Three police officers stopped a car driven by a youth who was known to be a leader of Chicago street gang and four other youths. The police let them go after a search and followed in a separate unmarked vehicle. The five youths drove to a location without knowing that defendant and another friend of his were in a car nearby. Defendant and friend were members of a rival gang. The officers testified that many other youths converged on the location and shots were fired. The gang leader was seen firing shots. Defendant’s friend was seen firing shots and was later arrested. Defendant was seen firing one shot. Defendant fled the car and police and was later found trying to unjam a gun. While in custody defendant’s friend was heard saying to the gang leader. “We didn’t get you this time.” To which defendant added “We will get him next time.
Defendant was acquired of the attempted charges, but found guilty of conspiracy. He was found guilty “with the intent to commit the offense of murder, knowingly and intentionally agreed with each other and with diverse other persons to killing.” Defendant’s shooting at the car with “intent to kill or do great bodily harm to the occupants of the automobile.” Jury found defendant not guilty of attempted murder, but guilty of conspiracy.
Where the statements as to intent to kill represent the specific intent required to convict of conspiracy.
Whether defendant can be found guilty of conspiracy to commit murder and attempted murder based on the same over act.
No. This state must prove that defendant and his friend fired weapons at the automobile containing the five youths and that they had the knowledge that the youths were in the vehicle. “A conspiracy can be proved by direct evidence that discloses a common design by two or more persons … or by circumstantial evidence.” However, if circumstantial evidence alone is used, the evidence must exclude every other possibility to arrive at conviction. The statements by defendant, even though he and his friend knew the gang leader and four youths and their car do not prove conspiracy. “At most, they expressed ill will.”
No. Jury found that defendant’s act of shooting at the car was the overt act on which to convict for conspiracy, but not for attempted murder. There is inconsistency in the verdicts on the essential element of specific intent to murder the five youths by shooting the single shot. They cannot be convicted because the specific intent required for attempt is the same as that of conspiracy. Where there was inconsistency, defendant should be acquitted.