENNEDY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

514 N.E.2d 253, 161 Ill. App. 3d 175, 112 Ill. Dec. 787

Appeal from the Circuit Court of Marshall County; the Hon. Donald C. Courson, Judge, presiding. 1987.IL.1525

APPELLATE Judges:

PRESIDING JUSTICE BARRY delivered the opinion of the court. HEIPLE and SCOTT, JJ. concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

Pursuant to Illinois Supreme Court Rule 604(f) (107 Ill. 2d R. 604(f)), defendant Peter J. Kennedy appeals from a pretrial order entered in the circuit court of Marshall County denying a defense motion for discharge from prosecution on double jeopardy grounds.

In 1983 defendant was indicted for two counts of murder and two counts of reckless homicide for causing the death of Jacqueline Lou by driving his car upon a sidewalk and into a crowd of people in Henry, Illinois. One count of voluntary manslaughter was later added by information. Defendant was tried before a jury and convicted on four counts; he was acquitted on one murder charge. The trial court sentenced him to 20 years' imprisonment on the murder conviction and a concurrent three-year sentence on one reckless homicide conviction.

Defendant appealed, and this court reversed the convictions on the ground that the verdicts were inconsistent and that, under People v. Hoffer (1985), 106 Ill. 2d 186, 478 N.E.2d 335, defendant was entitled to a new trial. (People v. Kennedy (1985), 132 Ill. App. 3d 1166 (unpublished Rule 23 order).) Upon remand, the State dismissed the voluntary manslaughter count. Defendant moved for discharge from prosecution on the remaining charges on the ground that the acquittal on one count of murder barred any further prosecution for murder or any lesser form of homicide. Defendant has appealed from the pretrial order denying that motion. (In a related appeal, decided this same day, the State has appealed from the trial court's dismissal of three additional charges which the State attempted to file after this cause was remanded for a new trial. People v. Kennedy, 161 Ill. App. 3d 197.)

In this appeal, defendant contends that the principles of double jeopardy should bar the retrial of the murder and reckless homicide charges upon remand because he was acquitted of one murder charge. Section 9-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)) provides in part:

"A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:

(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or

(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or to another . . .."

The jury acquitted defendant of the murder charge brought under section 9 -- 1(a)(1) (that he knew his acts would cause death) and convicted him of murder under section 9 -- 1(a)(2) (that he knew his acts created a strong probability of death).

He argues that there is only one crime of murder under section 9 -- 1 and that an acquittal of a charge under subparagraph (a)(1) is a bar to being charged and tried under other subparagraphs of section 9 -- 1. The Illinois Supreme Court so held in People v. Allen (1974), 56 Ill. 2d 536, 309 N.E.2d 544, where the defendant was claiming that felony murder under section 9 -- 1(a)(3) was a ...


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