Appeal from the Circuit Court of Madison County. No. 99-CF-1 Honorable Ann Callis, Judge, presiding.
Justices: Honorable Melissa A. Chapman, J.,
Honorable Terrence J. Hopkins, P.J., and
Honorable Gordon E. Maag, J., Concur
The opinion of the court was delivered by: Justice Chapman
On October 7, 1999, Gregory A. Greer (defendant) was charged by amended indictment with four counts of murder for a single killing. On November 15, 1999, defendant was tried before a jury. During the trial, the State was given leave to dismiss two of the four counts of the amended indictment, leaving the remaining counts of felony murder predicated upon armed violence and robbery. The jury found defendant guilty of felony murder predicated upon armed violence but not guilty of felony murder predicated upon robbery. Defendant appeals. The issues for review are as follows: (1) whether armed violence predicated upon the unlawful possession of a controlled substance with the intent to deliver is a forcible felony under section 2-8 of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/2-8 (West 2000)), (2) whether the felony-murder count of the State's amended indictment predicated upon armed violence was obtained in violation of section 112-4(c) of the Code of Criminal Procedure of 1963 (725 ILCS 5/112-4(c) (West 2000)), (3) whether the court erred in limiting evidence of the victim's use of force against defendant to only the knowing-murder count in the amended indictment, (4) whether the court erred in denying defendant's motions for a directed verdict, (5) whether the court erred in refusing to submit defendant's tendered involuntary manslaughter instruction, (6) whether the court erred in refusing to submit defendant's tendered instructions and interrogatories on the predicate offenses underlying the felony-murder charges, (7) whether defendant was denied a fair trial by the prosecutor's remarks during closing argument, and (8) whether the State engaged in capricious, vexatious, and repetitious conduct that denied defendant his right to a fair trial. We affirm.
On the morning of January 2, 1999, Christine Willman purchased crack cocaine from Jerry Greer, defendant's cousin. Later that afternoon, Greer was again contacted to sell cocaine, this time to Willman's friend, Courtney Stevenson (the victim).
After receiving this request, Jerry Greer contacted defendant and asked him to help deliver the drugs. Defendant agreed. Jerry Greer returned to the Willman residence with defendant. Defendant had a handgun with him at the time.
Shortly after they arrived, an argument broke out in the kitchen over the drugs and money. The three men began fighting. The victim was shot in the abdomen when the gun in defendant's pocket fired as he reached for it during the fight. After being shot, the victim walked into the living room, where he told Willman, her daughter Jessica, and her son Jason that he had been shot and asked that they call the police.
Returning to the kitchen, the victim used a knife to stab defendant in the shoulder, at which time defendant pulled out the gun from his coat and fired several more shots at the victim. The victim suffered a fatal gunshot to the head and fell to the ground. Defendant was later treated at a local hospital for his wounds.
On October 7, 1999, defendant was charged with the victim's murder by an amended indictment alleging four counts of first-degree murder:
count I, intentional or knowing murder; count II, felony murder predicated upon armed violence with unlawful possession of a controlled substance with the intent to deliver; count III, felony murder predicated upon robbery; and count IV, felony murder predicated upon intimidation. On November 15, 1999, defendant's trial commenced. After jury selection, the court granted the State's oral motion to dismiss the felony-murder charge based on intimidation (count IV). Shortly before closing arguments, the court granted the State's motion to dismiss the knowing- or intentional-murder charge (count I). On November 19, 1999, the jury returned a guilty verdict on count II, felony murder predicated upon armed violence, and a not-guilty verdict on count III, felony murder predicated upon robbery. Defendant made a timely appeal.
Felony Murder Predicated Upon Armed Violence
Defendant first argues that count II of the State's amended indictment charging him with felony murder predicated upon armed violence for the unlawful delivery of a controlled substance did not allege a forcible felony as required by section 9-1 of the Criminal Code (720 ILCS 5/9-1 (West 2000)). This court, however, has addressed this issue on essentially the same set of facts in People v. Greer, 326 Ill. App. 3d 890, 762 N.E.2d 693 (2002), where Jerry Greer was convicted of felony murder arising from the same incident. Jerry Greer also argued that armed violence predicated on unlawful possession of a controlled substance with the intent to deliver was not a forcible felony and thus could not serve as the basis for a felony-murder conviction. In Greer we concluded that armed violence based upon the commission of unlawful possession of a controlled substance with the intent to deliver was a forcible felony falling within the residuary clause of section 2-8 of the Criminal Code. Greer, 326 Ill. App. 3d at 892-93, 762 N.E.2d at 694-95. In light of almost identical facts in Greer and the case sub judice, we reaffirm our conclusion.
Motion to Dismiss Grand Jury's Indictment
Next, defendant argues that the October 7, 1999, indictment was obtained by the State in violation of section 112-4(c) of the Code of Criminal Procedure of 1963, because no sworn witnesses testified before the grand jury that returned a true bill of indictment against him. We disagree.
On January 4, 1999, defendant was charged by information with one count of knowing first-degree murder. On August 23, 1999, the State was granted leave to file an amended information charging defendant with four counts of first-degree murder: count I, knowing murder; count II, felony murder predicated upon armed violence; count III, felony murder predicated upon robbery; and count IV, felony murder predicated upon intimidation.
On September 23, 1999, the amended information was scheduled for a preliminary hearing. The State, however, objected to a second preliminary hearing because probable cause had already been established on the original January 4, 1999, information. Despite the State's protestations, the court found that defendant was entitled to another preliminary hearing on the amended information, and the court continued the matter to September 30, 1999.
But on September 30, 1999, the hearing was again continued to October 4, 1999, due to the grand jury's return of a true bill of indictment against defendant charging him with the same counts that had been alleged in the amended information. During the proceedings before the grand jury, no witnesses were sworn. Instead, the State submitted a transcript of sworn testimony given by detective Jerry Cooley of the Alton police department before an earlier-empaneled grand jury in January 1999.
On October 1, 1999, the State voluntarily dismissed both the indictment and amended information, leaving defendant charged with only count I, the single knowing-murder count in the original information. On October 7, 1999, the grand jury reconvened and the State resubmitted the transcript of Detective Cooley's sworn testimony. The grand jury indicted defendant again. The amended indictment charged defendant with the same four counts of first-degree murder that had been alleged in the amended information.
Shortly after the amended indictment was filed, the court granted defendant's motion to obtain transcripts from the September and October grand jury proceedings. Defendant also obtained affidavits from the two court reporters who had participated in the grand jury proceedings. The affidavits indicated that no testimony had been elicited or witnesses sworn in either proceeding. On November 1, 1999, defendant filed a motion to dismiss the amended indictment. He argued (1) that the State's repeated filing and dismissing of the charges denied him the ability to adequately prepare for trial and (2) that the indictment was defective under sections 114-1(a)(5) and 114-1(a)(9) of the Code of Criminal Procedure of 1963 (725 ILCS 5/114-1(a)(5), (a)(9) (West 1998)) because the grand jury failed to elicit sworn testimony from a witness placed under oath at the proceeding. At the hearing on November 15, 1999, the court denied defendant's motion.
On appeal, defendant continues to maintain that the grand jury acted contrary to section 112-4(c) of the Code of Criminal Procedure of 1963. Section 114-1(a)(5), the basis for defendant's motion to dismiss, provides that the circuit court may dismiss an indictment where it "was returned by a Grand Jury which acted contrary to Article 112 of this Code and which results in substantial injustice to the defendant." 725 ILCS 5/114-1(a)(5) (West 2000). The pertinent portions of section 112-4 provide as follows:
"(a) The Grand Jury shall hear all evidence presented by the State's Attorney.
(b) The Grand Jury has the right to subpoena and question any person against whom the State's Attorney is seeking a Bill of Indictment, or any other person, and to obtain and examine any documents or transcripts relevant to the matter being prosecuted by the State's Attorney. ***
(c) The foreman shall preside over all hearings and swear all witnesses. Except where otherwise provided by this Article, the foreman may delegate duties to other grand jurors and determine rules of procedure." ...