March 12, 1998
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
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. Witt, 227 Ill. App. 3d at 944. The court found that, although technically the State cited the improper statute in its indictments, the defendant was not prejudiced by the error, and thus the error was harmless. Witt, 227 Ill. App. 3d at 944.
In Cortez, 286 Ill. App. 3d at 479, the defendant appealed his conviction claiming that the 1993 Stalking law was applied ex post facto against him. The 1992 version of the statute, in relevant part, stated:
"(a) A person commits stalking when he or she transmits to another person a threat with the intent to place that person in reasonable apprehension of death, bodily harm, sexual assault, confinement or restraint, and in furtherance of the threat knowingly does any one or more of the following acts on at least 2 separate occasions:
(1) follows the person, other than within the residence of the defendant;
2) places the person under surveillance by remaining present outside his or her school, place of employment, vehicle, other place occupied by the person, or residence other than the residence of the defendant." 720 ILCS 5/12-7.3 (West 1992).
The 1993 version of the stalking statute, which became effective on August 20, 1993, provided:
"(a) A person commits stalking when he or she, knowingly and without lawful justification, on at least 2 separate occasions follows another person or places the person under surveillance or any combination thereof and:
(1) at any time transmits a threat to that person of immediate or future bodily harm, sexual assault, confinement or restraint; or
(2) places that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement or restraint." 720 ILCS 5/12-7.3 (West 1994).
The court concluded that the defendant's conduct on June 14, 1993, which occurred before the 1993 version of the stalking statute became effective, was unlawful under both the 1992 and 1993 versions of the stalking statute since the defendant's conduct satisfied the elements under both statutes. Cortez, 286 Ill. App. 3d at 484.
When attacked for the first time on appeal, an indictment is sufficient if it informs the defendant of the precise offense charged with sufficient specificity to enable him to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct. People v. Gilmore, 63 Ill. 2d 23, 29, 344 N.E.2d 456 (1976); Andersen, 237 Ill. App. 3d at 375. In other words, a defective charge may be held to be sufficient on appeal if the defendant has not been prejudiced. Andersen, 237 Ill. App. 3d at 375. Where the language of the indictment sufficiently informs a defendant of the charges against him, and the defendant cannot show any prejudice resulting from an incorrect statutory citation, the defect is formal and does not warrant reversal. Witt, 227 Ill. App. 3d at 944.
For a defendant to be disadvantaged by a statute, it must punish as a crime an act that was previously lawful, increase the penalty for a particular crime, or deprive the defendant of a defense that was available under the law at the time the act was committed. People v. Shumpert, 126 Ill. 2d 344, 353, 533 N.E.2d 1106 (1989); Witt, 227 Ill. App. 3d at 942.
The armed robbery statute and the aggravated vehicular hijacking statute are substantially the same. At the time of the offense in this case, the armed robbery statute provided as follows:
"(a) A person commits armed robbery when he or she violates Section 18-1 while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon.
Armed robbery is a Class X felony." 720 ILCS 5/18-2. (West 1992).
The sentence for a Class X felony is 6 to 30 years' imprisonment. 730 ILCS 5/5-8-1(a)(3)(West 1992).
Section 18-1 provided, in pertinent part:
"(a) A person commits robbery when he or she takes property from the person or presence of another by the use of force or by threatening the imminent use of force.
Robbery is a Class 2 felony." 720 ILCS 5/18-1 (West 1992).
On August 13, 1993, the aggravated vehicular hijacking statute became effective. It provides, in pertinent part:
"5/18-4. Aggravated vehicular hijacking
(a) A person commits aggravated vehicular hijacking when he or she violates Section 18-3; and
(3) he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon.
(b) Sentence.***Aggravated vehicular hijacking in violation of subsection (a)(3) is a Class X felony for which a term of imprisonment of not less than 7 years shall be imposed." 720 ILCS 5/18-4 (West 1994).
Thus, the sentence for aggravated vehicular hijacking is 7 to 30 years' imprisonment. 720 ILCS 5/18-3 (West 1994); 730 ILCS 5/5-8-1(a)(3)(West 1994).
Section 18-3 provides:
"Sec. 18-3. Vehicular hijacking.
(a) A person commits vehicular hijacking when he or she takes a motor vehicle from the person or the immediate presence of another by the use of force or by threatening the imminent use of force.
(b) For the purposes of this Article, the term "motor vehicle" shall have the meaning ascribed to it in the Illinois Vehicle Code.
(c) Sentence. Vehicular hijacking is a Class 1 felony." 720 ILCS 5/18-3 (West 1994).
The only substantial difference in the statutes is the minimum sentence, which is 6 years' imprisonment for armed robbery and 7 years' imprisonment for aggravated vehicular hijacking. Defendant was sentenced to 30 years' imprisonment, which is the maximum sentence for both offenses.
The indictment against defendant provided as follows:
", knowingly by the use of force while armed with a dangerous weapon, to wit: a handgun, took a motor vehicle, to wit: 1986 Oldsmobile from the person of Vincent Johnson [and Terron Jackson]."
Based on the case law and the facts in this case, the indictment was not defective because it informed defendant of the elements of armed robbery and he was essentially convicted of the armed robbery of a vehicle. Furthermore, defendant was able to prepare a defense to that crime. The errors in the title of the offense and the statutory citation were formal defects, which did not prejudice defendant. Moreover, defendant was not prejudiced by the change in the minimum sentence since he was sentenced to the maximum sentence of 30 years' imprisonment, which is the maximum sentence for both statutes.
In addition, we reject defendant's argument that he was prejudiced because he was convicted of two armed robberies under circumstances where he would have been convicted of only one armed robbery. Defendant maintains that even if he had been found guilty of armed robbery of the vehicle and armed robbery of personal belongings from Vincent, there would be only one conviction. That reasoning is flawed. Armed robbery of the vehicle was a separate act from the armed robbery of personal belongings taken from Vincent. Therefore, defendant would not be prejudiced by two convictions for armed robbery.
Given our decision, defendant's argument about jury instructions is meritless. He argues that the issue and definition instructions for the first-degree murder counts were both improperly phrased in the disjunctive, thus incorrectly advising the jury that it was permissible to find defendant guilty of first-degree murder predicated on aggravated vehicular hijacking, which did not exist. But we have found that the crime of aggravated vehicular hijacking did exist. Therefore, we find that there was no error.
Because we are affirming defendant's conviction, his sentencing argument is moot.
Based on the foregoing, we affirm the circuit court judgment.
McNamara, J., and Burke, J., concur.