*1 ILLINOIS, Plaintiff-Appellee, STATE v. THE PEOPLE OF THE OF WAGNER, Defendant-Appellant. JASON CHRISTOPHER District No. 4 — 88—0574 Fourth Opinion filed October 1989.
KNECHT, J., dissenting. Appellate De- Bapst, of State D. and Lawrence both Daniel Yuhas Office, appellant. Springfield, of for fender’s (Kenneth Boyle, Walden, Attorney, Quincy of R. Robert H. State’s
Scott Attorneys Appellate Biderman, Klingler, all Gwendolyn J. of State’s and W. Office, counsel), People. for the Prosecutor’s of of the court: opinion delivered the
JUSTICE LUND attempt convicted of trial, defendant was Following a bench 1, 4, sections and in violation of (murder) robbery, and armed 9— 8— 38, 1987, pars. ch. Stat. (Ill. 18—2 the Criminal Code of 1961 Rev. of trial, at time of 16 old the 4, 1, years Defendant was 2). 8— 9— 18— of the 4(6)(a) Ju adult, to section pursuant he was tried as an but 5— 37, 1987, ch. 805— par. Rev. Stat. (Ill. of 1987 venile Court Act to three trial, guilty the defendant pleaded after Shortly 4(6)(a)). 38, 1.) The 1987, ch. par. Ill. Stat. (See of Rev. burglary. counts 19— of 22 to a term County court of Adams sentenced defendant circuit (murder), years’ imprisonment attempt imprisonment for years’ on the years’ four each of robbery, imprisonment armed The sentences were be served concur- burglary three convictions. addition, In set pay restitution as defendant “ordered rently. forth in the Presentence as to each victim.” Investigation Report $44,568 particular, court ordered defendant to the victim pay attempt (murder) and armed robbery. appeals and sentences for and armed attempt (murder) robbery. convictions raises the trial appeal, following (1) On defendant issues: attempt court erred finding guilty (murder) because necessarily court concluded defendant did not have an intent kill, harm; great (2) but he did have intent to commit bodily denied motion to erroneously suppress because pros his confessions were induced with the that he would promise 37, under the Court Stat. par. ecuted Juvenile Act Rev. ch. (Ill. 701—1 et order seq.)] (3) of restitution the amount $44,568 should be because will not pay vacated be able to within sum five Defendant has years. challenged not his convic tions and sentences for burglary, and we will not address them. The pertinent facts follow. time
Shortly before on a man closing November *3 oil shotgun robbed a Clark station at and Main 30th Streets attendant, Smith, Illinois. The Quincy, lone Mark testified he not did face, wearing see the man’s as the man a He was black ski mask. wearing was also a green Army jacket carrying and a The shotgun. man open kicked the door to the and back room shot Smith immedi- after ately entering the room. Smith was to reach a able telephone police and call after the man of An- moved to the front the station. witness, other the station that a of manager, testified small amount cash taken from register. escaped was The man before ar- police rived. Missouri, 2,
Defendant was arrested West on March Quincy, 1988. Defendant was for questioning wanted Illinois on unrelated matters, burglary and he was transferred the Adams County 3, 1988, Youth Home in Illinois. Quincy, On March was on three questioned different occasions 1 and 7 p.m. During between interview, the final he confessed that he was one who robbed Clark oil station and shot Mark Smith. on the Based information ob- from defendant March shotgun, tained on recovered the mask, green ski and Army jacket.
An amended information was March charging filed on 1044 stemming armed from (murder) robbery, and attempt
defendant with addition, defendant was oil station. the incident at Clark and theft. burglary counts of essentially six unrelated charged with charged defendant was 16-year-old juvenile, he was a Although only of the armed offense. presence robbery of the as an adult because (Ill. Act Rev. Stat. Court 4(6)(a) of the Juvenile Section 5— who is at least juvenile, a 4(6)(a)) requires par. ch. 805— with the charged an adult if he is as age, charged years a committed with robbery Armed of certain offenses. commission The court did mentioned. the offenses specifically firearm is one of at more serious counts of to sever the motion defendant’s grant robbery. and armed tempt (murder) his confession alleging that suppress, a motion to
Defendant filed that he would be with the promise had induced on March 3 been heard an adult. and not as juvenile, tried as a confession was volun- that defendant’s and concluded days over two enter- could have that defendant made the statement The court tary. based tried as that he would be a reasonable belief tained officers. How- interrogating by made of the comments on some for his in return to defendant promises made no ever, the officers that was in- the officers nothing said confession, there was all the gave The officers a confession. or coerce to induce tended Defendant confession. obtaining warnings prior proper robbery armed adult for tried as an he would be not told simply requirements. statutory because trial, and a to a right jury waived subsequently
Defendant of armed guilty found 7, 1988. He was held on June trial was bench the court con- charge, the attempt On (murder). robbery attempt to kill when he intended find defendant clearly it could not cluded clearly in- However, found defendant the court the shotgun. fired harm. great bodily to commit tended trial, guilty negotiated bench
Following defendant’s He was sentenced him. charges against remaining on the plea $44,568 to in the sum of restitution pay ordered to stated and above Smith, at the Clark station. the attendant Mark must (murder) attempt his conviction argues first on erroneous the conviction court based because be vacated *4 requests error and court committed the The State concedes grounds. battery. aggravated the to reduce conviction that we for which charges on both guilty found defendant The trial court the findings, making its trial. at the bench was tried As to the finding guilty. its rationale for explained court (murder) the stated: attempt charge, had a gun ready.
“You went in there with the You shell no you just really the chamber and shot that like that gun at apparent range. reason. And shot the individual close you him, I really So whether or not intended to kill you really don’t know that. can’t find that that is what true intent your was, there can no what in- certainly question you but but *** tended do great bodily to harm.
A weapon who didn’t want to use that person ever wouldn’t bother to even load it. take the They just gun would hope to the doing any- be able to commit crime without thing more than into it scaring believing individual that may be loaded. You you went to do whatever fully prepared had to You if do. have admitted to the that had to police you shoot someone didn’t want to kill them. you just You wanted So, to hurt them bad to enough complete perhaps the crime. your youth you thought could shoot you intentionally somebody with the safety knowing you that to really going weren’t kill You just them. were going seriously hurt them. is why
That it against law makes the law to shoot someone under those circumstances. It makes it mur- attempt der. law The doesn’t to prove absolutely your have that mind set to kill has somebody. prove law that com- you mitted the acts under circumstances where you knew that it would great cause harm. bodily had to
Anyone you doing know what were what did would you cause harm to great bodily someone when shot them from perhaps three or four feet with a off sawed shotgun regardless of the type shell had in it.
I can’t consider really your statement as to a only confession to Count II. It’s that you admission fired You have weapon. exculpatory your made statements about intent your and about intention to fire But gun. even it seems to me clearly supports that the evidence conclusion beyond a reasonable doubt you intended use the weapon and that you intended to do harm to great bodily Mark Smith.” statements,
From these it becomes clear trial court based defend- ant’s conviction for attempt on the that defendant (murder) ground great intended harm to bodily the victim.
Illinois law is clear that an intention great to commit bodily harm not be (mur- will sufficient to convict on a charge attempt
1046 to kill. der). attempt (murder) specific (Peo An element of is a intent 16, 27, 28, 33; v. 72 Ill. v. ple (1978), People Harris 2d 377 N.E.2d 888, 198, 201-04, 890-92.) The Trinkle 68 Ill. 2d 369 N.E.2d (1977), trial he could not find that intent. Accord judge stated expressly (mur the sentence for ingly, attempt we must vacate conviction and der). to com finding The trial court’s that defendant intended battery. aggravated
mit the offense of great bodily support harm does 1987, 38, 4(a).) authority ch. the (I par. Rev. Stat. Under ll. 12— reviewing R. a Supreme (107 615(b)(3)), of Court Rule Ill. 2d 615(b)(3) to a an degree reduce the conviction one of lesser where may (1976), App. v. Trinkle 40 Ill. 3d (People included offense is involved. 198, 730, 18, N.E.2d 22, (1977), 68 Ill. 2d 369 N.E.2d aff’d of at 888.) case, In this is included offense aggravated battery in tempt (murder). A review of the evidence indicates defendant Fur a to harm. great bodily tended reasonable doubt commit beyond ther, to victim. defendant’s of the caused harm the firing shotgun act Rule by Supreme Pursuant to the to us Court powers granted (murder) attempt we reduce the of offense from 615(b)(3), degree to Further, we defendant’s sentence aggravated battery. to reduce given by Supreme us Court years, pursuant authority five (107 Ill. 2d R. 615(b)(4) 615(b)(4)). Rule his argument suppress.
Defendant’s second concerns motion officers had motion, alleged interrogating prom- that if he all his a confessed to juvenile ised him he would be tried as re- he age. argues he turned 17 of years misdeeds before indicated his partici- lied on in statements which promise giving this shooting and the of of the Clark station robbery armed pation However, juvenile, charging the attendant. instead as an adult. charged defendant was tried the motion to over suppress The trial court heard on and, Following the motion. defendant’s eventually, two denied days to the Ad- March he was transferred arrest in Missouri on Illinois. March Quincy, Home in On ams Youth County law officers three times enforcement defendant was interviewed present at all Illinois. Kelvin Roberts from Missouri and Officer in- he is an testify. first He stated was called three interviews and Quincy police department. vestigator juvenile division the Ad- p.m. about at first defendant at 1:30 interviewed Roberts Prior Home, with Missouri law officers. Youth two County along ams defendant, father at with defendant’s interviewing spoke Roberts father the for the purpose home. Roberts told youth for not preference father stated his becom- questioning. Defendant’s rights by- Defendant was his Miranda ing given involved and left. were in- rights and the Missouri officers. stated the Roberts Roberts addition, the Missouri officers to defendant. In dividually explained dealing gave warning procedure is of their standard part warning reads: juveniles. “ that if a is fourteen juvenile ‘You must further understand older, alleges an offense years age petition adult, if the juvenile would be a were an felony, in a court of gen- could be certified to stand trial as an adult Further, jurisdiction. eral must understand that state- any *6 ment against you make to a officer could be used court, either the court or the adult if such certification ” were ordered the court.’ by rights they Roberts testified defendant understood his as were ex- him. plained rights agreed to Defendant waived his and to speak with the officers. The on the theft of a conversation centered vehicle burglaries. and other Defendant confessed to crimes. these Roberts stated he promised defendant was not would be as prosecuted only promises adult. No were made to defendant. did testify Roberts that he encouraged defendant to admit to all of the crimes in which defendant participated:
“The I only thing said to him was that—he con- initially Dairy fessed to first Modern him that burglary. advised burglaries we had a series of to the Modern and that Dairy they way were all done in a similar with similar items taken and it would be better for him to confess to all of them at one time rather than for us to cases have surface sometime and, know, future him separate as each case—I informed deal, it would all be handled as one sent to the Attor- State’s ney way.” thereafter, defendant was from the
Shortly transported youth home to the in order to Quincy police department photographed at the fingerprinted. police department, While Roberts Offi- Williams, cer Brenda another interviewed juvenile investigator, defendant. The second interview took at place approximately p.m. interview, Because it occurred so near in time to the first sign was not asked to more waiver forms. He was told his simply in effect. rights again voluntarily agreed same were Defendant to with the officers. Defendant was various mat- speak questioned about ters, However, including the Clark station defendant denied robbery. his in the He confess to other participation robbery. burglaries did promises
and thefts. Roberts stated no were made in this interview. Roberts, According to defendant stated several times during that he one he thing interview had more wanted to talk about. When matter, asked about the he claimed to time have hard remember- ceased, ing. The and defendant was taken to the questioning back home. The officers felt defendant had not to youth every- confessed answers, thing because of his hesitation. Based on other the officers defendant was involved in suspected actually the Clark station rob- bery. youth Roberts and Detective Robert Mehl returned to the home for a third Mehl interview. had come because he had done inves- tigation of the at the Clark station. As arrived at the robbery they home, staff youth they were told members that defendant had just asked to with met with defendant at about 7 speak police. They he p.m. through process prior Roberts stated went Miranda interview, this rights and defendant waived order to speak with the prior commencing officers. Roberts testified that if “this questions, going asked work same meant way?” responded by asking Roberts whether defendant “this all be included in one to the State’s package go Attorney’s [would] at Office one time?” Defendant in the affirmative. Officer responded crimes, in- agreed. Roberts then confessed to three more cluding the Clark oil station robbery. hearing.
Officer Brenda Williams also testified at the She corrob- concerning orated the second interview conducted Roberts’ brief, given at the she stated that defendant was police station. to him in inter- rights, explained previous reminder that his view, committing were still in effect. Defendant denied the armed *7 to thefts burglaries. but confessed several vehicle and other robbery, Williams noted that defendant want more but was appeared say hesitant to do so for some reason. She also stated no were promises made to defendant concerning upcoming prosecution. Williams stated defendant was to confess to all at encouraged everything once: him that it all in one prefer
“We advised we would send day That there not be additional —one package. way you would in, the next would have thing day you would have one come come in. he make a clean slate of something requested else We it. At that time I felt that he had.” had ex- asked on cross-examination whether defendant
Williams was fol- becoming age concern an adult at 17. The any about pressed topic: occurred lowing colloquy concerning that at he “Q. age point ever discussed—the fact this Was mi- be a 17 he wouldn’t minor, he became but when was still that? about any recall conversation nor? Do ever you to Chris in reference that I recall was conversation A. The in life and him later against held being it was worried about Investigator affect him. this all or not would whether The— rec- having his about go him how discussed with Roberts ords expunged. Roberts told tell us what Officer
Q. And could further you him? know, when the expungement,
A. He mentioned about the impres- was under age. personally he a certain reached since I wasn’t years at least ten require sion that that would have that of time that it does take to sure the amount about recall a comment. making done. I don’t told him about ex-
Q. recall what Officer Roberts Do of his records? pungement held
A. discussed whether or not it would be They just him in life. That is the common occurrence against later kids.” his that he was 16 old. June 10 was years
Defendant testified him he should confess He that Officer Williams told birthday. stated prose- he turned 17 in order to be to all his activities before illegal he home youth cuted as a Defendant stated contacted juvenile. he at the station because following staff the second interview he of the armed while robbery wanted to let the authorities know was still a juvenile. cross-examination, remember the stated he did not
On he officers, it impression exact words used but was by his crimes. He if he confessed to all juvenile would be tried as a he was together, would be that, asking everything stated whether he time for dis- everything to trial at the same go he would hoping cussed. court, admitted
Later, further upon questioning whether defendant would said about specifically anything no one that the of- or as an adult. Defendant stated as a prosecuted his crimes he turned him to confess to all of before encouraged ficers about worry him he would not have to 17. He the officers told stated He re- if he now. up everything later in life cleared things coming up him it if he told was best that Officer Roberts stated his juvenile. while he was still a to his crimes confessed testify by were recalled to and Roberts Officers Williams making any *8 Williams denied testimony. court following statement concerning the importance of turning that defend- ant would be better off to confess to his crimes while he still was juvenile. Roberts stated he told defendant that defendant’s juvenile record could be after expunged he became an adult. Roberts also stated that he may have told defendant: general terms that as a sixteen old or year when he
“[I]n turned seventeen he could request that his record be expunged when he turned adult and that as a seventeen old if year he crime, committed a similar talking about the vehicle, stolen that he go would to the Adams County Jail rather than the Adams Youth County Home. That was the total part of that conversation I as far as can remember.”
The court did not render a decision but took the matter under ad- visement. later,
Four days on May reopened the hearing on its own motion. The court heard from Detective Mehl and Officer Roberts. In particular, Officer Roberts questioned was concerning his statements to regarding expunging defend- ant’s juvenile record. The following colloquyoccurred:
“Q. At some in time point did advise Mr. Wagner about of his possibility record if being expunged he were charged as a minor?
A. I about, advised him that he could request that his rec- ord be I expunged. didn’t say anything about the minor part of it.
Q. All right. up. Back up Let’s back before that discussion. occurred, Just that before discussion the setting? what was A. The I setting just was that had went and got Mr. [sic] Wagner something to eat because I was that he aware had had only part a sandwich for brought breakfast. had him. food, back to He was in the process fixing putting on his cheese ketchup burger and stuff like that.
* * * Q. ahead, Officer, Go tell us what at transpired point that had brought given the food it to Chris Wagner.
A. What I Okay. believe was misunderstood the first time was he eating his food in I, sort a short break. And at time, assumed role of a role of a typical juvenile offi- cer.
IAnd was more or less chewing Wagner out for what he had done. And that’s I stated that if he where had done some- 17, he would to the Adams go like that after he turned thing home. youth Jail rather than County *9 that, to the effect something That’s the I said only thing. come of it is that he that the that would out only thing good and I expunged spe- could that his record request juvenile cifically using ‘request.’ remember the word
Q. Chris any question Wag- This wasn’t an answer to that ner asked?
A. No. He that he routinely confessing anything was had done There was no need for me allegedly up point. that to in and coerce him into further. any way try confessing
Q. give Did he some kind of an or a you response audible nod of his head at particular point that when had men- you possible tioned the of a expungement record?
A. He just Yes. was his head. nodding Q. What Okay. happened after that? immediately Well, A. after he was finished eating and—We continued on.
Q. Well, what happened after him immediately you told about the possibility requesting your expunged? record to be
A. Nothing.
Q. Okay.
A. He continued to eat.
Q. You said were the role taking as a officer out chewing this minor? A. That’s correct.
Q. go How did into transition from that to the point further interrogation? just
A. It was a time lapse where he ate. I may have even left again. recall, the room I don’t but there was a little just ate, bit of time while he and we couldn’t talk to him really while he eating.”
Both Roberts and Mehl repeated given previously concerning the start of the third interview. Defendant asked if “this work the same Roberts asked if defendant way?” meant [would] crimes would be turned over to the State’s one Attorney package. Defendant replied “yes.”
The court denied defendant’s motion to suppress. stated it by was troubled the fact defendant was not told about statutory requirement that he must be tried as an adult commit- ting However, armed robbery. court found no on the wrongdoing part stated, of the authorities. The court in pertinent part: interesting probably the more
“I find this to be one of the confes- regard suppression challenging questions I am troubled very that I have seen in my experience. sion he necessar- not advised that fact that the Defendant was an armed rob- as an adult for prosecuted would have to be ily interview him there to going the officers were bery when time, there is abso- At the same robbery. about that armed suggest in the evidence to that have seen lutely nothing Depart- for the Police Quincy officers indicate Defendant, tried to with- ment tried to trick any way him, to use other tactic any hold information from tried to obtain confession questionable considered as might be from the Defendant. one, officers, have acted every It that the each seems *** faith. good
* * * of the cir- at the totality have to look you always I think *10 this, have to look such as And in a situation cumstances. involved, the knowl- officers efforts of the good at the faith factors sur- involved, the other and all of the Defendant edge flaw, if it the only that And it’s conclusion rounding my him. that he neces- admonished one, the Defendant wasn’t is is that of the fact that adult, in light as an charged be sarily would being record about his and discussion some question there was he necessar- deduced that he could have from which expunged the record I will make a And juvenile. as charged would be ily reason- that it was I would find the evidence clear that from every expecta- he had think perhaps Defendant to able for the charged juvenile. as tion to be him conclusion for was an unreasonable
I don’t think that that an full well knowing finding I make that And have. that suggest take that may Court Supreme Appellate so, it. If then so be is in error. ruling today my were in confessions hand, the I don’t believe other theOn in the Defendant I have observed involuntary. any way withdrawn, very he is somewhat he is quiet court. While has this. He such as charges facing 16-year-old for a articulate to this appears He to questioning. responded at all times in his situa- intelligence persons average Court to be above under is required that admonishment every given tion. He was is there that because say And I’m of. law that aware Illinois goes to which reference that I make in this statute nothing ahead and defendant must be advised says juvenile then he as an It necessarily charged just says will be adult. have to him as an adult.” charge consideration, noted, the fact that The court also as a factor in its which in- warning, defendant had received the Missouri supplemental certain cir- juvenile dicated a be as an adult under may prosecuted cumstances.
Defendant was in error. argues trial court’s determination Defendant contends the induced to evidence shows was subtle, confess by promise, being ever so of tried as a rather than as an adult. Defendant concludes the officers’ discussion of expunging defendant’s records defendant’s more supports explicit that the officers testimony promised he would be prosecuted only a juvenile. Even if is not accepted, argues the statements made the officers can by only interpreted be to mean defendant would prosecuted under the Juvenile Court Act (Ill. Further, Rev. Stat. ch. seq.). 701—1 et par. defend ant argues the confessions were made of coercion. atmosphere merely Yet, a 16-year-old juvenile. he was interro gated three times on March 3. For the second interrogation, defend- ant was to the transported police station and from the away relative security youth home. Defendant contends the evidence indi cates he was misled by statements, officers’ and coerced environment into making confessions he would not otherwise have made.
A summary the law regarding admissibility confes sions is found in v. People (1986), Stachelek 145 Ill. 3d App.
495 N.E.2d
990:
“The test of whether a confession was admissible at trial is
whether the statement met its burden of showing that
statement was made freely, voluntarily and without compulsion
sort,
or inducement of
or whether
any
defendant’s will was
*11
overcome when he made the statement.
(People v. Prim
cert,
62,
(1972),
601,
53 Ill. 2d
289 N.E.2d
denied
412
(1973),
918,
144,
U.S.
37 L. Ed. 2d
We the notion that defendant’s environment a serious element of coercion was For defendant’s second in present. to the station in order to be terrogation, transported police he was Defendant’s admissions in the first photographed fingerprinted. caused the officers to want further discussion apparently interview is not It seems for to want police with him. This unusual. reasonable information as can from a talkative and they coop to obtain as much At erative no was there indication suspect. point any fact, resisted the officers’ with him. attempts speak third in the officers requested meeting provide a order concerning with information his most serious crimes. confession,
If there it any problem is with defendant’s from of the officers disputed concerning must come statements defendant’s Attorney expunging deal the State’s package in were they From a review of the circumstances which record. in made, was coerced or improperly we cannot conclude defendant If making robbery. accept into a confession for armed we duced to confess all of encouraged that defendant was testimony officers’ Attorney sent to the State’s everything his crimes at once and have is inherent prom we find no There no package, problem. one need in this statement. The con ise of tried as a being ques record is a closer cerning topic expunging occurred Yet, testified that this statement tion. Officer Roberts The break was taken order questioning. in the during break used this as no indication the officer to eat. There is allow defendant other any par the armed robbery, a confession for a tool obtain officers in of bad faith crime. There is no indication ticular conversation with the general was made volved. The statement
1055 of his that all impression the have formed may defendant. no in- However, there is juvenile prosecution. would result in crimes improper from or misleading this belief came dication broad based the officers have endeavored made the officers. statements Where criminal concerning discussions protect rights during to activities, did, general conclude that a officers we cannot these destroy of records to concerning expungement statement served of totality Examining the voluntariness of defendant’s confession. circumstances, robbery the confession concerning armed made and knowingly voluntarily. va- argues the of restitution should be
Finally, defendant order no within five hope completing payments cated as defendant has of case, presentence hospital In this showed the years. report $44,568. or- lost of Mark to The court charges wages Smith be However, the to in this pay dered restitution amount. a part court noted such restitution “is act for the most meaningless money, no of absolutely because have to those sums ability pay while in the could not certainly Department but of Corrections you do so.” term of is 15 imprisonment robbery Defendant’s for armed and, credit, even time he will years good realistically not complete able to within five payment years. for restitution the court statutory provision requires
to determine whether “restitution sentence to be appropriate is 1987, (Ill. 38, 5—6.) Rev. Stat. ch. Subsection imposed.” par, 1005— (Ill. of section of the of Rev. (f) 5—5—6 Unified Code Corrections 1987, 38, ch. 5—6(f)) provides: Stat. further par. 1005—
“Taking of ability into consideration the the defendant shall pay, paid determine whether restitution shall be installments, in in single period and shall fix a payment time not of restitu- years in excess of 5 within which payment tion is to be in full.” paid
Restitution is intended to of a crime provide compensation the victim seek work. while a defendant is on and is able work or probation 93, 95.) Rupert v. 148 Ill. 499 N.E.2d (People (1986), 3d App. im The fact that defendant has been ordered to a term of serve not, itself, im does an order of restitution prisonment render Rather, assessing factor to in a defend proper. it is a be considered and time of ability determining ant’s manner pay, v. fashioning (People when the restitution order. White payment 136.) light Ill. 3d N.E.2d (1985), App. 482 the court’s the term of defendant and imprisonment imposed upon is comments about defendant’s we conclude restitution ability pay, not an appropriate We, sentence for therefore, defendant. vacate that portion of the $44,568 order requiring defendant to pay restitu- tion.
For the above, reasons stated the order of the circuit court of Adams is County modified that the attempt (murder) conviction is reduced to aggravated battery. Defendant’s sentence for that convic- tion is also reduced. The order is vacated in that defendant need not *13 pay restitution. The remainder of the order is affirmed. in part;
Affirmed modified in part; part. vacated in SPITZ, J., concurs. KNECHT,
JUSTICE dissenting: I respectfully dissent. Court Supreme 615(b)(3) Rule permits a re- viewing reduce the degree of offense of which the defendant was convicted. This broad power only exercised, should as recognized by the when majority, included offenses are involved. What does “involved” mean? The majority notes in this case aggra- vated is an battery included offense of The attempt (murder). facts do suggest great defendant intended bodily harm the victim.
However, the offense of aggravated battery was not charged. aggravated offense of battery argued was not to the court in this bench trial. This was not a case where jury was in- jury structed on but rejected included offense. Should a court of re- view search record and our statutes on each reversal for failure to see if the proof conviction could possibly be reduced to an of- fense degree? of lesser It is the role of the prosecutor to charge of- fenses and to for a argue remedy. offered, When no instruction is offense, and no is argument made about an included then 615(b)(3)is inapplicable.