                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Harris, 2013 IL App (1st) 110309




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    HIRAM HARRIS, Defendant-Appellant.


District & No.             First District, Third Division
                           Docket No. 1-11-0309


Rule 23 Order filed        September 11, 2013
Rule 23 Order
withdrawn                  October 29, 2013
Opinion filed              November 6, 2013


Held                       Where defendant was convicted of attempted murder and elected to be
(Note: This syllabus       sentenced under the attempt statute that went into effect on January 1,
constitutes no part of     2010, which allowed a Class 1 sentence rather than the mandated Class
the opinion of the court   X sentence if defendant was found to have acted under a sudden and
but has been prepared      intense passion resulting from serious provocation and the trial court
by the Reporter of         rejected defendant’s contention that he was acting under a sudden and
Decisions for the          intense passion and imposed a Class X sentence, the Class X sentence
convenience of the         was upheld, since the mere fact that the victim brandished a weapon,
reader.)
                           without more, is not one of the classes of serious provocation recognized
                           under these circumstances.


Decision Under             Appeal from the Circuit Court of Cook County, No. 08-CR-11277; the
Review                     Hon. Sharon Sullivan, Judge, presiding.


Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Philip D. Payne, all of State
Appeal                     Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Peter
                           Fischer, Doug Harvath, and Judy L. DeAngelis, Assistant State’s
                           Attorneys, of counsel), for the People.


Panel                      JUSTICE NEVILLE delivered the judgment of the court, with opinion.
                           Presiding Justice Hyman and Justice Mason concurred in the judgment
                           and opinion.




                                             OPINION

¶1          Following a bench trial, Hiram Harris, the defendant, was found guilty of the 2008
        attempted murder of Carlee McKinney. Defendant elected to be sentenced under the version
        of the attempt statute that went into effect on January 1, 2010, which allows the trial court
        to impose a Class 1 sentence rather than the otherwise mandated Class X sentence, if the trial
        court finds by a preponderance of the evidence that defendant acted under a sudden and
        intense passion resulting from serious provocation. The trial court found that defendant was
        not acting under a sudden and intense passion resulting from a serious provocation and
        refused to sentence defendant as a Class 1 offender. Instead, the trial court imposed a Class
        X sentence of eight years’ imprisonment. On appeal, defendant contends that the trial court
        erred and that brandishing a weapon is sufficient to constitute serious provocation. We
        affirm.
¶2          Around midnight on June 4, 2008, the victim, Carlee McKinney, and his brother, Darnell
        Smith, went to a club. Defendant and several friends were at the same club. No one testified
        that there was any altercation or interaction of any kind between the two groups while in the
        club. The club closed near 2 a.m. on June 5, and the patrons began to leave. A large group
        gathered under an awning outside the front door while valets were returning patrons’ cars.
        As the patrons were leaving, Smith walked into the street to speak to his fiancée, Crystal
        Dyson, who was sitting in the driver’s seat of her car, which was parked in front of the club.
        Another car pulled up next to Dyson’s car and double parked. This angered Smith, because
        he believed the car was too close to him. An altercation erupted between Smith and the
        occupants of the second car. Although all witnesses agreed that angry words were exchanged,
        they disputed whether it escalated to a physical confrontation. Smith testified that someone
        punched him in the face. All witnesses agreed that the occupants of the car, who were friends
        of defendant, were much larger than Smith or the victim.
¶3          Shortly after the altercation started, the victim exited the club. He removed his shirt and

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     stated that no one was going to “mess” with his brother. It is disputed whether the victim also
     said “I got something for you big motherfuckers.” Although the victim denied having a
     weapon, Jarell Pierce, one of defendant’s friends, testified that he saw the victim reach under
     the passenger seat of Dyson’s car and grab the butt of a handgun. Pierce testified that he said
     “he has a banger.” Although there is some dispute about the exact location of the victim at
     the time, it is undisputed that defendant stabbed the victim twice with a knife, once in the
     back and once in the chest. Defendant testified that he did so because the victim had a
     handgun and he was in fear for his safety and that of his friends.
¶4       The trial court rejected defendant’s self-defense claims stating: “While the defendant and
     his witnesses would like this Court to believe that the victim was reaching for a weapon, I
     find that that testimony was not credible.” The trial court found defendant guilty of attempted
     murder and aggravated battery.
¶5       Defendant filed a motion to reconsider and a motion for acquittal alleging numerous trial
     errors and evidentiary defects. At the hearing on the motions, defense counsel argued, inter
     alia, that despite the State’s argument that the crime does not exist, the statutes should be
     interpreted as creating the offense of attempted second degree murder, and defendant was
     guilty, at the worst, of that offense. Defense counsel stated:
              “I think this case jumps out at attempt second degree murder based on the facts of the
          case. The State would like to claim that there is no evidence of this. There is evidence
          all over the record of this, of the provocation by the victim.”
     The trial court denied defendant’s motions.
¶6        Defendant elected to be sentenced under the version of the statute that went into effect
     on January 1, 2010, which allowed for sentencing as a Class 1 offender if the trial court finds
     that a defendant was acting under a sudden and intense passion. Defense counsel argued that
     defendant was acting under a sudden intense passion because the victim was reaching for a
     weapon immediately prior to the stabbing. The State responded that it believed defendant
     was confusing sudden intense passion with unreasonable belief in the need for self-defense
     and that the evidence did not support his theory of the case. Defense counsel responded,
     “Judge, if somebody pulls a gun on you or if you believe somebody is pulling a gun on one
     of your friends or acquaintances, family members, whatever, if that doesn’t qualify as a
     sudden and intense passion, I don’t know what else would.” Defendant supported his
     sentencing argument with the testimony of an additional witness, Deante Lewis, a childhood
     friend of defendant. Lewis was at the club and heard the victim say he had a gun and heard
     Pierce say “he has a banger.” Lewis saw the victim reach into the car, and he ran away. Lewis
     did not see a weapon.
¶7       Following argument by the parties, the trial court denied defendant’s sentencing motion,
     stating, “I do not believe the defendant has shown by a preponderance of the evidence in any
     event that the defendant was acting under serious provocation.” The court proceeded to
     sentencing, heard arguments from the parties in aggravation and mitigation, and considered
     letters written on defendant’s behalf and victim impact statements from the victim and his
     mother. The court also heard a statement from defendant. The trial court stated that it had
     considered all of the evidence in mitigation and aggravation, merged the aggravated battery


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       conviction into the attempted murder conviction, and sentenced defendant to a term of eight
       years’ imprisonment. Defendant timely appeals.
¶8          On appeal defendant contends that he proved by a preponderance of the evidence that he
       was acting under a sudden and intense passion resulting from serious provocation and that
       he should have been sentenced as a Class 1 offender.
¶9          Although this case involves sentencing in an attempted first degree murder, we believe
       a brief discussion of the offense of second degree murder and the attempt statute is necessary
       to illuminate the legislature’s intent in amending the sentencing statute.
¶ 10        In Illinois, second degree murder is defined as a first degree murder during which one of
       two mitigating factors, serious provocation or unreasonable belief in the need for self-
       defense, is present. See 720 ILCS 5/9-2 (West 2010). Attempt is defined as follows: “A
       person commits the offense of attempt when, with intent to commit a specific offense, he or
       she does any act that constitutes a substantial step toward the commission of that offense.”
       720 ILCS 5/8-4(a) (West 2010). In People v. Lopez, 166 Ill. 2d 441 (1995), our supreme
       court held that the offense of attempted second degree murder does not exist in Illinois. The
       Lopez court reasoned:
                  “Turning now to attempted second degree murder, we note that the crime of
            attempted second degree murder would require the intent to commit the specific offense
            of second degree murder. Thus, 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. However, one cannot intend either a sudden and
            intense passion due to serious provocation or an unreasonable belief in the need to use
            deadly force. Moreover, concerning the mitigating factor of an imperfect self-defense,
            one cannot intend to unlawfully kill while at the same time intending to justifiably use
            deadly force. Thus, the offense of attempted second degree murder does not exist in this
            State.” Id. at 448-49.
       In a separate opinion, Justice McMorrow pointed out that the lack of attempted second
       degree murder could lead to the illogical situation where a defendant could be punished more
       severely if the victim lives than if the victim dies. See id. at 452 (McMorrow, J., concurring
       in part and dissenting in part, joined by Bilandic, C.J.) (quoting Timothy P. O’Neill, “With
       Malice Toward None”: A Solution to an Illinois Homicide Quandary, 32 DePaul L. Rev.
       107, 107-08 (1982)). For example, if a defendant admitted to attempting to kill a victim
       during a mutual quarrel and the victim lived, he would be facing a Class X sentence with a
       potential 30-year prison term and no possibility of probation. However, if the victim died,
       the defendant would only be facing a Class 1 felony sentence and might be eligible for a
       sentence of probation. The majority rejected a constitutional challenge to the sentencing
       scheme and suggested that any changes to the status of attempted second degree murder in
       Illinois would have to originate with the legislature. Id. at 450.
¶ 11        Approximately 15 years later, the legislature addressed the sentencing disparity identified
       by Justice McMorrow. See Pub. Act 96-710 (eff. Jan. 1, 2010) (adding 720 ILCS 5/8-
       4(c)(1)(E)). Defendant elected to be sentenced under this provision. Section 8-4(c)(1)(E) of
       the Criminal Code of 1961 (now codified as the Criminal Code of 2012 (720 ILCS 5/8-


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       4(c)(1)(E) (West 2012)) provides:
           “[I]f the defendant proves by a preponderance of the evidence at sentencing that, at the
           time of the attempted murder, he or she was acting under a sudden and intense passion
           resulting from serious provocation by the individual whom the defendant endeavored to
           kill, or another, and, had the individual the defendant endeavored to kill died, the
           defendant would have negligently or accidentally caused that death, then the sentence for
           the attempted murder is the sentence for a Class 1 felony.” 720 ILCS 5/8-4(c)(1)(E)
           (West 2010).
¶ 12       On appeal, defendant contends that the trial court erred in finding that he had not proven
       by a preponderance of the evidence that he was acting under a sudden and intense passion
       because the evidence supports a finding that the victim made threats and brandished a
       firearm. We find that we need not resolve the evidentiary question, because even if we accept
       defendant’s version of events, the victim’s actions do not, as a matter of law, constitute
       serious provocation.
¶ 13       The phrase “serious provocation” has its roots in the second degree murder statute. See
       720 ILCS 5/9-2(a)(1) (West 2010). In that context, the only categories of serious provocation
       our supreme court has identified are substantial physical injury or assault, mutual quarrel or
       combat, illegal arrest, and adultery with the offender’s spouse. People v. Campbell, 2012 IL
       App (1st) 101249, ¶ 49. The legislature used the same language in a provision in the attempt
       sentencing statute that it had previously used in the second degree murder statute. Compare
       720 ILCS 5/9-2(a)(1) (West 2010), with 720 ILCS 5/8-4(c)(1)(E) (West 2010). When
       construing a statute, our primary goal is to give effect to the drafter’s intention and the most
       reliable indication of that intent is the language used, which must be given its plain and
       ordinary meaning. People v. Smith, 236 Ill. 2d 162, 167 (2010). We must presume that, when
       the legislature uses a term that has a well-settled legal meaning, the legislature intended it
       to have that settled meaning. Id. at 169. “ ‘The law uses familiar legal expressions in their
       familiar legal sense.’ ” People v. Bailey, 232 Ill. 2d 285, 290 (2009) (quoting Henry v. United
       States, 251 U.S. 393, 395 (1920)). Moreover, under the doctrine of in pari materia, two
       sections of a statute dealing with the same subject will be considered with reference to one
       another to give them harmonious effect. People v. McCarty, 223 Ill. 2d 109, 133 (2006).
       Therefore, we will interpret the term “serious provocation” in the attempt provision of the
       Code to have the same meaning as “serious provocation” in the second degree murder
       provision and limit its scope to the same four categories of provocation.
¶ 14       Here, it is clear that none of the four identified categories of serious provocation apply
       to the altercation the defendant was engaged in with the victim. Defendant was not injured
       by the victim or anyone else during the altercation. Defendant and the victim were not
       engaged in a mutual quarrel. In fact, defendant and the victim had no interaction at all prior
       to defendant stabbing him, and there is no evidence of an illegal arrest or adultery. We find
       that defendant has failed to present a clear argument that the altercation in this case
       constituted one of the four categories of serious provocation.
¶ 15       Defendant does, however, ask us to hold that “the act of brandishing a deadly weapon is
       sufficient to constitute serious provocation.” Defendant relies on People v. Parker, 260 Ill.


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       App. 3d 942 (1994), in support of this proposition. We find no support for defendant’s
       interpretation of this case. In Parker, the defendant contended that he was denied the
       effective assistance of counsel based on counsel’s failure to request a serious provocation
       jury instruction. This court found that there was sufficient evidence to support requesting
       such an instruction when the defendant and the victim “were engaged in a heated argument
       in the street which [led] to a shoving match.” Id. at 948. Defendant alleged that during the
       shoving match the victim pulled a gun and they struggled over it. Although the victim
       allegedly brandished a weapon during mutual combat, there was nonetheless underlying
       mutual combat. We do not find any support in Parker for defendant’s contention that
       brandishing a weapon, by itself, constitutes serious provocation.
¶ 16       Moreover, we note that, although the legislature certainly could have included
       unreasonable belief in the need for self-defense as a mitigating sentencing factor when it
       added section 8-4(c)(1)(E), it did not. Accordingly, it would be inappropriate to interpret the
       language used as being broad enough to encompass an unreasonable belief in the need for
       self-defense. Defendant effectively concedes this point in his reply brief, stating:
       “[Defendant] does not ask this Court to find that section 5/8-4(c)(1)(E) may apply to a
       situation where the defendant only advances a theory of self-defense. Instead [defendant]
       simply asks this court to recognize that certain fact patterns, including the one at bar,
       constitute a valid basis for claims of self-defense and serious provocation.” (Emphasis in
       original.) We express no opinion on what other fact patterns might arise, but we find that,
       even if we were to accept the facts as defendant suggests, the fact pattern in this case
       suggests solely an unreasonable belief in the need for self-defense and not one of the classes
       of serious provocation previously recognized by the courts of this state. Accordingly, we
       reject defendant’s contention that the trial court erred in determining that he had not proven
       serious provocation and instead hold, as a matter of law, that serious provocation did not
       exist under the facts of this case, even if we were to accept the factual scenario posited by
       defendant.
¶ 17       Therefore, for the foregoing reasons, we affirm the judgment of the circuit court of Cook
       County.

¶ 18      Affirmed.




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