The opinion of the court was delivered by: Presiding Justice Garman
Honorable Tim P. Olson, Judge Presiding.
Appeal from Circuit Court of Morgan County
Following a bench trial in the circuit court of Morgan County, defendant Derick Elliott was found guilty of two counts of armed robbery (720 ILCS 5/18-2(a) (West 1996)) and two counts of robbery (720 ILCS 5/18-1 (West 1996)). He was sentenced on the armed robbery counts to concurrent terms of 13 years in prison. He now appeals, arguing (1) pepper spray is not a dangerous weapon as a matter of law, (2) defense counsel provided ineffective assistance of counsel by advising defendant to waive a jury trial, (3) the trial court erred in entering judgment on the robbery counts and one of the armed robbery counts, and (4) his sentence is excessive and is disproportionate to the sentences received by his co-defendants. We affirm in part and vacate in part.
Defendant was charged with participating in a robbery at the Chapin State Bank, while armed with a dangerous weapon. The weapon was alleged to be a can of pepper spray, a gas-type chemical agent containing oleoresin capsicum. Prior to trial, defendant filed a motion to dismiss the armed robbery counts, alleging that pepper spray is not a dangerous weapon as a matter of law. A hearing was held on this motion on July 8, 1997. The trial court concluded that this was a question of fact for the jury to determine and it denied defendant's motion.
On July 14, 1997, defendant and his counsel appeared before the trial court and defendant waived his right to a jury trial. The trial court extensively admonished defendant of the nature of the charges, the possible penalties, and of his right to a jury trial. After telling the court that no one had pressured him into waiving his right to jury trial and that no threats or promises had been made to obtain the waiver, defendant signed a written jury trial waiver.
At the bench trial, evidence indicated that, following the robbery at the bank, defendant and three other men were stopped in a car in which a bag containing over $8,000 in cash was found. An additional $200 was found outside the bank. Tellers at the bank later identified the money as coming from the bank, based upon the presence of "Post-it" notes in the tellers' handwriting on some of the bundles of money and upon the presence of "bait money," serial numbers of which had been previously recorded.
Pam Nickel, a teller at the bank, testified that she recalled defendant coming into the bank to change a $1 bill the day before the robbery. On April 29, 1997, at approximately 20 minutes before closing time, a man came up to another teller, Joyce Crews, pointed a hand at her face, and said, "[G]et on the floor." Nickel was unable to see what the man had in his hand. She and Crews got down on the floor and could hear someone come behind the counter. Nickel heard a man say, "[D]on't worry about it, it's not your fucking money." She heard an aerosol can being sprayed. She described the effects of the pepper spray on her and Crews as follows:
"I'm on the floor and my eyes are closed so it's dark, and as I begin to get up off the floor, I couldn't breathe. It was just like something was--to be honest with you, I thought at first I'd been shot in the back of the head and this is how it felt to die. I could not breathe. I just couldn't breathe. And as I got up, I just started gagging and gagging and trying to breathe. And then I heard Joyce, and she was screaming about her eyes, and we were trying to take care of our pain while we were trying to get help.
I just simply started gagging like I was going to throw up, and we got, hit the silent alarm. Joyce is screaming about her eyes, and she called the main bank and she's still screaming about her eyes, so I had to take over on the phone, and I'm having a very difficult time trying to talk and breathe because my nose is beginning to burn. It's like, it felt like I had been burned through the inside out.
Everything just happened so fast. I remember Bill [Privia] and Chris [Privia] coming over and helping us. I had gone and locked the doors prior to that because we were scared that they would come back, so we locked the doors.
We let [the Privias] in and they were trying to get Joyce's eyes, so I went ahead and called the police office, and, to make sure they knew the bank had been robbed, and we were trying to get her eyes, he said flush them with water, so we're trying to flush her eyes with water, and there was nothing I could do for myself. I'm just burning. I could not get any relief, and I couldn't hardly talk to continue, so I didn't tell them what happened because I was having a hard time breathing.
*** [O]nce outside, I started, like I was going to throw up. In fact, I did a little bit because it was so bad.
I had been down with my face down on the floor, and when they had sprayed down on us, it got all over my hair and the back of me. And I had a sweater and a vest on that day, and I just remember the whole of my back just burning. And when I took it off and I put on my jacket, it was just red like I'd been set on fire. It was just, it was very intense."
Nickel testified that she has recovered from the effects of the spray, but she has a cough she did not have before. One of the paramed-ics told her that if she got the spray in her lungs, she could have trouble in the future.
Crews testified that after she arose from the floor, her eyes were burning "out of [her] head" and she was choking from the spray. The paramedics flushed her eyes with water. Later that evening, as she was showering, there was so much spray on the back of her head that when she washed her hair, her hands felt like they were on fire. She is not suffering ...