People v. Green

No. 3--96--0469
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1997

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) for the 9th Judicial Circuit
) Knox County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 95--CF--172
)
EDGAR W. GREEN, ) Honorable
) James B. Stewart
Defendant-Appellant. ) Judge, Presiding
_________________________________________________________________

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 at-
tempted 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 dis-
charge. 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' impris-
onment for the attempted murder of Davis and 20 years' imprison-
ment 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 re-
sponse 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 (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
(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 evidence is so improbable,
unreasonable or unsatisfactory as to justify a reasonable doubt
concerning the defendant's guilt. People v. Singletary, 237 Ill.
App. 3d 503, 604 N.E.2d 1009 (1992).
In the instant case, the defendant shot Davis, then immedi-
ately began chasing Mason. He pointed the gun at May and pulled
the trigger and then pointed the gun at Mason before turning to
May and pulling the trigger again. From the evidence adduced at
trial, the judge could have concluded that the defendant took a
substantial step toward murdering Mason by chasing him down while
carrying a gun and then pointing the gun at him. Moreover, the
judge could have concluded that the defendant did not realize
that the bullets in the gun were spent. Finally, the judge's
remarks in response to the defendant's motion for directed
finding merely indicated that the defendant had not yet told his
side of the story. The judge indicated that he was keeping an
open mind to hear what the defendant had to say, but, given only
the evidence produced by the State, a directed finding was not in
order. Considering the entire circumstances of the alleged
crime, we find that the evidence is not so improbable, unreason-
able or unsatisfactory that it justifies a reasonable doubt as to
the defendant's guilt.
Next, the defendant claims that his trial counsel rendered
ineffective assistance because she failed: (1) to move to
suppress his statement to the police; and (2) to argue that the
defendant was too intoxicated to form the intent to commit
murder.
Ineffectiveness of counsel is proven when: (1) counsel's
representation falls below an objective standard of reasonable-
ness such that the trial results were unreliable; and (2) the
defendant is prejudiced by the unprofessional conduct. People v.
Albanese, 125 Ill. 2d 100, 531 N.E.2d 17 (1988). If the court
can determine that the defendant suffered no prejudice, then it
need not decide whether counsel's representation was deficient.
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
The defendant cites no specific authority to support his
argument that his trial counsel should have moved to suppress his
statement to the police. Thus, the argument is waived. See
Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc., 118 Ill. 2d 389, 515 N.E.2d 1222 (1987) (arguments not supported by
relevant authority and coherent argument are waived).
With regard to the defendant's claim that he was too intoxi-
cated to form the intent to murder Davis, Mason and May, the
record contains absolutely no support for this theory. The only
indication that the defendant was in such an inebriated state
comes from the defendant's self-serving statements in the pre-
sentence investigation report. If the defendant was as drunk as
he claims to have been, surely someone--a witness, a police
officer--would have testified that he appeared to be under the
influence of alcohol or drugs.
The defendant claims that the dearth of evidence supports
his theory of ineffectiveness. We do not agree. Indeed, the
lack of evidence leads us to conclude that the attempt to raise
such a defense would have failed. With no prejudice to the
defendant by the failure to raise the defense, there can be no
ineffective assistance of counsel. Thus, we hold that the
defendant's trial attorney did not render ineffective assistance
to the defendant.
Third, the defendant contends that the trial court improper-
ly considered as an aggravating factor at sentencing that the
defendant knew or should have known that May was a police offi-
cer.
At trial, Officer May testified that he identified himself
to the defendant at the same time as the defendant was first
aiming the gun at him and pulling the trigger. After that, the
defendant turned the gun on Mason and then turned the gun back
toward May and pulled the trigger again. Even if we were to
conclude that the events happened so quickly that the defendant
did not initially realize what May was trying to communicate, we
still would agree with the trial court that the defendant knew or
should have known of May's profession when he turned the gun on
May for the second time. Therefore, we hold that the trial court
properly considered this aggravating factor in sentencing the
defendant.
Finally, the defendant contends that the trial court erred
in accepting his waiver of a jury trial. He argues that because
he is retarded, he could not knowingly waive this right unless it
was explained to him in open court. The defendant claims that
since the record contains no evidence that such an explanation
occurred, the written jury waiver is insufficient proof that the
defendant intended to forego his constitutional right to trial by
jury.
We note that the record on appeal contains a written jury
waiver signed by the defendant. The docket entry for the date in
question provides that the court accepted the waiver as knowingly
and voluntarily given. Thus, the record on appeal supports the
trial court's decision to accept the defendant's waiver. In
order to contest that, the defendant would have had to provide us
with some additional documentation which would suggest that the
defendant did not understand the right he was waiving. Yet, the
defendant has provided this court with no transcript and no
bystander's report to support his contentions. Having failed to
do so, the defendant has not met his burden of providing an
adequate record upon which to evaluate his claim. See Foutch v.
O'Bryant, 99 Ill. 2d 389, 459 N.E.2d 958 (1984).
Moreover, the defendant has cited no authority for his
contention that because of his alleged mental retardation, the
trial court was required to explain in open court his right to a
jury trial and the consequences of waiving that right. Thus, he
was waived this claim of error. See Spinelli, 118 Ill. 2d 389,
515 N.E.2d 1222.
Consequently, we must hold that the trial court was
correct in accepting his jury waiver.
For the foregoing reasons, the judgment of the circuit court
of Knox County is affirmed.
Affirmed.
LYTTON, P.J., and SLATER, J., concurred.