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05/27/97 PEOPLE STATE ILLINOIS v. EDGAR W. GREEN

May 27, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
EDGAR W. GREEN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court for the 9th Judicial Circuit, Knox County, Illinois. No. 95--CF--172. Honorable James B. Stewart, Judge, Presiding.

Released for Publication June 30, 1997.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable Kent Slater, Justice, Honorable John F. Michela, Justice. Justice Michela delivered the Opinion of the Court. Lytton, P.j., and Slater, J., concurred.

The opinion of the court was delivered by: Michela

JUSTICE MICHELA delivered the Opinion of the Court:

The defendant, Edgar W. Green, was convicted of three counts of attempted first degree murder (720 ILCS 5/8--4(a), 9--1 (West 1994)). He was sentenced to concurrent terms of imprisonment of 30, 20 and 50 years. On appeal, the defendant argues that: (1) he was not proven guilty beyond a reasonable doubt of the attempted murder of victims Mason and May; (2) his trial attorney rendered ineffective assistance; (3) the trial court improperly considered as an aggravating factor that the defendant knew or should have known that May was a police officer; and (4) the trial court erred in accepting the defendant's waiver of his right to a jury trial. We affirm.

On August 2, 1995, the defendant had an altercation with victim Davis outside a bar. The two scuffled, and the defendant claimed that Davis pulled out a knife. The defendant, who was carrying a gun loaded with four bullets, chased Davis and shot him in the back. The shooting occurred outside another bar and Davis fell into the bar after being shot. As Davis was falling into the bar, victim Mason was leaving. The defendant and Mason had crossed paths earlier, and Mason had fired a gun at the defendant. When they met this time, Mason began to run away from the defendant and the defendant gave chase.

Mason ran past victim May, an off-duty police officer who was not in uniform and was not using a marked vehicle. When Mason alerted May to the defendant's presence, May turned and saw the defendant holding the gun. The defendant pointed the gun at May and pulled the trigger three times. The gun did not discharge. During this time, May identified himself as a police officer and called for the defendant to put down the weapon. The defendant momentarily pointed the gun at Mason, then moved the weapon back toward May and pulled the trigger two more times. Again, the gun did not fire. May chased the defendant and subdued him.

At the police station following his arrest, the defendant was read his Miranda warnings. The defendant was shown a sheet of paper which explained those rights. Because the defendant indicated that he could not read well, an officer read the sheet to him and the defendant initialed each portion, indicating that he understood what had been read to him. Thereafter, he gave a statement in which he admitted shooting Davis and admitted shooting at Mason and pointing the gun at May.

Prior to trial, the defendant was evaluated by a clinical psychologist to determine whether he was fit to stand trial. The psychologist determined that the defendant exhibited borderline intellectual functioning. However, he was unable to administer several of the tests he sought to give the defendant because the defendant responded in a manner that made it impossible to get any significant answers from him.

The defendant signed a written jury waiver, and the matter proceeded to a bench trial. Following the presentation of the State's case, the defendant moved for a directed finding. He claimed that the State had not proved that he took a substantial step toward the murder of either Mason or May and claimed that the State had not proved that he intended to murder either Mason or May. The trial judge stated that it did not know what the defendant was thinking at the time of the shootings. Based on the evidence presented by the State, however, the court found that it would be possible to conclude that the defendant had intended to murder Mason and May and had taken a substantial step toward completing that act. The court therefore denied the defendant's motion. After hearing all the evidence, the trial court found the defendant guilty of the attempted murders of Davis, Mason and May.

The pre-sentence investigation report contained statements from the defendant that he was drinking and smoking marijuana "all day" prior to the shooting. The report also stated that the defendant was receiving Social Security payments based on his mental retardation.

The trial court sentenced the defendant to 30 years' imprisonment for the attempted murder of Davis and 20 years' imprisonment for the attempted murder of Mason. The court found as an aggravating factor that the defendant knew or should have known that May was a police officer. Consequently, the court sentenced the defendant to 50 years' imprisonment for the attempted murder of May.

The defendant argues that the State failed to prove him guilty of the attempted murder of Mason and May because: (1) he did not take a substantial step toward murdering Mason because he did not pull the trigger of the gun while the gun was pointed at Mason; and (2) when he pointed the gun at Mason and May he knew that there were no bullets left in the gun. The defendant further claims the trial judge admitted in his remarks in response to the motion for directed finding that the State had not proved that he had the intent to murder Mason and May.

A defendant is guilty of attempted murder when he, with the intent to kill, does any act which is a substantial step toward committing murder. People v. Burrage, 269 Ill. App. 3d 67, 645 N.E.2d 455, 206 Ill. Dec. 450 (1994). When a defendant challenges the sufficiency of the evidence against him, this court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 478 N.E.2d 267, 87 Ill. Dec. 910 (1985). The reviewing court may not substitute its judgment for that of the trier of fact with regard to the weight of the evidence and the credibility of the witnesses and should not reverse a conviction unless the ...


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