People v. Slater

SUPREME COURT CASES

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People v. Slater

State: Illinois

Court: 4th District Appellate

Docket No: 4-07-0966 Rel

Case Date: 09/21/2009

Preview:NO. 4-07-0966 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TORRENCE W. SLATER, Defendant-Appellant. ) Appeal from ) Circuit Court of ) Morgan County ) No. 07CF50 ) ) Honorable ) Tim P. Olson, ) Judge Presiding. _________________________________________________________________ MODIFIED UPON DENIAL OF REHEARING JUSTICE STEIGMANN delivered the opinion of the court: Following an August 2007 trial, a jury convicted defendant, Torrence W. Slater, of first degree murder (720 ILCS 5/9-1(a)(2) (West 2006)) and domestic battery (720 ILCS 5/123.2(a)(1) (West 2006)). In October 2007, the trial court sen-

tenced defendant to 75 years in prison. Defendant appeals, arguing (1) that the State failed to prove him guilty beyond a reasonable doubt of first degree murder based on the doctrine of transferred intent and (2) ineffective assistance of counsel in that his trial counsel failed to file a motion to sever the domestic battery charge from the first degree murder charge. We disagree and affirm. I. BACKGROUND In April 2007, the State charged defendant with (1) first degree murder of Patrick Anderson (720 ILCS 5/9-1(a)(2)

(2006)) and (2) domestic battery of Brandy Lovekamp (720 ILCS 5/12-3.2(a)(1) (West 2006)). At defendant's August 2007 trial, the State presented testimony from (1) four eyewitnesses, (2) various police officers, (3) a forensic scientist, and (4) a forensic pathologist. That testimony showed the following. On April 8, 2007, Brandy Lovekamp left the Jacksonville duplex that she shared with defendant, her boyfriend at the time. She returned later that evening to find defendant, Adam Oakley, defendant's friend, and Brenda Bourn, defendant's former girlfriend. Defendant was angry with Lovekamp because, in her words,

"he thought I was out with somebody else the night before." Later that night, at defendant's direction, Lovekamp, defendant, Oakley, and Bourn left the duplex in Lovekamp's car to drive to a location where a videotape or photograph purportedly showing Lovekamp kissing another man was present. Lovekamp drove, defendant punched her in the nose. As

Defendant

thereafter traded places with Lovekamp because she was bleeding and could not see. She thought her nose had been broken.

Defendant then drove back to their duplex so that Lovekamp could clean the blood off her face. After attempting to

do so, Lovekamp joined defendant and Oakley on the porch, and she noticed that defendant's car, which was parked in the driveway, had its trunk open. Meanwhile, Bourn went back into the duplex. - 2 -

While on the porch, Lovekamp saw a vehicle drive by, back up, and park in the front yard. A man, later identified as

Dudley McClain, got out of the car and walked up to the duplex to try to sell something. Lovekamp walked off the porch to meet

McClain, showed him her bloodied face, and told him that it "wasn't a good time" to be there. McClain then approached

defendant, who told McClain that "[they] didn't want anything [and to] get the fuck out of the yard." repeated orders, McClain did not leave. Despite defendant's Thereafter, defendant

retrieved a shotgun from the open trunk of his car. With Lovekamp standing next to him, defendant fired the shotgun, but Lovekamp did not see the direction in which it was fired. McClain then turned to leave and was almost to his car The State asked Lovekamp to

when defendant fired a second shot.

mark a photograph to show the respective positions of defendant and McClain when the two shots were fired. Her markings showed

that between the first and second shot, defendant walked toward McClain as McClain retreated toward his car. Further, at the

time of the second shot, Lovekamp's markings showed that (1) defendant was only about 15 feet away from McClain, (2) McClain was standing next to his car, and (3) McClain was in a direct line between defendant and the car. At trial, Lovekamp identified a 12-gauge shotgun with a pistol grip as the shotgun defendant fired that night. - 3 The

police had discovered this shotgun three days after the shooting in an adjoining duplex apartment. Bourn's testimony corroborated Lovekamp's account up to the time Bourn walked into the duplex. Bourn heard a "boom

sound" when she was inside the duplex, so she looked out the door and saw defendant fire a second shot. Bourn also marked a

photograph of the scene to show the respective positions of defendant, McClain, and the car at the time the second shot was fired. Those markings again showed that McClain was within a few

feet of his car at that time and in a direct line between the car and defendant, who was approximately 20 feet away from McClain. Oakley also corroborated Lovekamp's testimony, adding that (1) the trunk of defendant's car was open before McClain arrived, (2) he could not see where defendant was pointing the shotgun when defendant fired the first shot, and (3) the shotgun was pointed in a downward trajectory when defendant fired the second shot. McClain testified that he was driving Patrick Anderson around Jacksonville about 2 a.m., trying to sell compact discs and find drugs. He said that he stopped at defendant's duplex

because he thought he "heard somebody holler [his] name." McClain parked in front of the duplex and got out of his car from the driver's side. passenger seat. Meanwhile, Anderson remained in the front

McClain's version of events was consistent with - 4 -

those of the other eyewitnesses.

McClain testified that defen-

dant fired the first shot into the air, but McClain did not see defendant fire the second shot because he had turned and was returning to his car. Soon after defendant fired the second

shot, McClain got into his car and discovered that Anderson had been shot. Three days after the shooting, investigators searched a separate, unoccupied residence that was attached to defendant's duplex. They found that (1) a fire had been set in the kitchen,

(2) the residence was accessible from defendant's duplex through a hole in the basement wall, and (3) a 12-gauge shotgun with a pistol grip--which was loaded with three "slug" shotgun shells-had been partially hidden under a bucket in the basement. The State's forensic pathologist testified that Anderson died from a gunshot wound to his face. Specifically, he died

from brain trauma caused by a 12-gauge shotgun slug wound to his right cheek region. The photographs marked by Lovekamp and Bourn were admitted into evidence and published to the jury. not call any witnesses. At defendant's request, the trial court instructed the jury on involuntary manslaughter (720 ILCS 5/9-3 (West 2006)), as well as first degree murder (720 ILCS 5/9-1(a)(2) (West 2006)). However, the jury convicted defendant of first degree murder and - 5 Defendant did

domestic battery (720 ILCS 5/12-3.2(a)(1) (West 2006)).

The

verdict form for first degree murder returned by the jury found defendant guilty of that offense "knowing his acts create [sic] a strong probability of death or great bodily harm to Patrick Anderson or another." In October 2007, the trial court sentenced defendant to 75 years in prison on his conviction of first degree murder and 364 days in jail on his conviction of domestic battery and ordered those sentences to be served concurrently. This appeal followed.

II. ANALYSIS A. Defendant's Claim That the State Failed To Prove Him Guilty Beyond a Reasonable Doubt Defendant argues that the State failed to prove him guilty beyond a reasonable doubt of first degree murder based on the doctrine of transferred intent. Specifically, defendant

contends that his first degree murder conviction must be vacated because the State failed to present evidence that he either (1) knew Anderson was in McClain's car or (2) intended to kill McClain. We disagree. 1. The Appropriate Standard of Review Initially, we note that defendant, citing People v. Garriott, 253 Ill. App. 3d 1048, 1050, 625 N.E.2d 780, 783 (1993), asserts that because the facts of this case are not in - 6 -

dispute, the appropriate standard of review is de novo.

However,

because our review of the record reveals that the jury had to resolve factual conflicts between the accounts of the eyewitnesses and draw reasonable inferences from those accounts-namely, at whom or at what defendant was firing, and where everyone was standing when the shots were fired--we view Garriott as inapposite. In People v. Jackson, 232 Ill. 2d 246, 280-81, 903 N.E.2d 388, 406-07 (2009), the Supreme Court of Illinois explained the proper standard of review to employ when a defendant argues that the State's evidence was insufficient to sustain his conviction, as follows. "When a court reviews the sufficiency of the evidence, the relevant question is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' (Emphasis in original.)

Jackson v. Virginia, 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); [citations]. This standard of review

does not allow the reviewing court to substitute its judgment for that of the fact finder - 7 -

on questions involving the weight of the evidence or the credibility of the witnesses. [Citations.] Further, reviewing courts apply

this standard regardless of whether the evidence is direct or circumstantial [citation], and circumstantial evidence meeting this standard is sufficient to sustain a criminal conviction [citation]. Thus, the standard of

review gives 'full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.' [Citations.]

'The trier of fact need not, however, be satisfied beyond a reasonable doubt as to each link in the chain of circumstances. is sufficient if all of the evidence taken together satisfies the trier of fact beyond a reasonable doubt of the defendant's guilt.' [Citation.] Further, in weighing evidence, It

the trier of fact is not required to disregard inferences which flow normally from the evidence before it, nor need it search out all possible explanations consistent with - 8 -

innocence and raise them to a level of reasonable doubt." See also People v. Saxon, 374 Ill. App. 3d 409, 416, 871 N.E.2d 244, 251 (2007) (an inference is simply a reasonable deduction from the consideration of other facts that the fact finder may draw in its discretion but is not mandated to draw as a matter of law). Thus, in determining a defendant's guilt, the trier of

fact is entitled to draw reasonable inferences that flow from the evidence presented. People v. Kirkpatrick, 365 Ill. App. 3d 927, As we next discuss, an issue

929-30, 851 N.E.2d 276, 279 (2006).

in this case is what inferences the jury could have reasonably drawn from the facts as the jury determined those facts to be. 2. The Sufficiency of the Evidence Defendant's argument that the State failed to prove him guilty beyond a reasonable doubt of first degree murder based on the doctrine of transferred intent requires us to first review Illinois law governing that offense. a. The Three "Types" of First Degree Murder In Illinois, the offense of first degree murder is set forth in section 9-1(a) of the Criminal Code of 1961 (720 ILCS 5/9-1(a) (West 2006)), which provides: "(a) A person who kills an individual without lawful justification commits first degree murder if, in performing the acts - 9 -

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." In People v. Smith, 233 Ill. 2d 1, 16, 906 N.E.2d 529, 537-38 (2009), the Supreme Court of Illinois recently analyzed this statute as follows: "While our statute describes three 'types' of murder, first degree murder is a single offense. As we have explained on

numerous occasions, '"the different theories embodied in the first degree murder statute [citation] are merely different ways to commit the same crime."' [Citations.] In other

words, 'subsections (a)(1), (a)(2), and (a)(- 10 -

3) of section 9-1 of the Criminal Code, defining intentional murder, knowing murder[,] and felony murder, delineate only the mental state or conduct that must accompany the acts that cause a death.'" See also People v. Davis, 233 Ill. 2d 244, 263, 909 N.E.2d 766, 776 (2009) (in which the supreme court again describes the "three different theories of first degree murder" as being intentional, knowing, and felony murder). The Supreme Court of Illinois has previously referred to sections 9-1(a)(1) and (a)(2) as "intentional murder" and "knowing murder" respectively. For instance, in People v. Davis,

213 Ill. 2d 459, 471, 821 N.E.2d 1154, 1161 (2004), the court wrote the following: "[L]ack of an intent to kill for felony murder distinguishes it from the other forms of first degree murder, which require the State to prove either an intentional killing (720 ILCS 5/9-1(a)(1) (West 2002)) or a knowing killing (720 ILCS 5/9-1(a)(2) (West 2002))." In People v. Fuller, 205

Ill. 2d 308, 346-47, 793 N.E.2d 526, 550 (2002), the supreme court wrote that "[a]n intentional murder involves a more culpable mental state than knowing or felony murder." We discuss these "types" of first degree murder because defendant was charged with and convicted in this case of "knowing murder"--that is, a violation of section 9-1(a)(2) of the Crimi- 11 -

nal Code (720 ILCS 5/9-1(a)(2) (West 2006)).

Thus, to be precise

in our analysis, we must address the question of whether the doctrine of transferred intent applies to "knowing murder." To

resolve this matter, we further discuss the law governing "knowing murder." b. "Knowing Murder" in Illinois Several cases have recently discussed the law governing "knowing murder," but in doing so, they did not use that term. In People v. Lemke, 384 Ill. App. 3d 437, 445-46, 892 N.E.2d 1213, 1220 (2008), the Fifth District Appellate Court wrote the following: "A defendant commits first-degree murder under section 9-1(a)(2) of the Criminal Code of 1961 when in performing the acts that cause the death of an individual, 'he knows that such acts create a strong probability of death or great bodily harm.' 1(a)(2) (West 2000). *** 720 ILCS 5/9-

'[I]nferences as

to [a] defendant's mental state are a matter particularly within the province of the jury.' [Citation.] It is well established that proof that a death resulted from a defendant's act of deliberately firing a gun in the general - 12 -

direction of his victim is sufficient to sustain a conviction for first-degree murder under section 9-1(a)(2). [Citations.] That

is the case because it is not necessary to prove that the defendant had a specific intent to kill or do great bodily harm or that he knew with certainty that his acts would achieve murderous results. [Citation.] A

person who is aware that his acts create a strong probability of death to another may be found guilty of first-degree murder under section 9-1(a)(2) even if the victim's death was 'caused "unintentionally."' [Citation.]"

In People v. Howery, 178 Ill. 2d 1, 42, 687 N.E.2d 836, 856 (1997), the supreme court wrote the following about "knowing murder": "In order to prove murder, it is not necessary to show that the defendant had a specific intent to kill or do great bodily harm or that he knows with certainty that his acts will achieve murderous results. [Citations.]

The requisite mental state for murder under section 9-1(a)(2) may be inferred from the facts and circumstances of the evidence. - 13 -

[Citations.]

It is sufficient to show that

the defendant voluntarily and willfully committed an act, the natural tendency of which was to destroy another's life." See also People v. Grimes, 386 Ill. App. 3d 448, 453, 898 N.E.2d 768, 773 (2008) (when an individual intends to fire a gun, points it in the general direction of his intended victim, and shoots, such conduct is sufficient to sustain a conviction for first degree murder). c. "Knowing Murder" in This Case Considered in light of the foregoing authority, defendant could hardly contest the sufficiency of the evidence to sustain his first degree murder conviction for "knowing murder" if he had shot and killed McClain. After all, the eyewitnesses

testified that defendant was no more than 20 feet from McClain when defendant fired a shotgun in his direction, striking the car next to which McClain was standing. However, the person defen-

dant killed with a blast from his shotgun was not McClain but Anderson, who was sitting in the car. The State argued at the

trial level and on appeal that this distinction should not matter--that defendant was still guilty of first degree murder-because the doctrine of transferred intent applies to this case. Defendant disagrees, asserting that his first degree murder conviction must be reversed because the State was required - 14 -

to prove that defendant fired the shotgun at McClain, intending to kill him or cause him great bodily harm (that is, "intentional murder"), before the doctrine of transferred intent can apply. Defendant claims that no evidence shows that he (1) intended to shoot McClain or (2) knew anyone was in McClain's car. Instead,

defendant asserts that the most that can be inferred is that he decided to shoot at McClain's car. as follows: Defendant states his argument

"Because the State failed to show that [defendant]

intended to shoot *** McClain, the doctrine of transferred intent cannot be used to convict [defendant] for the murder of Mr. Anderson, a man who only *** McClain knew was in the car." To address defendant's contention, we turn our analysis to the doctrine of transferred intent. 3. The Doctrine of Transferred Intent--A Misnomer That Would Be Better Termed "Transferred Mental State" The doctrine of transferred intent has a long history, both in Illinois and elsewhere. Sixty-two years ago, in People

v. Marshall, 398 Ill. 256, 75 N.E.2d 310 (1947), the supreme court wrote that the law is well settled that where a person shoots at one with intent to kill and murder, but kills one whom he did not intend to injure, he is not absolved from answering for the crime of murder. (We note that Marshall predated the

current Illinois criminal code, enacted in 1961, which substantially restructured Illinois homicide law.) See People v.

Thompson, 313 Ill. App. 3d 510, 516, 730 N.E.2d 118, 123 (2000) - 15 -

("Under the doctrine of transferred intent, if a defendant shoots at one person, with the intent to kill, but kills an unintended victim, he may be convicted of the crime of murder for the death of the unintended victim"); see also People v. Lenius, 293 Ill. App. 3d 519, 539, 688 N.E.2d 705, 718 (1997) ("Under the doctrine of transferred intent, a defendant's intent to kill the intended victim is transferred to the actual victim"). However, as we discussed earlier in this opinion, Illinois law is clear that "to prove murder, it is not necessary to show that the defendant had a specific intent to kill or do great bodily harm or that he knows with certainty that his acts will achieve murderous results." N.E.2d at 856. Howery, 178 Ill. 2d at 42, 687

Instead, as charged in this case, a defendant can

commit "knowing murder"--that is, first degree murder under section 9-1(a)(2) of the Criminal Code--when, in performing the acts that caused the death of an individual, "he knows that such acts create a strong probability of death or great bodily harm." 720 ILCS 5/9-1(a)(2) (West 2006). We earlier mentioned that had McClain been the victim of defendant's shooting instead of Anderson, the evidence of defendant's guilt of first degree murder under section 9-1(a)(2) of the Criminal Code would have been overwhelming even in the total absence of any evidence that defendant intended to kill McClain or cause him great bodily harm. - 16 Under this "knowing

murder" analysis, the only mental state of defendant that the State would need to prove would be that defendant, in performing the acts that caused the death of McClain, knew that such acts created a strong probability of death or great bodily harm. The

State would not have to prove that defendant intended to kill McClain. The question then raised by this appeal is the following: Is evidence of defendant's mental state that would have

been sufficient to prove him guilty of "knowing murder"--that is, the first degree murder of McClain under section 9-1(a)(2) of the Criminal Code--also sufficient to prove him guilty of first degree murder of Anderson, the passenger in the car? We hold

that it is and that the doctrine of transferred intent applies to "knowing murder" as charged under section 9-1(a)(2) of the Criminal Code. We find support for this conclusion in the recent decision of the United State Supreme Court in Dean v. United States, 566 U.S. ___, 173 L. Ed. 2d. 785, 129 S. Ct. 1849 (2009). In Dean, the Court was construing a statutory provision that mandated extra punishment for the discharge of a gun during certain crimes. The Court had to decide whether Congress in-

tended the extra punishment to apply when the gun goes off accidently. Ct. at 1852. Dean, 566 U.S. at ___, 173 L. Ed. 2d at 790, 129 S. The Court decided the answer was yes, explaining - 17 -

its decision as follows: "It is unusual to impose criminal punishment for the consequences of purely accidental conduct. But it is not unusual to

punish individuals for the unintended consequences of their unlawful acts." in original.) (Emphasis

Dean, 566 U.S. at ___, 173 L.

Ed. 2d at 794, 129 S. Ct. at 1855. So it is with this case. It is not unusual to punish defendant

for the unintended consequence--the death of Anderson--of defendant's unlawful act--namely, firing the shotgun in the direction of McClain under the circumstances of this case. We recognize that part of the difficulty in applying the doctrine of transferred intent to the facts of this case is the very name of that doctrine--namely, "transferred intent." fact, under Illinois law, nothing requires the mental state of "intent" for any defendant to be guilty under the doctrine of transferred intent. (An exception, of course, to that statement In

is that some offenses, like attempt (first degree murder), are specific intent offenses, which, in the case of attempt (first degree murder), requires "proof of nothing less than intent to kill" to convict. See People v. Hopp, 209 Ill. 2d 1, 13, 805 Thus, the term "transferred intent"

N.E.2d 1190, 1197 (2004).) is a misnomer.

A more accurate term for the doctrine would be - 18 -

"transferred mental state." In fact, the Supreme Court of California has so held (applying, of course, California law). In People v. Bland, 28

Cal. 4th 313, 319 n.1, 48 P.3d 1107, 1111 n.1, 121 Cal. Rptr. 2d 546, 550 n.1 (2002), that court discussed the doctrine of transferred intent as follows: "The term 'transferred intent,' if taken literally, is underinclusive. In his concur-

ring opinion in Scott, Justice Mosk suggested that the term 'transferred malice' might be more accurate [citation] but even that term is too narrow. *** A more accurate designa-

tion might be 'transferred mental state.' However, because the term 'transferred intent' is so well established in cases, we will continue to use it on the understanding that it is not limited merely to intent but extends at least to premeditation." 4. The Experience in Other States of Applying the Doctrine of Transferred Intent to "Knowing Murder" Other states have similarly dealt with the issue of applying the doctrine of transferred intent to "knowing murder." An instructive case is State v. Lopez, 1996 NMCA 036, 122 N.M. 63, 920 P.2d 1017, in which the Supreme Court of New Mexico construed that state's second-degree murder statute in a - 19 -

transferred-intent context. provides as follows:

In pertinent part, that statute

"[A] person who kills another human being without lawful justification or excuse commits murder in the second degree if in performing the acts which cause the death he knows that such acts create a strong probability of death or great bodily harm to that individual or another." N.M. Stat. Ann.

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