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09/29/89 the People of the State of v. Femi Okundaye

September 29, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

FEMI OKUNDAYE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

545 N.E.2d 505, 189 Ill. App. 3d 601, 136 Ill. Dec. 981 1989.IL.1569

Appeal from the Circuit Court of Cook County; the Hon. Stephen A. Schiller, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. PRESIDING JUSTICE MURRAY and JUSTICE COCCIA, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

The State's trial evidence established that Chicago police officer Richard Rowan, the alleged attempted murder victim, and 10 additional Chicago police officers went to 1110 West 50th Street, Chicago, Illinois, to execute a search warrant for narcotic drugs. The officers knocked on the apartment door and announced their office. Officer Rowan testified that he heard a commotion inside the premises which sounded to him like someone running. Rowan smashed into the apartment door with a battering ram and gained entry into the apartment.

Upon entering the apartment, Officer Rowan related that he saw the defendant run up the stairs to the second floor. Officer Rowan stated that he yelled, "police officer," drew his weapon and ran up the stairs in pursuit of the defendant. Upon arriving at the top of the stairs, Officer Rowan stated that he saw the defendant, at the end of a hallway, cross over from one bedroom into another. Rowan ran down the hallway to the bedroom door that the defendant had entered. The bedroom door was partially open. Rowan related that the defendant was in a crouched stance behind the door with a gun in his hand pointed at Officer Rowan's head, and that the defendant struck him in his face with the gun. Officer Rowan further stated that he attempted to knock the defendant's gun away but that defendant continued to point the gun at his head and simultaneously grabbed Officer Rowan's gun with his left hand. It was at this time, Officer Rowan testified, that he shot the defendant in his abdomen. Officer Rowan testified on cross-examination, however:

"Q. You also had occasion to make a report of this, did you not?

A. Yes.

Q. I ask you to take a look at that. Do you recognize what Defense Exhibit No. 9 for identification is, Officer?

A. Yes, this would be the second page of a case report, on a vice case report.

Q. Who is the author of it?

A. If you mean who typed it, I am not sure, probably Officer Ramirez.

Q. Is the name of Richard Rowan on that report?

A. Yes, it is.

Q. Did you tell Officer Ramirez what was in -- what to put in this report?

A. Yes.

Q. Anywhere in this report, officer, is it that you were hit in the face with the defendant's gun?

A. No.

Q. Is it anywhere in this report, in your report, did you say that the defendant was crouched?

A. No.

Q. Is it anywhere in this report that you state that the defendant grabbed your gun?

A. Not in the narcotics report, no.

Q. Is it in any report that you made did you make mention of the fact on any reports that you made, did you make a report of the fact that the defendant grabbed your gun?

[Assistant State's Attorney]: Object, Your Honor, to the form of the question.

THE COURT: He can answer the question, did you write any reports wherein you indicated that the defendant had grabbed your gun, is that correct Mr. [defense attorney]?

[Defense Attorney]: Yes, Judge.

A. That is the only report I prepared, all the other reports were prepared by the detectives.

[Defense Attorney]: Q. So, is it true, officer that the answer is no, I did not make a report that contained those answers?

A. I made no other reports, no."

A brief struggle ensued between Officer Rowan and the defendant until the other officers, who were immediately following behind Officer Rowan by five or six feet, arrived and assisted Rowan in subduing the defendant. Officer Rowan yanked the gun out of the defendant's hand.

The officers searched and seized from the defendant's person a plastic bag containing 7.71 grams of heroin and another plastic bag containing .45 grams of cocaine. In the bedroom across the hallway from the bedroom in which Officer Rowan shot the defendant, the officers found an Illinois Bell Telephone bill in the name and address of Femi Okundaye, apartment 11, 1110 West 50th Street, a triple-beam scale used to measure cocaine and heroin, a glass pipe used to smoke cocaine, a hypodermic needle used for the intravenous injection of heroin, and two plastic bags of 49.85 grams and .55 grams of cocaine, respectively.

Officer Michael Duffin examined the gun that Officer Rowan said the defendant pointed at his head. Duffin stated that the cylinder of the gun had three live rounds in three of the five chambers; that the chambers directly in front of and directly to the left of the firing pin were empty and the gun could be fired only by pulling the trigger three times for firing.

Mary Cook, a defense witness, testified that she was in the apartment and that the defendant was in the bathroom on the second floor when the police entered.

The defendant also testified that he was in the second-floor bathroom when the officers entered the apartment and ran up the stairs to him. The defendant related that one of the officers rushed up to him, pointed a gun at his stomach and asked him for the "money and dope." Defendant asked the officer if he had a search warrant. With his teeth clenched, the officer angrily responded, "This is my search warrant," referring to the gun the officer had pointed at defendant's abdomen. The officer shoved the gun into defendant's abdomen. The officer further pressed his gun against the defendant's abdomen and it went off. The defendant fell wounded to the floor, and as he was lying there, the officer tried to put a gun in his hand and told him, "If you don't hold it -- do you want to be shot again?" The defendant denied that he ever had a gun in his possession.

On rebuttal, Assistant State's Attorney Stuart Palmer testified that he questioned defendant at the hospital after the defendant's surgery there for his gunshot wound, that the defendant initially denied that he owned the gun, but later admitted the gun belonged to him. Palmer admitted that the defendant's post-surgery statement was never reduced to writing, that he did not tell the defendant that he could end his questioning when he desired and that his interrogation of the defendant terminated when the defendant's attorney arrived at the hospital.

We initially sua sponte note that count I of the indictment, the purported attempted murder count, alleges in pertinent part, that:

"n or about May 7, 1985, at and within the County of Cook Femi Okundaye committed the offense of attempt in that he without lawful justification with intent to commit the offense of murder, intentionally and knowingly attempted to kill Richard Rowan by pointing a loaded handgun into his face, in violation of Chapter 38, Section 8--4

Said chapter 38, section 8--4(a), of the Illinois Revised Statutes (1983) alleged in count I to have been violated by the defendant defines "attempt" as follows:

"A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense." (Emphasis added.) Ill. Rev. Stat. 1983, ch. 38, par. 8-4(a).

Count I of the instant indictment failed to allege that the defendant committed "any act which constitutes a substantial step toward the commission of that [attempt murder] offense." Our research does not reveal a single case of appellate review of a conviction for attempted murder in which the indictment or information failed to allege (1) "that the defendant committed '[an] act which constitute[d] a substantial step toward the commission of that offense'; and (2) the specific act which constituted the substantial step toward the commission of the attempted murder offense." Our research reveals that in every case of appellate review of an attempted murder conviction, the indictment or information alleged that the defendant committed an act which constituted a substantial step toward the commission of the attempted murder, and also alleged the specific act committed by the defendant which constituted the substantial step toward the commission of the attempted murder. (People v. Roberts (1978), 56 Ill. App. 3d 667, 372 N.E.2d 143, rev'd on other grounds (1979), 75 Ill. 2d 1, 387 N.E.2d 331; People v. Harris (1978), 72 Ill. 2d 16, 19-20, 377 N.E.2d 28; People v. Muir (1977), 67 Ill. 2d 86, 90, 365 N.E.2d 332; People v. Trinkle (1977), 68 Ill. 2d 198, 199-200, 369 N.E.2d 888; People v. Viser (1975), 62 Ill. 2d 568, 581, 343 N.E.2d 903.) The supreme court in People v. Jones (1979), 81 Ill. 2d 1, 8-9, 405 N.E.2d 343, specifically held:

"The offense of attempted murder requires the mental state of specific intent to commit murder, to kill someone. Section 8-4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 8-4(a)) clearly sets this out: 'A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.' Knowledge (emphasis in original) that the consequences of an accused's act many result in death (or grave bodily injury), or intent to do bodily harm, is not enough; specific intent to kill is required (People v. Trinkle (1977), 68 Ill. 2d 198, 201-04). Both the indictment and the instruction must unambiguously reflect this." (Emphasis added.)

The instant indictment alleged that the defendant "attempted to kill Richard Rowan by pointing a loaded handgun into his face." But the indictment does not allege that such act was an act or was the act which constituted a substantial step towards the defendant's commission of the alleged attempted murder. Nor does the indictment allege, as beforestated, that any act, or what act was committed which constituted a substantial step towards the defendant's commission of the offense. The mere pointing of a loaded gun into Rowan's face does not establish per se an intent to kill Rowan, and likewise, the mere pointing of a loaded gun in Rowan's face does not necessarily per se constitute a substantial step towards the commission of attempted murder, particularly in the total absence of an allegation that such act did so.

Because the validity of count I has not been briefed and argued by the parties before us, and also because we reverse the defendant's attempted murder and possession of controlled substances with intent to deliver convictions on other grounds, and remand for a new trial, we decline to resolve the question of the validity of count I.

The defendant argues that the trial court erroneously instructed the jury that it could find the defendant guilty of attempted murder even if the jury only found that the defendant only intended to do great bodily harm to Rowan.

The indictment charged the defendant with the offense of attempted murder of Richard Rowan, as previously set forth. "Murder" is defined in section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), (a)(2)) as follows:

"(a) 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 . . .."

"Attempt" is defined in section 8-4 (Ill. Rev. Stat. 1983, ch. 38, par. 8-4(a)), as previously set forth.

A defendant's specific intent to kill is an essential element of the offense of attempted murder, and it must be proven beyond a reasonable doubt. People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888; People v. McDaniel (1984), 125 Ill. App. 3d 694, 466 N.E.2d 662.

In the case at bar, the trial court gave the jury three instructions which governed and controlled its deliberations on the attempted murder charge. Even though no act which constituted a substantial step towards the commission of the attempted murder was alleged, the trial court nevertheless instructed the jury on attempt, as follows:

"A person commits the offense of attempt when he, with the intent to commit the offense of murder, does any act which constitutes a substantial step toward the commission of the offense of murder. The offense attempted need not have been committed." (Emphasis added.)

The trial court instructed the jury on murder, as follows:

"A person commits the offense of murder when he kills an individual without legal justification if in performing the acts which caused the death he intended to kill or do great bodily harm to that individual ." (Emphasis added.)

The trial court instructed the jury on the attempted murder issues, as follows, although, as stated, no act constituting a substantial step toward the commission of the attempted murder offense was alleged.

"To sustain the charge of attempt the State must prove the following propositions: First, the defendant performed an act which constituted a substantial step toward the commission of the offense of murder, and second, that the defendant did so with the intent to commit the offense of murder.

If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.

If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty." (Emphasis added.)

Thus, the defendant contends, the jury was instructed that it could find the defendant guilty of attempted murder on a finding that the defendant intended to kill Richard Rowan, but that the jury was also additionally, but erroneously, instructed that it could likewise find the defendant guilty of attempted murder on the jury's alternative finding that the defendant solely intended to do only great bodily harm to Richard Rowan, and even though the jury might also find that the defendant did not intend to kill him.

The evidence was far from overwhelming that the defendant intended to kill Officer Rowan. Indeed, such evidence was quite vulnerable, vincible and assailable, as we later herein more specifically observe. Defendant had an absolute right to have the jury determine by accurate governing instructions whether he acted with or was guilty of the specific intent to kill Officer Rowan.

It has been long and well settled that an instruction to a jury that it may find a defendant guilty of attempted murder upon its finding that the defendant intended to do great bodily harm is erroneous reversible error. People v. Harris (1978), 72 Ill. 2d 16, 24, 26-27, 377 N.E.2d 28; People v. Trinkle (1977), 68 Ill. 2d 198, 201, 204, 369 N.E.2d 888; People v. Gentry (1987), 157 Ill. App. 3d 899, 903-04, 905-06, 510 N.E.2d 963; People v. Cantu (1987), 157 Ill. App. 3d 934, 937-38, 510 N.E.2d 1183; People v. McDaniel (1984), 125 Ill. App. 3d 694, 701, 466 N.E.2d 662.

The State argues that because defendant did not object to the instructions or rely on their invalidity on his motion for a new trial, the defendant waived the issue on appeal. Conversely, the defendant argues that because of the grave error of the erroneous instruction, because the jury was not correctly instructed on this evidentiary factually close case and/or on the defendant's intent to kill, fundamental fairness required that the jury be properly instructed and that the waiver rule should therefore not apply. Moreover, the defendant urges that inasmuch as the erroneous instruction and the failure to correctly instruct the jury on the fragile evidence of the defendant's guilt, the error affects the defendant's substantial rights and should be considered by this court as plain error under Illinois Supreme Court Rule 615(a). We agree. People v. Ogunsola (1981), 87 Ill. 2d 216, 222, 429 N.E.2d 861; People v. Harris (1978), 72 Ill. 2d 16, 28, 377 N.E.2d 28; People v. Gentry (1987), 157 Ill. App. 3d 899, 510 N.E.2d 963; People v. McDaniel (1984), 125 Ill. App. 3d 694, 466 N.E.2d 662.

In People v. Tannenbaum (1980), 82 Ill. 2d 177, 182, 415 N.E.2d 1027, the supreme court held that an exception to the waiver rule is contained in Rule 451(c), which permits the review of substantial defects in instructions if the interests of Justice require, to correct grave errors or the case is close factually, and fundamental fairness requires that the jury be properly instructed. We hereafter note that the instant case is ...


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