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People v. Clark

Supreme Court of Illinois

March 24, 2016

FRED CLARK, Appellee

          Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and Theis concurred in the judgment and opinion.



          [¶1] The defendant, Fred Clark, was charged with multiple offenses, including aggravated vehicular hijacking while armed with a firearm (720 ILCS 5/18-4(a)(4) (West 2010)) and armed robbery while armed with a firearm (720 ILCS 5/18-2(a)(2) (West 2010)). Following a bench trial, the circuit court of Cook County acknowledged that defendant committed the charged offenses while armed with a gun; however, the court determined that the gun " was used as a bludgeon and will be treated as such." Commensurate with the court's apparent belief that the manner of the firearm's use was relevant to the charged offenses, the court pronounced oral findings that defendant was " guilty of aggravated vehicular hijacking and armed robbery without a firearm " (emphasis added), uncharged offenses identified in different subsections of the pertinent statutes. See 720 ILCS 5/18-4(a)(3) (West 2010) (aggravated vehicular hijacking, while armed with a dangerous weapon " other than" a firearm); 720 ILCS 5/18-2(a)(1) (West 2010) (armed robbery, while armed with a dangerous weapon " other than" a firearm). On appeal, the appellate court concluded those uncharged offenses were not lesser-included offenses of the charged firearm offenses, and thus those convictions were improper. The court found the issue forfeited, but held it cognizable as second-prong plain error. Pursuant to those findings, the appellate court reduced the convictions to vehicular hijacking and robbery, respectively, and remanded for resentencing on those convictions. 2014 IL App. (1st) 123494, 387 Ill.Dec. 333, 22 N.E.3d 378. We allowed the State's petition for leave to appeal (Ill. S.Ct. R. 315 (eff. July 1, 2013)), and now affirm the judgment of the appellate court.

         [¶2] BACKGROUND

          [¶3] Defendant was initially charged by indictment in the circuit court of Cook County with aggravated vehicular hijacking while armed with a firearm (720 ILCS 5/18-4(a)(4) (West 2010)), armed robbery while armed with a firearm (720 ILCS 5/18-2(a)(2) (West 2010)), two counts of burglary (entry of a building and entry of a motor vehicle with the intent to commit a theft) (720 ILCS 5/19-1(a) (West 2010)), aggravated battery (720 ILCS 5/12-4(b)(1) (West 2010)), aggravated unlawful restraint (720 ILCS 5/10-3.1 (West 2010)), and six counts of aggravated unlawful use of a weapon (all counts specifying a firearm) (720 ILCS 5/24-1.6(a)(1)(3)(A), (a)(1)(3)(C), (a)(1)(3)(I) (West 2010)). As relevant to an argument posited by the State, and discussed hereafter, we note that the aggravated battery charge stated in pertinent part that defendant caused bodily harm to Tyronn Wise " while using a dangerous weapon other than by the discharge of a firearm, to wit: struck Tyronn Wise about the body with a firearm." (Emphasis added.) The aggravated unlawful restraint charge similarly stated that defendant committed the offense " while using a deadly weapon, to wit: a firearm." (Emphasis added.)

          [¶4] Prior to defendant's jury waiver and ensuing bench trial, the trial court admonished defendant that he was charged with aggravated vehicular hijacking while armed with a firearm, and armed robbery while armed with a firearm; Class X felonies, with potential sentences upon conviction of 21 to 45 years' imprisonment. The trial court did not reference any other charges or penalties.

          [¶5] At defendant's bench trial, Tyronn Wise testified that on May 15, 2011, around 6:30 a.m., he was accosted by defendant and another man while he was parking his vehicle, a Dodge Charger, in his garage. He stated that defendant put a gun to his temple and ordered him to " give that shit up." The other individual was not armed. The offenders took a cell phone and cash from Wise's person. The other man then went through Wise's vehicle while defendant continued holding Wise at gunpoint. While the other man rifled through Wise's vehicle, defendant ordered Wise to the back of the garage and ordered him to kneel, " execution style," facing the wall, with his hands behind his head. Wise testified that defendant continued to hold the gun: " upside my head," " in the back of my head." Eventually, the other man drove off in Wise's vehicle. Before defendant departed in a separate vehicle, he told Wise he should kill him, and he then struck Wise twice in the head with the gun. Wise later identified defendant in a lineup and in open court. He also identified People's exhibit No. 6 as a photograph of the firearm defendant held " upside my head." He affirmed that gun was " at his person" during the entire 15-minute encounter.

          [¶6] Officer Rangel[1] of the Chicago police department testified he and his partner were on patrol on May 15, 2011, around 11 p.m., when they stopped a vehicle for a traffic violation. The occupants immediately fled on foot. Rangel pursued one person, who was ultimately apprehended. Rangel identified that individual as the defendant. A handgun was recovered from the vehicle. Rangel identified People's exhibit Nos. 3 and 4 as photographs depicting the Dodge Charger he stopped on May 15, 2011.

          [¶7] Officer Juan Aguirre, an evidence technician, testified that he recovered a gun from behind the front seat of the Dodge Charger. The gun, pictured in, among other exhibits, People's exhibit No. 6, was a loaded 9-millimeter Ruger handgun.

          [¶8] After Aguirre's testimony, the State rested. The defendant's motion for directed verdict was denied.

          [¶9] The defense first called Detective Sharon Walker. Walker testified that defendant and Kamari Belmont were arrested in connection with this case. Both appeared in a lineup on May 16, 2011. Wise viewed that lineup and identified defendant as the man who held a gun to his head. Wise did not identify Belmont.

          [¶10] Defendant then testified in his own behalf. Defendant stated that, on May 15, 2011, Belmont and Belmont's cousin picked him up in a red Dodge Charger, which Belmont said belonged to his aunt. Defendant said he did not see a gun in the car. Defendant stated that he eventually drove, as Belmont's cousin appeared to be intoxicated.

          [¶11] According to defendant, he drove to a gas station near 55th Street and Wells Street. He exited the car and saw someone in black with something in his hand. Defendant stated he thought that person might have had a gun, so he ran behind a nearby house. Defendant said, when he walked back to the front of the house, he encountered the police, who arrested him.

          [¶12] Defendant testified he had never seen Wise before trial. He denied holding a gun to Wise's head or taking anything from him. Defendant acknowledged that he was, at the time of trial, in custody for a juvenile parole violation. He was on parole for a controlled substance offense.

          [¶13] In argument before the court, the issues addressed by both sides were whether defendant was proven to be the individual who held " the gun" to Wise's head and whether " the gun" subsequently found in the Dodge Charger when defendant was arrested was adequately tied to defendant. Wise's testimony that defendant held a gun to his head and thereafter pistol-whipped him stood uncontradicted. Defense counsel never argued that the weapon employed was anything other than a firearm. He asked that the trial court find defendant not guilty of all charges.

          [¶14] The trial court found that Wise was credible, and defendant was not. The court recounted Wise's testimony, that defendant was " the person that robbed him as he was trying to pull into his garage. He came into his garage with another person, put a gun to his head, ordered him to do various things, smacked him with a pistol that was in his hand, then fled. *** Later the same day Mr. Clark was seen driving the victim's car, and a gun was recovered in the car."

          [¶15] The court concluded:

" I do believe he was properly identified as the person involved in this case. The weapon was used in this case in the manner of a bludgeon. He was pistol-whipped with it.
I find under all circumstances that it was used as a bludgeon and will be treated as such. So he is found guilty of aggravated vehicular hijacking and armed robbery without a firearm, also the other charges, the burglary charges as well."

          [¶16] Neither the State, nor defense counsel, objected to the court's findings when announced, and defendant's motion for a new trial subsequently raised only generic, boilerplate contentions that were insufficient to bring the error subsequently claimed on appeal to the attention of the circuit court.

          [¶17] At the hearing on defendant's motion and sentencing, the court stated that it had found defendant " guilty of armed robbery on [ sic ] a firearm, and aggravated vehicular hijacking, and burglary." Defense counsel chose to stand on his posttrial motion, which was " respectfully denied." In the course of defense counsel's sentencing argument, counsel took issue with the court's finding that defendant had " pistol-whipped" the victim. In response, the court recharacterized: " Smacked him in the head with a gun."

          [¶18] In announcing defendant's sentences, the court first noted that defendant had been in trouble " a number of times," had had multiple " encounters with the police," and " was on parole at the time of this offense." The court then shed some light on the thought process that led to its finding on these uncharged offenses, which carried a lower penalty range than those with which defendant was charged:

" This offense did involve some amount of premeditation, and it was violent, and an actual gun was recovered later. I[,] already in light of his age, the fact the gun wasn't fired, other circumstances that I heard at the trial, gave some deference and benefit of the doubt and justice as to the ultimate finding."

         It appears the presentence report thereafter prompted the judge to rethink the " benefit" and " justice" conferred upon defendant. The court continued:

" That being said, now that I see the Pre-sentence Investigation, I hear more about it, I agree this is a serious matter. He's got a violent side to him, particularly again the fact he's on parole at the time of this offense is disturbing.
As to the offenses of armed robbery and aggravated vehicular hijacking, it's 17 years in the penitentiary; as to the burglary, 7 years in the penitentiary. All sentences will run concurrently."

         The court's written order of commitment and sentence recites those sentences, but reflects convictions ...

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