specially concurring:
Although the majority correctly concludes that defendant’s actions did not constitute armed violence, I believe that this case justifies a fuller consideration of the public policy concerns that inspired the armed violence statute.
Under the Criminal Code of 1961, a person commits armed violence when he is armed with a dangerous weapon and commits any felony under Illinois law. 720 ILCS 5/33A — 2 (West 1992). A person is considered “armed with a dangerous weapon” if he “carries on or about his person or is otherwise armed with a category I or category II weapon.” 720 ILCS 5/33A — 1(a) (West 1992). The two categories include various firearms, knives, and bludgeoning instruments. 720 ILCS 5/33A— 1(b), (c) (West 1992).
The purpose of the armed violence statute is to deter felons from using weapons when they commit felonies. People v. Lombardi, 184 Ill. 2d 462, 469 (1998); People v. Condon, 148 Ill. 2d 96, 109 (1992). The statute is aimed at the problem that arises when “[a] felon with a weapon at his or her disposal is forced to make a spontaneous and often instantaneous decision to kill without time to reflect on the use of such deadly force.” Condon, 148 Ill. 2d at 109. The legislature created the crime of armed violence to deter criminals from having a weapon at their disposal to allow them such a choice. Condon, 148 Ill. 2d at 109-10.
Illinois courts have continually determined that, because the purpose of the statute is to deter felons from making the bad decision of using a dangerous weapon while committing their felony, the felon must have timely control over or immediate access to that weapon. People v. Harre, 155 Ill. 2d 392, 396 (1993); Condon, 148 Ill. 2d at 110; People v. Orsby, 286 Ill. App. 3d 142, 149-50 (1996). The relationship between the defendant and the weapon is the most important consideration in determining whether the defendant is armed. People v. Hoyt, 180 Ill. App. 3d 863, 867 (1989); People v. King, 155 Ill. App. 3d 363, 370 (1987). “Presence of the weapon, for purposes of the armed violence statute, denotes not only physical existence of the weapon, but characterizes the relationship between the weapon and the person.” King, 155 Ill. App. 3d at 369.1
In this case, none of the dangers that inspired the armed violence statute are present. Defendant did not possess or have immediate access to a dangerous weapon when the police arrived. In fact, the police did not find a single weapon or round of ammunition in defendant’s apartment. Consequently, defendant could have neither used deadly force nor given the impression that he might use deadly force. The worst that can be said is that, shortly before the police arrived, defendant momentarily held an unloaded gun for which no ammunition was readily available. More importantly, this case vindicates all of the public policy goals that inspired the armed violence statute. Defendant consciously chose not to be in possession of a dangerous weapon, thereby eliminating the possibility of a spontaneous and tragic decision to kill. Given these facts, it would be absurd to affirm defendant’s conviction, as that decision would send the regrettable message that defendant would have been no worse off had he not only kept the gun but also loaded it.
In defining defendant’s actions as armed violence, the State’s argument defies the very purpose of the armed violence statute. It is clear that the legislature created the crime of armed violence so that, when a felon planned his felony, he would think twice about bringing a weapon and endangering anyone who might get in his way. The armed violence statute served its deterrent purpose in this case and, therefore, defendant’s conviction should be reversed.
Contrary to the majority’s suggestion, these cases do not require an officer to observe the presence of the weapon in defendant’s hand.