{ "id": 5294245, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. J.W. AUSTIN, Defendant-Appellant", "name_abbreviation": "People v. Austin", "decision_date": "1991-06-27", "docket_number": "No. 2\u201489\u20140616", "first_page": "323", "last_page": "336", "citations": [ { "type": "official", "cite": "215 Ill. App. 3d 323" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "142 Ill. 2d 13", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236660 ], "pin_cites": [ { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0013-01" ] }, { "cite": "132 Ill. 2d 451", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5589223 ], "year": 1991, "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/132/0451-01" ] }, { "cite": "141 Ill. 2d 107", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238179 ], "pin_cites": [ { "page": "118-19" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0107-01" ] }, { "cite": "131 Ill. 2d 66", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5569514 ], "pin_cites": [ { "page": "71-72" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0066-01" ] }, { "cite": "121 Ill. 2d 537", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3202119 ], "pin_cites": [ { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0537-01" ] }, { "cite": "101 Ill. 2d 470", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160364 ], "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0470-01" ] }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "80 L. Ed. 2d 674", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6204802 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "698-99" }, { "page": "2068-69" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "466 U.S. 688", "category": "reporters:federal", "reporter": "U.S.", "year": 1984, "pin_cites": [ { "page": "695-96" } ], "opinion_index": 0 }, { "cite": "126 Ill. 2d 344", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5556897 ], "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/126/0344-01" ] }, { "cite": "204 Ill. App. 3d 694", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2576581 ], "weight": 3, "pin_cites": [ { "page": "698" }, { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0694-01" ] }, { "cite": "62 Ill. 2d 568", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2971333 ], "pin_cites": [ { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/62/0568-01" ] }, { "cite": "99 Ill. 2d 238", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3164111 ], "weight": 3, "pin_cites": [ { "page": "240" }, { "page": "241" }, { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0238-01" ] }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "pin_cites": [ { "page": "525-26" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "126 Ill. 2d 344", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5556897 ], "weight": 2, "pin_cites": [ { "page": "351-52" }, { "page": "351" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/126/0344-01" ] }, { "cite": "204 Ill. App. 3d 694", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2576581 ], "weight": 3, "pin_cites": [ { "page": "698" }, { "page": "698" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/204/0694-01" ] }, { "cite": "62 Ill. 2d 568", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2971333 ], "pin_cites": [ { "page": "581" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/62/0568-01" ] }, { "cite": "99 Ill. 2d 238", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3164111 ], "weight": 5, "pin_cites": [ { "page": "240-41" }, { "page": "241" }, { "page": "240-41" }, { "page": "240" }, { "page": "240-41" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/99/0238-01" ] } ], "analysis": { "cardinality": 1166, "char_count": 32714, "ocr_confidence": 0.794, "pagerank": { "raw": 1.4287763150881711e-07, "percentile": 0.650481360110184 }, "sha256": "dd25af11c03e3b2905a404e73fa50d3812a2e4edcb25355e4adf28e6d77a5f6f", "simhash": "1:b9960f3eee26b650", "word_count": 5560 }, "last_updated": "2023-07-14T22:48:50.210219+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. J.W. AUSTIN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WOODWARD\ndelivered the opinion of the court:\nDefendant, J.W. Austin, appeals his convictions of and sentences for two counts of attempted first degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8 \u2014 4(a), 9 \u2014 l(aXl)). Defendant raises two issues on appeal: whether he was denied the effective assistance of counsel where his attorney failed to seek jury instructions on attempted second degree murder; and whether the concurrent 10-year sentences are excessive.\nAt the jury trial, Lunetta \u201cLucy\u201d Powell testified that she lived in the same apartment building as defendant. Lucy had known defendant for over a year prior to the incident. Defendant helped Lucy get a job at the cafeteria at Rockford College in November 1988. Defendant was employed there in food service and in maintenance. In December 1988, or January 1989, defendant loaned Lucy $50 so that she could pay her electric bill. In January, defendant told her to \u201cforget about it\u201d because Lucy had \u201cbought him a half a gallon of booze and *** gave him five or ten dollars or something[,] and he says [sic] we\u2019ll call it even.\u201d\nLucy testified further that on February 2, 1989, she was under the influence of alcohol when she reported for work. At approximately 11 a.m., defendant noticed Lucy was intoxicated and told her that she should not have been working that day and that she ought to go home. Lucy then tried to call someone to get a ride home. Lucy was not certain, but she thought she took the bus home around noon. Lucy did not know what time it was when she got home, but she thought it was before 2 p.m. Delbert Hodges, Lucy\u2019s boyfriend, was already at her apartment, which did not have a telephone. The two began drinking beer when she got home. According to Lucy, they resumed drinking at 5 or 6 p.m. and continued to drink until defendant came over.\nLucy believed that it was between 8:30 and 9 that night that defendant arrived at the apartment. Lucy and Hodges were watching television. Lucy admitted defendant into the apartment. According to Lucy, defendant had been drinking, and his speech was slurred and he was staggering. Defendant sat in a chair by the end of the kitchen counter; Hodges was sitting on the couch, and Lucy sat on a table next to the couch. After defendant sat down, he took a gun from behind his back and put it between his legs. Lucy asked what defendant was doing with the gun, but defendant did not answer.\nAccording to Lucy, defendant and she then discussed Lucy\u2019s \u201cmessing up at work.\u201d Hodges did not take part in the conversation. A short while later, Lucy\u2019s brother Marvin came over. He sat on the couch next to Hodges. When Marvin entered the apartment, defendant put the gun in the back of his pants. Marvin stayed for only a few minutes.\nLucy testified farther that in the meantime defendant continued to discuss Lucy\u2019s work performance with her. Defendant was upset about it, and Lucy told him that she should not have come to work after drinking and that she would quit if that made defendant \u201clook bad.\u201d Defendant then accused Lucy of having an affair in the store room with a co-worker. Lucy denied that and told defendant that she and the co-worker had gone down to the basement to get food from storage. Defendant then got ready to leave and mentioned the $50 which Lucy owed him. Lucy further testified: .\n\u201cHe says, \u2018By the way, I want my $50 back.\u2019 And I said, T thought we were even.\u2019 And he says, \u2018No.\u2019 And I says, \u2018Oh, you change your mind now?\u2019 And he says, \u2018Yeah, you\u2019re god damn right.\u2019 And then he said, \u2018Well,\u2019 he says, \u2018Well, I want it tomorrow because I didn\u2019t pick up my check Thursday.\u2019 And I told him I would pay him some of it tomorrow, you know, and he says he want [sic] all of it. And I say, \u2018Well, I don\u2019t really owe you the 50 anyway, I only owe you a partial of the 50.\u2019 And he says he wanted [it] tomorrow and he don\u2019t care if he gets it from me or Delbert. And Delbert \u2014 then Delbert says \u2014 says, \u2018Man, how much does she owe you?\u2019 And he says, \u2018$50.\u2019 Delbert said, \u2018Don\u2019t worry, I\u2019ll go to the bank and get it for you tomorrow.\u2019 \u201d\nDefendant then walked towards the door, stopped and said, \u201c \u2018Well, I\u2019ll tell you guys what, I\u2019m gonna go to jail tonight because somebody\u2019s gonna die.\u2019 \u201d Defendant pulled the gun out and fired it at Lucy. Lucy tried to move out of the way of the bullet, but it struck her in the back of her upper left thigh. Hodges was still sitting on the couch, and defendant pointed the gun at him and fired. Defendant fired again, yet Hodges was still sitting there, so Lucy told him to get out of the way, and she \u201chit the floor and *** crawled in the pantry.\u201d Lucy heard shots while she was in the pantry.\nAccording to Lucy, she came out of the pantry and saw defendant and Hodges wrestling. Defendant saw Lucy and pointed the gun at her again. Lucy ducked back into the pantry and heard more shots. She felt like she had to do something, so she came back out. Lucy then saw that defendant was halfway out the door, which Hodges was trying to close. Lucy and Hodges pushed defendant out and closed the door. Lucy helped Hodges to the couch then went to the window and started yelling for help. Subsequently, Lucy noticed that there was a hole in one of her kitchen cabinets. Lucy denied that she or Hodges threatened or approached defendant before he started shooting.\nDelbert Hodges testified that he had a rod in one of his legs which prevented him from running or bending his leg. Hodges\u2019 testimony was substantially similar to Lucy\u2019s regarding the events the night of the shooting. Marvin left the apartment after drinking one beer because Hodges sent him to the liquor store to get some more beer. According to Hodges, defendant stayed about an hour. Defendant said he was going to \u201ckill somebody tonight.\u201d Defendant was standing by the counter when Hodges heard Lucy say defendant had a gun. Hodges heard a shot, and then defendant shot Hodges in the groin. Hodges was still sitting down. Hodges got up, not fully aware that he had been shot, and went towards defendant. Defendant kept shooting at Hodges. Hodges then pushed defendant out the door. After he was taken to the hospital, Hodges learned that he had been shot twice in the arm, and once in the wrist, groin area and chest. Hodges stated that he did not have a weapon, nor did he yell at or threaten defendant.\nHodges admitted that he had a \u201cfifth [of wine] and a couple of beers\u201d before noon on February 2, 1989. Hodges thought Lucy came home from work around 10 a.m. Hodges fell asleep for a while, then resumed drinking around 2 p.m. Hodges estimated that between himself and Lucy, they consumed two fifths of wine and a 12-pack of beer by 7 p.m. Hodges thought it was 6 p.m. when defendant came to the apartment and that defendant stayed for nearly two hours. Hodges believed defendant was drunk that night because he was \u201chollering at Lucy.\u201d According to Hodges, he was not drunk that night, but he \u201cwas feeling pretty good.\u201d\nReverend George Poole testified that he was the president of the resident counsel of the building in which defendant and Lucy lived. Shortly before 9 p.m., Reverend Poole was in his office on the main floor of the building when defendant came into the office. Defendant had blood on his jacket, so Poole asked if he had been hunting. Defendant told Poole:\n\u201c \u2018No, Reverend, I want to surrender myself to you. I want to turn myself in. I just shot two people. *** They\u2019re up on the eighth floor.\u2019 \u201d\nDefendant then laid a gun on the desk and said that \u201che just didn\u2019t like nobody to misuse him.\u201d Poole was surprised because he had never known defendant to be violent. Poole immediately called the police. He then took the gun and locked it in a desk drawer. While they were waiting for the police to arrive, defendant gave Poole $310 to give to defendant\u2019s girlfriend. According to Poole, there was an odor of alcohol on defendant\u2019s breath.\nMark West of the Rockford police department testified that he went to Reverend Poole\u2019s office following the shooting. Poole gave him the gun. Defendant told West, \u201c T did it. She owed me fifty bucks. Nobody does me wrong.\u2019 \u201d\nArlene Powell, Lucy\u2019s mother, testified that late in the morning on the day of the shooting she received a call from Lucy. Arlene went to pick up Lucy at work, but she was not there. Arlene spoke with defendant, who told her that Lucy had been drinking, and she needed to go home. Defendant asked for Arlene\u2019s telephone number and said he would call her. Defendant also said he would be getting off work at 5 p.m.\nArlene further testified that sometime before 5 o\u2019clock that afternoon, defendant called Arlene. He told her \u201cthat he had got off early and he was in Loves Park drinking good whiskey,\u201d and he asked if Arlene had found Lucy. Arlene said she had not, and defendant told her he would call back. Defendant also told Arlene that he was mad and he had a bad day. Arlene did not know what time it was when defendant called back. According to Arlene, defendant sounded like he was drunk. He asked if Arlene had found Lucy. When she said no, defendant asked if she checked at Lucy\u2019s home and at Deborah\u2019s house. Defendant said \u201che was going to get his gun and go over to Deborah\u2019s house and kill up some people.\u201d Arlene told defendant she did not want to talk to him anymore that night and hung up.\nDefendant testified that he was 56 years old, and he had worked at Rockford College for the past four years. Defendant had gotten the gun used in the shooting after he had been robbed and beaten. Defendant had a permit for the gun. At 9:30 a.m. the day of the shooting, one of the cafeteria workers came to defendant and told him that Lucy was drunk and that defendant had to get her out of the cafeteria. Defendant looked for Lucy for about five minutes, and he found her at the telephone. Lucy was crying, and she told defendant that she called her mother. Defendant told Lucy that she had to go home. According to defendant, Lucy had reported for work drunk three times before that, and no one but defendant could get her to leave.\nDefendant further testified that at 1 p.m., Lucy\u2019s mother came to the cafeteria. Defendant talked with her for a while and asked for her phone number because he \u201cwanted to call her and tell her what the boss said. He said he didn\u2019t want [Lucy] out there drunk no more. If she couldn\u2019t come to work straight, he couldn\u2019t use her.\u201d\nDefendant then testified that he left work early to help one of the cooks deliver instruments and amplifiers in Loves Park. At about 3 o\u2019clock in the afternoon, defendant drank half of a half-pint of brandy. Defendant returned home around 5 o\u2019clock. Defendant called Arlene, but she did not know where Lucy was. At approximately 8 p.m., defendant called Arlene again and asked her to tell Lucy that her supervisor said that Lucy was fired. Defendant denied that he said anything regarding people dying. Defendant intended to go to Lucy\u2019s apartment first, then to a neighbor\u2019s apartment to return $10 defendant borrowed, and then to his mother\u2019s house. Defendant had his gun with him because his mother lived in a bad neighborhood where defendant had been robbed.\nDefendant further testified that he arrived at Lucy\u2019s apartment sometime after 8 p.m. Defendant advised Lucy that their supervisor wanted defendant to tell Lucy not to come to work anymore. Defendant also asked Lucy to give him $50 the following day after she got paid because she had promised to repay him. Defendant explained that he did not ask for the money before that because Lucy\u2019s \u201cfirst paycheck was small ***. *** [T]he next one she got 200 and some dollars and she went off and bought it all up in drugs ***.\u201d Hodges then asked Lucy if she owed defendant $50, to which she responded, \u201c[n]ot really.\u201d Defendant then testified:\n\u201c[W]hen she told him that the reason she didn\u2019t think she owed me $50 [was] that I had been trying to get her to go to bed with me. And that time, Mr. Hodges jumped up. He said, \u2018what?\u2019 And he jumped \u2014 he lunged up and come after me and he had got about halfway between the couch and me. And knowed [sic] that he was coming to do something to me because he was \u2014 you know, he was running.\nSo *** when I started shooting at him to turn him around, I tried to hit him in the arm, I couldn\u2019t tell I had hit him because he was still coming.\n* * *\n*** I know they were going to do something. *** [H]e jumped up and come after me like that with that tone of voice and everything. And I had been jumped on before, and I don\u2019t like taking chances, I don\u2019t like to be hurt.\u201d\nAccording to the defendant, when Hodges grabbed him, defendant began backing up towards the door. Hodges \u201cran in on\u201d defendant. They scuffled for a minute, and then defendant shoved Hodges and got out the door. According to defendant, Lucy intended to join in the scuffle, and that is when defendant shot her. Defendant stated that he did not intend to shoot Lucy, but she got hit because defendant \u201cwas just shooting.\u201d Defendant denied that he intended to kill Lucy or Hodges, and he \u201chad nothing against the people.\u201d\nDefendant further testified that after leaving the apartment, he went down to Reverend Poole\u2019s office. Defendant gave Poole the gun and told him defendant had shot a person. Defendant also told Poole to call the police. Although defendant did not see either Hodges or Lucy with a weapon, defendant believed \u201cthey had something.\u201d Defendant knew he shot at Hodges three times.\nLarry Little, defendant\u2019s supervisor, testified that defendant \u201cwas an exceptional employee.\u201d On the morning of the shooting, Lucy arrived at work \u201csomewhat intoxicated.\u201d Lucy was quite loud, and Little tried to get her to leave without creating a disturbance. Little had defendant try to talk Lucy into leaving. According to Little, Lucy left the cafeteria around 10 a.m. Defendant worked until 2:30 or 3 p.m. Defendant\u2019s reputation with the students around the campus was \u201cexcellent.\u201d\nCharles Cornele and Linda Cornele also testified that defendant\u2019s reputation in the community was excellent and that defendant was \u201cvery upstanding.\u201d\nShirley Nabors testified that defendant was \u201cvery gentle and kind to everyone.\u201d Nabors was at defendant\u2019s apartment the afternoon before the shooting. Defendant came home around 5 p.m. and was not intoxicated. Defendant did not appear in a bad mood. Neither Nabors nor defendant had anything to drink that evening. Shortly before 9 p.m., defendant said he was going to repay the neighbor, and he would come right back before going to visit his mother. According to Nabors, defendant and Lucy were \u201creal good friends.\u201d Occasionally, defendant invited Lucy to dinner at Nabors\u2019 apartment.\nDetective Hanson testified in rebuttal regarding the statement defendant gave after the shooting. According to Hanson, defendant said that when Hodges came towards him, defendant pulled his gun out and shot Hodges three times. Defendant thought he shot Hodges once in the chest, once in the stomach and once in the side. After Hodges was shot, Lucy started running towards the pantry, and defendant shot her once before she made it to the pantry. Defendant \u201c \u2018shot her because she was lying about [defendant] going to bed with her.\u2019 \u201d\nThe jury returned verdicts of guilty of attempted murder of both Delbert Hodges and Lucy Powell. Defendant filed a motion for a new trial alleging, among other things, that the State did not prove that defendant intended to kill the victims. The motion was denied, and the cause proceeded to sentencing.\nReverend Poole testified that defendant helped some of the handicapped residents of the apartment complex and that he was not aggressive or argumentative. In addition, Poole stated that defendant was a deacon in his church. Finally, Poole noted that the residents of defendant\u2019s building held a meeting to express support for defendant because he had contributed to the welfare of the residents of the complex.\nCharles Cornele testified that defendant was law abiding and that he was always trying to get other people out of trouble. He helped young people get jobs at the cafeteria, which \u201cstraightened them out.\u201d Shirley Nabors also testified that defendant helped others. Defendant also called several other witnesses who also testified to defendant\u2019s law-abiding nature and his record of hard work. Defendant expressed remorse for the shooting and stated that he never intended to kill anyone or do them any harm.\nThe court recognized that defendant had been a good person but that \u201csomething went wrong that night,\u201d that \u201csomething snapped and [defendant] helped it snap by drinking and carrying a gun.\u201d The court noted that the minimum sentence would be appropriate considering defendant\u2019s lack of criminal history; however, since both victims suffered permanent injury and there were two convictions, the minimum sentence should not be imposed. The court, therefore, imposed concurrent sentences of 10 years\u2019 imprisonment.\nOn appeal, defendant first contends that he was denied the effective assistance of counsel because his attorney failed to seek jury instructions on attempted second degree murder. In order to resolve this issue, we must first determine whether such an offense as attempted second degree murder exists. This necessitates a comparison between the voluntary manslaughter statute which was repealed in 1987 (Ill. Rev. Stat. 1985, ch. 38, par. 9 \u2014 2) and the second degree murder statute which was enacted in 1987 (Ill. Rev. Stat. 1987, ch. 38, par. 9 \u2014 2).\nThe voluntary manslaughter statute provided in pertinent part as follows:\n\u201cA person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing *** but his belief is unreasonable.\u201d (Ill. Rev. Stat. 1985, ch. 38, par. 9 \u2014 2(b).)\nThe second degree murder statute provides in pertinent part as follows:\n\u201cA person commits the offense of second degree murder when he commits the offense of first degree murder as defined in paragraphs (1) or (2) of subsection (a) of Section 9 \u2014 1 of this Code\n[(a) A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:\n(1) He either intends to HU or do great bodily harm to that individual or another or knows that such acts will cause death to that individual or another or\n(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another (Ill. Rev. Stat. 1987, ch. 38, pars. 9 \u2014 l(aXl), (aX2))] and either of the following mitigating factors are present:\n***\n(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing *** but his belief is unreasonable.\u201d Ill. Rev. Stat. 1987, ch. 38, par. 9 \u2014 2(aX2).\nBy way of historical background, our supreme court held that there was no such offense as attempted voluntary manslaughter when the defendant is acting under an unreasonable belief that self-defense was necessary. (People v. Reagan (1983), 99 Ill. 2d 238, 240.) However, even the Reagan court acknowledged that there could be such an offense but for the fact that our attempt statute requires specific intent and voluntary manslaughter is not a specific intent crime. (Ill. Rev. Stat. 1979, ch. 38, par. 8 \u2014 4(a); Reagan, 99 Ill. 2d at 241.) The real dilemma, as outlined in Reagan, is that the specific intent required was not just the intent to kill but to kill without legal justification. (99 Ill. 2d at 240.) Since one cannot intend an unreasonable result (People v. Viser (1975), 62 Ill. 2d 568, 581), no such offense as attempted voluntary manslaughter based upon an unreasonable belief is possible.\nThe defendant relies on People v. Moore (1990), 204 Ill. App. 3d 694, for the proposition that Illinois law now recognizes the offense of attempted second degree murder. In Moore, the defendant, who was convicted of attempted second degree murder, argued on appeal that there was no such offense because one cannot specifically intend a sudden and intense passion. The Appellate Court, Third District, recognized that prior to the change in the murder statute, effective July 1, 1987, there had been no such offense as attempted voluntary manslaughter, which was the killing of a person without legal justification while the defendant was acting under a sudden and intense passion resulting from serious provocation. (See Ill. Rev. Stat. 1985, ch. 38, par. 9 \u2014 2.) The Moore court explained, however, that under the present law, to find a defendant guilty of second degree murder, the trier of fact must first find that the State has proved all the elements of first degree murder and then must consider whether the defendant acted under a sudden and intense passion resulting from serious provocation. (Moore, 204 Ill. App. 3d at 698; Ill. Rev. Stat. 1989, ch. 38, par. 9 \u2014 2(aXl).) The court reasoned that since the intent element is unrelated to the mitigating factor of provocation, a defendant could be convicted of attempted second degree murder. Moore, 204 Ill. App. 3d at 698.\nThe special concurrence in this case argues that the flaw in the argument advanced in Moore is that the voluntary manslaughter statute also required the State to first prove all of the elements of murder. (People v. Shumpert (1989), 126 Ill. 2d 344, 351.) The special concurrence takes the position that the only substantive change the legislature made in repealing the voluntary manslaughter statute and enacting the second degree murder statute was to realign the burden of proof as to mitigation. This ignores the fact that the statute was in fact completely rewritten as well as renamed.\nWhat the Moore court did was to recognize that under the new statute the intent element was dealt with separately from the question of provocation thus eliminating the problem of the \u201cunintended result.\u201d While Moore dealt with the \u201csudden and intense passion\u201d form of mitigation and expressly stated that the question of unreasonable self-defense was not being addressed, we believe that the rationale for its conclusion that such an offense exists applies in the case at bar as well. To illustrate, in order for the defendant in this case to be found guilty of attempted second degree murder, the jury must first find that defendant intended to kill without lawful justification; in other words, the self-defense argument raised by the defendant must be rejected in order for the attempt to kill to be without lawful justification. Then the question of mitigation is addressed. Although the jury rejected the self-defense argument, it could still determine that defendant actually thought he needed to act in self-defense but that he was mistaken. Thus, although both voluntary manslaughter and second degree murder require that the elements of murder be proved first, the key is, as the Moore court observed, that the second degree murder statute requires a two-step process, rather than considering the defendant\u2019s intent along with the applicable statutory mitigation, as was the case with the voluntary manslaughter statute. Therefore, we conclude that the offense of attempted second degree murder based upon an unreasonable belief in the need for self-defense does exist.\nWhile we would follow Moore and find that defendant could be convicted of attempted second degree murder, we agree with the State that defendant was not prejudiced by counsel\u2019s failure to seek an instruction on this offense. To prevail on a claim asserting the ineffective assistance of counsel, a defendant must establish that counsel\u2019s conduct was professionally deficient and, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 688, 695-96, 80 L. Ed. 2d 674, 698-99, 104 S. Ct. 2052, 2068-69; People v. Albanese (1984), 104 Ill. 2d 504, 526.) Competency of counsel is presumed (People v. Stewart (1984), 101 Ill. 2d 470, 492), and alleged incompetence arising from a matter of trial tactics or strategy will not, by itself, support a claim of the ineffective assistance of counsel (People v. Hillenbrand (1988), 121 Ill. 2d 537, 548).\nFor the jury to have convicted defendant of attempted second degree murder, it would have been required to find that defendant\u2019s actions were motivated by either a sudden and intense passion resulting from serious provocation or an actual, but unreasonable, belief that the circumstances required the use of deadly force as a means of self-defense. (Ill. Rev. Stat. 1989, ch. 38, pars. 9 \u2014 2(aXl), (aX2).) The evidence showed that Hodges could not jump or run because he had a rod in his leg, Lucy was shot in the back of the leg, and the angle of the bullet lodged in the kitchen cabinet established that the gun was aimed downwards when that shot was fired. Based on this evidence and defendant\u2019s statements to Reverend Poole and Officer West, that nobody misuses defendant or \u201cdoes him wrong,\u201d the jury could not have found that defendant mistakenly believed that he had to use deadly force because Hodges and Lucy were charging at him. Had the jury believed defendant\u2019s testimony in that regard, it probably would have convicted him of aggravated battery, not attempted first degree murder. In addition, misuse of a person or lying by the victim is not conduct sufficient to excite an intense passion in a reasonable person. (See People v. Chevalier (1989), 131 Ill. 2d 66, 71-72.) We therefore conclude that, even had the attempted second degree murder instruction been given, there is not a reasonable probability that defendant would have been convicted of attempted second degree murder rather than attempted first degree murder. Since defendant was not prejudiced by the alleged error, his ineffective assistance of counsel claim must fail (see People v. Stewart (1990), 141 Ill. 2d 107, 118-19), and his conviction will not be reversed.\nDefendant next contends that the trial court abused its discretion when it sentenced defendant to concurrent terms of 10 years and when it considered what might have happened if the victims had died.\nSupreme Court Rule 615(bX4) grants the appellate court the discretionary power to reduce an excessive sentence. (134 Ill. 2d R. 615(bX4).) However, we will not use this power unless the trial court abused its discretion in sentencing defendant. (People v. Andrews (1989), 132 Ill. 2d 451, 464.) Where a sentence is within the statutory limits, we may not reduce it merely because we might have balanced the sentencing factors differently and imposed a different sentence. People v. Streit (1991), 142 Ill. 2d 13, 19.\nAttempted first degree murder is a Class X felony (Ill. Rev. Stat. 1989, ch. 38, par. 8 \u2014 4(cXl)), which carries a mandatory term of imprisonment of between 6 and 30 years (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 \u2014 5\u20143(cX2)(B), 1005 \u2014 8\u2014l(aX3)). The statutory factors in mitigation which applied here are that defendant had no history of prior criminal activity, and his character indicates that he is unlikely to commit another crime. (See Ill. Rev. Stat. 1989, ch. 38, pars. 1005 \u2014 5\u20143.l(aX7), (a)(9).) The aggravating factor found by the trial court was that defendant\u2019s conduct caused serious harm. See Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 5\u20143.2(aXl).\nAlthough the court discussed what might have happened had the victims died and that defendant might have been eligible for consecutive sentences since two people were shot, from our reading of the record we conclude that these comments did not reflect the trial court\u2019s basis for the sentences. The trial court considered defendant\u2019s contributions to the community and his lack of criminal history. The trial court decided to sentence defendant to a term only four years longer than the minimum because defendant shot two people, one of them three times, and caused permanent injury to both of them. As noted above, this is a proper factor to consider in aggravation. In light of the circumstances, we do not believe that the sentence was the result of an abuse of discretion.\nThe judgment of the circuit court is affirmed.\nAffirmed.\nBOWMAN, J., concurs.", "type": "majority", "author": "JUSTICE WOODWARD" }, { "text": "JUSTICE NICKELS,\nspecially concurring:\nI would affirm the trial court; however, I do not agree with the underlying analysis of the majority as to defendant\u2019s alleged ineffective assistance of counsel. The majority relies on the decision of the Appellate Court for the Third District in People v. Moore (1990), 204 Ill. App. 3d 694, which recognized the offense of attempted second degree murder, and proceeds to review defendant\u2019s attorney\u2019s failure to request such a jury instruction to determine if that omission affected the outcome of the proceeding. (See People v. Albanese (1984), 104 Ill. 2d 504, 525-26.) However, such review is unnecessary because the Illinois Supreme Court has expressly rejected the existence of an offense of attempt based on an underlying offense of voluntary manslaughter, which is both the predecessor of and, for these purposes, indistinguishable from second degree murder. People v. Reagan (1983), 99 Ill. 2d 238, 240-41.\nIn Reagan, the supreme court rejected the surface appeal of the argument accepted in Moore and by the majority here, that conduct susceptible to charges of second degree murder if the victim dies can form the basis of attempted second degree murder if the victim survives. (Reagan, 99 Ill. 2d at 241.) Just as with voluntary manslaughter, to prove attempted second degree murder, the State must still prove that the defendant had the specific intent to \u201ckill[ ] an individual without lawful justification.\u201d (Ill. Rev. Stat. 1985, ch. 38, par. 9\u2014 2; Ill. Rev. Stat. 1987, ch. 38, pars. 8 \u2014 4, 9 \u2014 1, 9 \u2014 2; Reagan, 99 Ill. 2d at 240-41.) However, a defendant guilty of second degree murder either believes himself lawfully justified and cannot, therefore, intend to kill without lawful justification or is acting under strong provocation engendering a sudden and intense passion, which, too, cannot be intended. (See Ill. Rev. Stat. 1987, ch. 38, pars. 9 \u2014 2(aXl), (aX2).) Thus, the killing without lawful justification that results is unintended, and \u201c[t]here is no such criminal offense as an attempt to achieve an unintended result.\u201d People v. Viser (1975), 62 Ill. 2d 568, 581, cited bj Reagan, 99 Ill. 2d at 240.\nMoore is the only authority that has recognized the offense of attempted second degree murder; however, it is in direct conflict with Reagan. (Compare Reagan, 99 Ill. 2d at 240-41, with Moore, 204 Ill. App. 3d at 698.) The legislature in enacting the 1987 second degree murder statute renamed voluntary manslaughter and, more importantly, substantively realigned the burden of proof so that a defendant must now prove either provocation or unreasonable belief by a preponderance of the evidence, rather than the State disprove either beyond a reasonable doubt. (People v. Shumpert (1989), 126 Ill. 2d 344, 351-52.) In so doing, the second degree murder statute defines the offense in terms of first degree murder and then considers the mitigating factors of unreasonable belief or provocation. (Ill. Rev. Stat. 1987, ch. 38, par. 9 \u2014 2(a).) Based solely on that change, Moore found that the second degree murder statute transformed voluntary manslaughter into a specific intent crime because the State must first prove a defendant guilty of the specific intent crime of first degree murder. (Moore, 204 Ill. App. 3d at 698.) However, voluntary manslaughter also required the State to first prove each of the elements of murder. (Shumpert, 126 Ill. 2d at 351.) Thus, the legislature neither changed the essential nonspecific nature of the offense of second degree murder nor diminished the applicability of Reagan and Viser.\nThe majority\u2019s analysis of the effect of defendant\u2019s attorney\u2019s failure to request a jury instruction on \u201cattempted second degree murder\u201d is unnecessary, and I do not partake in it. I concur in the balance of the majority opinion regarding the other issue raised concerning defendant\u2019s sentence.", "type": "concurrence", "author": "JUSTICE NICKELS," } ], "attorneys": [ "G. Joseph Weller, Paul J. Glaser, and Thomas A. Lilien, all of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Paul A. Logli, State\u2019s Attorney, of Rockford (William L. Browers and Cynthia N. Schneider, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. J.W. AUSTIN, Defendant-Appellant.\nSecond District\nNo. 2\u201489\u20140616\nOpinion filed June 27, 1991.\nRehearing denied July 31, 1991.\nNICKELS, J., specially concurring.\nG. Joseph Weller, Paul J. Glaser, and Thomas A. Lilien, all of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nPaul A. Logli, State\u2019s Attorney, of Rockford (William L. Browers and Cynthia N. Schneider, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0323-01", "first_page_order": 345, "last_page_order": 358 }