People v. Wise, 2019 IL App (2d) 160611 (February). Episode 600 (Duration 5:57)

Drugs are found upstairs when defendant was downstairs, is this still armed violence?

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Charges

Defendant was tried before a jury on two counts of armed violence (counts I and II), seven counts of UUW by a felon (counts VII to XIII), and one count of possession with intent to deliver heroin, a controlled substance (count V). The jury found defendant guilty of all counts.

Sentence

The court merged some of the convictions and sentenced defendant to 23 years’ imprisonment for one count of armed violence and to concurrent 14-year prison terms for the six counts of UUW by a felon.

A Search Warrant

A search warrant was executed and police encountered defendant in Frank’s Lounge, with a loaded, semiautomatic firearm in his waistband. The officers found a large rock of heroin, drug paraphernalia, small packages of a substance believed to be cocaine, and additional firearms in the apartment upstairs. 

Armed Violence

A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois law, with certain exceptions that are not relevant here. 720 ILCS 5/33A-2(a).

A person is considered “armed with a dangerous weapon” when he or she carries on or about his person or is otherwise armed with a Category I weapon, such as a handgun. 720 ILCS 5/33A-1(c)(1), (c)(2).

In count I, defendant was charged with armed violence, in that, while armed with a dangerous weapon, a semiautomatic firearm, defendant committed the offense of unlawful possession of a controlled substance, heroin, a felony. See 720 ILCS 5/33A-2(a); 720 ILCS 570/402(c). This is a Class X felony that is punishable by a minimum of 15 years’ imprisonment. 720 ILCS 5/33A-3(a).

Issue

Defendant says the state failed to prove beyond a reasonable doubt that he committed the Class X offense of armed violence by concomitantly committing possession of a controlled substance while armed with a dangerous weapon, as a single, continuous offense. Defendant’s theory is that

(1) the State was required to prove a nexus between the firearm in his waistband and the heroin in the apartment and
(2) the State failed to establish that nexus.

Defendant contends, in other words, that a person does not commit armed violence unless he is armed with a dangerous weapon in furtherance of the predicate felony. Defendant contends that the statute contemplates “some degree of continuance” between being armed and the predicate felony and therefore requires proof that the accused was armed in furtherance of the predicate felony.

Defendant’s Argument

He relies upon section 33A-1(a), which sets forth the legislative findings as follows:

“(1) The use of a dangerous weapon in the commission of a felony offense poses a much greater threat to the public health, safety, and general welfare, than when a weapon is not used in the commission of the offense. (2) Further, the use of a firearm greatly facilitates the commission of a criminal offense because of the more lethal nature of a firearm and the greater perceived threat produced in those confronted by a person wielding a firearm. Unlike other dangerous weapons such as knives and clubs, the use of a firearm in the commission of a criminal felony offense significantly escalates the threat and the potential for bodily harm, and the greater range of the firearm increases the potential for harm to more persons. Not only are the victims and bystanders at greater risk when a firearm is used, but also the law enforcement officers whose duty is to confront and apprehend the armed suspect. (3) Current law does contain offenses involving the use or discharge of a gun toward or against a person, such as aggravated battery with a firearm, aggravated discharge of a firearm, and reckless discharge of a firearm; however, the General Assembly has legislated greater penalties for the commission of a felony while in possession of a firearm because it deems such acts as more serious.”

720 ILCS 5/33A1(a).

Defendant argues that section 33A-1(a) manifests the legislature’s intent to “punish more severely those felonies in which a defendant concomitantly uses or possesses a deadly weapon proximate to an underlying felony’s commission.”

We disagree.

Analysis

A person commits armed violence if he commits a felony “while” armed with a dangerous weapon. 720 ILCS 5/33A-2(a).

 Defendant argues that section 33A-1(a) manifests the legislature’s intent to “punish more severely those felonies in which a defendant concomitantly uses or possesses a deadly weapon proximate to an underlying felony’s commission.” Not true.

The legislative findings in section 33A-1(a) set forth the goals and general reasons for the enactment of the armed violence statute but do not constitute elements of the offense. The legislature expressed in section 33A-1(a) its concern that a firearm, by its lethality and long range, facilitates the commission of the predicate felony and poses a much greater threat to victims, bystanders, and law enforcement than when a dangerous weapon is not used in the commission of the predicate felony. But the legislature did not articulate that concern as elements of armed violence as set forth in section 33A-2(a).

The Case Law

Where the armed violence statute has been applied to various fact patterns, courts have concluded that a person is guilty of the offense when his immediate access to a firearm increases the threat of violence related to the predicate felony. See, e.g., People v. Anderson, 364 Ill. App. 3d 528, 542 (2006); see also People v. Brown, 277 Ill. App. 3d 989, 992 (1996) (defendant hiding in crawl space where drugs and weapon were found); People v. Hernandez, 229 Ill. App. 3d 546, 551-52 (1992) (firearm and drugs found under and near mattress where defendant was sleeping); People v. King, 155 Ill. App. 3d 363, 365 (1987)); People v. Lenoir, 125 Ill. App. 3d 260, 261 (1984) (defendant alone in a bedroom lying on a bed next to controlled substances and a revolver).

But none of those cases stand for the proposition that the State must prove beyond a reasonable doubt that the firearm facilitated the predicate felony.

To the extent that the State must show the potential for immediate violence to victims, bystanders, or law enforcement, the threat is proved simply by the defendant’s “immediate access” to the dangerous weapon, not by the dangerous weapon facilitating the predicate felony. Even where the predicate felony is not the reason for being armed, the temporal link expressed in the armed violence statute serves the legislative purpose: “to deter felons from using dangerous weapons so as to avoid the deadly consequences which might result if the felony victim resists.” People v. Condon, 148 Ill. 2d 96, 109 (1992).

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. Without a weapon at hand, the felon is not faced with such a deadly decision.

Gun Close Drugs Far

To serve this deterrent purpose of the armed violence statute, the State must prove that the accused had some type of immediate access to or timely control over the weapon.

Defendant’s immediate access to the firearm in his waistband distinguishes this case from Condon. The police were executing a search warrant at defendant’s residence when they encountered him in the same building. While armed with the firearm, defendant could have resorted to gun violence to thwart the discovery of the firearms and the drugs upstairs in his apartment. From this evidence, the jury could reasonably infer that defendant posed a greater threat to the public and law enforcement than if he had not possessed the weapon at the time of his arrest.

Holding

The legislature could have articulated a closer connection between being armed and the predicate felony but did not. We decline to read into the statute conditions that the legislature did not express. Besides the concurrent timing and “immediate access to” or “timely control over” the dangerous weapon, the plain and ordinary meaning of the statutory language does not require a further nexus between being armed with a dangerous weapon and the predicate felony. A rational trier of fact could have found the essential elements of armed violence beyond a reasonable doubt.