The opinion of the court was delivered by: Presiding Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable Robert W. Bertucci, Judge Presiding.
Following a jury trial, defendant, Gregory Becker, a Chicago police officer was convicted of one count of armed violence (720 ILCS 5/33A-2 (West 1994)), one count of involuntary manslaughter (720 ILCS 5/9-3(a) (West 1994)) and three counts of official misconduct (720 ILCS 5/33-3(a),(b) (West 1994)) involving the shooting death of Joseph Gould. On appeal, defendant asserts that: (1) his armed violence conviction was improperly based upon the same conduct found to be unintended by the jury's simultaneous verdict of guilty on involuntary manslaughter; (2) the verdicts for involuntary manslaughter and armed violence were legally inconsistent because their respective mental states of recklessness and knowledge were mutually inconsistent; (3) his armed violence charge constituted an impermissible double enhancement; (4) the indictment did not sufficiently allege a charge of armed violence; (5) the section 33-3(a) official misconduct conviction violated his fifth amendment privilege against compulsory self-incrimination; and (6) the State failed to prove him guilty beyond a reasonable doubt of official misconduct and armed violence where the acts performed were in his individual, not official, capacity. For the reasons set forth below, we affirm in part, reverse in part, and remand.
After dismissing 7 counts of the original 13-count indictment, the State proceeded to trial on the following counts against defendant: count I, armed violence; count II, involuntary manslaughter; count V, section 33-3(a) official misconduct; and three counts of section 33-3(b) official misconduct under counts IX, XII and XIII. Count I alleged defendant committed armed violence in that he, while armed with a handgun, committed official misconduct. Count II alleged that defendant committed involuntary manslaughter in that he without lawful justification, acting in a reckless manner, unintentionally killed Joseph Gould when he discharged a handgun in the presence of Joseph Gould, causing a fatal gunshot wound to Gould's head. Count V alleged section 33-3(a) official misconduct in that defendant intentionally or recklessly violated Rule 6 of Article V of the Rules and Regulations of the Chicago Police Department by failing to follow procedures after discharging his firearm. Count IX alleged that defendant knowingly violated Rule 38 of Article V when he unnecessarily displayed his weapon and struck Joseph Gould with the weapon. Count XII alleged defendant knowingly violated Rule 9 of Article V when he engaged in an unjustified physical altercation using excessive force with Joseph Gould. Count XIII alleged that defendant knowingly violated Rule 9 when he engaged in an unjustified physical altercation with Joseph Gould.
At trial, the testimony indicated that on July 30, 1995, at 12:30 a.m., the defendant was off duty from his job as a Chicago police officer. Defendant and his girlfriend, Joey Preston, left America's Bar in Chicago and began to walk toward the defendant's car, parked on the corner of Huron and Franklin Streets. Defendant and Preston walked down Franklin Street, Joseph Gould approached them, and Gould engaged Preston in a conversation while defendant walked ahead of them. Preston yelled at Gould and told him to leave her alone, but Gould refused. Preston and Gould caught up to the defendant and the defendant told Gould to get away. Defendant and Preston then crossed Franklin with Gould just behind them. When they reached defendant's car, defendant walked to the trunk of the car and then walked back toward Gould. The defendant and Gould were facing each other. According to the State's witness, defendant, with a black object in his hand swung his arm towards Gould's face. A gun went off, and Gould fell to the ground. Defendant entered his car and left. Gould died from a single gunshot wound to the head. The police arrested him at his home and recovered the 9 millimeter weapon used in the shooting.
Charles Roberts testified that he was the assistant deputy superintendent for training for the Chicago police department. Roberts stated that defendant was trained at the Chicago Police Department Training Academy, where defendant received a copy of the rules and regulations of general and special orders of the Chicago police department. The rules and regulations govern the conduct of a police officer both on and off duty. Defendant was trained in the use of force, use of a weapon, and the requirement to notify his supervisor immediately upon discharge of his weapon. He was taught that his gun was never to be used as an impact weapon.
Lieutenant James K. Hickey testified that he was the commander in charge of the policy and procedure section of the research and development division for the Chicago police department. Lieutenant Hickey testified that General Order 85-1, in effect on July 30, 1995, required a police officer whether on or off duty at the time when he discharged a firearm to: (1) notify immediately the communications section and desk sergeant of the district where the firearm is discharged; (2) attend to required emergency assistance; (3) assist and provide information to department members investigating the discharge; (4) perform required duties including filing reports; and (5) submit a firearms use report to the watch commander without unnecessary delay.
Lieutenant Hickey testified to general orders in effect on July 30, 1995, which governed the conduct, demeanor, and use of non-deadly and deadly force by a police officer. According to the general orders, a police officer should only use deadly force when he reasonably believes such force is necessary to prevent death or great bodily harm to himself or others. Lieutenant Hickey stated that the general orders restrict a police officer's use of a firearm until all other means to apprehend and control an individual have been employed without success. The use of a firearm in any case is a last resort measure. The rules prohibit police officers from using excessive force while on or off duty and prohibit unjustified altercations of any kind with any person while on or off duty. Hickey testified that an officer is expected "to render the highest order of police service to all citizens, whether or not during specifically assigned hours."
Defendant testified that while walking from America's Bar to his car with Preston, Gould asked him for money. Defendant refused the request. Gould followed them for about a half block and was agitated, mumbling continuously. Preston yelled at Gould to get away from her. Defendant told Gould to stay away from them or he would lock Gould up because he was a Chicago police officer. Gould then told defendant that he would "kick his ass." When Preston and defendant reached defendant's car, defendant went to the trunk and got Preston's purse and his gun. Defendant stated that he was putting the gun in his waistband when Gould pulled on his jacket.
Both Gould and defendant pulled at the gun, defendant lost balance, and a struggle ensued over the weapon. Regarding the struggle defendant testified that Gould "pulled me off balance. I think I grabbed onto the shirt. He was pulling on it. I was pulling back. Excuse me. And I was just trying to get, gain control of it, and then I think it hit him in the head once, and then he pulled it back again, and I, when I pulled it, I extended my whole arm and I pulled back, and the gun fired." Defendant stated that he unintentionally pulled the trigger when he was trying to gain control of the gun. He testified that the gun was fully loaded, a bullet was in the chamber and the external safety was not engaged. After the gun went off, Gould fell to the ground but defendant testified that he did not believe Gould was shot. He and Preston drove to Preston's apartment, and he did not notify the police regarding the discharge of his weapon or the incident.
The State proceeded to trial on six counts of the indictment; however, when instructing the jury, count XII and count XIII were combined and the jury received the following five verdict forms: (1) armed violence predicated on section 33-3(b) official misconduct charge alleging defendant's unjustified altercation with Gould; (2) involuntary manslaughter; (3) section 33-3(a) official misconduct; (4) section 33-3(b) official misconduct based on defendant's unnecessary use or display of his weapon; and (5) section 33-3(b) official misconduct based on defendant's unjustified altercation. The jury found defendant guilty on all counts, including armed violence, involuntary manslaughter, and the three counts of official misconduct. The trial court merged the two section 33-3(b) official misconduct convictions into the armed violence conviction and sentenced defendant to concurrent sentences of 15 years on his conviction for armed violence, 5 years for involuntary manslaughter, and 5 years for the section 33-3(a) official misconduct.
The armed violence statute under which defendant was originally sentenced was part of Public Act 88-680 commonly known as the Safe Neighborhoods Law (Pub. Act 88-680 eff. January 1, 1995). In People v. Cervantes, 189 Ill. 2d 80, 91 (1999), the supreme court declared Public Act 88-680 unconstitutional in that its provisions lacked a natural and logical connection and therefore violated the single subject clause of the Illinois Constitution. Public Act 88-680 included a provision increasing the minimum sentence for armed violence committed with a handgun from a minimum of 6 years to a minimum of 15 years (See 720 ILCS 5/33A-3(a)) (West 1996)). When an act is declared unconstitutional, the state of the law is as if the act had never been passed. In re G.O., 191 Ill. 2d 37 (2000). As the result of Public Act 88-680 being declared unconstitutional, the original armed violence statute providing a 6 year minimum sentence applied to defendant's armed violence conviction. Since the Cervantes ruling, the trial court resentenced defendant to 10 years for armed violence based on the sentencing provisions in effect before the enactment of Public Act 88-680. (See 720 ILCS 5/33A-3 (West 1992)).
II. OFFICIAL MISCONDUCT AS A PREDICATE FELONY FOR ARMED VIOLENCE
Defendant contends that his conviction for armed violence must be vacated because the armed violence conviction was based on unintentional and undeterrable conduct. Defendant argues that the State used the section 33-3(b) official misconduct charge as a predicate felony only because the State was precluded by law from using involuntary manslaughter as a predicate felony. See People v. Fernetti, 104 Ill. 2d 19, 25 (1984). Defendant further contends that the conduct underlying the official misconduct charge was the same conduct underlying the involuntary manslaughter charge and, therefore, was not a proper predicate for the armed violence charge.
The Criminal Code of 1961 (Code) provides that "[a] person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law." 720 ILCS 5/33A-2 (West 1994). An issue of statutory interpretation is a question of law and our review is de novo. People v. Krause, 273 Ill. App. 3d 59, 62 (1995). The plain language of a statute is the best indicator of legislative intent. People v. Scharlau, 141 Ill. 2d 180 (1990). Our supreme court, under certain circumstances, has limited the type of felonies contemplated by the "any felony" language of the armed violence statute. Finding the words, "any felony" within the armed violence statute ambiguous, the supreme court has held that the offenses of voluntary and involuntary manslaughter cannot serve as predicate felonies for an armed violence charge and conviction because the legislature never intended for the armed violence statute to apply to conduct that is not deliberate. People v. Alejos, 97 Ill. 2d 502, 509 (1983); Fernetti, 104 Ill. 2d at 24-25 (1984).
In Alejos, the court noted that the presence of a weapon enhances the danger that any felony that is committed will have deadly consequences should the victim offer resistance. Alejos, 97 Ill. 2d at 508. Thus the court regarded the presence of a weapon as an aggravating factor that "enhances the severity of the underlying felony and upgrades the punishment available for it to Class X." Alejos, 97 Ill. 2d at 508. The court recognized that "stiff punishment mandated by the armed-violence provision is intended not only to punish the criminal and protect society from him but also to deter his conduct--that of carrying the weapon while committing a felony." Alejos, 97 Ill. 2d at 509. In Alejos, the defendant was convicted of voluntary manslaughter and armed violence based on voluntary manslaughter. The appellate court reversed the armed violence and remanded for sentencing on the manslaughter conviction. The supreme court found that an individual who commits voluntary manslaughter, now second degree murder, has little, if any, intent to take a life or use deadly force; rather, the only "intent" that enters into the crime is the decision, arrived at without deliberation and usually instantaneously, to use force capable of killing. Alejos, 97 Ill. 2d at 509. Consequently, the supreme court held that voluntary manslaughter could not be a predicate felony for an armed violence conviction because the armed violence statute does not apply to conduct that is the result of passion or misconception and essentially undeterrable. Alejos, 97 Ill. 2d at 509. Based on that reasoning the supreme court affirmed the appellate court's reversal of the armed violence conviction and remanded for resentencing on the voluntary manslaughter conviction. Alejos, 97 Ill. 2d at 514-15.
In Fernetti, the supreme court applied the Alejos reasoning to involuntary manslaughter and found that a charge of involuntary manslaughter could not be the predicate felony for an armed violence charge. The court held that involuntary manslaughter constitutes conduct that by its nature is unintentional and therefore is not deterrable by the enhanced penalty provision under the armed violence statute. Fernetti, 104 Ill. 2d at 25. The court ordered the trial court to vacate the armed violence conviction and sentence and remanded for sentencing on the involuntary manslaughter conviction. Fernetti, 104 Ill. 2d at 26.
The Illinois supreme court next addressed this issue in People v. Drakeford, 139 Ill. 2d 206 (1990), where the State charged defendant with murder and armed violence predicated on aggravated battery causing great bodily harm. The jury, however, found defendant guilty both of armed violence and second degree murder. Defendant argued that his armed violence conviction should be vacated because in returning a verdict of guilty for second degree murder the jury found that his conduct could not be deterred. The supreme court vacated the armed violence conviction and held that the armed violence conviction could not be predicated upon second degree murder because the legislature did not intend for "the armed violence statute to apply to conduct constituting second degree murder." Drakeford, 139 Ill. 2d at 213.
In Drakeford, the court noted that the jury's verdicts of guilty for second degree murder and armed violence arose from the same criminal conduct. Drakeford, 139 Ill. 2d at 215. Therefore, once the jury found that defendant's conduct was unpremeditated and undeterrable, the defendant's penalty could not be enhanced under the armed violence statute. Drakeford, 139 Ill. 2d at 213-14. The court affirmed the judgment of the appellate court which had vacated the conviction for armed violence, affirmed the second degree murder conviction and remanded for sentencing on second degree murder. Drakeford, 139 Ill. 2d at 216. Defendant urges us to extend Drakeford to the facts of this case and prohibit the State from enhancing defendant's sentence through an armed violence conviction because the jury found him guilty of involuntary manslaughter. According to defendant, by predicating the armed violence charge on section 33-3(b) official misconduct, the State is violating the principles of Alejos, Fernetti and Drakeford in applying the armed violence statute to undeterrable conduct.
Defendant's official misconduct charge, which served as the predicate felony for the armed violence conviction, was for a knowing violation of police rules and regulations. The purpose of the official misconduct statute is to compel public officials to act in a lawful manner and to maintain the public trust. Wright v. City of Danville, 174 Ill. 2d 391, 404 (1996). The statute provides that: "A public officer or employee commits misconduct when, in his official capacity, he * * * (b) [k]nowingly performs an act which he knows he is forbidden by law to perform." 720 ILCS 5/33-3(b) (West 1994).
Here, there was evidence which demonstrated that defendant knowingly performed an act which he knew was forbidden by law when he engaged in an unjustified altercation with Gould. The defendant had received training at the police academy regarding regulations that prohibited unjustified altercations with citizens. Gould initially approached defendant and Preston. Although asked to leave, Gould continued to follow defendant and Preston and a verbal confrontation began. When defendant arrived at his car, defendant did not drive away, but deliberately went to the trunk of his car, retrieved and displayed his weapon, then struggled with Gould and struck Gould with his weapon. Defendant knowingly engaged in a physical altercation with Gould while armed with his gun which escalated the possibility of violence and injury and ...