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10/19/89 the People of the State of v. Christopher Jason Wagner

October 19, 1989





546 N.E.2d 283, 189 Ill. App. 3d 1041, 137 Ill. Dec. 529 1989.IL.1650

Appeal from the Circuit Court of Adams County; the Hon. Dennis K. Cashman, Judge, presiding.


JUSTICE LUND delivered the opinion of the court. SPITZ, J., concurs. JUSTICE KNECHT, Dissenting.


Following a bench trial, defendant was convicted of attempt (murder) and armed robbery, in violation of sections 8-4, 9-1, and 18-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, pars. 8-4, 9-1, 18-2). Defendant was 16 years old at the time of trial, but he was tried as an adult, pursuant to section 5-4(6)(a) of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 805-4(6)(a)). Shortly after the trial, defendant pleaded guilty to three counts of burglary. (See Ill. Rev. Stat. 1987, ch. 38, par. 19-1.) The circuit court of Adams County sentenced defendant to a term of 22 years' imprisonment for attempt (murder), 15 years' imprisonment for armed robbery, and four years' imprisonment on each of the three burglary convictions. The sentences were to be served concurrently. In addition, defendant was "ordered to pay restitution as set forth in the Presentence Investigation Report as to each victim." In particular, the court ordered defendant to pay $44,568 to the victim of the attempt (murder) and armed robbery. Defendant appeals his convictions and sentences for attempt (murder) and armed robbery.

On appeal, defendant raises the following issues: (1) the trial court erred in finding defendant guilty of attempt (murder) because the court concluded defendant did not necessarily have an intent to kill, but that he did have an intent to commit great bodily harm; (2) the court erroneously denied defendant's motion to suppress because his confessions were induced with the promise that he would be prosecuted under the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 701-1 et seq.); and (3) the order of restitution in the amount of $44,568 should be vacated because defendant will not be able to pay the sum within five years. Defendant has not challenged his convictions and sentences for burglary, and we will not address them. The pertinent facts follow.

Shortly before closing time on November 16, 1987, a man with a shotgun robbed a Clark oil station at 30th and Main Streets in Quincy, Illinois. The lone attendant, Mark Smith, testified he did not see the man's face, as the man was wearing a black ski mask. He was also wearing a green Army jacket and carrying a shotgun. The man kicked open the door to the back room and shot Smith immediately after entering the room. Smith was able to reach a telephone and call police after the man moved to the front of the station. Another witness, the station manager, testified that a small amount of cash was taken from the register. The man escaped before police arrived.

Defendant was arrested in West Quincy, Missouri, on March 2, 1988. Defendant was wanted for questioning in Illinois on unrelated burglary matters, and he was transferred to the Adams County Youth Home in Quincy, Illinois. On March 3, 1988, defendant was questioned on three different occasions between 1 and 7 p.m. During the final interview, he confessed that he was the one who robbed the Clark oil station and shot Mark Smith. Based on the information obtained from defendant on March 3, the police recovered the shotgun, ski mask, and green Army jacket.

An amended information was filed on March 31, 1988, charging defendant with attempt (murder) and armed robbery, stemming from the incident at the Clark oil station. In addition, defendant was charged with six essentially unrelated counts of burglary and theft. Although he was only a 16-year-old juvenile, defendant was charged as an adult because of the presence of the armed robbery offense. Section 5-4(6)(a) of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 805-4(6)(a)) requires a juvenile, who is at least 15 years of age, to be charged as an adult if he is charged with the commission of certain offenses. Armed robbery committed with a firearm is one of the offenses specifically mentioned. The court did grant defendant's motion to sever the more serious counts of attempt (murder) and armed robbery.

Defendant filed a motion to suppress, alleging that his confession on March 3 had been induced with the promise that he would be tried as a juvenile, and not as an adult. The court heard testimony over two days and concluded that defendant's confession was voluntary. The court made the statement that defendant could have entertained a reasonable belief that he would be tried as a juvenile based on some of the comments made by the interrogating officers. However, the officers made no promises to defendant in return for his confession, and there was nothing said by the officers that was intended to induce or coerce a confession. The officers gave all the proper warnings prior to obtaining defendant's confession. Defendant was simply not told he would be tried as an adult for armed robbery because of statutory requirements.

Defendant subsequently waived his right to a jury trial, and a bench trial was held on June 7, 1988. He was found guilty of armed robbery and attempt (murder). On the attempt charge, the court concluded it could not clearly find defendant intended to kill when he fired the shotgun. However, the court found defendant clearly intended to commit great bodily harm.

Following defendant's bench trial, defendant negotiated a guilty plea on the remaining charges against him. He was sentenced as above stated and ordered to pay restitution in the sum of $44,568 to Mark Smith, the attendant at the Clark station.

Defendant first argues his conviction for attempt (murder) must be vacated because the court based the conviction on erroneous grounds. The State concedes the court committed error and requests that we reduce the conviction to aggravated battery.

The trial court found defendant guilty on both charges for which defendant was tried at the bench trial. In making its findings, the court explained its rationale for finding defendant guilty. As to the attempt (murder) charge, the court stated:

"You went in there with the gun ready. You had a shell in the chamber and you shot that gun just like that for really no apparent reason. And you shot the individual at close range.

So whether or not you really intended to kill him, I really don't know that. I can't find that that is what your true intent was, but there certainly can be no question but what you intended to do great bodily harm. . . .

A person who didn't want to ever use that weapon wouldn't bother to even load it. They would just take the gun in and hope to be able to commit the crime without doing anything more than scaring the individual into believing that it may be loaded. You went fully prepared to do whatever you had to do. You have admitted to the police that if you had to shoot someone you didn't want to kill them. You just wanted to hurt them bad enough to complete the crime. So, perhaps in your youth you thought you could intentionally shoot somebody with the safety of knowing that you weren't really going to kill them. You were just going to seriously hurt them.

That is why the law makes it against the law to shoot someone under those circumstances. It makes it attempt murder. The law doesn't have to prove absolutely that your mind set was to kill somebody. The law has to prove that you committed the acts under circumstances where you knew that it would cause great bodily harm.

Anyone had to know that what you were doing and what you did would cause great bodily harm to someone when you shot them from perhaps three or four feet with a sawed off shotgun regardless of the type of shell you had in it.

I can't really consider your statement to the police as to a confession as to Count II. It's only an admission that you fired the weapon. You have made exculpatory statements about your intent and about your intention to even fire the gun. But it seems to me clearly that the evidence supports the Conclusion beyond a reasonable doubt that you intended to use the weapon and that you intended to do great bodily harm to Mark Smith."

From these statements, it becomes clear the trial court based defendant's conviction for attempt (murder) on the ground that defendant intended great bodily harm to the victim.

Illinois law is clear that an intention to commit great bodily harm will not be sufficient to convict on a charge of attempt (murder). An element of attempt (murder) is a specific intent to kill. (People v. Harris (1978), 72 Ill. 2d 16, 27, 377 N.E.2d 28, 33; People v. Trinkle (1977), 68 Ill. 2d 198, 201-04, 369 N.E.2d 888, 890-92.) The trial Judge expressly stated he could not find that intent. Accordingly, we must vacate the conviction and sentence for attempt (murder).

The trial court's finding that defendant intended to commit great bodily harm does support the offense of aggravated battery. (Ill. Rev. Stat. 1987, ch. 38, par. 12-4(a).) Under the authority of Supreme Court Rule 615(b)(3) (107 Ill. 2d R. 615(b)(3)), a reviewing court may reduce the conviction to one of a lesser degree where an included offense is involved. (People v. Trinkle (1976), 40 Ill. App. 3d 730, 734, 353 N.E.2d 18, 22, aff'd (1977), 68 Ill. 2d 198, 369 N.E.2d 888.) In this case, aggravated battery is an included offense of attempt (murder). A review of the evidence indicates defendant intended beyond a reasonable doubt to commit great bodily harm. Further, defendant's act of firing the shotgun caused harm to the victim. Pursuant to the powers granted to us by Supreme Court Rule 615(b)(3), we reduce the degree of the offense from attempt (murder) to aggravated battery. Further, we reduce defendant's sentence to five years, pursuant to the authority given us by Supreme Court Rule 615(b)(4) (107 Ill. 2d R. 615(b)(4)).

Defendant's second argument concerns his motion to suppress. In his motion, defendant alleged that interrogating officers had promised him he would be tried as a juvenile if he confessed to all his misdeeds before he turned 17 years of age. Defendant argues he relied on this promise in giving statements which indicated his participation in the armed robbery of the Clark station and the shooting of the attendant. However, instead of charging defendant as a juvenile, defendant was charged and tried as an adult.

The trial court heard testimony on the motion to suppress over two days and, eventually, denied the motion. Following defendant's arrest in Missouri on March 2, 1988, he was transferred to the Adams County Youth Home in Quincy, Illinois. On March 3, 1988, defendant was interviewed three times by law enforcement officers from Missouri and Illinois. Officer Kelvin Roberts was present at all three interviews and was called first to testify. He stated he is an investigator in the juvenile division of the Quincy police department.

Roberts first interviewed defendant at about 1:30 p.m. at the Adams County Youth Home, along with two Missouri law officers. Prior to interviewing defendant, Roberts spoke with defendant's father at the youth home. Roberts told defendant's father the purpose for the questioning. Defendant's father stated his preference for not becoming involved and left. Defendant was given his Miranda rights by Roberts and the Missouri officers. Roberts stated the rights were individually explained to defendant. In addition, the Missouri officers gave a warning that is part of their standard procedure in dealing with juveniles. The warning reads:

"'You must further understand that if a juvenile is fourteen years of age or older, and petition alleges an offense that would be a felony, if the juvenile were an adult, the juvenile could be certified to stand trial as an adult in a court of general jurisdiction. Further, you must understand that any statement you make to a police officer could be used against you in either the juvenile court or the adult court, if such certification were ordered by the court.'"

Roberts testified defendant understood his rights as they were explained to him. Defendant waived his rights and agreed to speak with the officers. The conversation centered on the theft of a vehicle and other burglaries. Defendant confessed to these crimes. Roberts stated defendant was not promised he would be prosecuted only as an adult. No promises were made to defendant. Roberts did ...

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