Appeal from the Circuit Court of Winnebago County; the Hon.
Harris Agnew, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
George Scott Thompson, defendant, was convicted by a jury in the circuit court of Winnebago County of the offense of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2), and sentenced by the trial court to six years in the Department of Corrections. On appeal, he raises these issues: (1) whether the information charging armed robbery was fatally defective for failing to allege one of the mental states of intent, knowledge, recklessness, or negligence; (2) whether refusal of an instruction defining the defense of intoxication denied defendant a fair trial; (3) whether the refusal of an instruction defining the term "dangerous weapon" denied the defendant a fair trial; (4) whether the court erred in excluding the testimony of the defendant's expert witness at trial; and (5) whether the court erred in denying defendant's motion to suppress the defendant's post-arrest statements.
The defendant was convicted on accountability principles of the armed robbery of a clerk at a Stop-N-Go store in the city of Rockford.
Lenora White, the clerk at the Stop-N-Go, testified that on December 7, 1981, at approximately 7:30 p.m., two young men came into the store. They were later identified during trial as Robert Lighthart and Paul Higgs. She said they looked at some adult magazines, bought a bag of potato chips and left the store. Shortly afterward, Lighthart returned with another larger young man who had not been in the store before. He was identified during trial as the defendant. Lighthart pointed a gun at White and told her to give him all of the money which she had in her hand and in the cash register. She testified the defendant did not say or do anything, but merely stood behind Lighthart. Lighthart and the defendant then left the store.
A nearby resident, Wesley Larson, testified that he observed the defendant and Lighthart running out of the store, getting into an automobile, and leaving. He wrote down the license plate number, took it to the Stop-N-Go store, and the police were notified. The license plate number was broadcast over the police radio, and Rockford police officer Getty observed a car with the license number of the suspect vehicle parked in the parking lot of the One-Stop Pharmacy on Auburn Street. Officer Getty radioed for back-up, while observing three white males exit the pharmacy and enter the car, which was already occupied by one individual. When back-up officers arrived, the occupants of the car were taken into custody. The defendant, who was in the driver's seat of the car, stated in response to a question that the car was his. The car was searched on the scene, and a .177-caliber pellet gun was found under the front seat of the car on the passenger side. The defendant was searched and $52.25 was found in his pocket. The defendant was brought to the police station, where he was interviewed by Detective Randall Oldenburger. The defendant refused to sign the rights waiver, but agreed to talk to the detective. After relating his version of events to the detective, Oldenburger testified he had the defendant repeat his story while he typed it verbatim.
The statement was admitted during trial. In the statement, the defendant relates that he, Bob Lighthart, Paul Higgs, and Terry Bahling were driving around during the afternoon drinking beer. During that time they talked about armed robbery, and the defendant produced a pellet gun which he had in the car. Lighthart said that he would try a robbery with the gun, because none of the rest of the group had the guts. In defendant's statement, he admits that he and Lighthart went in the store, and that Lighthart had the gun. He took it out of the waistband of his pants, told the lady to hang up the phone, and said: "Give us all the money in the cash register." They took the money and returned to the car and went driving around. They went to the One-Stop Pharmacy to get cigarettes, at which time the police arrested them.
At trial, the defendant stated that some of the things in his statement were not precisely the things that he told Detective Oldenburger, but that he could really not remember all of what he told him that night because he was so intoxicated. The defendant's testimony at trial essentially was that early on the morning of December 7, Terry Bahling came over to his house and from there called Robert Lighthart and Paul Higgs and asked them to come over. The four of them then drove to the Central Park Tap and purchased a case of beer. They proceeded to the defendant's brother's house where they drank beer and played games until approximately 3:30 in the afternoon. During that time, between noon and 3 p.m., the defendant testified he drank about 12 cans of beer. The four men left the defendant's brother's at approximately 3:30 and went to the Central Park Tap to purchase another case of beer. They then drove around drinking the beer for some time.
Lighthart told the defendant to pull the car over in an area near the Stop-N-Go store on North Main Street. Lighthart said he wanted to do a robbery, and the other three occupants in the car wanted no part of it. Lighthart and Higgs then went into the Stop-N-Go, and defendant and Bahling stayed in the car. About 10 minutes later, Lighthart and Higgs returned, and the four of them sat in the car for about another 20 minutes. Lighthart began calling the defendant names and accusing him of being a "chicken," and told the defendant that he did not have to do anything in the store except walk in. Defendant walked with Lighthart toward the store, but stopped and said he had changed his mind and was not going in. After Lighthart began calling him more names, he proceeded to follow Lighthart into the store and stood behind Lighthart while he pointed a gun at the cashier and told her to give him all the money. Defendant testified he did not say anything or threaten the cashier in any way, and that he was drunk and scared to death at the time. The defendant testified the pellet gun was not operable because there were no pellets in it, and the carbon dioxide cartridge which provided the propellant for the pellets had been empty for a year, and that the inner barrel was not in place and that without it, it could not be fired. Defendant also testified that although it was a pellet gun, he had previously used it only to shoot BB's.
• 1 The defendant argues the information was fatally defective for failing to include one of the mental states as required by section 4-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 4-3). The amended information charged:
"That on the 7th day of December, 1981, in the County of Winnebago and State of Illinois, GEORGE S. THOMPSON committed the offense of Armed Robbery, in that he, by threatening the imminent use of force or by the use of force and while carrying on or about his person a dangerous weapon, to-wit: a certain gun, took certain United States currency from the person or presence of Lenora J. White * * *."
The original information, which was dismissed, had included the phrase: "[in that he] knowingly and intentionally, [by threatening, etc.]." When the amended information was filed, defendant orally moved to dismiss the information for failure to include a mental state. That motion was denied. His subsequent motion on the same ground for directed verdict at the end of the State's case and at the close of all the evidence was denied, as were his motions in arrest of judgment and for a new trial.
Defendant acknowledges neither the robbery nor armed robbery statute contains any language specifically requiring that the defendant act with a certain mental state. (Ill. Rev. Stat. 1983, ch. 38, pars. 18-1, 18-2.) Nevertheless, in the absence of any indication of a legislative purpose to impose absolute liability (see Ill. Rev. Stat. 1983, ch. 38, par. 4-9), he contends one of the mental states described in sections 4-4 through 4-7 must be alleged or the charge is legally insufficient under section 111-3 and cannot withstand a motion to dismiss. Ill. Rev. Stat. 1983, ch. 38, par. 111-3.
In support, he cites People v. Leach (1972), 3 Ill. App.3d 389, a case in which the court inter alia held an information charging mob action (Ill. Rev. Stat. 1983, ch. 38, par. 25-1), a general intent crime, was fatally defective for failing to allege one of the mental states in sections 4-4 through 4-7. A later case involving the same mob action issue, People v. Grant (1981), 101 Ill. App.3d 43, which relied on Leach, is also cited in support here.
The State asserts defendant's claim in this regard is refuted by the supreme court's decision in People v. Banks (1979), 75 Ill.2d 383, and an earlier case, People v. Hayes (1972), 52 Ill.2d 170. The State acknowledges the issue addressed in Banks was whether the indictment was deficient for failure to include the allegation that the defendant intended to permanently deprive the victim of the use or benefit of the property. Nevertheless, it asserts that issue is so closely related to the issue of the mental state at bar that Banks should be considered dispositive. The State additionally argues the Hayes case considered the precise issue here, and determined lack of the allegation that the defendant committed the offense with intent or knowledge was not fatal, since the words of the armed robbery statute so far particularize the offense that, by use of the statutory words alone, an accused is apprised with reasonable certainty of the precise offense with which he is charged.
The defendant replies that Banks should be narrowly construed as dispositive only with regard to the allegation concerning an accused's intent to permanently deprive the victims of the use or benefit of their property. He distinguishes Hayes, correctly so, on the basis the court there was reviewing the insufficiency of the information under the standard applied when the complaint is attacked for the first time on appeal. That is, the complaint is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to a future prosecution arising out of the same conduct. (People v. Gilmore (1976), 63 Ill.2d 23, 29.) However, when the complaint is attacked either by pretrial motion or in a motion in arrest of judgment, the complaint must meet the stringent requirements of section 111-3 of the Code of Criminal Procedure of 1963. People v. Gilmore (1976), 63 Ill.2d 23, 29; see also People v. Miller (1983), 116 Ill. App.3d 361, 367-68.
The defendant's argument fails to establish the court below erred on the basis he asserts. We note that the mental state of negligence as defined in section 4-7 has no application here, because neither the armed robbery nor robbery statute describes a particular mental state. In such cases, section 4-3(b) provides any mental state defined in sections 4-4, 4-5, or 4-6 is applicable. Section 4-7 notably has been omitted from the realm of possible mental states.
Defendant's argument fails to give effect to the plain language of the statutes at issue here: section 4-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 4-3) and section 111-3 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1983, ch. 38, par. 111-3.) In pertinent part, section 4-3 provides:
"(a) A person is not guilty of an offense, * * * unless, * * * he acts while having one of the mental states described in Sections 4-4 through 4-7." (Emphasis added.)
Defendant's argument superimposes the above requirement on the provision of section 111-3 which, ...