Jul 31, 2014
Defendant was charged by way of indictment with first degree
murder, attempted first degree murder, aggravated discharge of a
firearm, and unlawful use of a weapon by a felon.
Following deliberations, the jury returned a verdict of guilty of
second degree murder, attempted first degree murder, aggravated
discharge of a firearm, and unlawful use of a weapon by a felon.
Defendant was sentenced to more years on the attempt murder than he
received on second degree murder where someone actually died.
Guyton, 5th Dist., 07/15/2014.
There is a traffic accident and an argument. Defendant comes
back with a gun and kills the driver of the other car and injures
The jury found that defendant had personally discharged a firearm
during the attempted murder. Defendant was sentenced to a total of
54 years’ imprisonment.
Defendant argues that the jury verdicts in this case reflect that
defendant thought he was acting in self-defense when he committed
the shooting. Therefore, he could not have the requisite intent to
be convicted of both attempted first degree murder and second
degree murder and his attempted first degree murder conviction must
The jury agreed with Defendant that the first degree murder of one
victim should be mitigated to second degree murder because he
acted in unreasonable self-defense.
Second degree murder is a “lesser mitigated offense” of first
degree murder and is distinguished from self-defense only in terms
of the nature of the defendant’s belief at the time of the
But Defendant was also charged with the attempted first degree
murder of the passenger.
To be convicted of attempt, the State must prove beyond a
reasonable doubt the intent to commit a specific offense, in this
case first degree murder under 720 ILCS 5/8-4(a). Defendant claims
that no reasonable argument exists that his mental state changed
between when he fired the bullet that hit and killed the driver,
which resulted in a second degree murder conviction, and when he
fired the bullet that hit and injured the passenger, which resulted
in an attempted murder conviction.
In short, defendant argues that he cannot have had an unreasonable
belief in the need for self-defense as to the passenger, but not as
to the driver.
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.
The presence of a mitigating factor does not negate the mental
state of murder because mitigating factors are not elements of the
No Attempt Second Degree Murder in Illinois
There is no offense of attempt second degree murder in Illinois
because the legislature has not chosen to create a mitigating
factor for an “imperfect” self defense claim for an attempted
murder conviction. They did exactly that for an attempted murder
that resulted from a sudden and intense passion resulting from
serious provocation. See 720 ILCS 5/8-4(c)(1)(E).
The jury’s verdict on second degree murder in this case indeed
shows that it found defendant acted under the unreasonable belief
in the need for self-defense as to the driver. Because there
is no offense of attempted second degree murder, the jury could not
be instructed and could not find the defendant guilty of
attempted second degree murder of the passenger based on the same
unreasonable belief in the need for self-defense.
Legislature Can Change This
In other words, because the defendant did not actually kill
the passenger, the legislature determined he could not
lawfully mitigate his attempt to murder him because he had the same
unreasonable belief in the need for self-defense. Defendant’s
mental state at the time of performing the act giving rise to the
attempted murder of the passenger and the second degree
murder of the driver were the same. The evidence established,
and the jury found, the intent required to sustain an attempted
first degree murder conviction.
The determination by the jury that mitigating circumstances
existed to allow for a conviction of a lesser second degree
murder offense because of defendant’s unreasonable belief in the
need to defend does not invalidate the attempted murder