The opinion of the court was delivered by: Justice Thomas
Docket No. 89827-Agenda 12-March 2001.
The defendant, Dyrece T. Knaff, was charged by indictment in the circuit court of Adams County with two counts of unlawful delivery of a controlled substance while on a public way within 1,000 feet of public housing property (720 ILCS 570/407(b)(2) (West 1998)) and two counts of the lesser-included offense of unlawful delivery of a controlled substance (720 ILCS 570/401(d) (West 1998)). The lesser charges were based on the same conduct as the greater charges, absent the location element. Prior to the selection and empaneling of the jury, the State dismissed the lesser-included charges and the cause proceeded to trial on the greater offenses. After the State presented its case in chief, the defendant moved for a directed verdict. The trial court found that the evidence was insufficient on the location element and, therefore, refused to allow the greater charges to be considered by the jury. However, the trial court found that the evidence was sufficient to prove the lesser-included offense and allowed the State to amend its indictment, and the case was submitted to the jury on the lesser- included offenses. The defendant was subsequently convicted of the lesser-included offenses and sentenced to concurrent terms of five years' imprisonment.
The defendant appealed to the appellate court, claiming that his convictions violated the double jeopardy clauses of the United States and Illinois Constitutions (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10). The appellate court affirmed the defendant's convictions. 314 Ill. App. 3d 676. We allowed the defendant's petition for leave to appeal under Supreme Court Rule 315(a) (177 Ill. 2d R. 315(a)), and now affirm the appellate court.
The record reveals that on September 3, 1998, the grand jury returned a four-count indictment against the defendant. Counts I and III of the indictment alleged that the defendant committed two separate incidents of "unlawful delivery of a controlled substance within 1,000 feet of residential property owned by a housing agency, in that he, while on the public way within 1,000 feet of property owned *** by the Quincy Housing Authority, a public housing agency, knowingly delivered to another *** less than 1 gram of a substance containing cocaine." See 720 ILCS 570/407(b)(2) (West 1998). A violation of section 407(b)(2) of the Illinois Controlled Substances Act (the Act) (720 ILCS 570/407(b)(2) (West 1998)) is a Class 1 felony. Counts II and IV of the indictment alleged two counts of unlawful delivery of a controlled substance (720 ILCS 570/401(d) (West 1998)), based on the same conduct alleged in counts I and III without the location requirements. A violation of section 401(d) of the Act is a Class 2 felony. 720 ILCS 570/401(d) (West 1998).
Before selection of the jury, the State moved to dismiss counts II and IV of the indictment. As part of its motion, the State noted that, in the unlikely event the evidence failed to show that the transactions in question took place on the public way within 1,000 feet of housing authority property, it would request jury instructions on the lesser- included charges. The trial court noted that counts II and IV were lesser-included offenses based on the same events as counts I and III and were "alleged in alternative fashion." The trial court granted the State's motion to dismiss the lesser counts, and allowed the State to reconfigure the remaining counts as I and II. The cause then proceeded to the voir dire of the jury and eventually trial.
During the course of its case in chief, the State moved to amend count I of the indictment to allege the lesser-included offense by deleting the allegation " `public way within 1,000 feet of Quincy Public Housing Authority.' " The prosecutor informed the court that Sharon Fields, the informant who had made the cocaine purchases from the defendant, had indicated during the recess that the first transaction had occurred inside a tavern on the block next to the public housing and not on a public sidewalk. The prosecutor further noted that she initially believed that the first transaction occurred on the sidewalk because police officers had told her that both transactions had occurred there and that it was only after speaking with Fields that she learned that only the second transaction had occurred on the sidewalk.
Defense counsel objected to the motion on the ground that the jury had already heard evidence, and that the issue of reducing the degree of the offense could be addressed after all the evidence was presented. The trial court denied the State's motion but noted that it would later decide whether the jury could be instructed on the lesser-included offense.
Sharon Fields then testified that while working as a police informant on July 20, 1998, she bought $50 worth of cocaine from the defendant at a tavern known as D&D Corral. She then left the tavern and met with police. She gave them the cocaine she had bought, and the police gave her another $50 to make a second purchase. She headed back toward the D&D Corral about 20 or 30 minutes after the first transaction. As she approached the tavern, she found the defendant standing on a public sidewalk, whereupon she bought another $50 worth of cocaine from him.
After the close of the State's case in chief, the defendant moved for a directed verdict on both counts of unlawful delivery within 1,000 feet of public housing, the Class 1 felonies. The defendant argued that the evidence was insufficient to establish that the cocaine sales took place within 1,000 feet of public housing.
The trial court took the matter under advisement, stating that it wanted to research the question of what was necessary to prove the distance element of the crime. The court noted that the State had presented general testimony that the delivery occurred within a block of public housing property and that the average city block is approximately 850 feet long. It further noted, however, that the State did not present any testimony as to the actual distance.
Following a recess, the State moved to amend the indictment by deleting the enhancing language pertaining to the location of the offenses. The defendant objected, claiming that as a matter of strategy the State had chosen to dismiss the lesser counts. The trial court found that while the evidence was insufficient to prove that the offenses occurred within 1,000 feet of public housing, the State had clearly proved up a prima facie case for the Class 2, lesser-included offenses, which "could be decided by the jury." After further argument, the court ruled that the State would be allowed to amend the indictment to allege simple unlawful delivery of a controlled substance by deleting the language that had enhanced the offense to a Class 1 felony.
The defendant did not present any evidence, and the trial court submitted the case to the jury on the two lesser offenses of unlawful delivery of a controlled substance. The trial court advised the jury that the evidence was insufficient to establish the 1,000 feet distance element and, therefore, the case was being submitted on two lesser charges of delivery of a controlled substance.
Following deliberations, the jury returned guilty verdicts on both counts of unlawful delivery of a controlled substance, the lesser- included offenses. Upon the defendant's motion to reconsider, the trial court noted that it had not granted the defendant's motion for a directed verdict on the greater charges. Instead, it had merely ruled that the evidence was insufficient on those charges, and that it had discretion to allow the State to amend the indictment and to proceed on the lesser charges because there was no prejudice to the defendant.
The appellate court affirmed the defendant's convictions, holding that the trial court did not acquit the defendant of the two lesser felonies by finding the evidence in support of the greater felonies insufficient and, therefore, his convictions for the lesser-included offenses did not violate double jeopardy principles. 314 Ill. App. 3d at 681. The appellate court noted that a defendant may be convicted of a lesser-included offense not expressly included in the charging instrument. Therefore, it would be an injustice under the circumstances of this case to allow the defendant to be exonerated from all accountability simply because the State failed to prove an element of the greater offense. 314 Ill. App. 3d at 680. In reaching that conclusion, the court specifically declined to rely on the rationale of People v. Laue, 219 Ill. App. 3d 926 (1991), or the dissent in People v. Brown, 134 Ill. App. 3d 951 (1985), which both suggested that a defendant cannot be convicted of a lesser-included offense when evidence is insufficient to allow the greater offense to go to the jury and the lesser offense has not been expressly charged. We granted the defendant's petition for leave to appeal. 177 Ill. 2d R. 315.
On appeal to this court, the defendant argues that the trial court violated constitutional and statutory prohibitions against double jeopardy when it allowed the State to proceed against him on the lesser- included offenses after the court had found that the evidence was insufficient to submit the case to the jury on the greater offenses of delivery of a controlled substance on the public way within 1,000 feet of public housing. The defendant maintains that the trial court's finding that the evidence was insufficient as to one of the elements of the greater offense was tantamount to an acquittal barring the State from initiating further proceedings relating to the elements of that offense. The defendant argues that because the lesser-included offense is considered the same offense for double jeopardy purposes, the trial court erred in allowing the State to amend the indictment and proceed on the lesser-included offenses of simple delivery following acquittal on the greater charges.
The fifth amendment of the United States Constitution states in relevant part: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb ***." U.S. Const., amend. V. The same principle is contained in the Illinois Constitution. Ill. Const. 1970, art. I, §10; People v. Cooper, 194 Ill. 2d 419, 428-29 (2000). A verdict of not guilty, whether rendered by the jury or directed by the trial judge, shields the defendant from a retrial for the same offense. Tibbs v. Florida, 457 U.S. 31, 41, 72 L. Ed. 2d 652, 661, 102 S. Ct. 2211, 2218 (1982). The fundamental purpose embodied in the double jeopardy clause has been emphasized frequently. People v. Deems, 81 Ill. 2d 384, 388 (1980). The purpose has been stated as follows:
" `The underlying idea, one that is deeply ingrained in [our] system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.' " United States v. Scott, 437 U.S. 82, 87, 57 L. Ed. 2d 65, ...