People v. Williams

11/21/97
No. 2--95--0018

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 93--CF--1904
)
TERRENCE J. WILLIAMS, ) Honorable
) James T. Doyle,
Defendant-Appellant. ) Judge, Presiding.
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Opinion on Remand

PRESIDING JUSTICE GEIGER delivered the opinion of the court:
On March 21, 1997, this court filed its opinion in the above-
entitled case. See People v. Williams, 287 Ill. App. 3d 262 (1997).
In that opinion, we affirmed defendant Terrence Williams'
convictions and sentence. On October 1, 1997, our supreme court
denied the defendant's petition for leave to appeal. However, the
supreme court's order also provided:
"In the exercise of this Court's supervisory authority, the
Appellate Court, Second District, is directed to vacate the
judgment entered in case No. 2--95--0018 (March 21, 1997), and
to reconsider the cause in light of People v. Fornear, 176 Ill. 2d 523 (1997)."
Pursuant to this order, we vacate our earlier opinion and reconsider
the merits of the defendant's appeal.
Following a jury trial, the defendant was convicted of unlawful
use of a weapon by a felon (UUW) (720 ILCS 5/24--1.1 (West 1994)),
four counts of aggravated discharge of a firearm (720 ILCS 5/24--
1.2(a)(2) (West 1994)), and involuntary manslaughter (720 ILCS 5/9--
3 (West 1994)). He was sentenced to 12 years' imprisonment on each
count of aggravated discharge of a firearm, 4 years' imprisonment
for involuntary manslaughter, and 5 years' imprisonment for UUW, all
sentences to run concurrently.
On appeal, the defendant raises the following issues: (1)
whether the jury verdicts were legally inconsistent; (2) whether the
trial court erred when it refused to instruct the jury on the
offense of reckless conduct; and (3) whether the trial court abused
its discretion in sentencing the defendant to 12 years' imprisonment
on each count of aggravated discharge of a firearm.
According to the testimony at trial, the defendant and the
victim, Steven Potts, had a confrontation at an apartment complex.
According to the defendant, after the confrontation and as he was
leaving the building, he heard the victim say, "I got you, nigger."
The victim then fired a shot. The defendant turned around and fired
his gun six times with his eyes closed. According to the defendant,
he fired into the air "above their heads" because he wanted to
protect himself and make the victim run away. One of the shots
struck and killed the victim. The defendant's gun was a nine
millimeter which held six cartridges.
Two of the victim's brothers and a friend of the victim were
present and witnessed the incident. Each witness had a different
version of the events. Jeff Potts testified that he heard the
defendant say, "I got you mother f------ now," and then the
defendant opened fire. According to Jeff, he heard seven shots
fired. The other witnesses heard the gunshots but did not see who
fired the gun. A defense witness testified he saw a gun in the
victim's possession earlier in the evening. However, no gun was
found on or near the victim's body.
The defendant's first argument on appeal is that the jury
verdicts finding him guilty of involuntary manslaughter and
aggravated discharge of a firearm are legally inconsistent because
they required the jury to determine that the defendant's mental
state was both reckless and knowing at the same time.
Legally inconsistent verdicts cannot stand because they are
unreliable. People v. Spears, 112 Ill. 2d 396, 406-07 (1986). At
a minimum, such verdicts suggest confusion or misunderstanding on
the part of the jury. People v. Klingenberg, 172 Ill. 2d 270, 281
(1996). Where inconsistent guilty verdicts are returned, the
defendant is entitled to a reversal of the convictions and a new
trial on all counts. Spears, 112 Ill. 2d at 407. Guilty verdicts
are legally inconsistent if they indicate the jury's finding of
mutually inconsistent mental states relating to the same conduct.
Spears, 112 Ill. 2d at 407-08.
A person commits the offense of involuntary manslaughter when
he unintentionally kills an individual without lawful justification
"if his acts whether lawful or unlawful which cause the death are
such as are likely to cause death or great bodily harm to some
individual, and he performs them recklessly." (Emphasis added.) 720
ILCS 5/9--3(a) (West 1994). The state of mind for involuntary
manslaughter is recklessness. People v. Lee, 256 Ill. App. 3d 856,
860 (1993). A person acts recklessly "when he consciously
disregards a substantial and unjustifiable risk that circumstances
exist or that a result will follow." 720 ILCS 5/4--6 (West 1994).
In contrast, a person commits aggravated discharge of a firearm
when he "knowingly or intentionally *** [d]ischarges a firearm in
the direction of another person or in the direction of a vehicle he
knows to be occupied." 720 ILCS 5/24--1.2(a)(2) (West 1996). The
mental state required for that offense is that of " 'knowingly or
intentionally' discharg[ing] a firearm under various described
circumstances." People v. Folks, 273 Ill. App. 3d 126, 133 (1995).
A person acts knowingly when "he is consciously aware" of the nature
of his conduct or the results of his conduct. 720 ILCS 5/4--5(a)
(West 1994).
In People v. Fornear, 176 Ill. 2d 523, 531 (1997), our supreme
court specifically addressed whether the mental states of
recklessness and knowledge are mutually inconsistent. In that case,
the defendant was charged and convicted of both reckless conduct and
aggravated discharge of a firearm. Fornear, 176 Ill. 2d at 525.
On appeal, the defendant argued that the mental state of intent or
knowledge required for the offense of aggravated discharge of a
firearm was irreconcilably inconsistent with the mental state of
recklessness required for the offense of reckless conduct. Fornear,
176 Ill. 2d at 530.
After reviewing its decision in People v. Spears, 112 Ill. 2d 396 (1986), the supreme court reversed the defendant's convictions
as being legally inconsistent. The supreme court stated:
"[T]he argument that the mental states involved herein
are not mutually inconsistent, because the mental state of
knowledge 'includes' the mental state of recklessness, was
raised and rejected in Spears. [Citation.] As the Spears
court explained: 'The fatal flaw in this argument is that it
totally blurs the distinction between the mental state of
knowledge and the less culpable mental state of recklessness
by assuming that the two invariably coexist.' Spears, 112 Ill. 2d at 408. We continue to adhere to the holding of
Spears, and its predecessor, People v. Hoffer, 106 Ill. 2d 186
(1985), that recklessness and knowledge are mutually
inconsistent culpable mental states." Fornear, 176 Ill. 2d at
531.
In the case before us, the defendant was convicted of
involuntary manslaughter and four counts of aggravated discharge of
a firearm. As these counts contain the inconsistent mental states
of recklessness and knowledge, the convictions cannot stand.
Fornear, 176 Ill. 2d at 531. "When a jury returns inconsistent
guilty verdicts, the trial judge has a duty to send the jury back
for further deliberations after additional instructions to resolve
the inconsistency." People v. Porter, 168 Ill. 2d 201, 214 (1995).
As the trial court herein failed to send the jury back for further
deliberations to resolve the inconsistent verdicts, the convictions
must be reversed and the cause remanded for a new trial on the
involuntary manslaughter and aggravated discharge of a firearm
charges. Fornear, 176 Ill. 2d at 535.
The defendant's next contention on appeal is that the trial
court erred in refusing to give a jury instruction on the offense
of reckless conduct (720 ILCS 5/12--5 (West 1994)). The defendant
argues that reckless conduct is a lesser included offense of
aggravated discharge of a firearm.
Section 2--9 of the Criminal Code of 1961 defines an included
offense as an offense that "[i]s established by proof of the same
or less than all of the facts or a less culpable mental state (or
both), than that which is required to establish the commission of
the offense charged." 720 ILCS 5/2--9 (West 1994).
In People v. Novak, 163 Ill. 2d 93 (1994), our supreme court
adopted the "charging instrument approach" to identify a lesser
included offense. This approach looks to the facts alleged in the
charging instrument in identifying a lesser included offense.
Novak, 163 Ill. 2d at 107. Under this approach, an offense is
deemed to be a lesser included offense if it is described by the
charging instrument. Novak, 163 Ill. 2d at 107.
The charging instrument approach does not require the lesser
crime to be a theoretically or practically "necessary" part of the
greater crime. Novak, 163 Ill. 2d at 107. Rather, the lesser crime
need only relate to the greater to the extent that the charging
instrument describes the lesser. Novak, 163 Ill. 2d at 107. The
" 'lesser offense must have a broad foundation in the instrument
charging the greater,' or at least 'set out the main outline of the
lesser offense.' " Novak, 163 Ill. 2d at 107, quoting People v.
Bryant, 113 Ill. 2d 497, 505 (1986).
In this case, the counts of the indictment charging the
defendant with aggravated discharge of a firearm stated, in
pertinent part, that the "defendant[] knowingly discharged a pistol
in the direction of" the victim. The offense of reckless conduct
is defined as follows:
"A person who causes bodily harm to or endangers the
bodily safety of an individual by any means, commits reckless
conduct if he performs recklessly the acts which cause the
harm or endanger safety, whether they otherwise are lawful or
unlawful." 720 ILCS 5/12--5(a) (West 1994).
Based upon the charging instrument approach, we conclude that
the offense of reckless conduct is a lesser included offense of
aggravated discharge of a firearm. The act of discharging a pistol
in the direction of an individual is a reckless act that would, if
nothing else, endanger the safety of an individual. The only change
to the instant indictment that would be necessary in order to
establish the offense of reckless conduct, would be to replace the
mental state of knowledge with the less culpable mental state of
recklessness. Therefore, we conclude that the indictment in this
case does describe the foundation of the offense of reckless
conduct. See 720 ILCS 5/2--9 (West 1994); Novak, 163 Ill. 2d at
107.
However, the identification of a lesser included offense does
not automatically give rise to a correlative right to have the jury
instructed on the lesser offense. Novak, 163 Ill. 2d at 108. A
defendant is entitled to a lesser included offense instruction only
if the evidence would permit a jury rationally to find the defendant
guilty of the lesser included offense and acquit him or her of the
greater offense. Novak, 163 Ill. 2d at 108. A lesser included
offense instruction is not proper where, on the evidence presented
at trial, the factual issues to be resolved are the same as to both
the lesser and greater offenses. Novak, 163 Ill. 2d at 108. A
lesser included offense instruction is proper only where the charged
greater offense requires the jury to find a disputed factual element
that is not required for conviction of the lesser included offense.
Novak, 163 Ill. 2d at 108.
This evidentiary requirement is usually satisfied by the
presentation of conflicting testimony on the element that
distinguishes the greater offense from the lesser offense. Novak,
163 Ill. 2d at 108. However, where the testimony is not
conflicting, this requirement may be satisfied if the conclusion as
to the lesser offense may fairly be inferred from the evidence
presented. Novak, 163 Ill. 2d at 108. The amount of evidence
necessary to meet this factual requirement, i.e., that tends to
prove the lesser offense rather than the greater, has been described
as "any," "some," "slight," or "very slight." Novak, 163 Ill. 2d
at 108-09.
In the case before us, the defendant testified that, when he
fired the gun, he closed his eyes and fired in the air "above their
heads" in order to scare the victim away. At no time during the
trial did the defendant admit that he knowingly fired the gun
directly at the other men. Whether the defendant's firing the gun
in the air, over the heads of the men with his eyes closed,
constitutes firing the gun in the direction of another person is a
factual question to be resolved by the finder of fact. We therefore
conclude that there was some evidence in the record here from which
it could be inferred that the defendant was guilty of reckless
conduct and that the jury should have been instructed as to that
offense. See Novak, 163 Ill. 2d at 108.
Deciding the case as we do, we need not reach the sentencing
issue raised by the defendant.
As the defendant does not contest his conviction and sentence
for unlawful use of a weapon by a felon, that portion of the trial
court's judgment is affirmed. However, the defendant's convictions
and sentences for involuntary manslaughter and aggravated discharge
of a firearm are reversed, and the cause is remanded for a new trial
as to those offenses.
Affirmed in part and reversed in part; cause remanded with
directions.
THOMAS and RATHJE, JJ., concur.