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People v. Smith

October 01, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
KENNY W. SMITH, APPELLANT.



The opinion of the court was delivered by: Justice Miller delivered the opinion of the court

Agenda 28-May 1998.

Defendant, Kenny W. Smith, and two co-defendants, who are not parties to this appeal, participated in the armed robbery of a Jiffy Lube oil-change service center. Douglas Petan, a Jiffy Lube employee, was shot in the head during the robbery and died as a result of the gunshot wound. Defendant was found guilty of armed robbery and felony murder following a jury trial in the circuit court of Will County.

The trial Judge sentenced defendant to 60 years' imprisonment for felony murder and 20 years' imprisonment for armed robbery. The sentences were to be served consecutively. The appellate court affirmed. No. 3-94-0920 (unpublished order under Supreme Court Rule 23). We granted defendant's petition for leave to appeal. 166 Ill. 2d R. 315.

BACKGROUND

Defendant was employed as a technician at a Jiffy Lube service center. Defendant believed that a large sum of money would be present at the Jiffy Lube when it closed for business at 3 p.m. on Sunday, October 31, 1993 (Halloween). Defendant told Ivan Dockins, a co-defendant, about the money. Pursuant to their plan, defendant left a garage door partially open so that Dockins could gain entry to the Jiffy Lube. Dockins entered and encountered Dominick Roti, the assistant manager.

Dockins pointed a gun at Roti's head and demanded money from the cash register. At first, Roti thought the holdup was a Halloween prank. After being struck in the head with the gun, Roti gave the money from the cash register to Dockins. With the gun held to Roti's head, Dockins prodded Roti down the stairs of the Jiffy Lube to an office in the basement. The office contained a safe. At that time, defendant and two other employees, Scott Fricano and Douglas Petan, were in the office.

Fricano asked if the holdup was a joke. Dockins stated that the holdup was no joke and hit Fricano in the head with the gun. Dockins then pointed the gun at Petan. When the gun went off, the Jiffy Lube employees all dropped to the floor. Dockins ran up the stairs and out of the building. Once Dockins left, Fricano noticed that Petan had been shot in the head.

Defendant called 911 for emergency assistance. Defendant, however, hung up the phone after only a short period of time. Following additional contact with a 911 operator by both Dominick Roti and Scott Fricano, the police and an ambulance arrived at the Jiffy Lube. The ambulance transported Douglas Petan to the hospital, where he was pronounced dead.

A police investigation revealed that defendant and Dockins had together planned the robbery of the Jiffy Lube. Another co-defendant, Leo Williamson, did not assist in planning the robbery but did participate as the driver of the getaway car. Both Dockins and Williamson made statements to the police implicating defendant.

The State charged defendant and Dockins by indictment with felony murder (720 ILCS 5/9-1(a)(3) (West 1992)) predicated on armed robbery (720 ILCS 5/18-2 (West 1992)). The State charged all three men by indictment with both armed robbery (720 ILCS 5/18-2 (West 1992)) and robbery (720 ILCS 5/18-1 (West 1992)). Dockins and Williamson entered pleas of guilty, and they are not parties to this appeal.

Prior to trial, the State nol-prossed the robbery charge against defendant contained in the indictment. The State proceeded against defendant on the two remaining counts of the indictment under a theory of accountability: (1) felony murder, for causing the death of Douglas Petan while committing the predicate felony of armed robbery; and (2) armed robbery, for using a gun in taking United States currency from the presence of Dominick Roti by the use of force.

At the Conclusion of the trial, the jury was instructed on the offenses of felony murder and armed robbery as charged by the State in the indictment. The instructions were given to the jury both orally and in writing. The jury found defendant guilty of armed robbery and felony murder. The Judge sentenced defendant to 60 years' imprisonment for felony murder and 20 years' imprisonment for armed robbery. The sentences were to be served consecutively.

The appellate court affirmed. The court believed that both an armed robbery and an attempted armed robbery occurred at the Jiffy Lube: an armed robbery of Dominick Roti at the cash register and an attempted armed robbery of the safe in the basement office. The court found that the armed robbery of Dominick Roti supported defendant's conviction and sentence for armed robbery and that the attempted armed robbery of the safe could serve as the predicate offense for the felony murder conviction and sentence. Because the court believed that both an armed robbery and an attempted armed robbery had taken place, the court found that defendant was properly convicted and sentenced for armed robbery and felony murder predicated on attempted armed robbery.

The appellate court also found that the trial Judge properly exercised discretion in denying a jury request to review the testimony of Scott Fricano and Dominick Roti. The court stated that the Judge's response to the jury's request did not indicate the Judge believed that he ...


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