Appeal from the Circuit Court of the 10th Judicial Circuit Peoria County, Illinois No. 09--CF--412 Honorable Michael E. Brandt Judge, Presiding.
JUSTICE WRIGHT delivered the judgment of the court, with opinion.
Justices McDade and O'Brien concurred in the judgment.
At the close of evidence in this case, both the State and defense objected to the court providing the jury with instructions pertaining to any lesser included offense related to the single-count indictment. Consequently, the jury received instructions from the court directing the jury to deliberate on a single criminal violation of section 18-2(a)(2) of the Criminal Code of 1961 (720 ILCS 5/18-2(a)(2) (West 2008)) and sign one verdict form. Following deliberations, the jury signed one verdict form finding defendant "guilty of armed robbery," but as instructed, also signed an additional form specially finding the State failed to prove beyond a reasonable doubt that defendant was armed with a firearm during the commission of this armed robbery.
On appeal and pursuant to supplemental briefs allowed by this court, defendant argues the jury's special finding, indicating the State did not prove the element related to a firearm, constituted an acquittal of the only charged violation of the armed robbery statute. We agree. Accordingly, defendant's conviction for armed robbery cannot be upheld or reduced to a lesser included offense under the circumstances of this case. We reverse defendant's conviction and sentence, and the cause is remanded to the trial court with directions.
On May 5, 2009, a Peoria County grand jury issued a one-count bill of indictment which alleged that on April 7, 2009, defendant committed the offense of armed robbery in that "while armed with a dangerous weapon, a handgun, did take property being a wallet and it's [sic] contents from the person or presence of Phillip Jones by threatening the imminent use of force in violation of 720 ILCS 5/18-2(a)(2)." Defendant's jury trial began on July 14, 2009.
The State presented the testimony of Phillip Jones, Harold Allen, Officer Jason Spanhook, Kimberly Whittles, and Anthony Rickard, and the videotaped interviews of Kimberly Whittles and Anthony Rickard conducted by Detectives Aaron Watkins and Shannon Walden. Jones testified that in the late afternoon of April 7, 2009, defendant and another man approached him as he was walking down the street. According to Jones, defendant pointed a gun at him, and one of the men reached into his pocket and removed his wallet. During cross-examination, Jones acknowledged that he did not know much about guns and stated that defendant could have had either a gun or a BB gun. He did not know.
Allen testified that on April 7, 2009, he observed two men jump out of the backseat of a car that stopped in the parking lot of his apartment building. He thought this was odd, so he wrote down the license plate number. A few minutes later, he saw the police in the area and provided the police with the license plate information.
Officer Jason Spanhook testified that he received the license plate information from Allen and that on the next day, another officer stopped the vehicle in Peoria and it contained four occupants, including defendant. Spanhook searched the vehicle but did not find a firearm or other gun, but did find a spent shell casing. Spanhook was not aware of the police ever recovering a handgun in this case.
The State played the videotaped interviews of Whittles and Rickard. In the videotape, Whittles told the police that she, defendant, Jeremy Barnett and Anthony Rickard were looking for money on April 7, 2009, and that Jeremy (Barnett) decided to rob someone. According to Whittles, Jeremy and defendant exited the car she was driving after she stopped in a parking lot. Later, the two men came running back to the car carrying a wallet that contained $60. Whittle stated defendant had a gun at the time. Rickard's interview provided a similar account, although Rickard did not see a gun but believed Jeremy had a gun.
Defendant testified on his own behalf. He denied being with Whittle and Rickard on the day in question and denied participating in the robbery. In rebuttal, the State offered into evidence certified convictions showing defendant previously committed the offenses of unlawful delivery of a controlled substance and unlawful possession of a controlled substance.
At the conclusion of the evidence, the trial court conducted a jury instruction conference with the attorneys. Before closing arguments, defense counsel indicated to the trial judge that he wanted to speak with defendant regarding the possibility of requesting an instruction on the lesser included offense of robbery. The prosecutor indicated that she objected to any instruction on a lesser included offense and stated the only offense that would qualify as a lesser included offense would be aggravated robbery (720 ILCS 5/18-5 (West 2008)).
After a brief recess, defense counsel advised the court that defendant did not wish to request a lesser included instruction. The court stated that it agreed with the State that the lesser included offense would be aggravated robbery (720 ILCS 5/18-5 (West 2008)) and that an instruction for aggravated robbery would be proper in the case in light of the evidence presented. However, the court would not give that instruction since defendant did not want an instruction on a lesser offense provided to the jury.
Following the conference on instructions, the court allowed the State's Instruction No. 6 over defendant's objection which provided:
"The State has also alleged that during the commission of the offense of Armed Robbery the defendant or one for whose conduct he is legally responsible was armed with a firearm.
The defendant has denied the allegation." (Emphasis added.)
The court also gave the State's instruction No. 17, without objection, which defined the armed robbery violation as follows:
"A person commits the offense of Armed Robbery when he, while carrying on or about his person, or while otherwise armed with a dangerous weapon, knowingly takes property from the person or presence of another by the use of force or ...