People v. Clark, 2016 IL 118845 (March). Episode 163 (Duration 7:02)
Aggravated vehicular hijacking and armed robbery without a firearm are not lesser-included offenses of aggravated vehicular hijacking and armed robbery with a firearm.
Trial Judges Bending The Rules
The State wanted the Illinois Supreme Court to take a look at these cases involving crimes where guns were used.
You see, sometimes trial judges make a specific finding that a crime did not involve a gun , even though it was quite clear and apparent to everyone that a gun was, indeed, used by the defendant.
So what’s going on?
They Hate The Gun Add-Ons
In these cases, the judge was finding the defendant guilty of a lesser included that doesn’t include a gun.
Judge’s are obviously doing this to get out of enforcing the gun add-ons.
Sounds good, except…
When a gun is involved, and in charges dealing with guns often the “lesser-included” chosen by the judge is in fact no lesser included at all.
Take This Case
This is a big problem. For all of us, I contend just not the State.
For example, in this case the defendant was charged with aggravated vehicular hijacking while armed with a firearm (720 ILCS 5/18-4(a)(4)) and armed robbery while armed with a firearm.
But the trial judge acquitted of the higher counts (even though he knew a gun was used in the crimes) and found the defendant guilty of aggravated vehicular hijacking and armed robbery without a firearm”.
But Those Aren’t Lesser-Includeds of the Charged Offenses
Yea, it turns out, quite convincingly, that aggravated vehicular hijacking and armed robbery without a firearm ARE NOT lesser-includeds of aggravated vehicular hijacking and armed robbery while armed with a firearm.
Since, those were not lesser-includeds the reviewing court further reduced the convictions to simple vehicular hijacking and simple robbery.
Issue Before the Illinois Supreme Court
The State then asked the Illinois Supreme Court to hold that the reviewing court erred on the lesser included issue.
However, the Court was unwilling to alter it’s “charging instrument approach” to lesser included analysis. The plain language of these statutes indicates that violations are “ ‘mutually exclusive of each other.’ ”
So, the offenses of aggravated vehicular hijacking and armed robbery without a firearm are not, given the circumstances of this case, lesser-included offenses of aggravated vehicular hijacking and armed robbery with a firearm.
Additionally, the State asked the court to reconsider the plain error analysis in the case, but it was also unwilling to do that.
Justice required this windwall for the Defendant.