People v. Carey

62 N.E.3d 341

407 Ill.Dec. 96

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Robert CAREY, Defendant–Appellant.

No. 1–13–1944.

Appellate Court of Illinois, First District, First Division.

Aug. 22, 2016.

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.

OPINION

Presiding Justice CUNNINGHAM delivered the judgment of the court, with 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 nolle prosequied three additional charges in the indictment against defendant: one count of attempt 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 attempt 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 attempt 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 gunshot wounds to his chest. As a result of the head injuries he suffered from the shooting, defendant was in a coma for a period of time. When he awoke, defendant claimed that he had no memory of the shooting or anything that had happened during the week preceding the incident.

¶ 8 Prior to trial, defense counsel requested that defendant receive a behavioral clinical examination to determine his fitness to stand trial. This examination was completed in February 2012 by Dr. Eric Neu, a clinical psychologist, who found defendant fit to stand trial. Defense counsel then retained a clinical neuropsychologist, Dr. Robert Louis Heilbronner, to assess defendant's fitness. Dr. Heilbronner interviewed defendant and subjected him to two days of testing, then issued a psychological report on his findings. Following this, at the State's request, the court ordered an additional fitness examination to supplement the other reports. Dr. Nishad Nadkarni, a forensic psychiatrist for the Cook County circuit court, examined defendant in June 2012 and issued a letter indicating that he found defendant competent to stand trial. At the fitness hearing, the court heard argument from the parties as well as testimony from both Dr. Nadkarni and Dr. Heilbronner, and determined that defendant was fit to stand trial. The court concluded that while defendant did suffer “an impairment as to his ability to recollect and relate” the events surrounding the robbery incident, that single impairment did not render defendant unfit to stand trial. The court found that, based on the “totality of the evidence,” the State had met its burden of establishing defendant's fitness.

¶ 9 The State brought a pretrial motion in limine to prohibit defense counsel from arguing that the handgun recovered from defendant at the crime scene had to be “operable” in order to qualify as a “firearm” under the Firearm Owners Identification Act (the FOID Act) (430 ILCS 65/1.1 (West 2010) ). During the hearing on the motion, the State advised the court and defense counsel that the statutory offense at issue, attempted armed robbery under section 18–2(a)(2) of the Criminal Code of 1961 (Code) (720 ILCS 5/18–2(a)(2) (West 2010)), required proof of a firearm. The State indicated its intention to prove that defendant “was armed with a nickel-plated automatic handgun [that] was sufficient to qualify as a ‘firearm’ within the meaning of Section 1.1 of the FOID Act despite defendant's contention that it was inoperable.” The court granted the motion, ruling that the defense was precluded from arguing that the gun was not a “firearm” however, the court indicated that it would permit the argument if the evidence showed that the gun fell within an exception to the statutory definition of a firearm.

¶ 10 Initially, the State charged defendant with four counts: first degree felony murder for causing the death of Townsend while committing a forcible felony, attempt armed robbery (720 ILCS 5/9–1(a)(3) (West 2010)) (count I); 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). Immediately before trial, the State nolle prosequied counts II, III, and IV, and proceeded solely on count I.¶ 11 At trial, the State presented eyewitness testimony from the Garda security guards and three other witnesses who either saw or heard the confrontation. Those five witnesses presented a generally consistent account of the events of the morning of January 28, 2011. The State also provided testimony from the police officer who arrived at the scene, a medical examiner who reviewed Townsend's autopsy report, a forensic investigator, a firearm identification expert, and the detective assigned to investigate the shooting incident.

¶ 12 Larry Goodson, the forensics investigator, testified that when he and his team examined Townsend's weapon, they discovered that it was not, in fact, a sawed-off shotgun. Instead, it was a homemade object crudely designed to resemble a shotgun; the weapon consisted of two metal pipes fastened to a piece of wood with duct tape, with what appeared to be a brown household rag wrapped across one of the ends to act as a handle.

¶ 13 Forensic scientist Elizabeth Haley testified as an expert in firearm identification. She testified that the handgun defendant had been holding was a double-barreled .22 Derringer which had been designed to fire live ammunition. Haley stated that when she attempted to load ammunition into the Derringer, she discovered an obstruction in the top barrel that prevented her from chambering a round. There was no such obstruction in the lower barrel. When she attempted to fire...