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05/18/95 PEOPLE STATE ILLINOIS v. DENIS LOPEZ

May 18, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
DENIS LOPEZ, APPELLANT. -- THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE, V. JUAN CRUZ, APPELLANT.



The Honorable Justice Nickels delivered the opinion of the court: Justice McMORROW, concurring in part and dissenting in part: Chief Justice Bilandic joins in this partial concurrence and partial dissent.

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

These consolidated appeals present separate issues concerning the existence of the offense of attempted second degree murder in Illinois. In cause No. 75467, defendant Denis Lopez was convicted after a jury trial of attempted first degree murder and armed violence. Lopez requested an instruction on the crime of attempted second degree murder based on provocation, but the trial and appellate courts found that no such crime existed in Illinois. (245 Ill. App. 3d 41.) In cause No. 75798, defendant Juan Cruz was convicted after a jury trial of attempted first degree murder, armed violence, and possession of a controlled substance with intent to deliver. Cruz also requested an instruction on attempted second degree murder, but based on imperfect self-defense. As in the case of Lopez, the trial and appellate courts found no such crime existed in Illinois. (248 Ill. App. 3d 473.) We granted leave to appeal in both cases pursuant to Supreme Court Rule 315 (145 Ill. 2d R. 315) and consolidated the cases for review.

FACTS

No. 75467

In cause No. 75467, Lopez was charged with and convicted by a jury of attempted first degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8-4, 9-1) and armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A-2) and sentenced to 25 years' imprisonment. Lopez admitted shooting his wife, Nancy Lopez, but argued that he had done so due to a sudden and intense passion due to serious provocation. Lopez and his wife had been married for 10 years and had been having marital trouble for the last two or three years. In December 1989, Lopez's wife informed him that she had been involved in an extramarital affair and that the man with whom she was having the affair was the father of their son.

Ms. Lopez informed Lopez in March 1990, that she was filing for divorce and later that month took her children and moved in with her mother. On March 22, 1990, Lopez shot his wife after she accompanied her daughter to school. Ms. Lopez survived the shooting.

The trial court refused defendant's tendered instruction on attempted second degree murder based on provocation. The appellate court, relying on People v. Aliwoli (1992), 238 Ill. App. 3d 602, 179 Ill. Dec. 515, 606 N.E.2d 347, found that the crime of attempted second degree murder does not exist in Illinois. 245 Ill. App. 3d at 44.

No. 75798

In cause No. 75798, Cruz was charged with and convicted by a jury of attempted first degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8-4, 9-1), armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A-2), and possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1401(b)(2)). The evidence at trial shows that Cruz was distributing drugs at a Chicago housing project when two plain-clothed policemen attempted to apprehend him. Cruz ran and fired shots at the officers, hitting both. The officers survived. Cruz admitted firing at the officers, but testified he did not hear them say "police" or see them wearing badges.

Cruz tendered an instruction on attempted second degree murder based on an imperfect self-defense, the unreasonable belief in the need to use deadly force. The trial court refused the instruction. The appellate court affirmed, relying on Aliwoli and the decision in Lopez. 248 Ill. App. 3d at 477.

Appellate Decisions

The question before us is whether attempted second degree murder is an offense recognized in Illinois. The districts of the appellate court are split on this issue. The First District has held that no offense of attempted second degree murder exists in Illinois. ( Lopez, 245 Ill. App. 3d 41; People v. Aliwoli (1992), 238 Ill. App. 3d 602, 179 Ill. Dec. 515, 606 N.E.2d 347 (provocation); Cruz, 248 Ill. App. 3d 473, 188 Ill. Dec. 21, 618 N.E.2d 591; People v. Williams (1991), 220 Ill. App. 3d 460, 163 Ill. Dec. 162, 581 N.E.2d 113 (imperfect self-defense).) However, the Second District ( People v. Austin (1991), 215 Ill. App. 3d 323 (imperfect self-defense)) and Third District ( People v. Moore (1990), 204 Ill. App. 3d 694 (provocation)) have found that such a crime does exist. The Fourth District has not addressed the issue, but has assumed that the crime exists. (See People v. Flaugher (1992), 232 Ill. App. 3d 864, 876, 174 Ill. Dec. 194, 598 N.E.2d 391 (provocation).) Finally, the Fifth District has concluded that attempted second degree murder does not exist in Illinois. People v. Fletcher (1993), 255 Ill. App. 3d 206, 193 Ill. Dec. 64, 625 N.E.2d 1185 (imperfect self-defense).

Statutes

We begin our discussion with the pertinent statutes. The attempt statute provides:

"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.) (720 ILCS 5/8-4(a) (West 1992).)

The second degree murder statute provides in pertinent part:

"(a) A person commits the offense of second degree murder when he commits the offense of first degree murder as defined in paragraph[] (1) *** of subsection (a) of Section 9-1 of this Code and either of the following mitigating factors are present:

(1) [Provocation] At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed; or

(2) [Imperfect self-defense] At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code [self-defense], but his belief is unreasonable." (Ill. Rev. Stat. 1987, ch. 38, par. 9-2(a).)

The first degree murder statute provides in pertinent part:

"(a) A person who kills an individual without lawful justification commits first degree murder if, in performing ...


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