2018 IL 121371
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 121371)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
ROBERT CAREY, Appellee.
Opinion filed January 19, 2018.
JUSTICE FREEMAN delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Thomas, Kilbride, Garman, Burke, and
Theis concurred in the judgment and opinion.
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. 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.
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¶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.
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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
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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. 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. Id. ¶¶ 22, 24, 28,
33-34. In addition, the appellate court held that the defect in count I was not cured
by reference to the other charges alleged in counts II, III, and IV or to the assertions
in the State’s motion in limine. Id. ¶¶ 30-31. Because the appellate court found the
insufficiency of the indictment issue to be dispositive, it did not address
defendant’s remaining arguments. Id. ¶¶ 18, 37.
¶ 17 The State appeals to this court. Additional pertinent background will be
discussed in the context of our analysis of the issues.
1
This argument was presented in a petition for rehearing after the appellate court issued an
unpublished decision affirming defendant’s conviction, which was later withdrawn.
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¶ 18 II. ANALYSIS
¶ 19 The State assigns error to the appellate court’s reversal of defendant’s
conviction of first degree felony murder. The State disagrees with the appellate
court’s holding that the indictment failed to specify the predicate offense of
attempted armed robbery to the prejudice of defendant. The State contends that the
indictment sufficiently informed defendant of the charges brought against him. The
sufficiency of a charging instrument is a question of law subject to de novo review.
See People v. Rowell, 229 Ill. 2d 82, 92 (2008).
¶ 20 A criminal defendant has a fundamental right to be informed of the nature and
cause of criminal accusations made against him. People v. Nash, 173 Ill. 2d 423,
428 (1996) (citing U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8); People v.
Meyers, 158 Ill. 2d 46, 51 (1994) (same). In Illinois, this constitutional right is
implemented by section 111-3 of the Code of Criminal Procedure of 1963 (725
ILCS 5/111-3 (West 2010)). Section 111-3(a) imposes specific pleading
requirements for criminal charges. Nash, 173 Ill. 2d at 428-29; Meyers, 158 Ill. 2d
at 51. These principles also apply to the predicate or underlying offense of a
charged crime. This rule “protects the defendant against being forced to speculate
as to the nature or elements of the underlying offense, thus spreading his resources
thin, attempting to rebut all of the possibilities, while the prosecutor merely focuses
on the most promising alternative and builds his case around that.” People v. Hall,
96 Ill. 2d 315, 320 (1982).
¶ 21 The timing of a challenge to a charging instrument is significant in determining
whether a defendant is entitled to reversal of his or her conviction based on
charging instrument error. Rowell, 229 Ill. 2d at 93; People v. Benitez, 169 Ill. 2d
245, 257 (1996). If an indictment or information is challenged before trial in a
pretrial motion, the charging instrument must strictly comply with the requirements
in section 111-3(a). Rowell, 229 Ill. 2d at 93 (and cases cited therein); People v.
Thingvold, 145 Ill. 2d 441, 448 (1991).
¶ 22 In contrast, while we do not approve of any failure to strictly comply with the
clear requirements of section 111-3(a), the sufficiency of a charging instrument
attacked for the first time on appeal is not determined by strict compliance with the
statute but rather “by a different standard.” People v. Pujoue, 61 Ill. 2d 335, 339
(1975); see People v. Gilmore, 63 Ill. 2d 23, 29 (1976). When attacked for the first
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time on appeal, a charging instrument is sufficient if it notified the defendant of the
precise offense charged with enough specificity to allow the defendant to
(1) prepare his or her defense and (2) plead a resulting conviction as a bar to future
prosecution arising out of the same conduct. People v. DiLorenzo, 169 Ill. 2d 318,
322 (1996) (collecting cases). “In other words, the appellate court should consider
whether the defect in the information or indictment prejudiced the defendant in
preparing his defense.” Thingvold, 145 Ill. 2d at 448; accord Rowell, 229 Ill. 2d at
93; People v. Phillips, 215 Ill. 2d 554, 562 (2005). In making this determination,
the reviewing court may resort to the record. DiLorenzo, 169 Ill. 2d at 324. “Thus,
the question is whether, in light of the facts of record, the indictment was so
imprecise as to prejudice defendant’s ability to prepare a defense.” Phillips, 215 Ill.
2d at 562. If the reviewing court cannot say that the charging instrument error
inhibited the defendant in the preparation of his or her defense, then the court
cannot conclude that the defendant suffered any prejudice. See People v.
Cuadrado, 214 Ill. 2d 79, 88 (2005).
¶ 23 The State contests the appellate court’s conclusion that the indictment did not
sufficiently inform defendant of the felony murder charge “for two independent
reasons: (1) Count I fully informed defendant of the murder charge; and (2) even if
Count I were deficient, read as a whole the indictment fully informed defendant of
the murder charge.” We initially consider the State’s second argument.
¶ 24 Count I alleged that on or about January 28, 2011, within Cook County,
defendant “committed the offense of first degree murder in that he, without lawful
justification, committed the offense of attempt armed robbery, and during the
commission of the offense, he set in motion a chain of events that caused the death
of Jimmy Townsend” in violation of section 9-1(a)(3) of the Criminal Code. As the
appellate court noted, armed robbery can refer to either of two crimes: armed
robbery “with a dangerous weapon other than a firearm” (720 ILCS 5/18-2(a)(1)
(West 2010)) or armed robbery “with a firearm” (id. § 18-2(a)(2)). These two types
of armed robbery are “substantively distinct offenses” (People v. Washington, 2012
IL 107993, ¶ 6) and “are mutually exclusive of each other” (People v. Barnett, 2011
IL App (3d) 090721, ¶ 38). The appellate court observed that count I did not
provide either a statutory citation or factual allegations to indicate which type of
armed robbery the State sought to prove at trial. Focusing exclusively on count I,
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the appellate court concluded that this deficiency rendered the indictment fatally
insufficient. 2016 IL App (1st) 131944, ¶ 22.
¶ 25 “It is a well-established rule in Illinois that all counts of a multiple-count
indictment should be read as a whole and that elements missing from one count of
an indictment may be supplied by another count.” People v. Morris, 135 Ill. 2d 540,
544 (1990). Accordingly, when one count of a multiple-count indictment states the
alleged predicate offense for another count with specificity, the latter count should
not be held void unless the indictment itself, or the prosecutor, affirmatively
indicates that some other offense is the predicate or there remains a realistic
possibility of prejudicial uncertainty as to the predicate offense in light of the facts.
Hall, 96 Ill. 2d at 321.
¶ 26 In the case at bar, count II charged defendant with attempted armed robbery,
specifically alleging that defendant used “a firearm” and citing section 18-2(a)(2)
of the Criminal Code. 720 ILCS 5/18-2(a)(2) (West 2010). Counts III and IV each
charged defendant with unlawful use or possession of a weapon by a felon (id.
§ 24-1.1(a)), specifically alleging that defendant possessed “a firearm.” Therefore,
the indictment, read as a whole, clearly informed defendant that the State intended
to prove that he possessed a firearm at the time of the shooting.
¶ 27 However, without citation to authority, the appellate court refused to read the
indictment as a whole. The court observed that the prosecutor entered a nolle
prosequi on counts II, III, and IV and proceeded to trial only on count I. The court
reasoned that the State’s abandonment of those counts prior to trial effectively
informed defendant that it was not willing to prosecute defendant for the charges
pled therein. Thus, the court concluded that the State cannot refer to their contents
to supplement the allegations in count I. 2016 IL App (1st) 131944, ¶ 30.
¶ 28 We disagree. The ultimate question remains whether, in light of the facts of
record, the charging instrument was so imprecise as to prejudice defendant’s ability
to prepare a defense, which, if successful, would bar further prosecution arising out
of the same conduct. See Phillips, 215 Ill. 2d at 562 (and cases cited therein). Here,
the entry of the nolle prosequi on counts II, III, and IV did not occur until just prior
to jury selection and one day before the trial commenced. Consequently, all four
counts of the indictment, read as a whole (Morris, 135 Ill. 2d at 544), were available
to inform defendant of the charges against him while he prepared for trial from the
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date of his arraignment in March 2011 until the commencement of trial in January
2013. See, e.g., People v. McDavid, 3 Ill. App. 3d 169, 171-72 (1971) (quoting
People v. Kamsler, 67 Ill. App. 2d 33, 41 (1966)).
¶ 29 In addition, the fact that defendant possessed a “firearm” at the time of the
attack was addressed on multiple occasions prior to and during trial. At two pretrial
status hearings, the prosecutor and defense counsel advised the court that “the
firearm” recovered from defendant at the scene was being tested to determine its
capability of being fired. At the hearing on the motion in limine, the prosecutor
specifically stated that “we will be proving that the [d]efendant was armed with a
firearm from a legal sense. *** The attempt armed robbery section that is the
predicate for the felony murder is [section] 18-2(a)(2), which requires proof of a
firearm ***. It requires us to prove [a] firearm.” During trial, defense counsel
conducted extensive cross-examination of the occurrence witnesses, including
questioning as to whether defendant was seen holding the gun. Defense counsel
also cross-examined the State’s firearm expert regarding the conclusion that the
derringer was inoperable. In her closing argument, defense counsel emphasized the
fact that the derringer could not be fired and highlighted the conflicting testimony
on whether defendant was holding the gun at the time of the attack on the armored
truck guards.
¶ 30 Therefore, the record before us affirmatively demonstrates that defendant was
aware that the charge of felony murder was predicated on attempted armed robbery
with a firearm and his attorney presented a defense to that charge. Also, given the
jury’s specific finding that defendant had possessed a firearm, the record
establishes that defendant was convicted of committing the offense charged in
count I while armed with a firearm. Neither defendant nor the appellate court has
identified what other actions he could have taken if the allegations in count I had
particularly referenced the use or possession of a firearm. See People v. Davis, 217
Ill. 2d 472, 479 (2005). In light of these circumstances, we cannot say that the lack
of specificity in the felony murder charge prejudiced defendant in preparing a
defense, nor do we believe the lack of specificity would hamper defendant’s ability
to plead his murder conviction as a bar to future prosecution arising out of the same
conduct.
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¶ 31 As a final matter, we note defendant argues that he was not proven guilty
beyond a reasonable doubt because the evidence as to the predicate offense of
attempted armed robbery with a firearm was insufficient. In support, defendant
contends that the State failed to prove that the inoperable and unloaded .22-caliber
derringer qualified as a “firearm.” We observe, however, that the appellate court
did not rule on the sufficiency of the evidence, or on either of the other two issues
argued below, because it determined that the indictment issue was dispositive. 2016
IL App (1st) 131944, ¶¶ 18, 37. In light of our holding that defendant was not
prejudiced by the lack of specificity in the indictment, we remand the cause to the
appellate court for consideration of defendant’s arguments challenging the
sufficiency of the evidence against him, the ruling that he was fit to stand trial, and
the determination that the State was entitled to seek the 15-year firearm sentencing
enhancement. See, e.g., People v. Givens, 237 Ill. 2d 311, 339 (2010). 2
¶ 32 III. CONCLUSION
¶ 33 For the foregoing reasons, the judgment of the appellate court is reversed, and
the cause is remanded to the appellate court for further proceedings.
¶ 34 Reversed and remanded.
2
Based on our disposition, we need not address the State’s alternative argument that the
appellate court erred in failing to affirm defendant’s conviction by reducing the degree of the
predicate felony to the lesser-included offense of attempted robbery. See, e.g., In re M.M., 2016 IL
119932, ¶ 31.
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