Appeal from the Circuit Court of Cook County, No. 08 CR 11277, Honorable Sharon Sullivan, Judge Presiding.
JUSTICE NEVILLE delivered the judgment of the court, with opinion. Presiding Justice Hyman and Justice Mason concurred in the judgment and opinion.
¶ 1 Following a bench trial, Hiram Harris, the defendant, was found guilty of the 2008 attempted murder of Carlee McKinney. Defendant elected to be sentenced under the version of the attempt statute that went into effect on January 1, 2010, which allows the trial court to impose a Class 1 sentence rather than the otherwise mandated Class X sentence, if the trial court finds by a preponderance of the evidence that defendant acted under a sudden and intense passion resulting from serious provocation. The trial court found that defendant was not acting under a sudden and intense passion resulting from a serious provocation, and refused to sentence defendant as a Class 1 offender. Instead, the trial court imposed a Class X sentence of eight years' imprisonment. On appeal, defendant contends that the trial court erred and that brandishing a weapon is sufficient to constitute serious provocation. We affirm.
¶ 2 Around midnight on June 4, 2008, the victim, Carlee McKinney, and his brother, Darnell Smith, went to a club. Defendant and several friends were at the same club. No one testified that there was any altercation or interaction of any kind between the two groups while in the club. The club closed near 2 a.m. on June 5, and the patrons began to leave. A large group gathered under an awning outside the front door while valets were returning patrons' cars. As the patrons were leaving, Smith walked into the street to speak to his fiancée, Crystal Dyson, who was sitting in the driver's seat of her car, which was parked in front of the club. Another car pulled up next to Dyson's car and double parked. This angered Smith, because he believed the car was too close to him. An altercation erupted between Smith and the occupants of the second car. Although all witnesses agreed that angry words were exchanged, they disputed whether it escalated to a physical confrontation. Smith testified that someone punched him in the face. All witnesses agreed that the occupants of the car, who were friends of defendant, were much larger than Smith or the victim.
¶ 3 Shortly after the altercation started, the victim exited the club. He removed his shirt and stated that no one was going to "mess" with his brother. It is disputed whether the victim also said "I got something for you big motherfuckers." Although the victim denied having a weapon, Jarell Pierce, one of defendant's friends, testified that he saw the victim reach under the passenger seat of Dyson's car and grab the butt of a handgun. Pierce testified that he said "he has a banger." Although there is some dispute about the exact location of the victim at the time, it is undisputed that defendant stabbed the victim twice with a knife, once in the back and once in the chest. Defendant testified that he did so because the victim had a handgun and he was in fear for his safety and that of his friends.
¶ 4 The trial court rejected defendant's self-defense claims stating: "While the defendant and his witnesses would like this Court to believe that the victim was reaching for a weapon, I find that that testimony was not credible." The trial court found defendant guilty of attempted murder and aggravated battery.
¶ 5 Defendant filed a motion to reconsider and a motion for acquittal alleging numerous trial errors and evidentiary defects. At the hearing on the motions, defense counsel argued, inter alia, that despite the State's argument that the crime does not exist, the statutes should be interpreted as creating the offense of attempted second degree murder, and defendant was guilty, at the worst, of that offense. Defense counsel stated:
"I think this case jumps out at attempt second degree murder based on the facts of the case. The State would like to claim that there is no evidence of this. There is evidence all over the record of this, of the provocation by the victim." The trial court denied defendant's motions.
¶ 6 Defendant elected to be sentenced under the version of the statute that went into effect on January 1, 2010, which allowed for sentencing as a Class 1 offender if the trial court finds that a defendant was acting under a sudden and intense passion. Defense counsel argued that defendant was acting under a sudden intense passion because the victim was reaching for a weapon immediately prior to the stabbing. The State responded that it believed defendant was confusing sudden intense passion with unreasonable belief in the need for self-defense and that the evidence did not support his theory of the case. Defense counsel responded, "Judge, if somebody pulls a gun on you or if you believe somebody is pulling a gun on one of your friends or acquaintances, family members, whatever, if that doesn't qualify as a sudden and intense passion, I don't know what else would." Defendant supported his sentencing argument with the testimony of an additional witness, Deante Lewis, a childhood friend of defendant. Lewis was at the club and heard the victim say he had a gun and heard Pierce say "he has a banger." Lewis saw the victim reach into the car, and he ran away. Lewis did not see a weapon.
¶ 7 Following argument by the parties, the trial court denied defendant's sentencing motion, stating, "I do not believe the defendant has shown by a preponderance of the evidence in any event that the defendant was acting under serious provocation." The court proceeded to sentencing, heard arguments from the parties in aggravation and mitigation, and considered letters written on defendant's behalf and victim impact statements from the victim and his mother. The court also heard a statement from defendant. The trial court stated that it had considered all of the evidence in mitigation and aggravation, merged the aggravated battery conviction into the attempted murder conviction, and sentenced defendant to a term of eight years' imprisonment. Defendant timely appeals.
¶ 8 On appeal defendant contends that he proved by a preponderance of the evidence that he was acting under a sudden and intense passion resulting from serious provocation and that he should have been sentenced as a Class 1 offender.
¶ 9 Although this case involves sentencing in an attempted first degree murder, we believe a brief discussion of the offense of second degree murder and the attempt statute is necessary to illuminate the legislature's intent in amending the sentencing statute.
¶ 10 In Illinois, second degree murder is defined as a first degree murder during which one of two mitigating factors, serious provocation or unreasonable belief in the need for self-defense, are present. See 720 ILCS 5/9-2 (West 2010). Attempt is defined as follows: "A person commits the offense of attempt when, with intent to commit a specific offense, he or she does any act that constitutes a substantial step toward the commission of that offense." 720 ILCS 5/8-4(a) (West 2010). In People v. Lopez, 166 Ill.2d 441 (1995), ...