Court of Appeals of Illinois, First District, Third Division
Rule 23 Order filed September 11, 2013
Rule 23 Order withdrawn October 29, 2013
Where defendant was convicted of attempted murder and elected to besentenced under the attempt statute that went into effect on January 1, 2010, which allowed a Class 1 sentence rather than the mandated ClassX sentence if defendant was found to have acted under a sudden andintense passion resulting from serious provocation and the trial courtrejected defendant’s contention that he was acting under a sudden andintense passion and imposed a Class X sentence, the Class X sentencewas upheld, since the mere fact that the victim brandished a weapon, without more, is not one of the classes of serious provocation recognizedunder these circumstances.
Appeal from the Circuit Court of Cook County, No. 08-CR-11277; the Hon. Sharon Sullivan, Judge, presiding.
Counsel on Appeal Michael J. Pelletier, Alan D. Goldberg, and Philip D. Payne, all of StateAppellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, PeterFischer, Doug Harvath, and Judy L. DeAngelis, Assistant State’sAttorneys, of counsel), for the People.
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 ...