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People v. Larue

March 12, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DON LARUE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County No. 93--CR--22217 Honorable James Schreier, judge Presiding.

The opinion of the court was delivered by: Presiding Justice Cerda

Following a jury trial, defendant, Don LaRue, was convicted of first-degree murder (720 ILCS 5/9(a)(West 1994)), aggravated vehicular hijacking (720 ILCS 5/18--4(b)(West 1997)), and armed robbery (720 ILCS 5/18--2--A (West 1994)). He was sentenced to concurrent terms of 50 years' imprisonment for the first-degree murder, 30 years' imprisonment for the aggravated vehicular hijacking, and 30 years' imprisonment for the armed robbery. Defendant requests that his conviction be reversed because (1) he was charged in an indictment, alleging the offense of aggravated vehicular hijacking had been committed on July 31, 1993, which was before August 13, 1993, the effective date of the statute; and (2) the jury instructions did not require an unanimous verdict on a legally adequate theory of guilty. For the following reasons, we affirm.

At trial, Vincent Johnson testified that he and his brother-in-law, Terron Jackson, went to the Lake Meadows apartment complex on July 31, 1993. Terron parked the car, then left Vincent in the car while he went inside one of the buildings. When Terron returned a few minutes later, two cars surrounded Terron's car. Defendant, who was holding a revolver that looked like a .357, got out of one of the cars and approached the driver's side of Terron's car while another man came to the passenger side where Vincent was seated, pointed a gun at him, and told him to get out of the car. Terron and Vincent both got out of the car and lay face down on the ground next to each other. While Vincent was on the ground, someone removed a bracelet from his wrist and took $13 and a beeper from his pocket. With defendant pointing a gun at them, Vincent and Terron were forced into the back seat of Terron's car between two of the offenders. Defendant got into the driver's seat and drove away. The two offenders in the back seat punched Vincent and Terron while asking them where they lived and where the offenders could get money.

A short time later, Terron reached over the front seat and grabbed defendant around the neck, placing him in a headlock. As Terron punched defendant, the two offenders in the back seat started struggling with Terron and Vincent. Defendant lost control of the car and crashed it into a tree. Then, defendant told Terron, "You're dead," and shot him in the head. The three offenders ran and Vincent ran for help. As he did so, he heard gunshots behind him, but did not see who was shooting. Vincent ran to the porch of a nearby building where he told James Attaway to call the police because his brother-in-law had been shot.

Dr. Larry Simms, Cook County deputy medical examiner, testified that Terron had died of a gunshot wound to the left side of his head. Powder burns indicated a close range shot, but not a contact wound. Dr. Simms stated that the downward angle of the bullet's entrance was consistent with Terron leaning over the car seat.

After deliberations, the jury found defendant guilty of first-degree murder, aggravated vehicular hijacking, and armed robbery. The trial court sentenced him to 50 years' imprisonment for the first-degree murder, 30 years' imprisonment for the armed robbery, and 30 years' imprisonment for the aggravated vehicular hijacking, all to be served concurrently.

The first issue is whether the indictment for aggravated vehicular hijacking was defective because the statute making that conduct unlawful was not effective on July 31, 1993.

Initially, the State asserts that defendant waived this issue because he did not raise it at trial or in his motion for a new trial. We disagree.

Although defendant did not argue to the trial court that the State had filed a defective complaint, the issue can be reviewed on appeal. People v. Wasson, 175 Ill. App. 3d 851, 854, 530 N.E.2d 527 (1988). A defective indictment is not waived by failure to object at trial and may be attacked at any time. People v. Minto, 318 Ill. 293, 149 N.E. 241 (1925); People v. Spain, 24 Ill. App. 3d 377, 379, 321 N.E.2d 520 (1974).

On the merits, defendant argues that the aggravated vehicular hijacking was not merely a rewording of the armed robbery statute, but is a new statute because it adds one year to the minimum sentence. Further, defendant asserts that the State's contention would result in his being convicted of two armed robberies under circumstances that should have resulted in only one armed robbery conviction.

To support his argument, defendant relies on People v. Andersen, 237 Ill. App. 3d 367, 604 N.E.2d 424 (1992), People v. Wasson, 175 Ill. App. 3d 851, 530 N.E.2d 527 (1988), and People v. Hooper, 21 Ill. App. 3d 28, 314 N.E.2d 618 (1974). All of these cases are distinguishable.

In Hooper, 21 Ill. App. 3d at 29, the defendant's conviction for escape was reversed because the statute under which he was charged was a new enactment that was not substantially the same as the prior law. While the prior statute required willfulness to be proven, the new enactment did not require willfulness to be proven. Hooper, 21 Ill. App. 3d at 29.

In Wasson, 175 Ill. App. 3d at 853-54, the defendant was convicted of aggravated criminal sexual assault for conduct that occurred before the offense was created by statute. The law governing sex offenses was substantively changed when the criminal sexual assault and abuse law of 1984 was enacted. Wasson, 175 Ill. App. 3d at 854. When the statute was enacted, the legislature expressly provided that a defendant could not be charged under the new act for an offense committed prior to July 1, 1984. Wasson, 175 Ill. App. 3d at 854. Thus, the law was not intended to be applied retroactively. Wasson, 175 Ill. App. 3d at 854.

People v. Andersen, 237 Ill. App. 3d 367, also involved the criminal sexual assault statute. The defendants were charged under amendatory language of the Criminal Code of 1961 that never became effective. Andersen, 237 Ill. App. 3d at 376. The State's charge failed to allege the necessary elements of either the Criminal Code section cited or the Criminal Code section that the State argued would apply. Andersen, 237 Ill. App. 3d at 376.

In response, the State maintains that the indictment was sufficient because it adequately informed defendant of the charges against him and any defect was merely a formal defect that did not prejudice defendant. The State's argument is based on its analysis that the elements of the aggravated vehicular hijacking statute were the same as those of the armed robbery statute when a vehicle is taken from another person. In essence, the State insists, the aggravated vehicular hijacking statute reworded the armed robbery statute and is not a new offense. Because armed robbery was a crime at the time of this incident and the elements of armed robbery were stated in the indictment, the State urges this court to affirm defendant's conviction for aggravated vehicular hijacking. We agree.

The State relies on People v. Witt, 227 Ill. App. 3d 936, 592 N.E. 402 (1992), and People v. Cortez, 286 Ill. App. 3d 478, 676 N.E.2d 195 (1996). Both cases are helpful.

In Witt, 227 Ill. App. 3d at 941, the defendant argued that the indictment against him was void because first degree murder was not an offense at the time of the killing. The appellate court disagreed. Since the elements of murder remained the same after the amendment of the homicide statute, the statute did not punish as a crime an act that was previously lawful. Witt, 227 Ill. App. 3d at 943. Therefore, contrary to the defendant's arguments, the record did not support a finding that the amended homicide statute defined a new crime, increased the punishment for a previously committed offense, deprived him of a defense that was available under the law, or shifted the burden of proof to the defendant, thereby detrimentally increasing his burden of proof with regard to murder. Witt, 227 Ill. App. 3d at 944. The indictments provided the defendant with fair warning of the elements of murder and afforded him the opportunity to present his defense. ...


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