People v. Carey

2018 IL 121371

104 N.E.3d 1150

The PEOPLE of the State of Illinois, Appellant,

v.Robert CAREY, Appellee.

Docket No. 121371

Supreme Court of Illinois.

Opinion filed January 19, 2018

Lisa Madigan, Attorney General, of Springfield, and Anita M. Alvarez, State’s Attorney, of Chicago (David L. Franklin, Solicitor General, and Michael M. Glick and Michael L. Cebula, Assistant Attorneys General, of counsel), for the People.

Michael J. Pelletier, State Appellate Defender, Patricia Mysza, Deputy Defender, and Manuel S. Serritos, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.

JUSTICE FREEMAN delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial in the circuit court of Cook County, defendant, Robert Carey, was convicted of first degree felony murder predicated on attempted armed robbery while armed with a firearm ( 720 ILCS 5/9–1(a)(3) (West 2010)). The appellate court reversed defendant's conviction, holding that the indictment failed to specify the predicate offense to the prejudice of defendant. 2016 IL App (1st) 131944, 407 Ill.Dec. 96, 62 N.E.3d 341. This court allowed the State's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Mar. 15, 2016). We now reverse the judgment of the appellate court and remand the cause to that court for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 On January 28, 2011, defendant and his brother, Jimmy Townsend, ambushed two armored truck guards employed by Garda Cash Logistics (Garda). Defendant was shot twice in the head during the attack, and Townsend died as a result of multiple gunshot wounds to his chest. Defendant was charged by indictment with first degree felony murder based on attempted armed robbery (count I) ( 720 ILCS 5/9–1(a)(3) (West 2010)). He was also charged with attempted armed robbery while armed with a firearm (count II) (id. §§ 8–4, 18–2(a)(2)) and with unlawful use or possession of a weapon by a felon based on his possession of a firearm (counts III and IV) (id. § 24–1.1(a)). On March 18, 2011, defendant was arraigned on all four counts.

¶ 4 Prior to trial, defendant underwent multiple examinations to determine his fitness to stand trial in light of his head injuries. Based on the results of those examinations, the circuit court found defendant fit to stand trial even though his ability to recollect and relate the events surrounding the shooting incident was impaired.

¶ 5 The State filed a motion in limine requesting that defendant be precluded from arguing that the handgun found in defendant's possession at the scene must be in "operable" condition in order to qualify as a "firearm" under the Firearm Owners Identification Card Act (FOID Act) ( 430 ILCS 65/1.1 (West 2010) ). During the hearing on the motion, the prosecutor advised the court and defense counsel that possession of a firearm was an element of the predicate offense charged in count I, which was attempted armed robbery under section 18–2(a)(2) of the Criminal Code of 1961 (Criminal Code) ( 720 ILCS 5/18–2(a)(2) (West 2010)). The prosecutor further indicated that the State intended to prove that defendant was armed with an automatic handgun that qualified as a "firearm" under the FOID Act despite defendant's contention that the gun was inoperable. The court granted the State's motion but also indicated that defendant could argue that the handgun fell within an exception to the statutory definition of a "firearm" if the evidence supported such an argument.

¶ 6 On January 29, 2013, immediately before jury selection, the State moved for entry of a nolle prosequi on the charges of attempted armed robbery and unlawful use or possession of a weapon by a felon alleged in counts II, III, and IV. The trial court granted the State's motion, and defendant was tried before a jury on the charge of felony murder alleged in count I.

¶ 7 At trial, which commenced the following day, the State presented eyewitness testimony from the two armored truck guards, Julio Rodriguez and Derrick Beckwith, and from three other witnesses who were in the vicinity and either saw or heard the attack. The State also introduced testimony from the responding police officer, a medical examiner who reviewed Townsend's autopsy report, a forensic investigator, a firearm identification expert, and the detective assigned to investigate the incident.

¶ 8 The State's evidence reflected the following relevant facts. On the morning of January 28, 2011, the two armored truck guards, Rodriguez and Beckwith, were assigned to collect cash receipts from a Family Dollar store located at the corner of Chicago and Homan Avenues in Chicago. Rodriguez went into the store while Beckwith remained in the truck. When Rodriguez came outside, he was holding a deposit bag containing the store's cash receipts. Defendant and Townsend simultaneously approached him from separate positions. As Townsend advanced toward Rodriguez, he was aiming an object that appeared to be a sawed-off shotgun. Defendant, who had a handgun in his possession, approached Rodriguez from a different direction. After Townsend yelled for defendant to shoot, Rodriguez shot Townsend four times with his service revolver. Townsend collapsed on the pavement and threw the object he was holding to defendant, who put Rodriguez in a choke hold. Townsend ultimately died from the gunshot wounds to his chest.

¶ 9 During the struggle, Rodriguez dropped the money bag, broke free from defendant, and ran toward the truck. Beckwith then fired four shots at defendant through the open passenger-side door of the truck. Two bullets struck defendant in the head, one of which hit him directly in his right eye. Defendant fell to the ground and remained there until the police and paramedics arrived. As a result of the head injuries he suffered from the shooting, defendant was in a coma for a period of time. When he regained consciousness, defendant stated that he had no memory of the shooting or of anything that had happened during the week preceding the incident.

¶ 10 Upon examination, the item that Townsend had aimed at Rodriguez was found to be a homemade object fashioned to resemble a sawed-off shotgun. The object consisted of two metal pipes fastened to a piece of wood with duct tape, with a brown rag wrapped across one of the ends to serve as a handle.

¶ 11 The handgun found with defendant was subjected to forensic testing, which revealed that it was an unloaded double-barreled .22–caliber derringer designed to fire live ammunition. An obstruction in the upper barrel prevented placement of a round in that chamber, but the lower barrel was not obstructed. Multiple attempts to test-fire the derringer demonstrated that its firing pin did not strike with enough force to cause a cartridge in the lower barrel to discharge. The State's expert in firearm identification concluded that the handgun was inoperable in its current state.

¶ 12 In defense, defendant testified that he had no memory of the incident, but he could recall some of the circumstances that preceded it. Defendant recalled that, sometime in November or December 2010, Townsend said that he wanted to "end his life" and desired to "go out in a hail of bullets." Defendant also recalled that the topic of suicide often came up during conversations with his brother. In addition, defendant admitted that he had seen and held the derringer handgun multiple times prior to the incident, and he remembered seeing the makeshift "shotgun" because it was usually kept in the van that he and Townsend often drove. Finally, defendant acknowledged that it was possible that he and Townsend were trying to rob the armored truck on the day of the shooting. However, because he had no memory of the incident, defendant could not say with certainty whether that was the case.

¶ 13 During the jury instruction conference, the prosecutor advised that the State was seeking imposition of the firearm sentencing enhancement and tendered a corresponding instruction. Defense counsel objected, arguing that the State had not provided notice of its intent to seek an enhanced sentence. The circuit court issued the instruction and sentence-enhancement verdict form over defendant's objection.

¶ 14 The jury found defendant guilty of first degree murder. The jury separately found that defendant committed the offense while armed with a firearm. The trial court denied defendant's motion for a new trial, sentenced him to 25 years' imprisonment, and also imposed an additional 15–year term based on his possession of a firearm.

¶ 15 On appeal, defendant asserted that he was not proven guilty beyond a reasonable doubt because the evidence of the predicate offense of attempted armed robbery with a firearm was insufficient. In particular, he claimed that the State failed to prove his intent to rob the armored truck guards and also failed to prove that the inoperable derringer qualified as a "firearm." Defendant further argued that the trial court erred in ruling that he was fit to stand trial and in ruling that the State was entitled to seek the 15–year firearm sentencing enhancement. In addition, defendant contended that he was prejudiced in the preparation of his defense where the indictment failed to specify the offense that formed the predicate offense for the charge of felony murder.¹

¶ 16 The appellate court reversed defendant's conviction for felony murder on the ground that the indictment failed to specify the predicate offense to the prejudice of defendant. 2016 IL App (1st) 131944, ¶¶ 22–37, 407 Ill.Dec. 96, 62 N.E.3d 341. The appellate court reasoned that count I of the indictment was defective because it did not identify which of the two attempted armed robbery offenses served as the predicate for the felony murder charge. Id. ¶ 22. Based on that defect, the appellate court concluded that the indictment failed to adequately inform defendant of the charges against him with sufficient detail to allow preparation of an adequate defense. I...