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05/09/88 the People of the State of v. William Brisker

May 9, 1988





523 N.E.2d 1191, 169 Ill. App. 3d 1007, 120 Ill. Dec. 280 1988.IL.704

Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Fitzgerald, Judge, presiding.


JUSTICE QUINLAN delivered the opinion of the court. CAMPBELL, P.J., and MANNING, J., concur.


William Brisker was charged with armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A-2), aggravated battery (Ill. Rev. Stat. 1983, ch. 38, par. 12-4), and attempted murder (Ill. Rev. Stat. 1983, ch. 38, pars. 8-4, 9-1) for allegedly stabbing a tavern patron during an altercation on the evening of January 17, 1984. Brisker was found guilty of attempted murder after a trial without a jury and sentenced to 10 years' imprisonment. Brisker now appeals the judgment, contending that the necessary finding of specific intent was based on an unconstitutional presumption that "one intends the natural and probable consequences of his acts" and, thus, he was not properly proved guilty beyond a reasonable doubt of every element of attempted murder. Brisker also contends that the charge of attempted murder was not proved beyond a reasonable doubt because the prosecution did not prove the absence of justification beyond a reasonable doubt. Brisker seeks a reversal of his conviction based on these claimed trial court errors. Additionally, Brisker requests this court to vacate his sentence on the ground that the trial court erred in entering judgment on lesser included offenses and in entering multiple convictions for the same criminal act.

The incident began in the early evening hours of Friday, January 16, 1984, when both Mr. Brisker and the victim were present at Another World Lounge in Chicago, Illinois. Brisker allegedly approached the victim and told him to straighten his hat. When the victim refused, Brisker demanded to know who the victim "represented," which was apparently a request for street gang identification. A shoving match ensued and Brisker was allegedly asked to leave the tavern. The State asserted that after Brisker finally left, he returned several hours later and attacked the victim from behind with a knife, cutting his face and then his forearms and hands when the victim raised his arms to protect himself from further injury. The State contended that after the attack spilled out onto the street, a passerby broke up the fight, and Brisker dropped the knife and fled as a police car approached the scene.

In Brisker's version of the events, he contended that he left the tavern after the victim had "beat" him, but he was not asked to leave at any time. The defendant also argued that he returned after only a half-hour absence. Brisker contended that upon his return, the victim pushed him out the door in an unprovoked assault and pulled a knife from under his coat. Brisker asserted that he then wrestled the knife away from the victim and began making wild slashing motions to fend off further assault by the victim. According to Brisker's account, he was walking away from the fight when he was apprehended by the police.

Brisker was charged with attempted murder, armed violence, and aggravated battery. Thereafter, he waived his right to a jury trial, and during the proceedings before the trial court, the State presented the testimony of four witnesses, including the victim. The defendant moved for a directed finding at the close of the State's case and the court denied the motion. After hearing the testimony of the defendant and the closing arguments of counsel, the trial court made its findings. In particular, the court found the State's eyewitnesses were credible, even though all were acquaintances of the victim, and found Brisker's testimony incredible. The court further found that "the defendant was the initial and sole aggressor" and concluded that because "one intends the natural and probable consequences of his acts," Brisker was guilty of attempted murder and "all other charges in the pleadings, [and that] each of those will be included in the attempted murder finding, and there will be a finding on those." Subsequently, the court sentenced Brisker to 10 years' imprisonment and denied his motion for a new trial.

Brisker bases his first argument, that the trier of fact used an unconstitutional presumption in reaching a guilty finding, on the remarks the trial Judge made at the close of the trial. Specifically, the Judge stated:

"The next issue is whether or not there is sufficient proof of intent to establish the crime of attempt murder and intent to kill. One intends the natural and probable consequences of his acts. The murderous attack, I have been told about today, [and] the evidence in this case demonstrates to me clear intent to kill on behalf of the attacker." (Emphasis added.)

From these statements, the defendant concludes that the trier of fact improperly presumed an intent that was unsupported by the evidence.

The cases which the defendant cites, however, involved improper instructions in jury trials and not cases decided after a trial was conducted before a trial Judge. For that reason we find those authorities inapplicable and unpersuasive. (See, e.g., Francis v. Franklin (1984), 471 U.S. 307, 85 L. Ed. 2d 344, 105 S. Ct. 1965; Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450; People v. Reagan (1983), 99 Ill. 2d 238, 457 N.E.2d 1260; People v. Barker (1980), 83 Ill. 2d 319, 415 N.E.2d 404; People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28.) The concern in jury trials is "whether a reasonable juror could have understood the two sentences as a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent once the State had proved the predicate acts." (Francis v. Franklin (1984), 471 U.S. 307, 316, 85 L. Ed. 2d 344, 354, 105 S. Ct. 1965, 1972.) However, in a trial where the defendant has validly waived his right to a jury, as here, it is presumed that the trial Judge knew the law and applied it properly. People v. Roberson (1980), 83 Ill. App. 3d 45, 49, 403 N.E.2d 490, 492.

Additionally, when the statement of the trial Judge in this case is placed in the context of his findings at the end of the trial, it is clear that the statement did not refer to a presumption but rather referred to an inference that the Judge drew after hearing all of the evidence. In People v. Bell (1983), 113 Ill. App. 3d 588, 447 N.E.2d 909, our court observed that a "presumption" such as is involved here: "Properly understood, . . . merely means it may be permissible, depending upon the circumstances of the particular case, for a trier of fact to infer intent to kill." (Emphasis in original.) (Bell, 113 Ill. App. 3d at 594, 447 N.E.2d at 914; cf. W. LaFave & A. Scott, Criminal Law 196, 203 (1972).) It also should be noted that the defendant does not contend that the trial Judge used ...

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