Supreme Court Summaries

Opinions filed February 17, 2012

 

 

People v. Washington, 2011 IL 107993

 

Appellate citation: No. 1-06-3159 (unpublished order under Supreme Court Rule 23).

 

      JUSTICE BURKE delivered the judgment of the court with opinion.

      Justices Freeman, Thomas, Garman, and Karmeier concurred in the judgment and opinion.

      Chief Justice Kilbride dissented, with opinion, joined by Justice Theis.

 

      In April of 2004, a delivery truck manned by two deliverymen was victimized by two robbers on East 91st Street in Chicago. One of the robbers, identified as this defendant, forced one of the deliverymen into the truck. This deliveryman testified that this was done at gunpoint, and that the defendant sat in the passenger seat while the accomplice drove the truck (including its safe) away. The truck crashed and the two robbers fled. Defendant, pursued by police, was apprehended, although the safe and gun were never found and the accomplice was never identified.

      Tried before a Cook County jury in 2006, Washington was convicted of aggravated kidnapping, for which he received a 25-year sentence, and also of armed robbery and aggravated vehicular hijacking. For the latter two offenses, he received 15 years each, with all three sentences to run concurrently.

      At trial, the State never presented the gun or photographs of it, there was no evidence regarding the gun’s weight or composition, and there was no evidence that the gun was used in a dangerous manner, such as a club or bludgeon.

      In 2000, an amendatory act had created what are known as the 15-20-25-to-life sentencing provisions, which define a firearm and which provide sentencing enhancements based on whether a firearm is possessed, discharged, or used to cause bodily harm.

      By the time the offenses here were committed, in 2004, these provisions had been judicially invalidated by the Illinois Supreme Court as unconstitutional. The State therefore indicted Washington under the prior law, which was found in the 1992 Illinois Compiled Statutes. These provisions used the term “dangerous weapon,” which was undefined. The indictment charged that the defendant committed each offense “while armed with a dangerous weapon, to wit: a firearm.”

      Although the judicial decisions which had held the 2000 amendments unconstitutional were overruled by the time of the defendant’s 2006 trial, the State made no revision in its charges and proceeded to trial under the 1992 statutes, pursuant to which the jury was instructed. The defendant raised no objections to any of this.

      The appellate court was impressed with the circumstances that no gun was ever recovered or introduced into evidence and there was no testimony as to its size, weight, or metallic nature. Defense counsel argued that there was no proof that what the witness saw was a real gun–it could have been a toy. The appellate court found a failure to prove beyond a reasonable doubt that a dangerous weapon was used. It remanded to the circuit court for reduction of each offense to its lesser-included offense, namely, robbery, kidnapping and vehicular hijacking, and for resentencing. The State appealed. Defendant, in his cross-appeal, complained that he was prejudiced by a variance between pleading and proof.

      In this decision, the supreme court, noting that this was not a case in which what was used was later discovered to have been a BB gun, held that the uncontroverted and unimpeached testimony of the victim, who described events which took place over a period of time and in broad daylight, was sufficient to prove to the jury beyond a reasonable doubt that the defendant was armed with a dangerous weapon. As to the defendant’s complaint of a fatal variance, the supreme court noted that Washington was charged under the predecessor statutes and then convicted under them, after the jury was instructed on them. The supreme court found no variance, fatal or otherwise. The convictions entered in the circuit court were upheld, and the appellate court was reversed.