People v. Guy , 2023 IL App (3d) 210423 ( 2023 )

2023 IL App (3d) 210423Opinion filed July 26, 2023
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2023
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellant and Cross-Appellee, )
) Appeal No. 3-21-0423
v. ) Appeal No. 3-21-0426
) Circuit No. 02-CF-1974
TRAVARIS T. GUY, )
)
Defendant-Appellee and Cross- )
Appellant. ) Honorable
) David M. Carlson,
) Judge, Presiding.
___________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court, with opinion.
Justices Hettel and Albrecht concurred in the judgment and opinion.
____________________________________________________________________________
OPINION
¶1 In appeal No. 3-21-0426, defendant, Travaris T. Guy, challenges the stage-two dismissal
of a claim set forth in his successive, postconviction petition made pursuant to the Post-Conviction
Hearing Act (725 ILCS 5/122-1 et seq. (West 2014)). He argues that the jury was not properly
apprised of the mental state required for attempted first degree murder and that his attempted first
degree murder conviction was inconsistent with his second degree murder conviction and should
be outright reversed with no new trial. In appeal No. 3-21-0423, the State challenges the court’s
stage-three decision to grant defendant a new trial on the attempted first degree murder charge due
to the trial court’s allegedly confusing answers to jury questions. On its own motion, this court
consolidated the appeals for purposes of decision, with No. 3-21-0426 being the lead case. For the
reasons that follow, we agree with defendant’s arguments in appeal No. 3-21-0426. We uphold
defendant’s conviction for second degree murder, which defendant has not challenged, but outright
reverse defendant’s attempted first degree murder conviction, with no new trial. We necessarily
determine that the question posed by appeal No. 3-21-0423, whether potential jury confusion
entitles defendant to a new trial on the attempted first degree murder charge, is moot.
¶2 I. BACKGROUND
¶3 Following a shooting that occurred on November 1, 2002, defendant was charged with
three felony counts. Count I charged him with first degree murder for shooting David Woods
“without lawful justification and with the intent to kill David Woods” (720 ILCS 5/9-1(a)(1) (West
2002)). Count II charged defendant with first degree murder for shooting David “knowing such
act created a strong probability of death or great bodily harm to David Woods” (id. § 9-1(a)(2)).
Count III charged defendant with attempted first degree murder for shooting Sheena Woods with
the intent to commit first degree murder (id. §§ 8-4(a), (c)(1)(D), 9-1(a)(1)).
¶4 At trial, defendant testified that, at the time of the incident, he was seated on the passenger
side of a car that was stopped at a red light. David was the driver of a van stopped in the next lane.
David opened the driver’s door and exited the van. Defendant testified that he feared David based
on a history of violence between their families and that David appeared to be holding a silver gun.
Defendant stated that he immediately put his head down, pulled a gun from his jacket pocket, and
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fired three or four shots. He fired the shots in quick succession and did not look where he was
shooting. David was killed. A stray bullet wounded Sheena, who was a passenger in the van.
¶5 A. Jury Instructions and Deliberations
¶6 As to the first degree murder charge(s) as to David, the jury instructions explained that the
State needed to prove the following propositions for either first degree murder or the lesser
mitigated offense of second degree murder:
“First Proposition: That the defendant performed the acts which caused the death
of David Woods; and
Second Proposition: That when the defendant did so, he intended to kill or do great
bodily harm to David Woods;
[or]
he knew such acts created a strong probability of death or great bodily harm to David
Woods;
and
Third Proposition: That the defendant was not justified in using the force which he
used.” See Illinois Pattern Jury Instructions, Criminal, No. 7.06 (4th ed. 2000) (hereinafter
IPI Criminal 4th) (titled “Issues Where Jury Instructed On Both First Degree Murder And
Second Degree Murder—Belief In Justification”).
¶7 With regard to the first degree murder charge(s), the instructions further explained that
“[a] mitigating factor exists so as to reduce the offense of first degree murder to the
lesser offense of second degree murder if at the time of the killing the defendant believes
that circumstances exist which would justify the deadly force he uses, but his belief that
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such circumstances exist is unreasonable.” See IPI Criminal 4th No. 7.05 (titled “Definition
Of Mitigating Factor—Second Degree Murder—Belief In Justification”).
¶8 As to the attempted first degree murder charge as to Sheena, the jury was instructed: “A
person commits the offense of attempt first degree murder when he, without lawful justification
and with the intent to kill an individual, does any act which constitutes a substantial step toward
the killing of an individual. The killing attempted need not have been accomplished.” (Emphasis
added.) See IPI Criminal 4th No. 6.05X (titled “Definition Of Attempt First Degree Murder”).
¶9 The jury was also instructed as follows:
“To sustain the charge of attempt first degree murder, the State must prove the
following propositions:
First Proposition: That the defendant performed an act which constituted a
substantial step toward the killing of an individual; and
Second Proposition: That the defendant did so with the intent to kill an individual;
and
Third Proposition: That the defendant was not justified in using the force he used.”
(Emphasis added.) See IPI Criminal 4th No. 6.07X (titled “Issues In Attempt First Degree
Murder”).
See also IPI Criminal 4th No. 24-25.06A (titled “Issue In Defense Of Justifiable Use Of
Force”).
¶ 10 The trial court gave the jury two sets of verdict forms, one set pertaining to the first degree
murder charge(s) and another set pertaining to the attempted first degree murder charge. The first
set included the following verdict forms: guilty of first degree murder, not guilty of first degree
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murder, and guilty of second degree murder. The court instructed the jury to select and sign only
one verdict form that reflected its verdict.
¶ 11 The second set included the following verdict forms: guilty of attempted first degree
murder, not guilty of attempted first degree murder, and guilty of aggravated battery of a firearm.
The State had not charged defendant with aggravated battery of a firearm. Rather, defense counsel
sought instructions on that offense as a lesser-included offense of attempted first degree murder.
The court gave that instruction over the State’s objection. The court again instructed the jury to
select and sign only one verdict form that reflected its verdict.
¶ 12 During deliberation, the jury asked two questions. First, at 1:38 p.m., the jury asked: “Are
there only two counts? Number one, murder of David Woods?, number two, attempt murder of
Sheena Woods?” The trial court recalled that it had read the three counts during jury selection. The
parties agreed to the trial court’s answer: “There were three counts, i.e., two counts of murder and
one count of attempt murder[.] The two counts of murder have been merged into one series of
verdict forms.”
¶ 13 Second, at 2:10 p.m., the jury asked: “The attempted murder charge means attempted on
whom?” The jury instructions had stated that attempt required “the intent to kill an individual.”
Defense counsel argued that the court should respond by telling the jury that it meant attempted
on Sheena. The State argued that the law reads “on that individual or another” and that the court
should respond by telling the jury that the answer to their question is in the instructions. The court
responded by telling the jury, “The answer to your questions is in the instructions,” over the
objection of defense counsel.
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¶ 14 The jury found defendant guilty of second degree murder as to David and attempted first
degree murder as to Sheena. The trial court sentenced defendant to consecutive 30-year prison
terms for each offense.
¶ 15 B. Posttrial Motions, Direct Appeal, and Initial Pro Se Postconviction Petition
¶ 16 Defendant filed a posttrial motion, arguing in part that the attempted first degree murder
conviction was inconsistent with the second degree murder conviction. The trial court summarily
denied the motion in an oral ruling. Defendant did not raise the inconsistent verdict issue in his
direct appeal or his initial pro se petition for postconviction relief, which was summarily
dismissed.
¶ 17 C. The Instant Successive Postconviction Petition
¶ 18 On June 2, 2015, defendant moved for leave to file a successive postconviction petition,
which alleged, inter alia, inconsistent verdicts. He asserted cause and prejudice, attaching two
letters from appellate counsel showing that counsel advised him not to raise the inconsistent verdict
issue. The first letter, dated just prior to defendant’s direct appeal, cited People v. Lopez, 166 Ill.
2d 441 (1995), and advised that it was “not possible to challenge [defendant’s] attempt first degree
murder challenge.” The second letter, dated prior to defendant’s initial pro se postconviction
petition, more generally advised: “having seen the issues that were and were not raised so far in
your case, I suggest you focus on new issues.”
¶ 19 The State objected to defendant’s motion for leave, arguing that his arguments could have
been raised earlier. The trial court granted the State’s objection and denied defendant’s motion for
leave. This court reversed, remanding the matter for the trial court to consider defendant’s motion
for leave without the State’s input.
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¶ 20 On May 31, 2018, the trial court granted defendant leave to file a successive postconviction
petition and appointed counsel, and in appeal No. 3-21-0426, the State does not argue that
defendant failed to satisfy cause and prejudice. On February 28, 2020, counsel filed an amended
successive postconviction petition. In it, defendant again argued that his attempted first degree
murder conviction was inconsistent with his second degree murder conviction. Defendant
explained that, in convicting him of second degree murder, the jury found that he intended to kill
and that he also believed, albeit unreasonably, in the need for self-defense. His belief in the need
for self-defense did not change between the time he fired the shot which caused David’s death and
formed the basis of the second degree murder conviction and the time he fired the shot that injured
Sheena and formed the basis of the attempted first degree murder conviction. In defendant’s view,
a defendant acting with the belief, albeit unreasonable, in the need for self-defense does not have
the mental state required to support a conviction for attempted first degree murder. Defendant also
argued that the court’s instructions to the jury and answers to its questions during deliberation (see
supra ¶¶ 12-13) created jury confusion.
¶ 21 On March 9, 2020, the State moved to dismiss the petition. The State argued that
defendant’s inconsistent verdict issue was controlled by People v. Guyton, 2014 IL App (1st)
110450. The State also argued that the jury question issue was without merit, as the trial court’s
answers to the jury were legally correct.
¶ 22 On June 4, 2021, the trial court dismissed defendant’s inconsistent verdict claim at the
second stage, accepting the State’s argument that Guyton controlled. After protracted discussion
and amendment to the pleadings, the trial court allowed the jury question issue to proceed to the
third stage.
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¶ 23 On September 10, 2021, following an evidentiary hearing, the trial court granted defendant
a new trial on the attempted first degree murder charge due to potential jury confusion and
“fundamental fairness.” Defendant and the State each filed separate appeals, which we consolidate
herein for the purposes of decision.
¶ 24 II. ANALYSIS
¶ 25 In appeal No. 3-21-0426, defendant challenges the stage-two dismissal of his
postconviction petition. Defendant argues that his conviction for attempted first degree murder
should be reversed due to (1) inconsistent verdicts and (2) instructional error in that the jury was
not properly apprised of the mental state required to prove attempted first degree murder. The
instructional error issue, different from the jury question issue in appeal No. 3-21-0423, is an
outgrowth of the inconsistent verdict issue. Both issues are subject to de novo review. People v.
Price, 221 Ill. 2d 182, 189 (2006) (inconsistent verdicts); People v. Parker, 223 Ill. 2d 494, 501
(2006) (legal propriety of jury instructions). Defendant requests direct relief, as opposed to a
remand for stage-three proceedings, because his appeal turns entirely on questions of law. See
People v. Buffer, 2019 IL 122327, ¶ 47.
¶ 26 Due to the procedural posture of this case, we must consider whether appellate counsel was
ineffective for failing to raise either issue and whether successive postconviction counsel provided
unreasonable assistance in failing to present the instructional error issue in his amended petition.
See People v. Easley, 192 Ill. 2d 307, 329 (2000); People v. Kirk, 2012 IL App (1st) 101606, ¶ 18.
We determine that this procedural bar is cleared. As we will explain, the record shows that
appellate counsel affirmatively misstated the law by informing defendant that Lopez precludes him
from challenging his attempted first degree murder conviction. While counsel is not obligated to
brief every conceivable issue, counsel is ineffective when his appraisal of the merits is patently
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wrong. Easley, 192 Ill. 2d at 329. Successive postconviction counsel, in turn, failed to file a
certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). Rule 651(c) requires
that counsel make any amendments necessary to the adequate presentation of a defendant’s claim
(Kirk, 2012 IL App (1st) 101606, ¶ 18), and here, counsel overlooked the instructional error issue
that went part and parcel with the inconsistent verdict issue. Even if we were to determine that
postconviction counsel’s omission did not rise to the level of unreasonable assistance, we would
reach the same outcome. We ultimately agree with defendant on the merits of both the inconsistent
verdict issue and the instructional error issue. The instructional error issue informs our
understanding of the case, and so we address that issue before the inconsistent verdict issue.
¶ 27 In deciding the instructional error issue and the inconsistent verdict issue, we must first
determine the requisite mental state for attempted first degree murder. More specifically, we must
determine whether the mental state required to prove attempted first degree murder is “intent to
kill” or “intent to kill without lawful justification.” For the reasons that follow, we hold that the
mental state and specific intent required to prove attempted first degree murder is “intent to kill
without lawful justification.”
¶ 28 A. Mental State Required for Completed Offenses of
First and Second Degree Murder
¶ 29 Before we discuss the nuances that the attempt statute brings to the inconsistent verdict
issue, we first consider the completed offenses of first and second degree murder. Also instructive
is our supreme court’s analysis in People v. Jeffries, 164 Ill. 2d 104 (1995), which explains the
statutory scheme for first and second degree murder.
¶ 30 The first degree murder statute provides in relevant part:
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“(a) A person who kills an individual without lawful justification commits first
degree murder if, in performing the acts which cause the death:
(1) he either intends to kill or do great bodily harm to that individual or
another, or knows that such acts will cause death to that individual or another; or
(2) he knows that such acts create a strong probability of death or great
bodily harm to that individual or another; or
(3) he is attempting or committing a forcible felony other than second
degree murder.” 720 ILCS 5/9-1(a) (West 2002).
¶ 31 The second degree murder statute provides in relevant part:
“(a) A 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 9-1
of this Code and either of the following mitigating factors are present:
(1) At the time of the killing [the defendant] is acting under a sudden and
intense passion resulting from serious provocation by the individual killed or
another whom the offender endeavors to kill, but he negligently or accidentally
causes the death of the individual killed; or
(2) At the time of the killing [the defendant] believes the circumstances to
be such that, if they existed, would justify or exonerate the killing under the
principles stated in Article 7 of this Code, but his [or her] belief is unreasonable.”
Id. § 9-2(a).
¶ 32 In Jeffries, the supreme court upheld the constitutionality of the statutory scheme for first
and second degree murder and explained how the scheme worked in practice. 164 Ill. 2d at 107.
In 1986, the legislature renamed the offense of murder to first degree murder. Id. at 111. It
10
abolished the offense of voluntary manslaughter and substituted for it the offense of second degree
murder. Id.¶ 33 The court clarified that the mental states required for first and second degree murder are
identical: “Illinois law recognizes only the following four mental states: intent, knowledge,
recklessness, and negligence. [Citation.] Murder and second degree murder each require the same
mental state: either intent or knowledge.” (Emphases omitted.) Id. at 122.
¶ 34 Because first and second degree murder require the same mental state, second degree
murder cannot be considered a lesser included offense of murder. Id. Rather, it is more accurately
described as a lesser mitigated offense of first degree murder. Id. The statute only imposes a burden
upon the defendant to establish the existence of a mitigating factor—provocation or imperfect self-
defense—once the State has met its initial burden in proving beyond a reasonable doubt all the
elements of first degree murder. Id. at 113, 119.
¶ 35 B. Mental State for the Inchoate Offense of Attempted First Degree Murder
¶ 36 The mental state required for the inchoate offense of attempted first degree murder is not
the same as the mental state required for the completed offense of first degree murder. See, e.g.,
Lopez, 166 Ill. 2d at 449 (the attempt statute requires the intent to commit a specific offense, not
simply the intent required to commit the predicate offense). Specifically, the attempt statute
provides in relevant part: “A person commits an attempt when, with intent to commit a specific
offense, he does any act which constitutes a substantial step toward the commission of that
offense.” (Emphasis added.) 720 ILCS 5/8-4(a) (West 2002).
¶ 37 Our supreme court has addressed the mental state required for attempted first degree
murder in a series of cases. First, in People v. Trinkle, 68 Ill. 2d 198 (1977), and People v. Harris,
72 Ill. 2d 16 (1978), the court expressly held that attempted first degree murder requires a specific
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intent to kill. Second, in People v. Barker, 83 Ill. 2d 319 (1980), the supreme court suggested that
“intent to kill” was not enough, and, in our view, in People v. Reagan, 99 Ill. 2d 238, 240 (1983),
and Lopez, 166 Ill. 2d at 449, it implicitly held that the “intent to kill” in attempted murder and
attempted first degree murder, respectively, means an “intent to kill without lawful justification.”
¶ 38 1. Trinkle and Harris
¶ 39 In Trinkle, 68 Ill. 2d at 199, defendant became angered after the bartender refused to serve
him, went to a second bar to drink more, returned to the area of the first bar, and shot a handgun
through its door. He wounded a patron inside the bar and was charged with attempted murder. Id.The indictment and instructions stated that the defendant should be found guilty of attempted
murder if he knew that shooting a gun through the door of the bar created a strong probability of
death or great bodily harm. Id. at 201. The jury found the defendant guilty. Id. at 199.
¶ 40 The supreme court explained that the indictment and instructions constituted reversible
error. Id. at 204. The attempt statute requires that a defendant be guilty of an action “with intent to
commit a specific offense.” (Internal quotation marks omitted.) Id. at 201. Thus, to be guilty of
attempted murder, the defendant must have intended to commit the crime of murder. Id. at 200. It
was not sufficient that the defendant shot a gun “ ‘knowing such act created a strong probability
of death or great bodily harm.’ ” Id. at 201. If that were the test, “then a defendant who committed
a battery with knowledge that such conduct could cause great bodily harm would be guilty of
attempted murder. But, in law, he would be guilty of aggravated battery, a completely different
offense with a different penalty.” Id. The court concluded with an excerpt from Wayne R. LaFave
and Austin W. Scott (Wayne R. LaFave & Austin W. Scott Jr., Handbook on Criminal Law § 59,
at 428-29 (1972)), pointing out that the inchoate offense of attempted first degree murder and the
completed offense of first degree murder require different mental states:
12
“ ‘Some crimes, such as murder, are defined in terms of acts causing a particular
result plus some mental state which need not be an intent to bring about that result. Thus,
if A, B, and C have each taken the life of another, A acting with intent to kill, B with an
intent to do serious bodily injury, and C with a reckless disregard of human life, all three
are guilty of murder because the crime of murder is defined in such a way [under the
criminal scheme upon which LaFave uses for its analysis] that any one of these mental
states will suffice. However, if the victims do not die from their injuries, then only A is
guilty of attempted murder; on a charge of attempted murder it is not sufficient to show
that the defendant intended to do serious bodily harm or that he acted in reckless disregard
for human life. Again, this is because intent is needed for the crime of attempt, so that
attempted murder requires an intent to bring about that result described by the crime of
murder (i.e., the death of another).’ ” Trinkle, 68 Ill. 2d at 204.
¶ 41 In Harris, 72 Ill. 2d at 18, the supreme court consolidated the appeals of two separate
defendants. The jury instructions in each defendant’s trial had properly instructed that the crime
of attempted first degree murder required the defendant to have intended to commit the crime of
murder and perform an act which constitutes a substantial step toward the commission of the crime
of murder. Id. at 20, 22. However, complimentary instructions then defined murder as requiring a
defendant to have killed an individual and, when performing the acts which caused the death, that
defendant intended to kill or do great bodily harm to that individual (as to defendant A), or knew
that such acts created a strong probability of death or great bodily harm to that individual (as to
defendant B). Id.¶ 42 The supreme court found that the set of instructions was improper, explaining:
13
“Since an attempted murder requires an intent to kill ***, it is obvious that the ‘specific
offense’ referred to in section 8-4(a) [of the attempt statute] cannot be construed as
incorporating the alternative definitions of murder contained in section 9-1(a) in their
entirety [such as intending to do great bodily harm or knowing that one’s acts create a
strong probability of death or great bodily harm].” Id. at 24.
It cautioned: “An instruction must make it clear that to convict for attempted murder nothing less
than a criminal intent to kill must be shown.” Id. at 27.
¶ 43 Despite the supreme court’s edict in Harris, many trial courts persisted in providing
attempted first degree murder instructions that included the full definition of murder. See People
v. Velasco, 184 Ill. App. 3d 618, 632-33 (1989). As a result, the Illinois Pattern Jury Instructions
committee amended the instruction definition of attempt. See IPI Criminal 4th No. 6.05; IPI
Criminal 4th No. 6.05X. In attempted first degree murder cases, courts were directed to no longer
give the general definition of attempt, which had provided: “A person commits the offense of
attempt when he, with the intent to commit the offense of ___, does any act which constitutes a
substantial step toward the commission of the offense of ___. The offense attempted need not have
been committed.” (Emphasis added.) Illinois Pattern Jury Instructions, Criminal, No. 6.05 (2d ed.
1981) (hereinafter IPI Criminal 2d ) (titled “Definition of Attempt”). Instead, they were to give a
definition of attempt specially crafted for the crime of attempted first degree murder: “A person
commits the offense of attempt first degree murder when he, [without lawful justification and]
with the intent to kill an individual, does any act which constitutes a substantial step toward the
killing of an individual. The killing attempted need not have been accomplished.” (Emphasis
added.) IPI Criminal 4th No. 6.05X.
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¶ 44 Replacing “intent to commit the offense of [murder]” in the original definition instructions
for attempt (IPI Criminal 2d No. 6.05) with “intent to kill” in the amended definition instructions
for attempted first degree murder (IPI Criminal 4th No. 6.05X), removed the risk that a jury would
convict a defendant charged with attempted first degree murder who did not have an intent to kill.
However, in solving one problem, the committee created another. While the committee purported
to follow Harris in specifying that a defendant have an “intent to kill,” Harris in fact had directed
that instructions in attempt murder cases make clear that a defendant have a “criminal intent to
kill.” Harris, 72 Ill. 2d at 27. As the supreme court would go on to suggest in Barker, “intent to
kill” is not enough to satisfy the attempt statute and show that a defendant had the intent to commit
the specific offense of first degree murder.
¶ 45 2. Barker, Reagan, and Lopez
¶ 46 In Barker, 83 Ill. 2d at 323, the defendant was charged, inter alia, with attempted first
degree murder. The indictment provided that he “ ‘knowingly with intent to commit the offense of
murder, did acts which constitute[d] a substantial step towards the commission of murder, to wit:
firing a sawed-off shotgun in the direction of [two police officers, neither of whom died].’ ”
Emphasis added.) Id. The defendant pleaded guilty, but later sought to withdraw his plea. Id. at
324. He argued that the indictment to which he pleaded guilty was fatally defective for failing to
allege an essential element of the offense, i.e., an intent to kill. Id. at 322-23.
¶ 47 The supreme court disagreed, explaining that the indictment was adequate. Id. at 326-27.
Because the attempt statute requires an intent to commit a specific offense and the indictment
charged that the defendant intended to commit the specific offense of murder, the indictment
complied with the literal requirements of the statute. Id. at 326. The court noted that, unlike in
Trinkle and Harris, the case before it involved a guilty plea and an indictment, not jury instructions.
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Id. at 325. Accordingly, there was no danger that a jury would convict a defendant who did not
have the intent to kill. Id. The erroneous instruction defining the alternative definitions of murder,
including intent to do great bodily harm or knowledge that one’s acts create a strong probability
of death or great bodily harm, was not present in Barker. Id. Further:
“Admittedly the indictment could have been in more detail and, in addition to the two
allegations it now contains, could have further stated that the acts were performed with the
intent to kill. However, this further allegation would have been redundant. Under section 9-
1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)) a person may
commit murder without specifically intending to kill anyone. However, since all murders
involve a killing, a person cannot intend to commit murder without intending to kill. It is
not logical to argue that an indictment charging one with the intent to commit murder does
not charge that he had the intent to kill. Since the indictment has charged that the defendant,
with the intent to commit murder, did certain acts, it is unnecessary to again charge that the
acts he performed, as a substantial step toward the commission of that offense, were
committed with the specific intent to kill. If the indictment had only charged the defendant
with the intent to kill and did not include the allegation that the defendant acted with the
intent to commit murder, it would have been defective under section 8-4(a) of the Criminal
Code, quoted above, in that it would not have charged the defendant with an intent to
commit a specific offense. The act of killing, or even intending to kill, is not necessarily a
criminal offense (self-defense, for example).” (Emphasis added.) Id. at 326-27.
¶ 48 Thus, in Barker, the language in the challenged indictment mirrored the language in the
original IPI Criminal 2d No. 6.05 defining attempt. Id. at 323. In the above italicized quote, the
Barker court stated that the terms “intent to commit murder” and “intent to kill” are not
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interchangeable, and it is not accurate to replace the term “intent to commit murder” with “intent
to kill.” Id. at 327. However, that is exactly what the committee did in amending the instructions
to create IPI Criminal 4th No. 6.05X, which we discuss later (infra ¶ 61).
¶ 49 In Reagan, 99 Ill. 2d at 240, and Lopez, 166 Ill. 2d at 448, our supreme court considered
whether the crimes of attempted voluntary manslaughter and attempted second degree murder,
respectively, have ever existed in Illinois. The supreme court determined that they have not,
explaining in the process that the “intent to kill” required to be convicted of attempted voluntary
manslaughter and attempted second degree murder, if those crimes existed, meant the “intent to
kill without lawful justification.” Reagan, 99 Ill. 2d at 240; Lopez, 166 Ill. 2d at 448-49.
¶ 50 In Reagan, the defendant engaged in a shootout with three police officers, none of whom
were killed. People v. Reagan, 111 Ill. App. 3d 945, 947 (1982). The trial court instructed the jury
on attempted murder and attempted voluntary manslaughter (imperfect self-defense). Id. The jury
acquitted defendant of attempted murder and convicted him of attempted voluntary manslaughter
(imperfect self-defense) and three counts of armed violence. Reagan, 99 Ill. 2d at 239.
¶ 51 The supreme court reversed the conviction for attempted voluntary manslaughter, holding
that no such crime existed. Id. at 241. The court first defined the crimes of voluntary manslaughter
and attempt, respectively. Id. at 239-40. It noted that “ ‘[a] 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 under the
principles stated in Article 7 of this Code, but his belief is unreasonable.’ ” Id. at 239 (quoting Ill.
Rev. Stat. 1979, ch. 38, ¶ 9-2(b)). Attempt, in turn, requires an “ ‘intent to commit a specific
offense.’ ” Id. (quoting Ill. Rev. Stat. 1979, ch. 38, ¶ 8-4(a)). It then explained:
17
“The requirement of the attempt statute is not that there be an intent to kill, but that there
be an intent to kill without lawful justification. If *** defendant at the time of the shooting
believed the circumstances to be such that if they existed would justify the killing, then there
was no intent to commit an offense.
We agree with the appellate court that ‘there is no crime of attempted voluntary
manslaughter under section 9-2(b). To commit an attempted voluntary manslaughter, the
defendant could not merely have an intent to kill, for that is not a crime. [Barker , 83 Ill. 2d
319 (1980).] The defendant would have to specifically intend to kill with an unreasonable
belief in the need to use deadly force in self-defense. As the State concedes, it is impossible
to intend an unreasonable belief. If a defendant intended to kill with the knowledge that such
action was unwarranted, he has intended to kill without lawful justification and could be
prosecuted for attempted murder. In the case at bar, the defendant intended to defend
himself. Although his belief in the need to defend himself or in the need to use deadly force
was unreasonable, his intent was not to commit a crime. His intent was to engage in self-
defense, which is not a criminal offense.’ 111 Ill. App. 3d 945, 950-51.’ ” (Emphases
added.) Id. at 240-41.
¶ 52 In Lopez, 166 Ill. 2d at 442, the supreme court consolidated the appeals of two defendants.
One defendant was convicted of attempted first degree murder and armed violence. Id. He had
asked for and was denied an instruction on the crime of attempted second degree murder
(provocation). Id. The other defendant was also convicted of, inter alia, attempted first degree
murder and armed violence. Id. at 442-43. He had asked for and was denied an instruction on the
crime of attempted second degree murder (imperfect self-defense). Id. at 443.
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¶ 53 The supreme court agreed that the instructions were properly denied. Id. at 451. Just as
there was no such crime as attempted voluntary manslaughter, there was no crime of attempted
second degree murder. Id. at 448, 451. In analyzing the question, the court first reviewed the
principles set forth in Jeffries, 164 Ill. 2d at 122, which, again, had held that the completed offenses
of first and second degree murder require the same mental state. Lopez, 166 Ill. 2d at 447.
¶ 54 The supreme court next considered the mental state issue in determining that the inchoate
offense of attempted second degree murder did not exist. Id. at 447-48. In contrast to the completed
offenses of first and second degree murder, which allow for the mental state of intent or
knowledge, the inchoate offenses of attempted first degree murder and attempted second degree
murder, if it existed, would require the specific intent to kill. Id. at 445-46. The court noted,
however, that simply intending to kill is not necessarily a crime. Id. at 446, 448 (discussing Barker,
83 Ill. 2d at 327, and Reagan, 199 Ill. 2d at 240). As the attempt statute requires the intent to
commit a specific crime, “the intent required for attempted second degree murder, if it existed,
would be the intent to kill without lawful justification, plus the intent to have a mitigating
circumstance present.” (Emphasis added.) Id. at 448. The court reasoned, as in Reagan, that one
cannot intend the mitigating circumstances of a sudden and intense passion nor can one intend the
unreasonable belief in the need to use deadly force. Id. Also, concerning the mitigating factor of
imperfect self-defense, one cannot intend to kill unlawfully while at the same time intend to use
justifiable deadly force. Id. at 448-49.
¶ 55 Accordingly, the supreme court expressly rejected the notion that the specific intent
required for attempted second degree murder is simply intent to kill:
“[W]hile *** legal commentators have argued [citations] that the specific intent required
for attempted second degree murder is simply the intent to kill, their assertion is without
19
merit. These arguments fail to consider the specific language of Illinois’ attempt statute,
which plainly requires the intent to commit a specific offense, not simply the intent required
to commit the predicate offense. Thus, our decision is based on the wording of our attempt
statute rather than some notion of how the crime of attempt should be defined.” Id. at 449.
¶ 56 Finally, the supreme court addressed the defendants’ argument that the failure to recognize
the crime of attempted second degree murder results in the possibility that a defendant would be
sentenced to a greater term of imprisonment if the victim lives than if the victim dies. Id. at 450.
To be sure, attempted first degree murder is a Class X felony punishable by a term of 6 to 30 years’
imprisonment, without the possibility of probation. Id. However, second degree murder is a Class
1 felony punishable by a term of 4 to 15 years’ imprisonment, with the possibility of probation. Id.
The court appeared to accept the defendants’ premise that it is possible for a defendant acting
subject to alleged mitigating factors to nevertheless have the mental state required to be convicted
of attempted first degree murder in certain unspecified circumstances. Even so, the court explained
that it would not override the legislature with respect to a sentencing disparity absent a
determination that the punishment was cruel, degrading, or so disproportionate to the offense
committed as to shock the moral sense of the community. Id. at 450-51.
¶ 57 We recognize that Reagan and Lopez addressed whether the crime of attempted voluntary
manslaughter and attempted second degree murder, respectively, were viable offenses. Answering
that question required the supreme court to determine the mental state required to be convicted of
voluntary manslaughter and attempted second degree murder, if those crimes existed. The instant
case calls upon us to answer a slightly different question, namely, what is the mental state required
for attempted first degree murder. Still, we determine that the only reasonable reading of Reagan
20
and Lopez, and the leading cases upon which they relied, is that the mental state required for
attempted first degree murder is intent to kill without lawful justification, not simply intent to kill.
¶ 58 As firmly established, the attempt statute requires the intent to commit a specific offense.
Id. at 447-48. The mere intent to kill is not necessarily a crime. Barker, 83 Ill. 2d at 327. If a
defendant believed that circumstances were such that, if they existed, would justify a killing, then
there would be no intent to commit the offense of first degree murder. Reagan, 99 Ill. 2d at 241.
If, in contrast, defendant intended to kill with the knowledge that such act was unwarranted, then
“ ‘he *** intended to kill without lawful justification and could be prosecuted for attempted
murder.’ ” Id. at 240.
¶ 59 The State at times seems to argue that the specific intent required for attempted first degree
murder is simply intent to kill, but this argument fails for the same reason the supreme court
rejected the argument that the specific intent required for attempted second degree murder is
simply intent to kill—“These arguments fail to consider the specific language of Illinois’ attempt
statute, which plainly requires the intent to commit a specific offense, not simply the intent
required to commit the predicate offense.” Lopez, 166 Ill. 2d at 449. In the context of the attempt
statute, a defendant cannot intend to commit the specific offense of first degree murder unless he
intends to kill without lawful justification.
¶ 60 C. Jury Instructions
¶ 61 We next consider defendant’s argument that the People’s instruction Nos. 15 and 16,
modeled after IPI Criminal 4th Nos. 6.05X, 6.07X, and 24-25.06A, regarding attempted first
degree murder are incorrect. Again, those instructions provided that “[a] person commits the
offense of attempt first degree murder when he, without lawful justification and with the intent to
21
kill an individual, does any act which constitutes a substantial step toward the killing of an
individual,” and that,
“[t]o sustain the charge of attempt first degree murder, the State must prove *** [t]hat the
defendant performed an act which constituted a substantial step toward the killing of an
individual; and *** [t]hat the defendant did so with the intent to kill an individual; and ***
[t]hat the defendant was not justified in using the force he used.” See IPI Criminal 4th No.
6.05X; IPI Criminal 4th No. 6.07X; IPI Criminal 4th No. 24-25.06A.
We agree with defendant’s observation that objectively acting without lawful justification, as the
instructions currently require, is different than intending to kill without lawful justification.
Objectively acting without lawful justification is not a mental state or a description of a specific
intent. The current instructions fail to inform the jury that the mental state required to prove
attempted first degree murder is intent to kill without lawful justification. We have noted that, per
Barker, 83 Ill. 2d at 327, the terms “intent to commit murder” and “intent to kill” are not
interchangeable. We have also held that the specific intent required for attempted first degree
murder is intent to kill without lawful justification, not simply intent to kill. Informing the jury that
it need find only an intent to kill, not an intent to kill without lawful justification, enabled the jury
to simultaneously find that defendant committed attempted first degree murder, which requires an
intent to kill without lawful justification, even though it also found that defendant believed in the
need for self-defense. We address this point next.
¶ 62 D. Inconsistent Verdicts
¶ 63 Defendant asserts that the mental state required for attempted first degree murder, intent to
kill without lawful justification, is inconsistent with the jury’s determination that at, the time of
22
the shooting, he believed, albeit unreasonably, in the need for self-defense. Our supreme court has
explained:
“ ‘Legally inconsistent verdicts occur when an essential element of each crime must, by
the very nature of the verdicts, have been found to exist and to not exist even though the
offenses arise out of the same set of facts.’ [Citation.] When offenses involve mutually
inconsistent mental states, a determination that one mental state exists is legally
inconsistent with a determination of the existence of the other mental state.” Price, 221 Ill.
2d at 188-89 (quoting People v. Frieberg, 147 Ill. 2d 326, 343 (1992)).
¶ 64 In this case, the State concedes that defendant’s mental state and intent did not differ when
firing the shot that killed David, resulting in the second degree murder conviction, and when firing
the shot that injured Sheena, resulting in the attempted first degree murder conviction. Indeed,
defendant fired four shots in rapid succession, not looking where he fired, and the State never tried
to distinguish defendant’s mental state and intent vis-à-vis each specific shot. In conjunction with
the second degree murder conviction, the jury determined that, when firing the shot that killed
David, defendant had a belief in the need for self-defense, although unreasonable. Therefore, when
firing the shot that injured Sheena, defendant also had a belief in the need for self-defense, although
unreasonable. We know, given the jury instructions regarding attempted first degree murder and
the jury’s verdict of guilty as to attempted first degree murder, that the jury determined that
defendant intended to kill when he fired the shot that injured Sheena. However, per Barker, simply
intending to kill is not enough. Per Reagan and Lopez, attempted first degree murder requires the
specific intent to kill without lawful justification. Defendant cannot have intended to kill without
lawful justification where he also believed, albeit unreasonably, in the need for self-defense.
Reagan, 99 Ill. 2d at 240.
23
¶ 65 Accordingly, we conclude that defendant’s conviction for attempted first degree murder is
inconsistent with his conviction for second degree murder, where the parties agree that defendant’s
mental state and intent did not change when committing the acts which formed the basis of each
offense.
¶ 66 We recognize that the jury’s finding, made in conjunction with the second degree murder
conviction, that defendant believed in the need for self-defense is not a “mental state” but, rather,
it is a mitigating factor making second degree murder a lesser mitigated offense of first degree
murder. See Jeffries, 164 Ill. 2d at 123. In labeling the belief in the need for self-defense a
mitigating factor, Jeffries observed that the court’s earlier holding in People v. Hoffer, 106 Ill. 2d
186, 194-95 (1985), was implicitly overruled. Jeffries, 164 Ill. 2d at 121-22 (citing People v.
Wright, 111 Ill. 2d 18, 28 (1986)). Hoffer had incorrectly held that a belief in the need for self-
defense was a “mental state” such that voluntary manslaughter was a lesser-included offense of
murder. Hoffer, 106 Ill. 2d at 194-95. However, Hoffer had also held that the defendant’s
convictions for murder and voluntary manslaughter were legally inconsistent because a defendant
could not both believe and not believe that circumstances existed justifying the use of force. Id. In
context, Jeffries’s criticism of Hoffer was not directed at the gravamen of Hoffer’s inconsistent
verdict analysis and does not undermine our ruling. Jeffries was not an inconsistent verdict case
and, just months after Jeffries, the supreme court was squarely faced with the question of whether
a jury’s determination that a mitigating factor both did and did not exist rendered a verdict
inconsistent, which the court answered in the affirmative. See People v. Porter, 168 Ill. 2d 201,
214 (1995). That the mitigating factor of provocation in Porter was not technically a mental state
did not stop the supreme court from holding that the defendant’s convictions for first and second
degree murder were legally inconsistent, as the defendant could not have acted both with and
24
without provocation in murdering the victim. Id. Also just months after Jeffries, the supreme court
held that the belief in the need for self-defense is a finding that cannot coexist with the intent to
kill without lawful justification. See Lopez, 166 Ill. 2d at 448.
¶ 67 Simply put, the jury’s finding that defendant believed in the need for self-defense is a
factual determination that precludes a finding of guilt for attempted first degree murder.
¶ 68 We recognize that our holding is at odds with the First District’s ruling in Guyton, 2014 IL
App (1st) 110450, 1 which we conclude was incorrectly decided. The facts in Guyton are on all
fours with those in the instant case. In Guyton, the defendant testified that his vehicle collided with
a van. Id. ¶ 20. He argued with the van’s driver and passenger. Id. ¶ 21. The passenger exited the
van and threatened the defendant with a gun if the defendant did not pay for the resulting damage.
Id. The passenger told the defendant that the dispute was not over. Id. ¶ 22. The defendant parked
his car, took his gun from his car, and began to walk home. Id. The defendant saw the van approach.
Id. The defendant saw the passenger reach down with his right arm, and the defendant thought that
the passenger was going to shoot him. Id. The defendant shot at the van and ran away. Id. The
driver was killed, and the passenger suffered a minor injury. Id. ¶¶ 4, 15.
¶ 69 The jury convicted defendant of second degree murder as to the driver, attempted first
degree murder as to the passenger, and aggravated discharge of a firearm. Id. ¶ 1. The defendant
argued on appeal that his conviction for second-degree murder shows that the jury determined that
he believed in the need for self-defense, although his belief was unreasonable. Id. ¶¶ 35, 39.
1
As the State notes, the Second District accepted Guyton in an unpublished order. People v. Russell,
2022 IL App (2d) 200119-U. However, Russell cited Guyton in the context of holding that trial counsel did
not provide ineffective assistance for failing to ask for instructions concerning imperfect self-defense in an
attempted first degree murder case. Id. ¶ 55. Russell correctly observed that attempted first degree murder
cannot be mitigated by imperfect self-defense, and it could have relied exclusively on Lopez for that
principle. Id. ¶ 49. Unlike Guyton or the instant case, Russell does not involve a defendant convicted of
both attempted first degree murder and second degree murder.
25
Defendant further argued that his mental state did not differ when firing the shot that killed the
driver and resulted in his second degree murder conviction (which would have required an intent
to kill, but not an intent to kill without lawful justification) and the shot that injured the passenger
and resulted in his attempted first degree murder conviction (which would have required an intent
to kill without lawful justification). Id. ¶ 40. Therefore, he urged that he could not have had the
requisite specific intent to be convicted attempted first degree murder and that conviction should
be vacated. Id. ¶ 35.
¶ 70 The Guyton court held that the verdicts were not inconsistent:
“There is no difference between the mental states required to prove attempted first
degree murder and second degree murder. First degree murder and second degree murder
share the same elements, including the same mental states, but second degree murder
requires the presence of a mitigating circumstance. Jeffries, 164 Ill. 2d at 121-22. The
presence of a mitigating factor does not negate the mental state of murder because
mitigating factors are not elements of the crime. Jeffries, 164 Ill. 2d at 121.” (Emphasis
added.) Id. ¶ 41.
¶ 71 The Guyton court agreed with the defendant’s premise that, in committing the acts that
formed the basis of each offense, defendant had the same unreasonable belief in the need for self-
defense. Id. ¶ 46. It reasoned, however, that because the offense of attempted second degree
murder does not exist, the jury was powerless to mitigate the attempted first degree murder
conviction based on its determination that defendant had an unreasonable belief in the need for
self-defense. Id.
¶ 72 The Guyton court appeared to recognize a sense of unfairness in this, referencing the
dissent in Lopez where “Justice McMorrow predicted the precise conundrum presented here:
26
absent a crime of attempted second degree murder, a defendant could be punished more severely
if the victim lives than if the victim dies.” Id. ¶ 43. The Guyton court stated that, in 2010, the
legislature addressed the sentencing disparity between attempted first degree murder and second
degree murder, but only as to second degree murder (provocation) not second degree murder
(imperfect self-defense). Id. ¶ 44. The legislature added subsection (c)(1)(E) to section 804 (720
ILCS 5/8-4(c)(1)(E) (West 2010); see Pub. Act 96-710 (eff. Jan. 1, 2010)) to the sentencing
provisions in the attempt statute, which provided that if, at sentencing, the defendant is able to
prove provocation by a preponderance of the evidence, then the sentence for the attempted first
degree murder is a Class 1 felony rather than a Class X felony. Guyton, 2014 IL App (1st) 110450,
¶ 44.
¶ 73 The Guyton court reasoned that the legislature could have added a similar provision
addressing the sentencing disparity between attempted first degree murder and second degree
murder (imperfect self-defense), but it chose not to. Id. ¶ 45. It reasoned that this suggested the
legislature’s agreement with the supreme court’s holding in Lopez that the crime of attempted first
degree murder cannot be mitigated to attempted second degree murder. Id. The Guyton court
added, “[s]hould our presumption be incorrect, the legislature again has the opportunity to consider
whether subsection 8-4(c)(1)(E) should be amended to allow proof of imperfect self-defense as a
basis for mitigation of a sentence for the crime of attempted murder.” Id.
¶ 74 Thus, the Guyton court’s analysis may be thought of in two parts: (1) its conclusion that
the verdicts were not inconsistent and (2) its recognition that the crime of attempted first degree
murder cannot be mitigated by a belief, albeit unreasonable, in the need for self-defense (citing
Lopez, the Lopez dissent, and the legislature’s apparent response to the Lopez dissent).
27
¶ 75 The Guyton court’s conclusion that the verdicts were not inconsistent is set forth in a single
sentence without citation to authority: “There is no difference between the mental states required
to prove attempted first degree murder and [completed] second degree murder.” (Emphasis added.)
Id. ¶ 41. The court subsequently cites Jeffries (id. (citing Jeffries, 164 Ill. 2d at 121-22.)) but its
reliance on Jeffries is misplaced. Jeffries compared the mental states of the completed offenses of
first and second degree murder, finding them to be the same. Jeffries did not address the mental
state and intent required for the inchoate offense of attempted first degree murder.
¶ 76 The holding in Jeffries that the mental state for first and second degree murder are the same
cannot be used to support the Guyton court’s assertion that there is no difference between the
mental states required to prove attempted first degree murder and second degree murder. The
mental state required to prove attempted first degree murder cannot be substituted for the mental
state required to prove first degree murder. The supreme court has repeatedly indicated that the
mental state required to prove an inchoate offense is not the same as the mental state required to
prove the completed offense. See, e.g., Lopez, 166 Ill. 2d at 449 (“the specific language of Illinois’
attempt statute *** plainly requires the intent to commit a specific offense, not simply the intent
required to commit the predicate offense”); Reagan, 111 Ill. App. 3d at 950 (“The confusion we
see here is the result of two different intent requirements: The intent necessary to commit a
completed offense differs from the specific intent necessary to commit the inchoate offense of
attempt.”), aff’d 99 Ill. 2d 238; Barker, 83 Ill. 2d at 326-27; Harris, 72 Ill. 2d at 23, 27-28; Trinkle,
68 Ill. 2d at 204. As discussed, the specific intent required to prove attempted first degree murder
is intent to kill without lawful justification. See Lopez, 166 Ill. 2d at 448-49; Reagan, 99 Ill. 2d at
240. The mental state required to prove the completed offenses of first degree murder is simply
the intent to kill (setting aside for the purposes of this case the alternative definitions of murder
28
contained in section 9-1(a), such as intending to do great bodily harm or knowing that one’s acts
create a strong probability of death or great bodily harm). See Harris, 72 Ill. 2d at 27; Trinkle, 68
Ill. 2d at 201. The mental state required to prove the completed offense of second degree murder
is the same, intent to kill. Jeffries, 164 Ill. 2d at 122. Emphatically, the mental state required to
prove attempted first degree murder and the completed offense of second degree murder are not,
as the Guyton court asserts, the same.
¶ 77 We next turn to the second part of the Guyton court’s analysis, its recognition that the crime
of attempted first degree murder cannot be mitigated—either at the conviction stage as logically
impossible or, as is legislatively available for provocation, at the sentencing stage—by a belief,
albeit unreasonable, in the need for self-defense. A more critical analysis demonstrates these
observations to be irrelevant to the question posed by the Guyton defendant: what is the specific
intent required to be convicted of attempted first degree murder and is it legally inconsistent with
the jury’s determination that, at the time of the offense, defendant believed, albeit unreasonably,
in the need for self-defense? As we have delineated above, the mental state required to be convicted
of attempted first degree murder is intent to kill without lawful justification and that mental state
is indeed inconsistent with a jury’s determination that a defendant believed in the need for self-
defense, albeit unreasonably.
¶ 78 We agree with defendant that the best explanation for the legislature’s failure to address a
sentencing mitigation for a defendant who attempted to commit first degree murder yet who also
believed, albeit unreasonably, in the need for self-defense, is that there is no such legally convicted
defendant. Such a defendant cannot properly be convicted of attempted first degree murder in the
first place.
29
¶ 79 Finally, we note that at oral argument the State agreed that a defendant cannot have the
specific intent to murder a victim if the defendant believed he was legally justified. Nevertheless,
the State maintains that, per Guyton, the latter part of the foregoing statement, belief in
justification, is but a mitigating factor which could not be considered until after the jury found the
elements of first degree murder to be satisfied. Thus the State argues that considering this
mitigating factor in the context of attempted first degree murder “puts the cart before the horse.”
The State continues that, because the crime of attempted first degree murder cannot be mitigated,
this court should not consider defendant’s belief in the need for self-defense.
¶ 80 The State’s argument fails to recognize that the completed offenses of first and second
degree murder are not at issue in this appeal. Unlike those offenses, the inchoate offense of
attempted first degree murder does not require a two-step analysis. The jury’s determination that
defendant had a belief in the need for self-defense, no matter how characterized, makes it legally
impossible to establish that defendant intended to kill without lawful justification. This case is not
about mitigating the offense of attempted first degree murder. As defendant readily agrees, that is
not possible. Rather, this case is about whether defendant may be properly convicted of attempted
first degree murder where the jury has found him guilty of second degree murder for a series of
shots fired where his intent did not change. He cannot.
¶ 81 E. Remedy
¶ 82 Typically, when a jury returns an inconsistent verdict, the trial court should send the jury
back to deliberate further to resolve the inconsistency. Porter, 168 Ill. 2d at 214. If the trial court
fails to do so, the remedy is usually to reverse and remand for a new trial on all counts. Id. at 214-
15. The State makes no meaningful argument as to remedy, but it states in conclusory fashion that
the remedy should be to remand for a new trial. It does not specify whether it favors a remand for
30
a new trial on all charges or just on the attempted first degree murder charge. Defendant urges that
his second degree murder conviction as to David should stand and that his conviction for attempted
first degree murder as to Sheena should be outright reversed with no new trial.
¶ 83 This case is different from a typical inconsistent verdict case, where the jury finds that an
essential element or mental state both exists and does not exist. In Porter, again, the jury found
that defendant acted both with provocation and without provocation when he murdered the victim.
Id. at 214. In contrast, here, the jury did not find that defendant acted both with a belief in the need
for self-defense and with an intent to kill without lawful justification when firing the series of shots
at the van. Rather, intent to kill without lawful justification is what the jury was required to find to
support a conviction for attempted first degree murder but, as explained, the jury instructions for
attempted first degree murder as to Sheena merely asked the jury if defendant objectively lacked
lawful justification when he fired the shots. Therefore, the jury never made a finding as to Sheena
in contradiction of its finding, as to David, that defendant believed in the need for self-defense
when he fired the shots. As such, we see no reason to disturb defendant’s conviction for second
degree murder as to David. The findings substantiating that conviction were not contradicted and
it would violate principles of double jeopardy to subject defendant to the chance that a new jury
might convict him of the completed offense of first degree murder as to David. See, e.g., People
v. Daniels, 187 Ill. 2d 301, 321 (1999).
¶ 84 Moreover, once the second degree murder conviction is locked in place, we see no purpose
in remanding for a new trial as to the attempted first degree murder charge. As we have explained,
a jury cannot legally find a defendant to have intended to kill without lawful justification when he
believed in the need for self-defense. As the State concedes, a jury has already determined that
defendant believed in the need for self-defense when he fired four shots in quick succession. When
31
a trier of fact determines an issue of ultimate fact as part of a valid and final judgment—here the
second degree murder conviction—that issue cannot be litigated again between the same parties
in any future lawsuit. Id. at 320-21.
¶ 85 For these reasons, we outright reverse the attempted first degree murder conviction,
without remand for a new trial. Nor do we remand for a jury to decide whether defendant is guilty
of aggravated battery with a firearm. The State never charged defendant with aggravated battery
with a firearm. This was a lesser included instruction provided to the jury over the State’s objection
that does not survive our outright reversal of the greater offense.
¶ 86 In appeal No. 3-21-0426, we outright reverse defendant’s attempted first degree murder
conviction. Appeal No. 3-21-0423 is rendered moot and, as such, dismissed. As our analysis has
turned entirely on questions of law, there is no need for a remand for stage-three postconviction
proceedings. See Buffer, 2019 IL 122327, ¶ 47.
¶ 87 III. CONCLUSION
¶ 88 The judgment of the circuit court of Will County is reversed as to the attempted first degree
murder conviction. (Defendant’s conviction and sentence for second degree murder were not
challenged in either appeal No. 3-21-0426 or No. 3-21-423 and remain in force.)
¶ 89 No. 3-21-0423, Appeal dismissed.
¶ 90 No. 3-21-0426, Reversed.
32
People v. Guy, 2023 IL App (3d) 210423Decision Under Review: Appeal from the Circuit Court of Will County, No. 02-CF-1974;
the Hon. David M. Carlson, Judge, presiding.
Attorneys James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino,
for Thomas D. Arado, and Justin A. Nicolosi, of State’s Attorneys
Appellant: Appellate Prosecutor’s Office, of counsel), for the People.
Attorneys James E. Chadd, Santiago A. Durango, and Dimitri Golfis, of State
for Appellate Defender’s Office, of Ottawa, and Zachary Pollack, of
Appellee: Pollack Law Group, Ltd., of Joliet, for appellee.
33