Appeal from the Circuit Court of Cook County. No. 99 C4 40831. The Honorable Themis Karnezis, Judge Presiding.
The opinion of the court was delivered by: Justice Cousins.
Jirani Williams (defendant) was convicted of attempted aggravated robbery following a bench trial and was sentenced to 10 years' imprisonment. Upon appeal, defendant asserts that: (1) his conviction must be reversed because the aggravated robbery statute violates due process; (2) the State did not prove beyond a reasonable doubt that he indicated verbally or by his actions that he was armed with a weapon; (3) he was denied effective assistance of counsel due to counsel's failure to impeach the State's witnesses with evidence that contradicted their trial testimony; (4) the State violated defendant's right to due process by not disclosing information that the key witness and complainant was wanted on an arrest warrant at the time of trial; (5) the mandatory sentencing provision under which he was sentenced violated his right to due process and trial by jury in that it subjects him to increased punishment without notice or a jury finding of proof beyond a reasonable doubt of the facts qualifying him as a Class X offender.
On the afternoon of June 5, 1999, Frank Robinson and his wife, Villian Robinson, were at their place of business, Robinson Towing Company. According to Mrs. Robinson's trial testimony, defendant entered the company's office and he closed and locked the door behind him. While sitting at a desk, Mrs. Robinson told defendant that customers were not allowed in the office and asked him to wait in the lobby. Defendant told her that nobody was going out and nobody was coming in. Mrs. Robinson stated that she was going to call the police, but, when she reached for the phone, defendant knocked it out of her hand.
Mr. Robinson was present during these events. He asked defendant what he wanted. Defendant responded that he wanted money. That is when Mrs. Robinson noticed that defendant's hand was under his shirt. Mr. Robinson took a roll of money from his pocket and laid it on the desk. As Mr. Robinson pulled off some bills, defendant demanded more money. Mr. Robinson instructed his wife to call the police. As Mrs. Robinson proceeded to a phone on another desk, defendant pushed her into a chair and she fell against the wall. Defendant's right hand was still under his shirt.
Mr. Robinson told defendant not to touch his wife and stepped toward his wife. Defendant pushed Mr. Robinson. Mrs. Robinson tried to reach for the telephone again. Defendant then pressed Mrs. Robinson's head to the desk by holding her neck and told her that she was not going to call the police. Mrs. Robinson stated that defendant also said, "'I just got out of jail, lady. I'm not going back. I'll kill somebody up in here.'" His hand was still under his shirt.
After defendant made these statements, Mrs. Robinson heard a noise and she thought defendant had shot her. Actually, Mr. Robinson pulled out his licensed gun from his waistband and shot defendant in the leg. Mrs. Robinson looked and saw defendant on the floor. Mrs. Robinson then called the police.
Mrs. Robinson recalled that defendant was wearing sweat pants and a T-shirt when he entered the office. She stated that when she noticed that his hand was under his shirt, "that's when I got scared." On cross-examination, Mrs. Robinson stated, "I told [Officers Anderson and Hernandez] that he came in and locked the door. Maybe I didn't say locked. I said closed. I don't remember exactly verbatim." Defense counsel asked, "Do you remember indicating to [the officers] that Mr. Williams came into your office and was acting strangely? Do you remember not making any mention of this hand mysteriously under his shirt or anything like that?" Mrs. Robinson responded, "I remember I just said he was acting rather nervously and by strangely that's what I meant."
Mr. Robinson testified at trial that during the entire incident, defendant's right hand was in under his shirt. He believed that defendant had a weapon. After Mr. Robinson shot defendant, he checked to see if defendant had a weapon, but he did not. He testified that he told the officers at the scene that defendant came into the office and locked the door behind him.
At the close of the State's case, defendant moved for a directed verdict. That motion was denied.
Defendant testified on his own behalf that on June 5, 1999, he was at the towing company with a friend. As his friend was getting gas for the car that they arrived in, defendant spoke to an employee of the towing company. Defendant testified that he asked the employee if he could use the restroom. The employee responded, "Fuck you. This ain't no pit stop." This response upset defendant. Defendant then proceeded into the company's office and saw an employee watching television. He asked the employee if the boss was in and told him that he wanted to speak to him about a problem. The employee answered, "He's in the back. His office door is open." Defendant proceeded into the office and closed the door behind him. Defendant stated that he closed the door behind him "[f]or privacy, to talk to him about one of his workers being rude to [him]." He said that he did not lock the door and no one told him to leave.
Defendant testified that he started telling Mr. Robinson about the employee's rudeness. As he spoke, he was "flying" his "arms up in the air, and everything, because [he] was upset. Both arms in the air." He testified that as he told Mr. Robinson about the rude employee, Mr. Robinson had his gun drawn. Defendant then asked Mrs. Robinson to tell Mr. Robinson to put the gun away because he did not want any trouble. As Mrs. Robinson proceeded to the telephone, defendant told her that she did not have to call the police because he did not want any trouble and he just wanted to tell them about the rude employee. Defendant testified that Mr. Robinson then shot him in the left leg. Defendant stated that he never had his hand under his shirt and no one asked him to leave. Defendant testified that he never touched anyone and never demanded money.
Defendant was found guilty of attempted aggravated robbery. At a hearing on defendant's written motions for a new trial and reconsideration, defense counsel asserted that the State "was in a position to know" that Frank Robinson "was wanted on a warrant for a theft chop shop operation" and arrested him "the very next day after this trial." Assistant State's Attorney Michael Connelly noted that the arrest warrant allegation was not in the motion for a new trial and the State was not aware, even on that day, that Frank Robinson was wanted on an arrest warrant. The assistant State's Attorney argued for the denial of defendant's motions. Defendant asserted that none of the testimony established that defendant implied or stated that he possessed a weapon, which was a necessary element of the offense. Defendant's motion for a new trial was denied. Defendant was then sentenced to 10 years' imprisonment.
Defendant's first issue on appeal is that his conviction for attempted aggravated robbery must be reversed because the statute defining the offense of aggravated robbery violates due process of law.
Whether a statute is constitutional "is a question of law which we review de novo." People v. Fisher, 184 Ill. 2d 441, 448, 705 N.E.2d 67 (1998). In order to establish that a statute violates the equal protection or due process clause of the fourteenth amendment, the challenger must demonstrate that there is no rational relationship between the classification in the statute and a legitimate government purpose. People v. McLaughlin, 324 Ill. App. 3d 909, 915, 755 N.E.2d 83 (2001). A basic presumption exists that statutes are constitutional and the party challenging a statute bears the burden of establishing its invalidity. People v. McClanahan, 191 Ill. 2d 127, 131, 729 N.E.2d 470 (2000).
The aggravated robbery statute provides:
"A person commits aggravated 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 while indicating verbally or by his or her actions to the victim that he or she is presently armed with a firearm or other dangerous weapon ***. This offense shall be applicable even though it is later determined that he or she had no firearm or other dangerous weapon *** in his or her possession when he or she committed the robbery." (Emphasis added.) 720 ILCS 5/18-5(a) (West 2000).
Defendant asserts that the aggravated robbery statute, by not specifying that a victim must "reasonably" believe that the offender is armed, does not provide adequate notice of what type of conduct constitutes aggravated robbery since a conviction may rest entirely on the subjective impression of the victim. Defendant argues that under the statute, a defendant "will be convicted of aggravated robbery even if the victim unreasonably believes that the offender is armed based on his words or conduct." (Emphasis original.)
We disagree with defendant's contention that "a person will also be convicted of aggravated robbery if he simply happened to have his hand in his pocket, behind his back, in his shirt sleeve, or, as in the instant case, under his [T]-shirt, as long as the victim also testifies that the conduct caused him to believe the defendant was armed, however unreasonable that belief may be." While the aggravated robbery statute permits charging and convicting a person of aggravated robbery based on the impression of the victim, the danger of arbitrary and discriminatory enforcement is minimal in that the accused must also take property from the person by the use of force or by threatening the imminent use of force while indicating verbally or by his or her actions that he is presently armed with a firearm or other dangerous weapon. Defendant's assertions have failed to demonstrate the invalidity of the aggravated robbery statute.
Defendant next contends that the State did not prove beyond a reasonable doubt that he indicated verbally or by his actions that he was armed during the incident and, therefore, his conviction should be reduced to attempted robbery. The State responds that the testimony and evidence adduced at trial established beyond a reasonable doubt that defendant did indicate to the Robinsons that he was armed with a weapon.
The standard for reviewing the sufficiency of the evidence in a bench trial is the same as it is in a jury trial. People v. Herring, 324 Ill. App. 3d 458, 460, 754 N.E.2d 385 (2001). The standard of review for an appeal challenging a criminal conviction based on the sufficiency of the evidence is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could find the essential elements of the offense beyond a reasonable doubt. People v. Schott, 145 Ill. 2d 188, 203, 582 N.E.2d 690 (1991).
In order for the State to prove a defendant guilty of aggravated robbery, it must show that the defendant took property from the person by the use of force or by threatening the imminent use of force while indicating verbally or by his or her actions to the victim that he or she is presently armed with a firearm or other dangerous weapon. See 720 ILCS 5/18-5(a) (West 2000). Defendant in the instant case was found guilty of attempted aggravated robbery. "A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense." 720 ILCS 5/8-4(a) (West 2000).
Deference is given to the trier of fact on issues of witness credibility, the weight of the witness testimony, and the inferences that may be drawn from the evidence. People v. Wittenmyer, 151 Ill. 2d 175, 191, 601 N.E.2d 735 (1992). In the instant case, Mr. and Mrs. Robinson testified that defendant's right hand was under his shirt the entire time that he was in the towing company office. Mrs. Robinson testified that defendant threatened her and her husband, pushed her, and demanded money. The Robinsons testified that they thought that defendant had a gun. In contrast, defendant testified that he did not threaten or touch anyone and did not demand money from the Robinsons. He stated that he entered the office only to complain to management about a rude employee. After viewing the evidence in the light most favorable to the ...