Appeal from the Circuit Court of Vermilion County; the Hon.
Ralph S. Pearman, Judge, presiding.
JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:
The defendant, Sherryl Decker, was tried by a jury, acquitted of attempted murder but convicted of two counts each of armed violence and aggravated battery, and sentenced to 18 years' imprisonment. The offenses occurred when a Vermilion County sheriff's deputy was trying to serve an arrest warrant for a minor offense on the defendant's husband; shooting broke out, and the deputy was wounded in the neck and in the abdomen. On appeal the defendant argues that armed violence was doubly enhanced and unconstitutionally disproportionate here, that the trial judge erred in excluding some testimony regarding the defendant's husband's acts of violence, and that her sentence is excessive. We affirm.
The defendant does not raise the question whether her guilt was proved beyond a reasonable doubt, so only a brief summary of the evidence is required. The offenses here occurred on April 11, 1983, in a rural area of Vermilion County. That day Deputy Deckard and Investigator Howard telephoned Robert Decker, the defendant's husband, to tell him that they wanted to inspect his gun collection; some neighbors had complained about his firing of automatic weapons in the vicinity. They did not tell Decker that they were also going to serve him with an arrest warrant. Deckard and Howard arrived at the house at about 3 o'clock in the afternoon. The house was owned by Robert Peevler, husband of Connie Peevler, Robert Decker's daughter. At the time involved here the defendant, Robert Decker, their three children, a nephew of Robert Decker, and the nephew's girlfriend were living at the house with the Peevlers and their two children. After examining nine guns, none of which were fully automatic, the deputies told Robert Decker about the warrant for his arrest on a misdemeanor charge; Robert Decker told them that he would rather die than go to jail. The officers advised him that he would be released upon posting bond of $100, and Investigator Howard took hold of his arm. Robert Decker got loose, ran out of the house, and then fired a shot at the deputies. Shots were fired from inside the house too. Deputy Deckard was shot in the neck and the abdomen and wounded seriously. Robert Decker escaped; later that day he took a woman hostage and forced her at gunpoint to drive him to Indianapolis, where he let the hostage go and then killed himself.
The defendant was charged and tried both as a principal and an accomplice. She raised the affirmative defense of compulsion and testified that she fired a gun several times during the disturbance but did so only in response to her husband's command. She testified that she did not aim at or hit anyone. Defendant also described a long history of brutal abuse inflicted on her by Robert Decker. Other family members, testifying in the defendant's behalf, corroborated this information. The trial judge did not allow an additional witness, Dorothea Roby, mother of Robert Decker, to testify on this subject; the court agreed with the State's objection that the occurrences described in Roby's testimony were too remote in time to be relevant.
The jury found the defendant guilty of two counts of armed violence and of the predicate felonies of aggravated battery and acquitted her of attempted murder; two other charges, conspiracy to commit murder and aggravated battery by use of a deadly weapon, had been dismissed before trial on motion of the State. The trial judge did not impose sentence on the two convictions for aggravated battery, for they merged in the armed violence convictions. (People v. Donaldson (1982), 91 Ill.2d 164, 435 N.E.2d 477.) The bases for the two counts of aggravated battery were the great bodily harm inflicted on Deputy Deckard (Ill. Rev. Stat. 1981, ch. 38, par. 12-4(a)) and his employment as a peace officer carrying out official duties (Ill. Rev. Stat. 1981, ch. 38, par. 12-4(b)(6)); the State did not distinguish the charges on the basis of the separate wounds suffered by the deputy. Thus, the convictions for armed violence stemmed from a single act, and the trial judge imposed sentence on only one of them, that predicated on great bodily harm. See People v. King (1977), 66 Ill.2d 551, 363 N.E.2d 838 (a single act may support only a single conviction and sentence).
• 1 The defendant's first argument concerns the proper scope of the armed violence statute, which enhances the penalties for various felonies if they are committed while the defendant is armed with a dangerous weapon. The offense is defined by section 33A-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2), which says:
"A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law."
The armed violence statute may apply even though the weapon is not used in committing the predicate felony; its mere presence may be enough. (People v. Haron (1981), 85 Ill.2d 261, 422 N.E.2d 627.) Dangerous weapons are divided into two categories (Ill. Rev. Stat. 1981, ch. 38, par. 33A-1), and the weapon that was used here, a handgun, falls into the more serious category, making the offense a Class X felony (Ill. Rev. Stat. 1981, ch. 38, par. 33A-3). The defendant argues that the armed violence conviction on which she was sentenced resulted from the impermissible double enhancement of her use of a gun in committing the underlying act. She also argues that the Class X penalty for this conviction is unconstitutionally disproportionate because her conduct is punished more severely than other, more serious offenses. Although the defendant arguably has waived these questions by failing to properly present them in the trial court, we choose instead to address them on their merits.
• 2 The only conviction on which the defendant was sentenced was one for armed violence. The predicate offense for that was aggravated battery causing great bodily harm (Ill. Rev. Stat. 1981, ch. 38, par. 12-4(a)), a Class 3 felony (Ill. Rev. Stat. 1981, ch. 38, par. 12-4(e)); simple battery is a Class A misdemeanor (Ill. Rev. Stat. 1981, ch. 38, par. 12-3). Because the great bodily harm, consisting of Deputy Deckard's serious neck and abdominal injuries, was caused by a gun, the defendant argues that that weapon should not then be used to raise aggravated battery to the Class X felony of armed violence. The defendant argues that the penalty for her criminal conduct is being doubly enhanced by her use of the gun, contrary to Haron. In Haron the court said:
Our review of the language of the statute and the authorities leads us to conclude that the General Assembly did not intend that the presence of a weapon serve to enhance an offense from misdemeanor to felony and also to serve as the basis for a charge of armed violence. In our opinion the requirement of section 33A-2 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony without enhancement by the presence of a weapon." (People v. Haron (1981), 85 Ill.2d 261, 278, 422 N.E.2d 627, 634.)
Thus, the court held that a charge of aggravated battery based on the use of a deadly weapon could not serve as the predicate felony for armed violence. As in Haron, the chain of double enhancement here would begin with a misdemeanor, battery, and not with a felony; we are not confronted with the question whether Haron applies also to a predicate felony that already has been enhanced from another class of felony rather than from a misdemeanor. Compare People v. Del Percio (1983), 118 Ill. App.3d 539, 454 N.E.2d 1169, appeal allowed (1984), 96 Ill.2d 569, and People v. Goodman (1982), 109 Ill. App.3d 203, 440 N.E.2d 345, with People v. Lucien (1982), 109 Ill. App.3d 412, 440 N.E.2d 899.
Here, unlike Haron, the predicate felony for armed violence is not aggravated battery by use of a deadly weapon (Ill. Rev. Stat. 1981, ch. 38, par. 12-4(b)(1)) but the distinct offense of aggravated battery causing great bodily harm (Ill. Rev. Stat. 1981, ch. 38, par. 12-4(a)). The elements of the predicate felony should guide us here and should provide the basis for determining whether a violation of Haron has occurred. The presence or use of a weapon is not an element of aggravated battery causing great bodily harm, so therefore that offense may serve as the predicate felony for armed violence even though, as in the case here, the evidence adduced at trial shows that the harm was caused by the dangerous weapon. See People v. Owens (1982), 109 Ill. App.3d 1150, ...