*1 governmental a court excuses that whenever are mindful We effect, ignoring the are, in we adhering to a time table agencies from agency encouraging the Assembly and the General mandate of However, here time limits. of the established ignore prescription protection children from competing policies: the are faced with we However, being a abuser. stigma of child abusе and the unwarranted reasons, order. foregoing affirm the circuit court’s for all the we Affirmed. CERDA, JJ.,
TULLY and concur. ILLINOIS, Plaintiff-Appellee, THE PEOPLE OF THE STATE OF al., Defendants-Appellants. LORENZO HILL et (3rd Division) First District No. 1 — 94—2929 Opinion filed December *2 CERDA,J., dissenting. Mejia, Chicago, appellants. S. of for
David (Renee Goldfarb, O’Malley, Attorney, Chicago Jack Latisha State’s counsel), Foster, Gaines, Attorneys, L. State’s for the and Carol Assistant People. оpinion
PRESIDING JUSTICE GREIMAN delivered court: (defendants) by jury of the at-
The brothers Hill were convicted Perez, ag- tempted degree first murders of Jose Tanon and Elizabeth firearm, aggravated discharge of a gravated battery and with years’ imprisonment for to 12 firearm. Defendants sentenced battery murder, years aggravated and 12 each count firearm, concurrently. with a the sentences to run (1) as to the evidence appeal, On defendants raise issues whether: Eliza- specific to establish the element of was sufficient degree a conviction for required beth Perez sustain murder; testimony Tanon and Yesenia of witnesses Jose inconsistent, improbable, and thus impeached, and Chavallo was doubt; guilt beyond a reasonable insufficient to establish on allegedly erroneous instructions require reversal. 15, 1993, ap- (Jose) at April testified that Jose Tanon selling narcotics Lorenzo Hill p.m., he proximately 2 observed 1727 Artesian Street building located at two-flat front Jose’s (Elizabeth), wife, Jose, Perez Chicago. common-law Elizabeth his floor, building’s first while occupied the young three children Jose knew defendants on the second floor. relatives lived Jose’s Lorenzo, "Mani,” Hill, "Sosa,” Ramon, in their both a/k/a a/k/a mid-twеnties, all resided neighborhood” in which had "from years. drug approached transaction Lorenzo at conclusion Jose my house.” nobody dealing in front of and told him "I don’t want (Jose) want, you I and if don’t replied, anywhere "I can deal parted it, your family up.” and Lorenzo then you I’ll f... Jose like company. evening, reading floor p.m.
At 8 second Jose illuminated, building, the chil- while his which building gunshots fired dren were the first floor. Jose heard and, window, turquoise from the a late model second-floor observed occupants. driving away. identify the car’s Oldsmobile Jose could later bullet wall of the first-floor observed holes front bedroom, room, living and windows. reporting responded phone
Police officer Sebastian Jose’s call incident, holes, briefly spoke note of the took bullet leaving. area” and "cаnvassed the before *3 later, approximately p.m., Fifteen heard car minutes Jose sharply building, by rapid-fire gunshots. brake his outside followed second-story window, seated near the Hill fir- observed Ramon handgun red, open passenger-seat from the four- window of a Oldsmobile, firing handgun through door and Lorenzo Hill the car’s Ramon, looking upon observing rear testified him window. Jose that window, aimed and fired two in his direс- out second-floor shots sped tion. The car off. then fired, grabbed
Elizabeth testified that the shots were she body top children "threw on of them.” Elizabeth then [her] her and chil- sharp observed that the pain [her] "felt in left calf.” Elizabeth unharmed, "hysterical” "vomiting” and otherwise and dren were but screamed, to beginning that her calf red and swell. Elizabeth was "I’ve been shot.” downstairs, shat-
Jose ran that the front window was observed family police. Officers hysterical, tered and his and called responded Elizabeth if she wanted Flores Domenech asked declined, her injury medical attention for the left calf. Elizabeth go hospital. wishing her The officers not to leave children throughout observed apartment, several bullet holes the first-floor including three in the door. front Jose identified Ramon and Lorenzo accompanied residence, as the shooters the officers to the Hill was, time, unoccupied. which at the told the officers that day. him had threatened earlier in approximately p.m., (Yesenia), At 8:50 Yesenia Chavallo Jose’s sister, alley parking adjacent her car in the Artesian residence, observed, Street when she "about feet” of from "well- lighted” pavement, firing the red Oldsmobile the Hill brothers open from its boyfriend windows. Yesenia’s was with her and the two alley. retreated down the Yesenia testified that the Hills fired several spoke shots in indepen- succession. Yesenia with the officers dently identified the defendants.1 Flores, note, quick
Officer as the State is a "rookie” with 18 experience. months reports He wrote the on this incident which inconsistencies, omissions, contained some and inaccuracies. His first victim, report list did Elizabeth as a and indicated that to, prior defendants threatened Jose two day weeks and not of, shooting. superiors Flores was asked his to "rewrite the report,” did, which he the revised that indicating version by a causing bruising” was "struck bullet” "minor to her calf. Flores report "oversights.” testified that the mistakes initial trial, Castro, presented At each defendant an "alibi” witness. Luz girlfriend child, Lorenzo’s and mother of his testified picked her from up p.m. day shooting. work at on the Leida Rodriquez, girlfriend, picked Ramon’s up testified Ramon her from p.m. shooting. work around 9:15 night of the. Recupido, Artesian,
Ronald who lived at 1734 W. across the street building, and a few houses down from Jose’s testified that he heard "shots” p.m. night question. around 8:30 or 9 Ronald saw a car past, sharply house, drive brake in front Jose’s men two Ronald, however, open fire from car’s windows. testified occupants pounds” "belief” that the car’s were "around 150 and were wearing baseball hats turned backwards. Ronald stated court, defendants, open larger” than the men he seen were "much saw in the car. objection,
Over was instructed: charge murder of Jose "To sustain Tanon, prove following propositions: the State must *4 brothers, pоunds, 1Apparently 6 the Hill each over feet and 300 are readily identifiable.
(1) a act which constituted performed an That defendant Tanon; and killing Jose step the toward substantial (2) Tanon. so with the intent That defendant did Eliza- degree murder of charge attempt first To sustain following propositions: Perez, prove the State must beth a performed an constituted act which That defendant Perez; step killing of Elizabeth substantial toward or an- so the intent to kill Elizabeth That defendant did with added.) (Emphasis other.” asking, first deliberations, jury a "Does
During sent out note to kill an individual’ as degree attempted murder define 'intent original.) particular (Emphasis in any person or a intended victim?” improper jury for a based on Defendants moved directed verdict trial court. instruction which denied the instructions as to jury questioning The sent out a second note stated, first "Jury sheets for Elizabeth which instruction are See degree of Jose Tanon and Elizabeth Perez different. murder Tanon, 'Kill it proposition. second or another.’ On Jose ends, 'to same? kill Jose Tanon.’ Shouldn’t these be the Shouldn’t they if is both end 'or another’? What’s the difference another included or deleted?” sought apparent by present-
The trial court to cure the confusion stating, as to Elizabeth with note "The instruction upon argument Perez is transferred intent. The instruc- based tion as to Jose Tanon is not. follow instructions.” Please jury returned, finding guilty attempted each defendant (two counts), firearm, degree discharge of aggravated murder aggravated battery a firearm. with argue Defendants first evidence was insufficient to estab- lish element to kill Elizabeth and thus her must be attempted conviction for murder reversed. correctly relating attempted out mur-
Defendants set the law when, An der. individual commits the offense of kill, any he act which constitutes does (720 ILCS substantial toward the commission murder. 5/8 —4 (West 1992).) indispensable ele- kill an Proof of a (1976), (People ment of v. Trinkle murder. 198, 18, 369 N.E.2d affd trier of intent is one question While the of a defendant’s fact, an will be reversed when murder conviction beyond doubt. requisite proven is not reasonable Henry 278 N.E.2d *5 Although they specific defendants contend a lacked to kill intent Elizabeth, it ignore is difficult the notions that family,” spraying threatened both Jose and "his a house with gunfire constitutes a substantial the toward commission mur- Further, appear ignore theory der. the defendants the of trans- explicitly applied ferred intent count Elizabeth. person The is law well settled that where а shoots at one murder, kill intent but kills one whom he did not intend to injure, he answering is not from for the absolved crime of murder. 310.) (1947), 256, Moreover, v. 398 (People Marshall Ill. 75 N.E.2d the doctrine of applicable transferred intent in attempted murder (See (1994), People Burrage App. 67, cases. v. 269 Ill. 3d 645 N.E.2d 455; (1979), People 255, 130; v. App. Humes 78 Ill. 397 N.E.2d 346.) People Swaney Ill. 276 N.E.2d Accord ingly, the specific if evidence established that had a intent found, jury which the then that intent is transferred to intent, under the doctrine transferred and defendants’ Thus, way proper. only challenge convictions were suffi ciency of their for the attempted convictions murder of Elizabeth is doubt, prove, beyond to show that a State did reasonable specific intent to kill Jose. necessary may specific The intent to kill be shown surround- circumstances, including character assault and use deadly weapon. of a (People Migliore 170 Ill. 182.) may Such if willfully be inferred one does an
act, direct tendency destroy and natural is to another’s which (Migliore, jury’s life. 3d at is the It function intent, of the requisite determine the existence and that determina- appeal clearly tion not be it appears will disturbed unless guilt. Migliore, reasonable doubt exists as to the defendant’s App. 3d at 586. surrounding "drivе-by”
Examination of the circumstances finding supports jury’s of a to kill. The day family considered Lorenzo Hill’s threat to Jose and his on the shooting, separate shootings. from drive-by and the two The first "turquoise p.m.,2 color Oldsmobile or at 8:30 followed Chevrolet” drive-by half-hour later a second from a red four-door Chevrolet. This indicates that defendants were not with the results content drive-by, have been as a might which isоlation viewed girlfriend, Chevy Rodriquez, a "metallic 2Leida Ramon’s owned blue” driving day shooting. Ramon on the Cierra which incident mayhem. The second warning general, unfocused or an act up Jose’s house merely shooting clearly rather demonstrates being that defendants unsatisfactory. logical inference which, occupants, building’s harm to the intended actual interpreted as involved, reasonаbly may weapons automatic are to kill. an testimony Hill Ramon
Additionally, jury heard Jose’s at story and fired some shots at me in the second window up "looked holes near and above Investigators me.” found several bullet Trinkle, very from This case is different second-floor window. patron by defendants, heavily fired shots cited where intoxicated There, just from he had been "cut-off.” the exterior of bar which murder, appellate reversed the conviction finding Trinkle to kill. The court reasoned that the no building housing the an aim at the defendant had unfocused directed (Trinkle, rather than a within the bar. bar individual *6 734.) appeal, 3d threatened In the instant defendants drive-by suggests family, not and the property, their second the Intent can property damage that alone was not desired result. voluntarily and inferred it has beеn shown that the defendant when act, willingly tendency to de- an the natural of which is committed (1986), stroy life. 3d 502 (People another’s v. Winters 841.) ample justify jury’s There conclud- N.E.2d was evidence to the that defendants had intent to murder Jose. jury properly requisite the that had the Because found defendants Elizabeth, to as to and this intent is transferred challenge defendants’ to their convictions the rejected. is murder of Elizаbeth fact, chargeable In argument can be made that defendants with the murders of the children as well. Defendant family. Certainly Jose’s are Lorenzo threatened Jose’s three children threat, encompassed by presence the this and their amidst defendants’ by body, suggests gunfire, indiscriminate Elizabeth’s that shielded made their murder. At oral a substantial toward argument, argued, position in of his support counsel for defendants Elizabeth, no that extension that there was highlighted murderous to the children the defects reasoning intent. application of the doctrine transferred to kill Jose response, In of the we note that extension object proceeds quite logically. They less the children were no Elizabeth, see of defendants’ intent than and we no distinction this not function of fact Elizabeth was struck a bullet. It is brought by the We retry charges court to not State. note, however, that had charged defendants been ad- three attempted murder, ditional counts of present, one for each child we given would not hesitated affirm have those convictions the facts of this case. challenge reliability testimony
Defendants next
of the
of Jose
and his sister
argue
testimony
Yesenia. Defendants
their
"inconsistent,
impeached,
improbable,
and thus insufficient to es-
guilt beyond
tablish defendants’
a reasonable doubt.”
A
conviction for
murder will be reversed where
ev-
presented
unsatisfactory
improbable
idence
is so
or
as to raise a rea-
guilt.
(1987),
sonable
(People
doubt
defendant’s
v. Helton
307.)
3d
inquiry
reviewing
N.E.2d
The critical
challenges
whether,
sufficiency
construing
of the evidence is
all the
light
any
evidence
mоst
prosecution,
favorable to the
rational
trier
fact
could have found the essential elements of the
beyond
(1985),
crime
People
reasonable doubt.
Collins
106 Ill.
237,
The complained-of inconsistencies include fact may to, of, prior day have threatened Jose two weeks and not shooting; as a po- listed victim in the initial report; pretrial lice Yesenia made a statement she did anything” night shootings. not "see at 8:30 witnesses, jury’s It is the credibility function assess the weight given testimony, to be and the inferences to be drawn 1, 51, (People from the evidence. Young 128 Ill. reviewing retry N.E.2d It not the function of the weight defendant judgment or to substitute its as to the of the evi- Eyler dence the trier of fact.
173, 549 raised inconsistencies defendants came out of Officer unconvincing, Flores’ report. Although initial incident the State is disingenuous, entirely perhaps "pin” in its errors *7 Flores, nothing by validity raised defendants affects the of the Moreover, jury’s admissibility question verdicts. there is no as to the jury. They arguments evidence considered heard appeal rejected rendering in raised here on them the course of guilty grounds We will verdicts. not disturb those verdicts on argued by defendants. jury next in
Defendants assert error instructions on at- tempted degree argue the State murder. Defendants was "wrongly permitted, objection, urge guilt over to to theory legally Elizabeth based on the irrelevant added.) Further, (Emphasis transferred intent.” defendants claim revers instructing jury on transferred the trial court’s made earlier revisits the one argument essentially This ible error. kill Elizabeth. Con to contending lacked irrelevancy” of the "legal trary characterization alive and well doctrine, remains this doctrine transferred intent State, court, jury. People See correctly trial applied (1994), App. 3d 67. Burrage 269 Ill. applica example the doctrine’s a routine presents
This case tion, speaks favorably policy considerations one which had jury doctrine. The found behind the his home with bullets was spraying kill intent, transferred pursuit in of this which was substantial part jury, аs in seen alleged Elizabeth. The "confusion” on court, by the trial correspondence with trial was remedied language "or another” explanation court’s of the differences relating People to Elizabeth. See Frank included in the instruction (trial 948, properly N.E.2d 398 lin including "or anoth term gave attempted murder instructions er”). allege argue relatedly that the State’s failure
Defendants "effectivеly allowed charging in the instrument transferred intent omitting charge prosecute defendants the State to amend the and to Contrary an essential element of its own indictment or information.” assertions, may person properly convicted under to defendants’ specifically if the does not theory of transferred intent even State Franklin, allege theory charging People instrument. 70, 948; v. Forrest N.E.2d 813. abovе, judg- the trial
For the set forth we affirm court’s reasons jury’s ment and sentence on verdicts.
Affirmed. J.,
TULLY, concurs. CERDA, dissenting:
JUSTICE beyond I it respectfully proven I do not believe that was dissent. kill had the a reasonable doubt that defendants The evi- guilty Perez murder. Elizabeth in order to be house at 1727 dence in this case was that shots were fired Tanon, Chicago. the husband of North Artesian in Perez, he heard p.m. April Flores that at told Officer 8:30 He upstairs lights reading a book. while he with the shots apartment. police After the later saw bullet holes the first-floor *8 left, had again come and then Tanon was on the second floor when he actually heard shots and saw Ramon Hill and Hill shoot- apartment. into the downstairs Then Tanon that testified Ramon upstairs by Hill him pointed saw window gun up and then towards him and shot twice. Elizabeth had been shot when the apartment. defеndants fired shots into the downstairs At the time defendants fired into apartment, shots the first-floor ev- there was no lights idence in any part apartment that were on or whether Elizabeth Perez the defendants could each or see other any whether person the defendants saw or the first floor whether they any person’s shot in simply direction the first floor. There was no of evidence this.
In of People Burrage the case 455, the regarding court stated defendant Redmond that "the during ongoing evidence did establish that this he offense drove onto Burrage the scene within seconds after fired shots toward the build- ing, direction, he three they fired shots the same at both aimed that, shooting, got Andre and Burrage after the into the automobile driven together.” Redmond the two them fled the scene 74.) (Burrage, 3d at The court further stated: "The evi- However, Burrage dence establishes that had Andre. three-year-old Donte Hinton was shot Burrage’s instead. kill Andre is transferred Donte under the doctrine of transferred intent. Illinois law has held this at- applicable that doctrine is tempted Burrage, murder cases.” at 76. case,
In our evidence was shots first fired at the occupant apartment. any first-floor There was no evidence that first аnyone floor was seen or else. defendants Defendants did not person any shoot at on the floor aby victim was hit discharge random weapons. of one the defendant’s be One cannot guilty attempted firing building. at random a
In the case Trinkle 68 Ill. 2d 369 N.E.2d 888, bartender, believing intoxicated, a defendant to be refused him purchased handgun further service. Defendant and returned to the tavern, building patron area of the fired shot at the wounded supreme within. He was convicted murder. The gun ’knowing stated: "It is not sufficient that the defendant shot a strong probability great bodily or harm to such act created of death test, Gayle If then a Lane or another.’ this were the defendant who knowledge battery committed a conduct could cause such great bodily harm guilty (People would murder.” 201.) Trinkle, there no 68 Ill. 2d at The court nоted that evidence standing door to the the defendant knew someone was behind the (Trinkle, court decision appellate The 68 Ill. 2d bar. fatally erroneous was affirmed. indictment only proved had case evidence in this kill Tanon on the second floor. prove had was no evidence On the basis that there Perez, and vacate I would reverse kill Elizabeth murder. their convictions *9 DAVIS, Plaintiff-Appellant, OF THE GEORGE v. BOARD OF EDUCATION al., Defendants-Appellees.
CITY OF CHICAGO et (4th Division) First District No. 1 — 93—4314 Opinion filed December