APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
531 N.E.2d 396, 176 Ill. App. 3d 625, 126 Ill. Dec. 101 1988.IL.1702
Appeal from the Circuit Court of Winnebago County; the Hon. David F. Smith, Judge, presiding.
JUSTICE DUNN delivered the opinion of the court. LINDBERG, P.J., and WOODWARD, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN
Defendant, David Krueger, was charged by indictment, along with Michael Migliore, with one count of attempted murder. Migliore was tried separately, found guilty, and sentenced to a 10-year term of imprisonment. Migliore's conviction and sentence were affirmed by this court in People v. Migliore (1988), 170 Ill. App. 3d 581. Defendant was found guilty after a jury trial and also was sentenced to 10 years' imprisonment. On appeal, defendant argues that the jury should have been instructed as to the lesser offense of aggravated assault. We agree, so we reverse and remand for a new trial.
The indictment returned against defendant and Migliore charged that they, with the intent to murder Dominic Iasparro, took a substantial step toward the commission of that offense by firing several gunshots from close range at Iasparro's house knowing him to be present inside. Iasparro was a Rockford police officer who lived one block east on Lundvall Avenue in Rockford from an attorney named William Knight. Knight represented a party in a civil lawsuit against Migliore and earlier that day had attended a preliminary hearing concerning that case. Iasparro was also present in the courtroom on another unrelated matter.
Defendant testified at trial that Migliore was upset over some remarks that Knight had made that day. Defendant testified that he and Migliore picked up defendant's wife for her lunch break from work at about 9 p.m. and went to a tavern. Both men had several drinks, and after defendant's wife returned to work, they went to another bar and drank some more. At the second bar, Migliore mentioned a problem he had with Knight, saying that Knight had threatened him. When they left the second bar in defendant's car, Migliore pulled out a page from a phone book with Knight's address and said he wanted to go there. After stopping for directions, they found Lundvall but could not find Knight's address.
Defendant testified that at about 10 p.m., after driving up and down the street several times, he stopped the car and got out to urinate. Migliore also got out and started looking for addresses on nearby houses. Migliore returned to the car and told defendant, "This is him, let's go." Defendant drove away thinking Migliore was referring to Knight.
The testimony of Iasparro and one of his neighbors confirmed that a car with a loud muffler had driven down the street several times before stopping in front of Iasparro's house. The neighbor saw the passenger get out, go up to the house, return to the car and say, "This is the guy. Let's go." Iasparro testified that he was looking out his door as a man approached his house. He turned on his porch light and came face to face with the man, who turned and ran back to the car. Iasparro said he had no doubt that the man who approached his house was defendant, not Migliore.
At about 11:40 that night, Iasparro was watching television in his living room. Sheer drapes were closed across the front window, and a light was on in the attached dining room. As Iasparro stood up to change the channel, he heard a car which sounded like the one he had heard earlier. He then heard a gunshot followed by a slight pause and then six or seven more shots in rapid succession, some of which sounded like they had hit the house. He dropped to the floor and crawled to the adjoining bedroom where his wife and daughter were. His son came downstairs and Iasparro had him get down on the floor too. After Iasparro called the police, he got a gun and went outside, but the car had left.
The evidence showed that 7 to 10 bullets had hit the front of the house. One hit inches from the window in the bedroom and one hit high on the front door. Several nine millimeter bullet casings were found in the street in front of the house.
Later that night, defendant's car was stopped, and two nine-millimeter bullet casings were found on the right rear floorboard. A disassembled shotgun was recovered from the backseat, and defendant and Migliore were arrested. Tests showed that the shells found in the car matched those found in front of Iasparro's house and that all had been fired from a gun purchased by Migliore.
Defendant gave a statement in which he admitted driving the car at the time of the shooting, but he stated that he did not know Migliore was going to shoot at the house or that Migliore even had the gun with him. He testified that after they left the first time, Migliore asked him to drive by once more. Migliore told defendant to slow down as they came ...