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The People of the State of Illinois v. Aaron Mcbride

May 17, 2012

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
AARON MCBRIDE,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County, Illinois. No. 07 CR 18367 Honorable Joseph M. Claps, Judge Presiding.

The opinion of the court was delivered by: Justice J. Gordon

JUSTICE J. GORDON delivered the judgment of the court, with opinion. Presiding Justice Epstein and Justice Howse concur in the judgment and opinion.

OPINION

¶ 1 In this case, defendant Aaron McBride appeals from his conviction for aggravated vehicular hijacking.

¶ 2 On May 19, 2007, victim Kenneth Criswell was parking his car when a man holding what Criswell believed was a gun approached him and ordered him to get out of the car. The man then drove away in Criswell's car. Criswell subsequently identified McBride in a police lineup. McBride was charged with one count of aggravated vehicular hijacking. Following a jury trial, he was found guilty and sentenced to 91/2 years' imprisonment. McBride now appeals. For the reasons that follow, we affirm in part, reverse in part, and remand.

¶ 3 I. BACKGROUND

¶ 4 On September 21, 2007, defendant was indicted on one count of aggravated vehicular hijacking. The indictment stated:

"Aaron McBride committed the offense of aggravated vehicular hijacking in that he,knowingly took a motor vehicle, to wit: a 2000 Honda, from the person or the immediate presence of Kenneth Criswell by the use of force or by threatening the imminent use of force, and he carried on or about his person, or was otherwise armed with a dangerous weapon, to wit: a handgun, in violation of chapter 720 act 5 section 18-4(a)(3) ***."

The version of section 18-4(a) of the Criminal Code of 1961 that was in force at the time that defendant was indicted, pursuant to a 2000 amendment, provides, in relevant part:

"A person commits aggravated vehicular hijacking when he or she violates Section 18-3 [vehicular hijacking]; and

(3) he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon, other than a firearm; or

(4) he or she carries on or about his or her person or is otherwise armed with a firearm ***." (Emphasis added.) 720 ILCS 5/18-4(a) (West 2006).

By contrast, as shall be discussed below, the preamended version of section 18-4(a) does not make a distinction between firearm-related and non-firearm-related offenses. Thus, it provides:

"A person commits aggravated vehicular hijacking when he or she violates Section 18-3 [vehicular hijacking]; and

(3) he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon." (Emphasis added.) 720 ILCS 5/18-4(a) (West 1998).

¶ 5 In this appeal, no questions are raised as to the identity of the perpetrator or the occurrence of the event. The sole issues raised involve the consequences of numbering the charge in the indictment under section 18-4(a)(3), the sufficiency of the proof that the instrument used by the defendant was proven to be a dangerous weapon, and defendant's contention that the jury was misinstructed as to the definition of a dangerous weapon.

¶ 6 At trial, Criswell testified that on the evening of May 19, 2007, when he was attempting to park his car in his garage, the defendant approached him and said, "Get out the car, bitch," holding a gun to Criswell's forehead. He said that he only saw the gun for an instant, but he did see the barrel. On cross-examination, Criswell stated that he only got a "slight glance" at the barrel and did not see any other part of the gun. Defense counsel asked him, "He didn't threaten to shoot you, [did] he?" Criswell replied, "No, but I assume he would have." Criswell also stated that the defendant hit him in the head when defendant placed the barrel of the gun against his forehead. "He put it up against my head hard," Criswell explained. The gun left a "deep bruise" and his forehead was "a little bloody," although blood was not "coming down."

¶ 7 Criswell said that he complied with the defendant's order to get out of the car. After hearing defendant driving away, Criswell went inside and called the police. On cross-examination, Criswell stated that he did not notice that his forehead was bleeding until the officers who arrived on the scene pointed it out to him, and he did not go to the doctor or to the hospital for his injury.

¶ 8 Criswell also testified that he subsequently identified defendant in a photo lineup on August 1, 2007, and in a physical lineup on August 22, 2007.

¶ 9 The State then called a series of four officers and a forensic scientist to testify to the recovery of Criswell's car, the recovery of evidence from it, and the analysis of that evidence. These witnesses established that Criswell's car was recovered by the police and that fingerprints matching defendant's were found on the exterior passenger door.

¶ 10 The defense called Officer Wedster,*fn1 one of the officers who responded to Criswell's call immediately following the hijacking. Officer Wedster testified that when he spoke to Criswell on May 19, 2007, he did not see any injuries on Criswell, he did not recall seeing any blood on him, and, while he did not recall whether Criswell told him that he had been hit in the head with a gun, his police report did not contain any mention of such an incident. On cross-examination, Officer Wedster testified that he did check the box indicating an injury on his police report.

¶ 11 After the conclusion of testimony, the trial court instructed the jury on the offense of aggravated vehicular hijacking as follows:

"A person commits the offense of aggravated vehicular hijacking when he knowingly takes a motor vehicle from the person or the immediate presence from [sic] another by the use of force or threatening the imminent use of force, and he carries on or about his person or is otherwise armed with a dangerous weapon.

To sustain the charge of aggravated vehicular hijacking, the State must prove the following propositions: First, the defendant took a motor vehicle from the person or immediate presence of Kenneth Criswell, and second, that the defendant did so by the use of force or by threatening the imminent use of force, and third, that the defendant carried on or about his person or was otherwise armed with a dangerous weapon at the time of the taking."

Defendant made no objection to these instructions, and the parties do not raise any issue as to the propriety of these instructions on appeal.

¶ 12 During deliberations, the jury sent a note to the trial judge asking for the definition of "dangerous weapon." Outside the presence of the jury, the trial judge held a conference with defense counsel and counsel for the State to discuss how to answer the jury's question. The trial court noted that the aggravated vehicular hijacking statute does not define the term "dangerous weapon." Defense counsel requested that the trial court tell the jury to use the plain meaning of the words, or, in the alternative, to give them the definition from Black's Law Dictionary. Counsel for the State argued that the definition from Black's Law Dictionary was inadequate because it did not classify firearms as inherently dangerous. Instead, counsel for the State proposed that the trial court give the jury the definition of "dangerous weapon" contained in the armed violence statute (720 ILCS 5/33A-1 (West 2006)). In the end, the trial judge sent back a composite definition consisting of both the definition from the armed violence statute and the definition in Black's Law Dictionary, over defense counsel's objection to the inclusion of the former. The composite definition read as follows:

"Definition:

(1) 'Armed with a dangerous weapon'. A person is considered armed with a dangerous weapon for purposes of this Article, when he or she carries on or about his or her person or is otherwise armed with a Category I, Category II, or Category III weapon.

(2) A Category I weapon is a handgun, sawed-off shotgun, sawed-off rifle, any other firearm small enough to be concealed upon the person, semiautomatic firearm, or machine gun. A Category II weapon is any other rifle, shotgun, spring gun, other firearm, stun gun or taser as defined in paragraph (a) of Section 24-1 of this Code, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, axe, hatchet, or other deadly or dangerous weapon or instrument of like character. As used in this subsection (b) 'semiautomatic firearm' means a repeating firearm that utilizes a portion of the energy of a firing cartridge to extract the fired cartridge case and chamber the next round and that requires a separate pull of the trigger to fire each cartridge.

(3) A Category III weapon is a bludgeon, black-jack, slungshot, sand-bag, sand-club, metal knuckles, billy, or other ...


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