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People v. Carey

Court of Appeals of Illinois, First District, First Division

August 22, 2016

ROBERT CAREY, Defendant-Appellant.

          Rule 23 order filed November 19, 2015

          Rule 23 order withdrawn July 11, 2016

         Appeal from the Circuit Court of Cook County, No. 11-CR-3485; the Hon. Matthew E. Coghlan, Judge, presiding.

         Reversed and remanded.

          Michael J. Pelletier, Alan D. Goldberg, and Manuel S. Serritos, all of State Appellate Defender's Office, of Chicago, for appellant.

          Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Carol L. Gaines, and Gina DiVito, Assistant State's Attorneys, of counsel), for the People.

          PRESIDING JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justices Connors and Harris concurred in the judgment and opinion.



         ¶ 1 Defendant, Robert Carey, was tried by a jury, found guilty of first degree felony murder while armed with a firearm, and sentenced to 25 years' imprisonment for the murder and an additional 15 years for the firearm sentencing enhancement. Prior to the trial, the State had nol-prossed three additional charges in the indictment against defendant: one count of attempted armed robbery while armed with a firearm (720 ILCS 5/18-2(a)(2) (West 2010)) (count II), and two counts of unlawful use or possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2010)) (counts III and IV).

         ¶ 2 In his appeal, defendant makes the following three arguments: (1) the circuit court erred in finding him fit to stand trial, given that he suffered from amnesia and had no recollection of the incident giving rise to the felony murder charge against him; (2) the State failed to prove beyond a reasonable doubt that he had the intent to commit armed robbery and that he took a substantial step toward the commission of the crime; and (3) the 15-year firearm enhancement should be stricken or vacated from his sentence because the State failed to satisfy the procedural requirements for notifying a defendant of its intent to seek the enhanced term. We filed our original decision in this matter on November 9, 2015, in which we affirmed defendant's conviction for first degree felony murder and vacated the 15-year sentencing enhancement, which was based on his possession of a firearm.

         ¶ 3 Following our decision, both parties filed petitions for rehearing. In its petition, the State argues that the firearm sentencing enhancement should not be vacated because defendant was not prejudiced in the preparation of his defense. In defendant's petition, he contends that this court misapplied the applicable law and relevant facts in concluding that he was fit to stand trial and further in finding that there was sufficient evidence to convict him of attempted armed robbery. Additionally, for the first time, defendant argues that the felony murder conviction must be vacated because he was prejudiced by an indictment that did not specify which version of attempted armed robbery the State sought to use as the predicate offense for felony murder. We ordered the State to file a response to defendant's petition for rehearing, and for defendant to file a reply, specifically addressing the issue of whether the felony murder count of the indictment "apprised [defendant] of the offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct."

         ¶ 4 Following our review of the supplemental briefing, we granted both parties' petitions for rehearing and withdrew our original decision. This opinion now stands as our resolution of this matter. For the reasons that follow, we reverse defendant's conviction and remand to the circuit court for further proceedings consistent with this opinion.

         ¶ 5 BACKGROUND

         ¶ 6 The undisputed facts are as follows. On the morning of January 28, 2011, defendant and his brother, Jimmy Townsend, attacked two armored truck guards working for Garda Cash Logistics (Garda): Julio Rodriguez and Derrick Beckwith. The guards arrived in an armored Garda truck at a Family Dollar store located at the corner of Chicago Avenue and Homan Avenue in Chicago. Beckwith drove the truck, and after pulling up to the entrance of the store, Rodriguez exited the truck and entered the store to collect the cash receipts for transfer while Beckwith stayed outside in the truck.

         ¶ 7 As Rodriguez exited the store, holding a deposit bag filled with cash, defendant and Townsend ambushed him from two different directions. Townsend approached Rodriguez and pointed at him an object that appeared to Rodriguez to be a sawed-off shotgun, while Defendant approached Rodriguez from a different side with a handgun. Townsend yelled for defendant to shoot Rodriguez. Rodriguez shot Townsend four times with his service revolver, and Townsend collapsed to the pavement from the gunshot wounds. Townsend threw his weapon to defendant, who then put Rodriguez in a chokehold. During his struggle with defendant, Rodriguez dropped the money bag, eventually broke free from defendant's grip, and ran toward the truck. By this time, Beckwith, who was still inside the truck, had opened the passenger-side door and drawn his firearm. He fired four shots at defendant. Two of the bullets struck defendant in the head-one directly in his eye-and he fell to the ground, where he remained until the police and paramedics arrived. Townsend died from the ...

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