dissenting:
I respectfully dissent. I do not believe that it was proven beyond a reasonable doubt that defendants had the specific intent to kill Elizabeth Perez in order to be guilty of attempted murder. The evidence in this case was that shots were fired at the house at 1727 North Artesian in Chicago. Jose Tanon, the husband of Elizabeth Perez, told Officer Flores that at 8:30 p.m. on April 15, 1993, he heard shots while he was upstairs with the lights on reading a book. He later saw bullet holes in the first-floor apartment. After the police had come and then left, Tanon was again on the second floor when he heard shots and actually saw Ramon Hill and Lorenzo Hill shooting into the downstairs apartment. Then Tanon testified that Ramon Hill saw him upstairs by the window and then pointed his gun up towards him and shot twice. Elizabeth had been shot when the defendants fired shots into the downstairs apartment. At the time defendants fired shots into the first-floor apartment, there was no evidence that the lights were on in any part of the apartment or whether Elizabeth Perez and the defendants could see each other or whether the defendants saw any person on the first floor or whether they shot in any person’s direction on the first floor. There simply was no evidence of this.
In the case of People v. Burrage (1994), 269 Ill. App. 3d 67, 645 N.E.2d 455, the court stated regarding defendant Redmond that "the evidence did establish that during this ongoing offense he drove onto the scene within seconds after Burrage fired shots toward the building, he fired three shots in the same direction, they both aimed at Andre and that, after the shooting, Burrage got into the automobile driven by Redmond and the two of them fled the scene together.” (Burrage, 269 Ill. App. 3d at 74.) The court further stated: "The evidence establishes that Burrage had the intent to kill Andre. However, three-year-old Donte Hinton was shot instead. Burrage’s intent to kill Andre is transferred to Donte under the doctrine of transferred intent. Illinois law has held that this doctrine is applicable in attempted murder cases.” Burrage, 269 Ill. App. 3d at 76.
In our case, the evidence was that shots were first fired at the first-floor apartment. There was no evidence that any occupant of the first floor was seen by defendants or anyone else. Defendants did not shoot at any person on the first floor when the victim was hit by a random discharge of one of the defendant’s weapons. One cannot be guilty of attempted murder for firing at random at a building.
In the case of People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888, a bartender, believing defendant to be intoxicated, refused him further service. Defendant purchased a handgun and returned to the area of the tavern, fired a shot at the building and wounded a patron within. He was convicted of attempted murder. The supreme court stated: "It is not sufficient that the defendant shot a gun ’knowing such act created a strong probability of death or great bodily harm to Gayle Lane or another.’ If this were the test, then a defendant who committed a battery with knowledge that such conduct could cause great bodily harm would be guilty of attempted murder.” (People v. Trinkle, 68 Ill. 2d at 201.) The court noted that there was no evidence the defendant knew someone was standing behind the door to the bar. (Trinkle, 68 Ill. 2d 198.) The appellate court decision that the indictment was fatally erroneous was affirmed.
The evidence in this case only proved defendants had the specific intent to kill Tanon on the second floor.
On the basis that there was no evidence to prove defendants had the specific intent to kill Elizabeth Perez, I would reverse and vacate their convictions for attempted first degree murder.