People v. Terrell

JUSTICE SIMON,

dissenting:

The crime of attempt has two unambiguous requirements— “intent to commit a specific offense,” and an “act which constitutes a substantial step toward the commission of that offense.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(a).) I do not believe that either the intent requirement or the substantial step requirement have been met in this case.

The few facts proved here suggest, at most, a general intent to engage in some form of mischief in the general area in which defendant was arrested. The majority uses the same facts to establish both intent to commit a specific armed robbery, and a substantial step in the commission of that robbery. These facts are defendant’s presence in the vicinity of the station, and his possession of a gun and of a woman’s stocking capable of being used as a face mask.

This result goes far beyond prior Illinois law. The evidence here falls short of unambiguously establishing an intent to commit a specific offense. Further, the majority, while relying on the Model Penal Code, ignores its requirement that listed conduct be considered a substantial step toward the commission of a crime only if it is “strongly corroborative of the actor’s criminal purpose.” (Model Penal Code sec. 5.01(2) (Proposed Official Draft 1962)). With no independent evidence of intent, i.e. criminal purpose, the majority is equating defendant’s conduct with a substantial step without corroboration.

People v. Mulcahey (1978), 72 Ill. 2d 282, does not stand, as the majority suggests, for the proposition that “[t]he intent to commit a criminal offense need not be expressed, but may be inferred from the conduct of the defendant and the surrounding circumstances.” (99 Ill. 2d at 431-32.) On the specific and rather strange and complicated facts of Mulcahey, this court held that “proof of intent to commit armed robbery did not require that he make a specific demand of [the intended victim] for the money which he had instructed him to bring.” (Emphasis added.) (72 Ill. 2d 282, 286.) In that case, the defendant held the wife of a bank president hostage in her own home and forced her to phone her husband. The defendant then instructed the husband to bring $25,000 ransom to a shopping center. The husband informed the police and was told that there might be plainclothes officers in the delivery area. When the husband reached the shopping center, he left the briefcase containing the money and returned home, where he learned that his wife was free and unharmed. He returned to the shopping center to retrieve the briefcase, and saw a man in his wife’s automobile. Thinking that the man was a plainclothes officer, he approached the car, opened the door, and told the man that his wife was all right. However, the man who was the kidnaper pointed a gun at the husband and said, “Get in the car or you’re a dead man.” The husband fled.

The defendant in Mulcahey was convicted of aggravated kidnaping and attempted armed robbery. Unlike the situation here, the defendant there had demanded money from the husband earlier that day in their phone conversation. The Mulcahey court did not infer a demand where there was none; the court relied on the entire chain of events beginning with the telephone demand for money and ending with the attempted use of the gun to obtain control over the husband and his money. Defendant’s prior demand indicated his plan to obtain control over the $25,000, and his conduct was corroborative of the criminal intent evidenced by the armed threat. In contrast, the defendant in this case approached no one with a weapon; he made no demands to turn over money, to get into a car, or to do anything else. There was no corroborating evidence of a planned armed robbery. As far as the record shows, defendant made no phone calls, gave no signs, and told no one of any plans. No individual testified that defendant had any plan to rob the station. Defendant pleaded not guilty and made no oral or written statements indicating such a plan.

At most, all the State has proved is preparation to commit some as yet unspecified offense, perhaps involving one of several other businesses located in the immediate vicinity. Although it is not necessary that the defendant complete the last proximate act in order to be convicted of attempt in Illinois, the statute nonetheless requires a substantial step toward commission of the offense. Mere preparation is not a substantial step. (People v. Wallace (1974), 57 Ill. 2d 285; People v. Elmore (1971), 50 Ill. 2d 10; People v. Woods (1962), 24 Ill. 2d 154, cert. denied (1962), 371 U.S. 819, 9 L. Ed. 2d 59, 83 S. Ct. 34.) The acts of defendants in those cases came much closer to criminal conduct than defendant’s behavior here, suspicious as it was. In People v. Wallace (1974), 57 Ill. 2d 285, the defendants offered money to the police officers who seized the money from them; they were convicted of attempted bribery. In People v. Elmore (1971), 50 Ill. 2d 10, the defendants, who were convicted of theft by deception, listed a stereo, which they had previously sold and delivered, on an insurance claim form, falsely indicating that the stereo had been destroyed by fire. Once they submitted the claim form, defendants could only have intended that they be reimbursed for an item which they knew had not been destroyed. In People v. Woods (1962), 24 Ill. 2d 154, the defendant was convicted of attempted abortion after he accepted and counted his fee, explained the operation to the patient, and gave her a sedative.

It is clear from these cases that there is no catalogue of acts which invariably constitute a substantial step toward the commission of every crime. The line between preparation and attempt is difficult to specify and can only be drawn by evaluating the facts of each case (Ill. Ann. Stat., ch. 38, par. 8 — 4(a), Committee Comments, at 512 (Smith-Hurd 1972)). The significance of various acts becomes apparent only in the light of the defendant’s criminal intent.

In People v. Eveland (1969), 43 Ill. 2d 90, 93, this court reversed a conviction for attempting to obstruct justice because the State failed to prove the requisite intent. After the police arrested two men in connection with a recent armed robbery, they obtained a warrant to search the trailer where one of the men lived. Although the police found defendant and another individual carrying clothing from the trailer to a nearby parked car, there was no evidence that the defendant was removing or intended to remove incriminating evidence from the trailer. This case is similar. While the defendant’s presence and behavior near the service station arouse suspicion, they do not provide clear evidence of an intent to commit a specific crime. Under Illinois law, a defendant cannot be convicted of attempt on the basis of suspicious behavior alone.

The defendant’s actions here were preliminary activities, consistent with a number of different outcomes. It does not appear to me “incredulous that defendant had any intent other than the armed robbery of the service station.” (99 Ill. 2d at 433.) There was no evidence in the record that there was anyone in the service station during the time defendant was hiding in the weeds. There is also no evidence as to the customary opening time either of the station, or of the other nearby businesses. There is no indication whether anyone was present in any of the other business establishments, or whether anyone was walking on the street, in the alleyway, or in the empty lot. Potential armed-robbery victims could have been located in any of those places. Further, I do not find it “unreasonable to expect a trier of fact to infer intent to commit burglary, rather than armed robbery when confronted with [this] suspect.” (99 Ill. 2d at 432.) Many burglaries are committed without special tools; defendants enter through open windows or throw rocks found in empty lots to break windows, to give but two of many examples. Too, burglars often wear masks to hide their identities in the event that they are inadvertently discovered. Guns are also carried by burglars in case they unexpectedly encounter other people.

The problem in defining attempt is to allow police to intervene in an unfolding course of criminal conduct before the intended harm is actually done, while at the same time avoiding punishment for equivocal acts which may or may not eventually lead to criminal harm. (Wechsler, Jones & Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy, 61 Colum. L. Rev. 571, 572 (1961).) It is always difficult to draw this line so as to properly balance the conflicting needs of the police and the public at large against the rights of the individual citizen. Our legislature has drawn the line at the point where the defendant has taken a substantial step toward commission of the crime. This court cannot interfere with the legislature’s decision and with that balance by moving the line further in the direction of mere preparation and undefined intent.

Reliance by the appellate court and by the majority in this court on People v. Burleson (1977), 50 Ill. App. 3d 629, is misplaced. The appellate court held that the defendant in Burleson had taken a substantial step toward the armed robbery of a bank. Burleson was just outside the bank with a disguise, a shotgun, and a suitcase all in place. As the majority points out, “[o]nly the quick action of a man inside the bank, who bolted the door as the perpetrators approached, prevented completion of the offense.” (Emphasis added.) (99 Ill. 2d at 434.) That is far different from the situation here where defendant was, according to the majority opinion, approximately 30 feet away from one of several possible targets, was never observed moving toward the station or any other target, drew no weapon, approached no one, and made no demands of any kind on anyone (for there is no evidence that any potential victim was present), and carried a woman’s stocking capable of being used as a mask in the pocket of pants so tight that the police officer had difficulty removing it when he searched defendant. This is hardly “dangerous proximity” to completion of the offense. It is ironic that the majority relies on Justice Holmes’ famous phrase, as quoted in People v. Paluch (1966), 78 Ill. App. 2d 356, 360, quoting Hyde v. United States (1912), 225 U.S. 347, 388, 56 L. Ed. 1114, 1134, 32 S. Ct. 793, 810 (Holmes, J., dissenting). In both Hyde v. United States (1912), 225 U.S. 347, 387, 56 L. Ed. 1114, 1134, 32 S. Ct. 793, 810 and People v. Paluch (1966), 78 Ill. App. 2d 356, 359-60, the full passage includes the statement, “*** intention and overt act may all be present without amounting to a criminal attempt.” In addition, there must be dangerous proximity to success. Here, I am unable to find intention or overt act. How can there be dangerous proximity, in Justice Holmes’ term, when those two initial hurdles have not even been surmounted? To understand what Justice Holmes meant by “dangerous proximity” I suggest referring to his often quoted example illustrating the distinction between preparation and attempt. The purchase of a box of matches is too remote to sustain a conviction for attempting to bum a haystack. Lighting a match in proximity to the haystack would be enough to sustain the charge. (O. W. Holmes, The Common Law 67-69 (1881).) No act of the defendant here could be regarded as equivalent to lighting the match. At most his actions are analogous to being some distance away from the haystack with the matches in his pocket.

The second case relied on by the majority, People v. Reyes (1981), 102 Ill. App. 3d 820, presents an even more striking contrast to this case. Several defendants waited outside a drugstore with a rifle, while patrons were inside. When the intended victims left the store, two defendants began to run, ,and one fired the rifle. Defendant Reyes admitted that the plan was to rob the victims as they left the drugstore. Corroborating evidence of a plan to rob the station is precisely what is missing in this case. Even if the majority in People v. Reyes (1981), 102 Ill. App. 3d 820, 835 and the majority in this case (99 Ill. 2d at 435) are correct in stating that “Burleson stands for the principle that a substantial step has been taken when an actor possesses the materials necessary to carry out the crime, at or near the place contemplated for its commission,” there must be evidence of what the crime is, and of the place contemplated for its commission. There is nothing in the record here which indicates that defendant planned to rob this particular station at this particular time. The majority’s suggestion that the presence of an accomplice with an identical disguise indicates a prearranged plan (99 111. 2d at 435) does not resolve the question, since these go only to general intent. Neither the accomplice nor the disguises are unambiguous evidence of intent to commit the specific offense of armed robbery of someone within the station. As I have explained above, both are consistent with a variety of other goals. Since there is no independent corroborating evidence of a plan to rob someone within the station, it is impossible to isolate a specific intent.

Although the majority mentions a number of acts which resemble those listed in section 5.01 of the Model Penal Code as “not *** insufficient as a matter of law” to be regarded as a substantial step (Model Penal Code sec. 5.01(2) (Proposed Official Draft 1962)), it includes, yet ignores, the introductory language “if strongly corroborative of the actor’s criminal purpose.” Also it fails to mention the preceding sentence which states pointedly: “Conduct shall not be held to constitute a substantial step under Subsection (lXc) of this Section unless it is strongly corroborative of the actor’s criminal purpose.” (Emphasis added.) (Model Penal Code sec. 5.01(2) (Proposed Official Draft 1962).) (See 99 Ill. 2d at 436-37.) This is consistent with the understanding of the reporter of the Model Penal Code. “[T]he requirement of a substantial step will result in the imposition of attempt liability only in those instances in which some firmness of criminal purpose is shown ***.” Wechsler, Jones & Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy, 61 Colum. L. Rev. 571, 593 (1961).

The analysis mandated by the statute requires two steps. There must first be criminal culpability, the unambignous expression of the intent to commit a particular act. Only after intent has been established can the court determine whether the defendant’s acts constitute a substantial step toward commission of the identified crime. The Federal courts have reached a similar conclusion in construing the Model Penal Code. Cf. United States v. Jackson (2d Cir. 1977), 560 F.2d 112, cert. denied (1977), 434 U.S. 941, 54 L. Ed. 2d 301, 98 S. Ct. 431, and (1978), 434 U.S. 1017, 54 L. Ed. 2d 762, 98 S. Ct. 736; United States v. Stallworth (2d Cir. 1976), 543 F.2d 1038; United States v. Mandujano (5th Cir. 1974), 499 F.2d 370, cert. denied (1975), 419 U.S. 1114, 42 L. Ed. 2d 812, 95 S. Ct. 792.

Since the defendant’s acts do not establish beyond a reasonable doubt his intent to commit armed robbery of an individual within the service station, and since no other evidence of either intent or substantial step toward commission was presented, I do not believe that defendant’s conduct can support a conviction for attempted armed robbery. For the reasons explained above, I dissent and would reverse the conviction.

GOLDENHERSH and CLARK, JJ., join in this dissent.