People v. Carey, 2016 IL App (1st) 131944 (August). Episode 228 (Duration 7:35)
Felony murder indictment failed to specify which predicate offense his felony murder was based on, conviction reversed.
This was an armed robbery of an armored car.
Defendant and his brother got the worst of it. Defendant’s brother was shot and killed by one of the guards. The other guard then shot Defendant through the eye.
He was in a coma but survived.
Fit For Trial Trial
His trial for the felony murder of his brother ensued.
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.
The state had charged defendant with numerous counts of felony murder, but in the end they nolled all but one, choosing to proceed on one count of attempt armed robbery while armed with a firearm under 720 ILCS 5/9-1(a)(2).
Apparently, these robbers used a fake shotgun (two pipes wrapped and rigged to look like a shotgun) and a double barrelled .22 Derringer that was inoperable.
Defendant noted on appeal that the charging instrument upon which he was convicted of first was deficient in its failure to specify which of Illinois’ two attempted armed robbery offenses the State sought to prove as the predicate offense.
Defendant asserted that, due to this deficiency, he was deprived of his due process right to be informed of the precise offense charged, prejudiced in his ability to prepare a defense, and wrongfully convicted of an offense he was not charged with committing.
Under Illinois law, there are two mutually exclusive types of armed robbery: (a) armed robbery “with a dangerous weapon other than a firearm” (720 ILCS 5/18-2(a)(1)), and (b) armed robbery “with a firearm” (720 ILCS 5/18-2(a)(2)).
By distinguishing between these two methods of committing armed robbery, section 5/18-2(a) creates two “substantively distinct offenses” that are mutually exclusive of each other.
Count I of the indictment in this case did not provide a statutory citation to the relevant provision, nor does it include any specific detail or other indication of which of these two offenses the State sought to prove at trial.
Due to this ambiguity, the reviewing court concluded that the indictment was defective in its failure to adequately inform defendant of the charges brought against him with sufficient detail to prepare an adequate defense.
When the charging instrument is attacked for the first time on appeal, as is the case here, the standard of review is “more liberal.” There is a two-pronged test rather requiring the court to determine whether the defendant was “apprised of the precise offense charged with enough specificity to (1) allow preparation of his defense and (2) allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.”
The problem here was that the state only used the phrase “attempt armed robbery in there charging instrument.” But this phrase could refer to either of two mutually exclusive offenses, and because the indictment did not identify, through a statutory citation or in any other manner, which of the two offenses the State sought to prove at trial as the predicate offense for felony murder, defendant was not adequately informed of the charge against him “with sufficient specificity to prepare his defense,” as due process requires.
The predicate offense is an essential element of the crime of felony murder, and each element of the predicate offense must be proved beyond a reasonable doubt. Where a defendant is not informed of the particular predicate offense in the charging instrument, the defendant is not adequately informed of all elements of the overall charge.
The defendant was prejudiced because the State by leaving open its ability to convict him using either of the attempted armed robbery offenses meant defendant had to defend against all possibilities and it left open the possibility of another charge down the road. This one has to be retried.