Opinion
No. 1-13-1944
11-09-2015
PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT CAREY, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 11 CR 3485 Honorable Matthew E. Coghlan, Judge Presiding. PRESIDING JUSTICE LIU delivered the judgment of the court.
Justice Cunningham and Justice Harris concurred in the judgment.
ORDER
¶ 1 Held: First degree felony murder conviction affirmed where trial court's finding that defendant with amnesia was fit to stand trial was not against the manifest weight of the evidence; the evidence was sufficient to prove defendant guilty beyond a reasonable doubt of the underlying felony of attempt armed robbery; defendant's 15-year firearm sentencing enhancement is vacated where the State failed to provide proper notification that it was seeking to prove defendant's possession of a firearm. ¶ 2 Following a jury trial, defendant, Robert Carey, was found guilty of first degree felony murder while armed with a firearm, and was sentenced to 25 years' imprisonment for the murder and an additional 15 years for the firearm sentencing enhancement. Prior to the trial, the State had nolle prossed the other three charges in the indictment against defendant: specifically, one count of attempt armed robbery while armed with a firearm (720 ILCS 5/18-2(a)(2) (West 2010)) (count II) and two counts of unlawful use or possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2010)) (counts III and IV). ¶ 3 On appeal, defendant contends that: (1) the trial court erred in finding him fit to stand trial, given that he suffered from amnesia and had no recollection of the incident giving rise to the felony murder charge against him; (2) the State failed to prove beyond a reasonable doubt that he had the intent to commit armed robbery and that he took a substantial step toward the commission of the crime; and (3) the 15-year firearm enhancement should be stricken or vacated from his sentence because the State failed to satisfy the procedural requirements for notifying a defendant of its intent to seek the enhanced term. For the following reasons, we affirm in part and vacate in part.
¶ 4 BACKGROUND
¶ 5 The following facts are not in dispute. On the morning of January 28, 2011, defendant and his brother, Jimmy Townsend, attacked two armored truck guards working for Garda Cash Logistics (Garda): Julio Rodriguez and Derrick Beckwith. The guards arrived in an armored Garda truck at a Family Dollar store located at the corner of Chicago Avenue and Homan Avenue in Chicago. Beckwith drove the truck, and after pulling up to the entrance of the store, Rodriguez exited the truck and entered the store to collect the cash receipts for transfer while Beckwith stayed outside in the truck. ¶ 6 As Rodriguez exited the store holding a deposit bag filled with cash, defendant and Townsend ambushed him from two different directions. Townsend approached Rodriguez and pointed at him an object that appeared to be a sawed-off shotgun. Defendant also approached Rodriguez from another side. Rodriguez shot Townsend four times with his service revolver. Townsend collapsed to the pavement from gunshot wounds. Defendant put Rodriguez in a chokehold. During his struggle with defendant, Rodriguez dropped the money bag, but eventually broke free from defendant's grip and ran toward the truck. By this time, Beckwith, who was still inside the truck, had opened the passenger-side door and drawn his firearm. He fired four shots at defendant. Two of the bullets struck defendant in the head—one directly in his eye—and he fell to the ground, where he remained until the police and paramedics arrived. Defendant's brother, Townsend, died from the gunshot wounds to his chest. As a result of his head injuries from the shooting, defendant was in a coma for a period of time. When he awoke, defendant claimed that he had no memory of the shooting or anything that had happened during the week preceding the incident.
¶ 7 A. The Fitness Hearing
¶ 8 Prior to trial, defense counsel requested a fitness examination for defendant. Eric Neu, a clinical psychologist, found defendant fit to stand trial. A few months later, at the prosecution's request, the court ordered a second fitness examination. Dr. Nishad Nadkarni, a forensic psychiatrist for the circuit court of Cook County, examined defendant in June 2012, and issued a letter indicating that he found defendant competent to stand trial. Following defense counsel's submission of a psychology report from another clinician, a fitness hearing was held. ¶ 9 Dr. Nadkarni testified that during his interview with defendant, he found defendant to be "fully oriented" and "alert, in no apparent distress," notwithstanding the loss of his right eye. Defendant reported that he developed seizures after undergoing surgery to remove his eye, but said the seizures subsided with medication. According to Dr. Nadkarni, defendant showed no signs of cognitive or psychiatric impairment, and had no trouble following his questions during the interview. In fact, defendant's answers to Dr. Nadkarni's questions demonstrated "good linearity, good direction and logic and showed at least on a cursory gross level of the testing that [defendant's] memory and ability to form new memories was just fine." Defendant was aware that he had been accused of attempted robbery, and understood that his stepbrother had been killed during the incident. Dr. Nadkarni said defendant reported having no problems working with his attorney or reviewing documents with her to reconstruct the details of the incident. ¶ 10 With regard to defendant's amnesia, Dr. Nadkarni testified that the condition itself "is not a bar for fitness from a medical perspective." Based upon his assessment, he believed that defendant "ha[d] the capacity to form new memories [and] to be able to sit down and rationally and logically discuss information that's being presented to him by the State and by the defense." Defendant was able to verbalize his understanding of the consequences of pleading guilty versus not guilty to the charges. In Dr. Nadkarni's opinion, even if defendant never recovered his memory of what happened at and around the time of the shooting, defendant was able to create new memories of the incident through external data, by reviewing police records, working with his attorney, and talking with his family. ¶ 11 Dr. Nadkarni found, to a reasonable degree of medical and psychological certainty, that defendant was fit to stand trial under these circumstances. He concluded that while it was "highly unlikely that [defendant] would be able to precisely remember what happened," defendant, nonetheless, was capable of "assist[ing] his counsel in his defense." ¶ 12 Dr. Robert Louis Heilbronner, a clinical neuropsychologist, testified at the fitness hearing as the defense expert. He interviewed defendant and conducted two days of neuropsychological testing on him. He found that defendant had no memory of the shooting incident or any of the events during the week leading up to the incident. Like Dr. Nadkarni, Dr. Heilbronner believed that defendant understood his role in the adversarial process, as well as that of the judge and the prosecutor. He found defendant also willing and able to discuss his defense with his attorney. ¶ 13 Dr. Heilbronner believed that the gunshot wound to defendant's head and brain had caused "a significant memory impairment." He concluded that although defendant "certainly possesses the ability to learn and remember things *** it would take him a lot longer and he would remember far less information tha[n] he would have before compared to most people in the courtroom today." While Dr. Heilbronner acknowledged that defendant was "competent" for purposes of "understanding the process of trial," he nonetheless found, to a reasonable degree of neuropsychological certainty, that defendant was not fit to stand trial "because of the profound impairment in his ability to recollect and relate occurrences." On cross, Dr. Heilbronner explained that his opinion regarding defendant's fitness to stand trial was based on his assessment of defendant's "fitness to testify on his own behalf." He also agreed that defendant was capable of collaborating with his attorney, reviewing police documentation about the crime, and discussing strategies for his defense in the case. ¶ 14 Following the hearing, the trial court determined that defendant was fit to stand trial. The trial court concluded that while defendant did suffer "an impairment as to his ability to recollect and relate" the events surrounding the robbery incident, that single impairment did not preclude a finding of defendant's fitness 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 to stand trial.
¶ 15 B. Motion in limine
¶ 16 Prior to commencement of the trial, the State brought a motion in limine to prohibit defense counsel from arguing that the Derringer handgun that was recovered from defendant's person at the crime scene had to be "operable" in order to qualify as a "firearm" under the Firearm Owners Identification Act (the FOID Act) (430 ILCS 54/1.1 (West 2010)). During the hearing on the motion, the prosecution advised the court and defense counsel that the statutory offense at issue, attempt armed robbery under section 18-2(a)(2) of the Criminal Code of 1961 (720 ILCS 5/18-2(a)(2) (West 2010)), required proof of a firearm. The prosecution indicated that it intended to prove that defendant "was armed with a nickel-plated automatic handgun [that] was sufficient to qualify as a 'firearm' within the meaning of Section 1.1 of the FOID Act despite the Defendant's contention that it was inoperable." The following discussion regarding the firearm enhancement occurred between the trial court and the assistant State's Attorney:
"THE COURT: Attempt armed robbery with a bludgeon could be defined as a forcible felony and so felony murder is when the death occurs during the course of a forcible felony.¶ 17 The court granted the motion, ruling that the defense was precluded from arguing that the gun was not a "firearm"; however, the court indicated that it would permit the argument if the evidence showed that the gun fell within an exception to the statutory definition of a firearm.
[ASA]: Correct. Except that the Defendant is subject to enhancement if the jury finds he was armed with a firearm.
THE COURT: So you want the firearm because -- for the enhancement, not just the felony murder won't lie based on the armed robbery or attempt armed robbery based on a bludgeon.
[ASA]: Correct. *** "
¶ 18 C. Evidence at Trial
¶ 19 The State presented witnesses at trial who either saw or heard the confrontation on the morning of January 28, 2011, including both of the Garda security guards. Also testifying on behalf of the State were the police officer, medical examiner, forensics expert and a firearm identification expert. Defendant testified on his own behalf.
¶ 20 1. Julio Rodriguez
¶ 21 Julio Rodriguez testified that he and his partner, Derrick Beckwith, were employed as security guards by Garda, a company specializing in the transportation of currency. On January 28, 2011, Beckwith was driving the armored truck, while Rodriguez had the responsibility for retrieving the cash receipts from the business and then securing it in the truck. Both of them were dressed in their Garda uniforms, and each carried a firearm in his holster. Around 9:40 that morning, the two guards pulled up in their armored truck to the Family Dollar store on Chicago Avenue and Homan Avenue. Rodriguez exited the armored truck and entered the store, secured the money in a clear plastic bag, and exited the store, heading back to the truck. He testified that his revolver was holstered at his right side and was visible as he walked to the truck. All of a sudden, Rodriguez noticed "[some] feet running real fast towards [him]" on his left side, and turned to see a man in a camouflage jacket, later revealed to be Townsend, rapidly approach him while wielding what appeared to be a sawed-off shotgun. Townsend pointed the weapon at Rodriguez's face and yelled to defendant, who was running toward them, to kill Rodriguez. Rodriguez raised his gun and shot Townsend four times. Townsend threw his weapon to defendant and collapsed to the ground. ¶ 22 According to Rodriguez, defendant caught the weapon and swung it at Rodriguez. Rodriguez stated that he dodged the blow and tried to hit defendant, who subsequently grabbed him and put him in a chokehold from behind. As Rodriguez struggled with defendant, the money bag fell to the ground. He eventually escaped from defendant's grip, and ran towards the back of the truck, where he slid to the ground. As he was reloading his gun, Rodriguez heard gunshots and saw defendant fall. Rodriguez ran to retrieve the money bag from the ground, and then returned to the truck. Once he was safely inside, his partner, Beckwith, called 911 and the police. ¶ 23 During cross-examination, Rodriguez acknowledged that the weapon resembling a sawed-off shotgun that Townsend threw to defendant was in fact not a shotgun, or even a firearm, of any kind. He admitted that neither Townsend nor defendant attempted to take the money bag from him during the ambush. Finally, Rodriguez also testified that he did not notice a handgun in defendant's hands at any time during the incident.
During direct examination, Rodriguez identified the item marked as People's Exhibit 5 as the weapon that Townsend had used during the attack, i.e., the object that appeared to be a "sawed-off shotgun." Neither side disputes that the weapon Townsend was holding was not a firearm, and, instead, consisted of two metal pipes taped together to a wooden board. --------
¶ 24 2. Derrick Beckwith
¶ 25 Derrick Beckwith, the other security guard, drove the armored vehicle on the morning of January 28, 2011. He testified that he had parked in front of the Family Dollar store entrance in such a way that would allow Rodriguez to travel "the shortest distance for safety reasons." Beckwith stayed in the truck while Rodriguez went inside to collect the cash receipts. When he saw Rodriguez exit the store, he moved to unlock the passenger's side door so that Rodriguez could get back in the truck. That was when he heard someone shout "don't move, motherf****." Beckwith looked out the passenger's side window, heard four gunshots, and saw Townsend lying on the ground. He then saw Rodriguez struggling with defendant. At that point, Beckwith opened the passenger's side door and drew his semiautomatic pistol. As soon as Rodriguez escaped, Beckwith fired four shots at defendant, who fell to the ground. Beckwith testified that prior to being shot, defendant had been "holding a small handgun" pointed in his direction. After Rodriguez retrieved the money bag and entered the truck, Beckwith called the police. The two guards then stayed in the truck and kept watch on defendant, who attempted to get up but kept falling back down to the ground. Beckwith identified the exhibit shown by the prosecution (People's Exhibit 9) as a photograph of the handgun that defendant had pointed at him.
¶ 26 3. Michael Burton
¶ 27 Michael Burton was waiting for a northbound bus at the intersection of Chicago and Homan Avenues, across the street from the Family Dollar store entrance, on the morning of January 28, 2011. He testified that he saw Rodriguez get out of the armored truck and enter the store. He then saw Rodriguez walk out of the store, at which point Townsend approached Rodriguez with a "shotgun" and wrapped his arm around his neck. As Rodriguez was struggling with his assailants, Burton heard gunshots. He then saw Townsend throw the "shotgun" to defendant before falling to the ground. Defendant then held Rodriguez as they struggled with each other. Burton testified that defendant had "something in his hand that [Burton] thought was a gun." When Beckwith opened the truck door and began shooting, defendant attempted "to run, to get away, with the gun pointed at" Beckwith. After defendant was shot, he "fell to the floor and was holding his eye in his hand." During cross-examination, Burton admitted that he had been previously convicted of possession of a controlled substance.
¶ 28 4. Carl Robinson
¶ 29 Carl Robinson, an employee of a beauty supply store directly west of the Family Dollar store, testified that around 9:40 a.m. on January 28, 2011, he was taking out the trash in the alley located between the stores. He saw a male wearing camouflage wrestling with Rodriguez. Robinson approached the scene to investigate further, heard "some shots," and retreated back to the alley. Robinson heard more gunshots. Later, when police arrived, Robinson noticed that Townsend was not moving and that defendant was severely wounded.
¶ 30 5. Victor Cabrera
¶ 31 Victor Cabrera, an assistant store manager/merchandiser of the Family Dollar store, testified that he was inside the store when Rodriguez walked in to collect the cash receipts. Through the store windows facing the street, Cabrera saw Rodriguez leave the store and walk to his truck. He then saw two men approach Rodriguez, and heard Townsend yell to defendant, "shoot him, shoot him." At that point, he heard gunshots and saw Townsend fall to the ground. Cabrera next saw Rodriguez struggling with defendant. When Rodriguez escaped, Beckwith opened the truck door and fired his gun at defendant. Defendant collapsed, and as he was lying on the ground, Cabrera noticed a black, "smaller handgun" in defendant's hand. Cabrera testified that he believed defendant was holding the gun depicted in People's Exhibit 9 at the time he was shot. During cross-examination, Cabrera acknowledged that during the grand jury hearing, he had described the gun in defendant's hand as "an old time gun" but that he did not describe it as such during his direct examination.
¶ 32 6. Officer Kaczorowski
¶ 33 Chicago police officer Kaczorowski testified that he was on patrol at the time of the incident. He learned over the radio that someone had been shot, and went to the scene of the shooting. After arriving at the Family Dollar store, Officer Kaczorowski observed paramedics opening defendant's shirt to examine him for wounds; at that time, he also saw the paramedics "remove[] a gun out of [defendant's] pocket or his waist area" and place it on the ground. Kaczorowski testified that he moved the handgun with his foot so that it would be out of defendant's reach, and left it on the ground. He also noticed a firefighter recover a large knife from inside defendant's jacket. He identified the item in the photograph admitted as People's Exhibit 9 as the gun that he saw on the ground at the crime scene.
¶ 34 7. Dr. Ponni Arunkumar
¶ 35 Ponni Arunkumar, M.D., the Cook County assistant chief medical examiner, testified as the State's pathology expert. Dr. Arunkumar stated that she reviewed the photographs and post-mortem examination report related to Townsend's autopsy. It was her opinion, to a reasonable degree of medical certainty, that the manner of Townsend's death was homicide, attributable to the gunshot wounds that he sustained from the January 28, 2011 shooting.
¶ 36 8. Larry Goodson
¶ 37 Larry Goodson, a forensic investigator, testified that when he and his team examined Townsend's weapon, they discovered that it was not, in fact, a sawed-off shotgun. Instead, it was a homemade object crudely designed to resemble a shotgun; the weapon consisted of two metal pipes fastened to a piece of wood with duct tape, with what appeared to be a brown household rag wrapped across one of the ends to act as a handle.
¶ 38 9. Elizabeth Haley
¶ 39 Forensic scientist Elizabeth Haley testified as an expert in firearm identification. She testified that the gun defendant had been holding was a double-barreled .22 Derringer, which was designed to fire live ammunition. When Haley attempted to load ammunition into the Derringer, she discovered an obstruction in the top barrel, which prevented her from chambering a round. There was no such obstruction in the lower barrel. When she attempted to fire the weapon, the cartridge did not discharge. Upon further investigation, Haley learned that the firing pin had hit the cartridge, but "not with enough force in order to set out the priming material." Haley concluded that the gun was inoperable in its current state.
¶ 40 10. Defendant Robert Carey
¶ 41 Defendant testified on his own behalf. Although he had no memory of the incident, he remembered the circumstances preceding the shootout. Defendant testified that sometime in November or December of 2010, Townsend told him that he wanted to "end his life" and desired to "go out in a hail of bullets." He recalled that the topic of suicide often came up during conversations with his brother. Defendant admitted that he had seen and even held the Derringer handgun multiple times before the date of the incident. He also recalled having seen the makeshift "shotgun" prior to the incident, as it was usually kept in the van that he and Townsend often drove. Finally, defendant acknowledged that it was possible that he and Townsend were trying to rob the armored truck on the date in question; however, he had no memory of the incident and could not say with any certainty if he did or did not.
¶ 42 11. Detective Thomas Crain
¶ 43 Detective Thomas Crain was assigned to investigate the shooting incident that occurred on January 28, 2011. He and his partner, Detective Wayne Raschke, arrived at the Family Dollar Store location and gathered some information about the shooting. Subsequently, he interviewed the witnesses, including the two victims, Rodriguez and Beckwith. During cross-examination, he testified that he did not recall Rodriguez telling him that Townsend had thrown the "shotgun" weapon to defendant over his head; he recalled, instead, that Rodriguez told him that Townsend dropped the shotgun after Rodriguez discharged his own gun. Detective Crain also agreed that his handwritten notes from the interview with Rodriguez did not reflect a statement from Rodriguez that he was being dragged backwards during defendant's chokehold. Detective Crain also stated that he did not make a supplemental report to add any information that may have been omitted from his original notes. Finally, he also admitted that Rodriguez never told him that the money bag fell to the ground during his struggle with defendant and that Rodriguez had reloaded his weapon in seconds while he was on the ground.
¶ 44 D. Jury Instructions and Deliberations
¶ 45 Following closing arguments, the trial court held a jury instructions conference. During the conference, the State informed the court and defense counsel that it was seeking the firearm enhancement and tendered a firearm instruction. Defense counsel raised an objection to the firearm instruction, arguing that it had received no notice of the State's intent to seek a firearm enhancement on the sentence. ¶ 46 The trial court gave various instructions to the jury, including an accountability instruction and firearm instruction. Over the defense's objection, the trial court gave the jury the verdict form for the firearm enhancement. During deliberations, the court granted the jury's request for permission to review recorded footage from the Chicago police department pod video and the security video from the Family Dollar store. Following about an hour of deliberations, the jury sent a note to the trial judge stating as follows:
"Judge, we have discussed the case, reviewed the evidence and taken two votes both with the same outcome 11 to 1. We have reached an impasse in our discussions and are in need of guidance. On behalf of the jury the foreman or forewoman. Any suggestions?"After conferring with the prosecution and defense counsel, the judge responded in a note to the jury, "continue to deliberate." The jury subsequently found defendant guilty of first degree felony murder, based on the predicate offense of attempt armed robbery while armed with a firearm. Defendant's motion for a new trial was denied by the court, and the court sentenced him to 25 years' imprisonment for first degree felony murder, with an additional 15-year term based on his possession of a firearm. Defendant's motion for reconsideration of the sentence was denied, and he timely appealed on June 5, 2013. ¶ 47 We have jurisdiction pursuant to Illinois Supreme Court Rules 603 (eff. Feb. 6, 2013) and 606 (eff. Dec. 11, 2014).
¶ 48 ANALYSIS
¶ 49 Defendant raises three issues on appeal. First, he contends that his felony murder conviction must be reversed because the State did not present sufficient evidence to prove him guilty beyond a reasonable doubt of the underlying forcible felony of attempt armed robbery. Second, he argues that the trial court improperly ruled him fit to stand trial, where he could not remember the events of January 28, 2011 and could not actively assist in his own defense. Third, he claims that the State failed to provide proper notification of its intent to seek a 15-year firearm enhancement at sentencing and, therefore, that portion of his sentence should be stricken.
¶ 50 A. Fitness to Stand Trial
¶ 51 Before we turn to the merits of the trial, we must determine whether the trial court properly determined that defendant was fit to stand trial. A defendant is presumed to be fit to stand trial (725 ILCS 5/104-10 (West 2010)), and will be found unfit to stand trial only if, as a result of his mental or physical condition, the defendant is unable to understand the nature and purpose of the proceedings against him, or is unable to assist in his own defense. People v. Griffin, 178 Ill. 2d 65, 79 (1997). Where a bona fide doubt exists as to a defendant's fitness to stand trial, the defendant is entitled to a fitness hearing. Id. At the hearing, the State carries the burden of establishing the defendant's fitness by a preponderance of the evidence. 725 ILCS 5/104-11(c) (West 2010). Ultimately, it is the trial court's function to assess the credibility and weight to be given to any expert testimony. See People v. Coleman, 168 Ill. 2d 509, 525 (1995) (holding that "the ultimate issue of fitness is for the trial court, not the experts, to decide"). On review, the trial court's determination of fitness will not be disturbed unless it is against the manifest weight of the evidence. People v. Haynes, 174 Ill. 2d 204, 226 (1996). ¶ 52 When determining whether a defendant is fit to stand trial, the trial court may consider the following evidence:
"(1) The defendant's knowledge and understanding of the charge, the proceedings, the consequences of a plea, judgment or sentence, and the functions of the participants in the trial process;Whether a defendant is fit or not is a matter to be judged based on the totality of the circumstances. People v. Stahl, 2014 IL 115804, ¶ 26. In Stahl, the Illinois supreme court addressed the issue of whether a "defendant's amnesia render[ed] him per se unfit to stand trial" under article 104. Id. ¶ 25. Following a de novo review of article 104, the Stahl court determined that amnesia did not, per se, compel a finding that the defendant was unfit to stand trial. Id. ¶ 39. The court then applied a "totality of the circumstances" analysis to determine whether the trial court's finding that the defendant was unfit to stand trial was against the manifest weight of the evidence. Id. ¶ 40. Where two of the three psychiatric experts had concluded "that [the] defendant's short-term memory was substantially impaired and would affect his ability to assist in his own defense," and one had found that the defendant "ranked in the lowest one percentile with regard to short-term memory retention after 20 to 30 minutes," the court held that the trial court's finding was not against the manifest weight of the evidence. Id. ¶ 53 Defendant contends that the trial court's ruling was against the manifest weight of the evidence because a case of retrograde amnesia prevented him from remembering the events of the shooting and adversely impacted his ability to assist in his own defense. Defendant claims that he did not have the ability to testify about his intent to commit robbery, which is a necessary element of the crime. He also claims he had no ability to speak about Townsend's frame of mind at the time of the shooting, since none of that evidence was or would be contained in police documents. Finally, he contends that, as a result of his amnesia, he "was wholly unable to communicate anything meaningful to assist his trial attorney in his defense and starkly provided nothing to the jury regarding his defense." ¶ 54 The record shows that the trial court carefully considered the testimony of both experts and found that their findings were generally consistent, noting the following:
(2) The defendant's ability to observe, recollect and relate occurrences, especially those concerning the incidents alleged, and to communicate with counsel;
(3) The defendant's social behavior and abilities; orientation as to time and place, recognition of persons, places and things; and performance of motor processes." 725 ILCS 5/104-16(b) (West 2010).
"The testimony of the doctors is basically in agreement as to findings. They just disagree as to legal conclusions their findings require. They both indicated that the defendant shows an understanding and knowledge of the charges against him, the roles of the different parties in a courtroom, the consequences of a plea of guilty or not guilty, the roles of the jury. He [defendant] demonstrated an ability to observe and recollect and relate occurrences for all periods other than during this period of memory loss. He's oriented towards as [sic] to time and place, as to his
rights in these proceedings. He does have an impairment as to his ability to recollect and relate those incidents concerning or the occurrences concerning the incidents alleged. As the case law shows and it says that one impairment does not, per se, mean that an individual's unfit to stand trial. That is the only impairment here. I am considering it on a case by case basis and based on the totality of the evidence, I find that the State has met its burden that the defendant is fit to stand trial. The defendant is found fit."As the trial court explained, the experts agreed that defendant was capable of understanding the adversarial nature of the proceedings against him and the roles of the prosecution, defense, witnesses, and jury. See People v. Schwartz, 135 Ill. App. 3d 629, 639 (1985) (finding defendant fit to stand trial despite amnesia where defense psychiatrist's testimony indicated that the defendant understood the proceedings against him, the roles of courtroom personnel, and could effectively communicate with his lawyer and make trial decisions). Additionally, both experts agreed that defendant was able to collaborate with his attorney, review police documentation, and discuss his defense strategy. The only difference was that Dr. Heilbronner found that defendant was unfit to testify on his own behalf because of a "profound" impairment in his ability to recall and relate events and occurrences. Based on the totality of the circumstances, however, we find that the court's finding of fitness was not against the manifest weight of the evidence.
¶ 55 B. Sufficiency of Evidence of Attempt Armed Robbery
¶ 56 Turning to the merits of the appeal, defendant contends that the evidence was insufficient to sustain his first degree felony murder conviction because the State failed to prove him guilty of the predicate offense of attempt armed robbery. Defendant contends that there was no evidence to establish: (1) that he intended to commit a robbery and (2) that the Derringer handgun the police recovered from his person constituted a "firearm" under the FOID Act. 430 ILCS 65/1.1 (West 2011); 720 ILCS 5/2-7.5 (West 2011). Without proof of these facts, defendant maintains that the State failed to show that he had the intent to rob and that he was armed with a firearm during the incident in which Townsend was killed. ¶ 57 A person commits first degree felony murder if, "in performing the acts which cause the death: * * * he is attempting or committing a forcible felony other than second degree murder." 720 ILCS 5/9-1(a)(3) (West 2010). Under the "proximate cause theory" of felony murder, a felon is liable for the deaths "proximately resulting from the unlawful activity" that are a direct and foreseeable consequence of his actions. People v. Lowery, 178 Ill. 2d 462, 465 (1997). As a result, we hold a person who commits a forcible felony accountable for accidental deaths and deaths committed by third parties that are the foreseeable consequence of the person's acts during the commission of a felony. Id. at 469. The State need not show that the defendant was aware "that his actions would result specifically in death." People v. Hudson, 354 Ill. App. 3d 648, 655 (2004). It must only prove that the defendant intended to commit the underlying felony. Id. ¶ 58 All forms of robbery are considered to be forcible felonies. 720 ILCS 5/2-8 (West 2010). A person commits robbery "when he or she knowingly takes property *** from the person or presence of another by the use of force or by threatening the imminent use of force." 720 ILCS 5/18-1 (West 2010). Armed robbery occurs when the person committing a robbery is carrying, on or about his person, or is otherwise armed with, a firearm. 720 ILCS 5/18-2 (West 2010). Attempt armed robbery occurs when the person has "intent to commit [armed robbery]" and "does any act that constitutes a substantial step towards the commission of that offense." 720 ILCS 5/8-4(a) (West 2010). ¶ 59 A conviction for felony murder cannot stand if the record lacks sufficient evidence to establish the accused's guilt for the predicate offense. People v. Shaw, 186 Ill. 2d 301, 325 (1998). When the sufficiency of the evidence is challenged on appeal, our function is not to retry the defendant or substitute our judgment. People v. Sutherland, 223 Ill. 2d 187, 242 (2006). Instead, we must determine " 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (Emphasis in original.) People v. Beauchamp, 241 Ill. 2d 1, 8 (2011) (citing People v. Collins, 106 Ill. 2d 237, 261 (1985)). We will not reverse a conviction unless the evidence is so " 'improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt of defendant's guilt.' " Id. Furthermore, we must "allow all reasonable inferences in favor of the prosecution." People v. Cunningham, 212 Ill. 2d 274, 280 (2004).
¶ 60 1. Evidence of Intent to Rob
¶ 61 Defendant argues that the State did not present sufficient evidence to convict him of the predicate offense, i.e., attempt armed robbery while armed with a firearm (720 ILCS 5/18-2 (West 2010)), because there was no evidence to support the jury's finding that he intended to rob Rodriguez and Beckwith. He points to the fact that no witnesses, including the security guards who were the victims of the confrontation, testified that he or Townsend made a demand for any money or attempted to grab the money bag at any time leading up to or following the shooting. Defendant asserts that Townsend's order for him to kill Rodriguez reflected Townsend's desire to "go out in a hail of bullets," not a manifestation of an intent to deprive a person of his property. Consequently, he argues, there exists a reasonable doubt as to his intent to rob the victims during the assault. ¶ 62 "A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense." 720 ILCS 5/8-4(a) (West 2010). The State was thus required to prove beyond a reasonable doubt both that (1) defendant intended to commit the offense of armed robbery, and (2) defendant took a substantial step toward the commission of that offense. ¶ 63 We find that the record supports a finding that defendant intended to rob Rodriguez (or any person or entity in possession of the cash receipts of the Family Dollar store). Establishing an intent to rob does not require the State to show that the accused made any specific demand for money or property. See, People v. Murff, 29 Ill. 2d 303, 305 (1963); People v. Leahy, 295 Ill. 588, 593 (1920); People v. Armour, 15 Ill. App. 3d 529, 539 (1973). Instead, the intent to rob can be inferred from the circumstantial evidence surrounding the incident. People v. Turner, 108 Ill. App. 2d 132, 138 (1969). Here, the nature and timing of defendant and Townsend's attack indicated that they intended to commit an armed robbery. Defendant and Townsend chose to attack two armored truck guards protecting a van full of cash. One of the guards was carrying a deposit bag out of a retail store at the time. Certainly, the jury could have inferred that the attack was somehow related to the money being transported. The fact that defendant and Townsend were unsuccessful in their attempt to take the Family Dollar cash receipts does not automatically require a finding that there was no intent to rob. See People v. Kuhn, 291 Ill. 154, 158 (1919) (finding that "[t]he fact that [the victim] defended himself and prevented the robbery has no tendency to disprove the alleged intent"). The jury was also entitled to reject the defense theory that defendant and Townsend were on a suicide mission and, instead, accept the State's armed robbery theory. People v. Villarreal, 198 Ill. 2d 209, 231 (2001). ¶ 64 Defendant argues that since neither he nor his brother made any attempt to grab Rodriguez's money bag, his actions are more indicative of an intent to kill rather than to rob. He cites People v. Thomas, 127 Ill. App. 2d 134 (1970) in support of his argument. We find the case distinguishable on its facts. In Thomas, the defendant stood guard at the entrance to a tavern while his friend proceeded to the back of the room. Id. at 136. The defendant's friend then walked up to the tavern's bartender and shot him in cold blood. Id. He then told defendant, who was still at the door to the tavern, "I got him." Both left without taking any money or property, jumped into a car that was in a nearby alley, and sped off. At trial, the defendant argued that there was insufficient evidence to establish that defendant, as either the principal actor or an accomplice, had attempted to commit robbery when the incident occurred. Id. at 138. Defendant was nonetheless convicted of felony murder. On appeal, the Thomas court ruled that there was no evidence of an intent to rob on part of the defendant's friend, and because there was no evidence that established proof beyond a reasonable doubt of an underlying forcible felony, i.e., attempted robbery, the defendant's conviction had to be reversed. Id. at 140. ¶ 65 Here, unlike the facts in Thomas, the record shows a series of actions by defendant, in tandem with his stepbrother, that support the jury's finding that he intended to take the bag of cash that Rodriguez was transporting from the Family Dollar store into the Garda armored truck. The evidence reveals a relatively organized and planned ambush. On a Friday morning in late January, defendant and Townsend were waiting near the Family Dollar store. They did not enter the store or make their presence known to the employees or staff inside the store. Instead, they remained out of sight. As they waited, an armored security vehicle pulled up to the front entrance of the store. Defendant and Townsend did not attempt to enter the store after Rodriguez walked in, nor did either of the perpetrators harass or threaten Beckwith while he was sitting in the armored truck. It was not until Rodriguez was walking out of the store, carrying clear bags containing the cash and heading for the truck, that defendant and Townsend approached Rodriguez from both sides in a coordinated fashion: Townsend from the left and defendant from the right. Townsend ordered defendant to kill Rodriguez as Rodriguez was holding the money bag. Despite defendant's testimony that his brother, Townsend, wanted to "go out in a hail of bullets" a month or two prior to the January 2011 incident, the evidence does not support any alternative motive or purpose for the brothers' ambush of the guards other than the goal of forcibly taking money. Instead, the evidence points to a scenario in which defendant and his brother waited outside the Family Dollar, after one of the guards left the armored vehicle and went inside the store to retrieve the funds. There was no evidence that defendant's brother attempted to draw gunfire from either of the guards—to initiate a "hail of bullets"—until after Rodriguez exited the store with the funds and started back to his vehicle. Even after Townsend fell from the gunfire, defendant did not stop the violent confrontation with Rodriguez. Three other eyewitnesses besides Rodriguez—Beckwith, Burton, Cabrera—saw defendant struggling with Rodriguez, the only person who had been holding the money bag. None of the witnesses reported seeing defendant or Townsend going after Beckwith. Viewing the evidence in the light most favorable to the prosecution, we find that a reasonable trier of fact could have easily concluded that defendant possessed the intent to commit armed robbery.
¶ 66 2. Evidence of A Substantial Step
¶ 67 Defendant contends that he did not take a substantial step towards the commission of an armed robbery. He argues that there was no evidence or testimony from any witness that he made a demand for the money or attempted to grab the bag with the money deposit. In Thomas, he notes, the court vacated a felony murder conviction under similar circumstances, finding that "[n]o intention to commit robbery was orally communicated to either alleged victim by either defendant or Robinson, nor was any money or property demanded or taken." 127 Ill. App. 2d at 139. ¶ 68 A substantial step towards the commission of a crime is taken when the defendant has all of the materials required to complete the crime and is present at or near the location of the intended criminal act. See People v. Smith, 148 Ill. 2d 454, 460 (1992); People v. Terrell, 99 Ill. 2d 427, 434 (1984). The facts and circumstances of each case must be evaluated to determine whether a defendant's actions constituted a substantial step. Terrell, 99 Ill. 2d at 431-32. A substantial step requires action beyond mere preparation (id. at 433); it should put the defendant in a "dangerous proximity to success" toward commission of the crime. (Internal quotation marks omitted.) People v. Morissette, 225 Ill. App. 3d 1044, 1046 (1992). The crime of attempt is complete once there has been a substantial step with the requisite intent and subsequent abandonment of the criminal purpose is no defense. People v. Myers, 85 Ill. 2d 281, 290 (1981). ¶ 69 We find that defendant's act of ambushing an armed guard carrying a deposit bag to an armored truck, itself, constituted a substantial step towards an armed robbery. The reasonable inference to be drawn is that defendant was attempting to steal the money in the guard's possession. We are not persuaded that defendant did not take a substantial step towards an armed robbery simply because he did not make a demand for money or attempt to grab the money bag. Under the circumstances, it is reasonable to infer that defendant and Townsend made plans to ambush only the guard who was carrying the money from two different sides. As Rodriguez testified, he suddenly found himself approached by both men from different directions. Taking all reasonable inferences in the light most favorable to the prosecution, we find that the evidence demonstrates a coordinated attack in which Townsend and defendant were out of sight— according to all of the witnesses, including both guards, who testified at trial—until a point in time when Rodriguez was neither safely inside the store or the armored truck. Relying on the element of surprise, which was necessary to avoid arousing the suspicion of the guard waiting inside the truck (Beckwith), required some degree of coordination between the two brothers. The fact that neither Townsend nor defendant was successful in taking the money bag does not diminish the evidence establishing their "dangerous proximity to success" under the circumstances. Moreover, the fact that their ability to execute the robbery was interrupted when Rodriguez fired four shots from his revolver and hit Townsend is not relevant to the question of what actions the offenders took toward completing the crime. ¶ 70 This case is distinguishable from Thomas where there was no money or property demanded or taken, and "[the offender] simply walked up to the bar, pointed the gun at the bartender without saying anything, and shot him dead" before walking out. Thomas, 127 Ill. App. 2d at 139. In this case, defendant never voluntarily left the scene without the money; rather, he was taken away by ambulance after he was incapacitated from the shootout with the guards. The jury could have reasonably found that defendant remained at the scene until he was shot because he was intent on getting the money in the guards' possession. Under the circumstances, we find that the State presented sufficient evidence of a substantial step and thus proved the elements of attempt beyond a reasonable doubt.
¶ 71 3. Possession of a Firearm
¶ 72 Finally, in his challenge to the sufficiency of the evidence, defendant argues that because the Derringer .22 caliber handgun recovered from his person was inoperable, it could not possibly meet the legal definition of a "firearm." In Illinois, the term "firearm" is defined under the FOID Act (430 ILCS 65/0.01 et seq. (West 2012)) as "any device, by whatever name known, which is designed to expel a projectile by the action of an explosion, expansion of gas or escape of gas." (Emphasis added.). 430 ILCS 65/1.1 (West 2010); People v. Fields, 2014 IL App (1st) 110311, ¶ 35. Our primary objective is to enforce the legislature's intent, and the most reliable way in which to do this is to give the statute's language its plain and ordinary meaning. People v. Perry, 224 Ill. 2d 312, 323 (2007). Where the language of a statute is clear and unambiguous, we must apply it as written. Id. We review defendant's claim, which presents a question of statutory interpretation, de novo. People v. Almond, 2015 IL 113817, ¶ 34. ¶ 73 Here, defendant argues that the Derringer handgun does not "possess the essential characteristics of a firearm" because it was unable to expel projectiles at the time of his offense, effectively rendering it inoperable. This court, however, has previously held that an inoperable gun can satisfy the FOID statutory definition of a "firearm." People v. Williams, 393 Ill. App. 3d 286, 291 (2009). Whether or not a firearm in a state of disrepair can still be said to be "designed" as a firearm due to loss of its essential characteristics is a question of fact for the trier of fact to determine; one important factor to be considered is whether the firearm can be repaired or restored to its original state. Id. ¶ 74 The plain language of the statute indicates that an item must only be designed to expel a projectile; there is nothing in the statute that indicates that the object must be able to at the time of the offense. During her testimony, Haley, qualified as a firearms and firearms identification expert, testified that this was exactly the case - the gun, while not operable, was designed to operate as a standard firearm. There was no evidence elicited at trial, not by Haley nor anyone else, which would indicate that defendant's Derringer gun could not be repaired or restored to an operable condition. Moreover, defendant never contested Haley's conclusions regarding his Derringer. Therefore, we conclude that the trier of fact reasonably determined that defendant's Derringer constituted a firearm. As such, we hold that the State presented sufficient evidence to convict defendant of attempt armed robbery and, therefore, established his guilt as to the predicate offense for first degree felony murder.
¶ 75 C. Notification of 15-Year Firearm Enhancement
¶ 76 Lastly, defendant argues that the 15-year firearm enhancement on his sentence is void and should be stricken from his sentence because the State failed to notify him of its intent to seek the enhancement pursuant to section 111-3(c-5) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3(c-5) (West 2010)). A sentence that does not conform to a statutory requirement is void and may be corrected at any time. People v. Arna, 168 Ill. 2d 107, 113 (1995). We review de novo the State's compliance with section 111-3(c-5). People v. Mimes, 2014 IL App (1st) 082747-B, ¶ 26. ¶ 77 The Illinois legislature enacted section 111-3(c-5) of the Code following the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), "which held that whenever a fact other than a prior conviction is considered to enhance a penalty beyond the statutory maximum, that fact must be found to exist beyond a reasonable doubt by the trier of fact." People v. Mimes, 2014 IL App (1st) 082747-B, ¶ 26. Section 111-3(c-5) provides that "if an alleged fact (other than the fact of a prior conviction) is not an element of an offense but is sought to be used to increase the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for the offense, the alleged fact must be included in the charging instrument or otherwise provided to the defendant through a written notification before trial, submitted to a trier of fact as an aggravating factor, and proved beyond a reasonable doubt." 725 ILCS 5/111-3(c-5) (West 2010); but see People v. Robinson, 232 Ill. 2d 98, 110 (2008) (noting that "Apprendi does not speak to indictment-related issues" and did not address the charging instrument). ¶ 78 As we previously noted, it is undisputed here that the only charge on which the State proceeded to trial against defendant was the first degree felony murder charge under count I of the indictment. The remaining three counts were nolle prossed. Count I contains no allegation about a firearm, and states, instead, that defendant:
"committed the offense of FIRST DEGREE MURDER¶ 79 There is no language in count I concerning the commission of an offense while carrying a firearm. We next look to Section 9-1(A)(3) of the Criminal Code, the statutory provision setting forth the elements of first degree felony murder. Again, there is no reference to a firearm. We must conclude that the alleged fact necessary for the firearm enhancement was not included in the charging instrument, and the indictment fails to meet the requirements of section 111-3(c-5). By agreeing to nolle prosse counts II, III and IV, the State effectively informed the defendant that it was not willing to prosecute defendant for the charges containing the firearm element. It would be absurd to find, as the State urges, that defendant was notified that the State would be seeking to prove his possession of a firearm when, in fact, the State specifically declined to prosecute all charges alleging his possession of a firearm. Furthermore, the State never sought leave to amend the indictment to add or "restore" the language necessary to strictly comply with section 111-3(c-5). ¶ 80 The question then becomes whether the State cured the defect in the indictment by providing the alternative statutory written notification to defendant that is permitted under the statute. 725 ILCS 5/111-3(c-5). The State argues that it satisfied the written notification requirement because the facts regarding defendant's possession of a firearm during the forcible felony were included in its motion in limine, when it sought to prohibit defense counsel from arguing that the Derringer handgun was inoperable and, therefore, not a firearm. According to the State, defendant acknowledged, and was aware of, the State's intent to seek the firearm sentencing enhancement during the hearing on the motion in limine. We disagree. ¶ 81 The State's motion in limine was not intended as a written notification to defendant prior to trial under section 111-3(c-5); instead, the clear purpose of the motion was to bar the defense from asserting, at trial, that the Derringer .22 caliber handgun was inoperable and therefore not a firearm. Furthermore, at the time the State presented and argued its motion in limine, the counts in the indictment containing the firearm allegations had not yet been nolle prossed. The State, therefore, had no reason to give an alternative written notification to defendant under section 111-3(c-5). We find the State's argument unpersuasive. ¶ 82 The remaining issue, then, is whether defendant is entitled to any relief. "An indictment challenged before trial must strictly comply with the pleading requirements of section 111-3." People v. Mimes, 2014 IL App (1st) 082747-B, ¶33, citing People v. Nash, 173 Ill. 2d 423, 429 (1996). "In contrast, when an indictment is attacked for the first time posttrial, a defendant must show that he was prejudiced in the preparation of his defense." Mimes, 2014 IL App at (1st) 082747-B at ¶ 33 (citing People v. Davis, 217 Ill. 2d 472, 479 (2005)). This case falls somewhere in between a pretrial and posttrial challenge. During the pretrial hearing on the State's motion in limine, defense counsel acknowledged the State's intent to establish that defendant was in possession of a firearm, both as an element of the underlying felony and as an enhancing factor on sentencing, when it raised a concern to the trial court regarding double enhancement; however, defendant did not challenge the indictment itself. Later, during the jury instruction conference, defendant argued that he was not given adequate notice of the State's intention to prove that he was armed with a firearm. He later raised the same issue in his motion to reconsider the sentence. ¶ 83 In People v. Cuadrado, our supreme court held that a midtrial challenge to an indictment requires a showing of prejudice unless there has been prosecutorial misconduct. 214 Ill. 2d 79, 87-88 (2005). Here, no allegations of prosecutorial misconduct have been made. Accordingly, we must find that defendant was prejudiced in the preparation of his defense by the State's failure to strictly comply with section 111-3(c-5). ¶ 84 Defendant was charged with felony murder predicated on attempt armed robbery. The offense of armed robbery may be proven by evidence that defendant was either "armed with a dangerous weapon other than a firearm" or that he was "armed with a firearm." 720 ILCS 5/18-2(a)(1)-(2) (West 2010). Because the indictment lacked any reference to either section 18-2(a)(1) or section 18-2(a)(2), the State was effectively free to proceed at trial under either a dangerous weapon theory or a firearm theory. This is evidenced by the fact that the prosecution elicited testimony to establish that during defendant's struggle with the armed guard, he swung a metal-and-wood weapon that resembled a double-barreled sawed-off shotgun at the guard. While the State did not seek to prove that the Derringer .22 caliber handgun was used as a bludgeon, it did nonetheless present testimony that defendant caught the metal-and-wood weapon purportedly tossed by Townsend and then used it to swing at Rodriguez during their confrontation. By leaving open the dangerous weapon theory, the State protected its ability to convict defendant even if the court found that the .22 Derringer was not a firearm. Under the circumstances, this was clearly prejudicial to defendant and we can find no justifiable reason to excuse the prosecution's lack of compliance with section 111-3(c-5). Pursuant to our authority under Illinois Supreme Court Rule 615, we vacate defendant's 15-year sentence enhancement based on his possession of a firearm. Ill. S. Ct. R. 615(b).
in that HE, WITHOUT LAWFUL JUSTIFICATION, COMMITTED THE OFFENSE OF ATTEMPT ARMED ROBBERY, AND DURING THE COMMISSION OF THE OFFENSE, HE SET IN MOTION A CHAIN OF EVENTS THAT CAUSED THE DEATH OF JIMMY TOWNSEND
IN VIOLATION OF CHAPTER 720 ACT 5 SECTION 9-1(A)(3) OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED *** [.]"
¶ 85 CONCLUSION
¶ 86 For the foregoing reasons, we affirm defendant's conviction of first degree felony murder and his 25-year sentence for this offense, but vacate the 15-year sentence enhancement for possession of a firearm during the commission of first degree murder. ¶ 87 Affirmed in part; vacated in part.