People v. Powell
Annotate this Case
THIRD DIVISION
September 16, 1998
(NUNC PRO TUNC AS OF JUNE 30, 1998)
No. 1--96--3644
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
RHAMAL POWELL, ) Honorable
) Joseph J. Urso,
Defendant-Appellant. ) Judge Presiding.
JUSTICE BURKE delivered the opinion of the court:
Defendant Rhamal Powell was charged with two counts each of aggravated
battery, aggravated battery with a firearm, armed violence and attempted first
degree murder. After a bench trial, defendant was found guilty of wounding two
persons, and sentenced to 16 years' imprisonment on each count of attempted first
degree murder and armed violence, to be served concurrently. The remaining
counts merged with the attempted first degree murder and armed violence
convictions. On appeal, defendant contends that(Nonpublishable material under
Supreme Court Rule 23 omitted.) his sentence for armed violence violated the
proportionate penalties clause of the Illinois Constitution of 1970 because the
penalty for armed violence was disproportionate to the penalty for the predicate
offense of aggravated battery (Nonpublishable material under Supreme Court rule
23 omitted.) For the reasons set forth below, we affirm.
On August 25, 1995, at approximately 2:30 a.m., Patricia Baker (Baker) and
Cherie Morris (Morris) were each shot when gunfire was exchanged in a gang
related altercation which occurred in the vicinity of their Chicago Housing
Authority (CHA) rowhouse located at 13141 South Langley. After Baker and Morris
subsequently picked defendant out of a police lineup, defendant was indicted by
a grand jury and charged with two counts each of attempted first degree murder,
armed violence, aggravated battery with a firearm, and aggravated battery.
On August 12, 1996, the trial court simultaneously heard the separate bench
trials of defendant and codefendants, Kareem Muhammad and Martize Dellinger.
Baker testified that she was sitting on the back porch of the CHA rowhouse with
Morris and two other persons named "Jermaine and Joseph" when she saw defendant
and codefendants walk from around the corner approximately 10 to 12 feet from the
porch, and pull out guns. Joseph then said, "Something don't look right; those
Hooks goin' to pop." Everyone on the porch jumped up and started running as
Baker heard one of the three men say, "Don't a motherfucker move." As Baker
attempted to run inside the house, she heard "a lot" of shots. Baker was able
to get into the house, fell and crawled into the living room. She realized she
had been shot in the upper buttocks. Baker stayed on the floor for approximately
five minutes when she heard Morris screaming at the front door for her children
to let her inside. Baker saw that Morris had been shot in the foot.
Subsequently, Baker and Morris were taken in an ambulance to the hospital where
Baker was treated for her gunshot wound with a wet saline dressing and was
released from the hospital approximately three hours later.
Morris testified that she was sitting on the back porch with Baker,
Jermaine and Joseph White. As Morris was speaking to Joseph, Joseph said to her,
"Don't look right," and "That's them Hooks. They fixin' to shoot." Morris
looked behind her and saw defendant and codefendants approximately eight or nine
feet from the porch. Defendant and codefendants all had guns in their hands at
the time. Morris started running as defendant and codefendants "proceeded to
shoot" and "continued to shoot" a number of shots that were "too many to count."
Because defendant and codefendants were shooting in the direction of the back
door to the rowhouse, Morris had to run in the opposite direction toward the
corner. As Morris ran approximately three or four feet from the back door, she
fell, not knowing that she was shot; a bullet had gone through her right foot.
After "a second," she jumped up, started running, and fell again. After she fell
the second time, she could not get back up, so she "just laid there." As Morris
was lying on the ground, she saw defendant and codefendants run through the
parking lot and across the street. Morris got up and hopped around the corner
and to her front door where her daughter let her in the house. Morris saw Baker,
who had also been shot "up by her butt," lying on the floor. An ambulance
subsequently took Morris and Baker to the hospital where they stayed until
approximately 6 a.m. Morris had an x-ray taken of her foot which revealed no
fractures or dislocations.
Various photographs were identified and introduced into evidence depicting
the scene of the shooting. One photograph showed a bullet hole in the top half
of the back door of the rowhouse around a person's waist level. Another
photograph showed a gym shoe with a hole in it, which Baker identified as Morris'
gym shoe.
Defendant's written statement, taken by the police after defendant had been
arrested, was introduced into evidence by stipulation of the parties. The
statement revealed that at the time of the shooting, defendant was 16 years old
and a member of the Conservative Vice Lords street gang. At approximately 2:30
a.m. on March 25, 1998, defendant and codefendants, also Vice Lords, were in the
area of 133rd and Langley because they knew that rival members of the Black
Disciples street gang would be there. Defendant stated that he and codefendants
were carrying loaded handguns and that they were "looking for" Black Disciples
who had shot at defendant and other Vice Lords earlier that night.
Defendant's written statement further stated that when defendant approached
133rd and Langley, he saw two Black Disciples, whom defendant knew as "J.J." and
"Woo Woo," sitting on a porch with two women whom defendant did not know.
Defendant kept walking toward the porch with codefendants, and when defendant was
approximately 10 feet away, J.J. and the two women got up and started to run.
At this point, defendant was "right behind" one of the women. Defendant pulled
his gun in an attempt to shoot J.J., pointing the gun in the direction of J.J.
and the women, and fired it three times. After defendant fired at J.J., Woo Woo
shot back. Codefendants then started shooting in the direction of J.J., Woo Woo
and the women, and defendant ran to "Block 17." Defendant kept the gun
overnight, and then gave it to someone named "Reno" the next day.
Defendant presented no evidence other than his written statement. The
trial court subsequently found defendant guilty of both counts each of attempted
first degree murder, aggravated battery with a firearm, armed violence and
aggravated battery based on great bodily harm. Defendant was sentenced to 16
years' imprisonment on each count of attempted first degree murder and armed
violence, to be served concurrently. The counts for aggravated battery with a
firearm and aggravated battery merged into the attempted murder and armed
violence counts for which sentence was imposed. This appeal followed.
(Nonpublishable material under Supreme Court rule 23 omitted.)
Defendant Contends that his sentence for armed violence was
disproportionate to the penalties imposed for the predicate offense of aggravated
battery and, therefore, the armed violence charge and his ultimate conviction for
that offense violated the proportionate penalties clause of the Illinois
Constitution. (Ill. Const. 1970, art. I). The State contends that defendant's
conviction for armed violence predicated on aggravated battery causing great
bodily harm was proper because the statutes defendant attempts to compare as
having disproportionate penalties do not require proof of substantively identical
elements, but rather, both armed violence and aggravated battery have different
elements. The State argues that because each statute governing armed violence
and aggravated battery requires an element not found in the other, they are
merely different punishments for separate and distinct offenses based on the
commission of the same acts, which do not offend the Illinois constitution.
The Constitution of Illinois provides that "[n]o person shall be deprived
of life, liberty or property without due process of law nor be denied the equal
protection of the laws" (Ill. Const. 1970, art. I, 11), and that "[a]ll
penalties shall be determined both according to the seriousness of the offense
with the objective of restoring the citizen to useful citizenship" (Ill. Const.
1970, art. I, 2). While the legislature has the power to declare and define
conduct constituting a crime, and to determine the nature and extent of
punishment for a crime committed, the preceding constitutional provisions mandate
penalties which are proportionate to the offenses and require the legislature,
in defining crimes and their penalties, to consider the constitutional goal of
providing penalties according to the seriousness of the offense. People v. Lee,
167 Ill. 2d 140, 144-45, 656 N.E.2d 1065 (1995); People v. Christy, 139 Ill. 2d 172, 177, 564 N.E.2d 770 (1990).
On appeal, the "constitutionally required task" of a reviewing court is to
examine a sentencing scheme and determine whether it provides a proportionate
penalty for the offense at issue. People v. Lewis, 175 Ill. 2d 412, 422, 677 N.E.2d 830 (1997). The general practice of comparing different offenses and
their respective penalties is an accepted part of a reviewing court's
proportionality review. Lewis, 175 Ill. 2d at 420. Interference with
legislative judgment is justified only where the designated punishment is cruel,
degrading, or so wholly disproportionate to the offense committed as to shock the
moral sense of the community. Because courts recognize that the legislature is
institutionally more capable of determining the seriousness of offenses, they are
reluctant to invalidate penalties prescribed by the legislature. Lee, 167 Ill. 2d at 145.
In the present case, the following statutes were applicable to the charges
against defendant for aggravated battery, aggravated battery with a firearm and
armed violence. Section 2--4 of the Criminal Code provided:
"Aggravated Battery.
(a) A person who, in committing a battery,[fn1]
intentionally or knowingly causes great bodily harm, or
permanent disability or disfigurement commits aggravated
battery." (Emphasis added). 720 ILCS 5/12--4(a) (West
1993).
Aggravated battery is a Class 3 felony for which the penalty is two to five
years' imprisonment. 730 ILCS 5/5--8--1 (West 1994). Section 12--402 provided:
"Aggravated Battery with a firearm.
(a) A person commits aggravated battery with a
firearm when he, in committing a battery, knowingly or
intentionally by means of the discharging of a firearm
(1) causes any injury to another person, ***."
(Emphasis added.) 720 ILCS 5/12--4.2(a) (West 1993).
Aggravated battery with a firearm is a Class X felony for which the penalty is
imprisonment from 6 to 30 years. 730 ILCS 5/5--8--1 (West 1994). Section 33A--
2 provided:
"Armed violence-Elements of the offense.
A person commits armed violence when, while armed with a
dangerous weapon, he commits any felony defined by
Illinois Law." (Emphasis added.) 720 ILCS 5/33A--2
(West 1993).
A person is considered armed with a dangerous weapon when he or she carries on
or about his or her person or is otherwise armed with a Category I weapon. A
Category I weapon includes a handgun or any other firearm small enough to be
concealed upon the person. 720 ILCS 5/33A--1(a)(b) (West 1993). Violation of
the armed violence offense while armed with a Category I weapon is a Class X
felony for which a defendant shall be sentenced to a minimum of 15 years'
imprisonment. 720 ILCS 5/33A--3(a) (West 1993).
Defendant argues that under this statutory scheme, committing a battery
while armed with a handgun also constitutes the separate offenses of aggravated
battery with a firearm and armed violence. Therefore, defendant maintains that
he was charged and convicted with the substantively identical offenses of armed
violence and aggravated battery with a firearm, which are not logically
punishable with disparate penalties.
The State argues that while the cases relied upon by defendant, People v.
Christy, 139 Ill. 2d 172, 177, 564 N.E.2d 770 (1990) and People v. Lewis, 175 Ill. 2d 412, 422, 677 N.E.2d 830 (1997), provide "persuasive authority in
reviewing the proportionality of penalties of identical offenses," they are "not
particularly relevant" in the present case where the offenses are not identical.
The State maintains that despite dealing with "slightly similar conduct," the
offenses in this case each contain elements that the other does not.
Defendant counters that the "technical distinction" argued by the State
that the charge of aggravated battery with a firearm requires the discharge of
a firearm, whereas the charge of armed violence predicated on aggravated
battery, of which great bodily harm is an element, can be sustained with only
the possession of a firearm, is "an entirely sophistic distinction." Defendant
argues that regardless of how a "different defendant" might be properly charged
under "different circumstances," because he was convicted of armed violence for
causing great bodily harm by discharging a firearm and not just possessing one,
his convictions violate the proportionate penalties clause.
In Christy, the defendant abducted two teenage boys from a campsite and
took them to a storage unit where he forced them to undress and repeatedly
threatened to kill them with a knife. The defendant was charged with armed
violence, kidnapping and aggravated criminal sexual abuse, and found guilty of
armed violence predicated on kidnapping with a Category I weapon, and one count
of kidnapping. This court affirmed the defendant's conviction for kidnapping.
On appeal to our supreme court, the court held that the penalties were
"unconstitutionally disproportionate, because aggravated kidnapping is a more
serious offense than the lesser included offense of kidnapping; yet, when armed
violence is predicated on kidnapping with a category I weapon, kidnapping is,
in effect, enhanced to a Class X felony and is punished more severely than
aggravated kidnapping." Christy, 139 Ill. 2d at 173-75, citing People v.
Christy, 188 Ill. App. 3d 330, 332, 544 N.E.2d 88 (1989). The supreme court
examined the relevant statutory provisions and found that kidnapping while armed
with a knife having a three-inch blade constituted both aggravated kidnapping
and armed violence. (Emphasis in original.) Christy, 139 Ill. 2d at 181.
Because the elements constituting both crimes were "identical," the court held
that "common sense and sound logic would seemingly dictate that their penalties
be identical." Christy, 139 Ill. 2d at 181. However, because aggravated
kidnapping was a Class 1 felony punishable by 4 to 15 years' imprisonment, while
armed violence was a Class X felony punishable by 6 to 30 years' imprisonment,
the court held that the penalties for the two crimes were unconstitutionally
disproportionate. Christy, 139 Ill. 2d at 181.
In Lewis, the defendant was charged with one count of robbery, one count
of armed violence predicated on robbery committed with a category I weapon and
one count of armed robbery. Lewis, 175 Ill. 2d at 414. Relying on the Christy
holding, the supreme court in Lewis examined the relationship between the three
statutory offenses. The court noted that robbery was defined as the taking of
property, except a motor vehicle, from the person or presence of another by the
use of force or by threatening the imminent use of force; armed robbery was
defined as the commission of a robbery while being armed with a dangerous weapon
(punishable by imprisonment from 6 to 30 years); and armed violence was defined
as the commission of any felony while armed with a dangerous weapon (punishable
by imprisonment from 15 to 30 years). The Lewis court found that because the
offense of armed violence predicated on robbery committed with a category I
weapon and the offense of armed robbery contained identical elements which were
illogically punished with disparate penalties, the penalty for armed violence
predicated on robbery committed with a category I weapon violated the
proportionate penalties clause. Lewis, 175 Ill. 2d at 418.
We agree with the State that Christy and Lewis are distinguishable from
the case at bar. Based on a plain reading of the relevant statutes in this
case, armed violence predicated on aggravated battery and aggravated battery
with a firearm are not substantively identical offenses because they require
different and/or additional elements. Specifically, aggravated battery with a
firearm does not require the intentional or knowing infliction of great bodily
harm as does the offense of armed violence predicated on aggravated battery.
Aggravated battery with a firearm also has the additional and different
requirement of the discharge of a firearm, whereas armed violence does not
require proof of the discharge of a firearm, but only possession of the firearm
on the person of the defendant. Moreover, a different level of harm is required
under each offense. While a defendant can be prosecuted for aggravated battery
with a firearm for causing "any injury to another person," armed violence
requires that a defendant cause "great bodily harm" or "permanent disability"
to another person before he can be prosecuted for the offense of armed violence
predicated on aggravated battery pursuant to the Criminal Code.
We also find that the case at bar is more similar to the facts of People
v. Townsend, 275 Ill. App. 3d 413, 654 N.E.2d 1096 (1995). In Townsend, the
defendant contended that the aggravated discharge of a firearm statute under
which he was convicted created an unconstitutionally disproportionate penalty
because that statute and the aggravated assault statute required virtually the
same elements, yet were punished differently. The Townsend court disagreed
because it found that the two offenses were distinct since "only aggravated
discharge of a firearm requires the firearm to be discharged in the direction
of another person, and only aggravated assault requires awareness of the
offender's conduct." Townsend, 275 Ill. App. 3d at 418. The Townsend court
therefore held that because these two offenses are distinct offenses, the
legislature is fully within its power to punish them separately. Townsend, 275
Ill. App. 3d at 418.
Similarly, the ranges of punishment for the offenses in the present case
are not unconstitutionally disproportionate so as to justify interference with
the legislature's judgment. Unlike the facts in Christy, where the court found
that aggravated kidnapping was a Class 1 felony punishable from 4 to 15 years'
imprisonment, while armed violence was a Class X felony punishable from 6 to 30
years' imprisonment, we find that the offenses of armed violence (a Class X
felony punishable with a minimum of 15 years) and aggravated battery with a
firearm (a Class X felony punishable from 6 to 30 years) do not result in such
disproportionate penalties. Therefore, defendant's conclusory assertion that
in the present case the disproportionality between the penalties of armed
violence predicated on aggravated battery and aggravated battery with a firearm
is "even greater" than in either Christy and Lewis, and that the "distinction"
between the discharge of a firearm and the possession of a firearm is merely
"technical" and "entirely sophistic," is unsupported by either the facts here
or the relevant authority. Therefore, Christy and Lewis do not support
defendant's argument.
Defendant next argues that even if the statutory elements of the offenses
of armed violence predicated on aggravated battery and aggravated battery with
a firearm are materially different, People v. Wisslead, 94 Ill. 2d 190, 446 N.E.2d 512 (1983), and People v. Wade, 131 Ill. 2d 370, 546 N.E.2d 553 (1989),
support his argument that defendant's charge of armed violence predicated on
aggravated battery of which great bodily harm is an element, violated the
proportionate penalties clause because "it is clear that the offense of
aggravated battery with a firearm is a more serious violation than aggravated
battery in which great bodily harm is inflicted."
In Wisslead, the defendant was charged with unlawful restraint and armed
violence based on the underlying felony of unlawful restraint. The Wisslead
court examined the different penalties available for various related statutory
offenses, and found that the penalty for armed violence predicated on unlawful
restraint was not proportionate to the penalties for aggravated kidnapping and
forcible detention. The court reasoned that from the clear language of the
statutes involved, unlawful restraint (classified by the legislature as a Class
4 felony) was a less serious offense than kidnapping (classified as a Class 2
felony), as evidenced by the type of conduct involved in the commission of each
of the crimes and the penalties prescribed. Unlawful restraint required an
illegal detention while kidnaping involved secret confinement, deceit or
enticement, or force or threat of imminent force. However, when the presence
of a category I weapon was added to the elements of either of those offenses,
they could be prosecuted as armed violence predicated on unlawful restraint and
aggravated kidnapping, respectively. One who kidnaps another while armed with
a dangerous weapon could be prosecuted under the aggravated kidnapping statute
and would be subject to a lesser penalty than one prosecuted on similar facts
for armed violence based on unlawful restraint. The court reasoned that because
each offense was enhanced by the identical additional element of a category I
weapon, the lesser offense of unlawful restraint should not become a graver
offense than kidnapping. Wisslead, 94 Ill. 2d at 193-95.
Defendant here therefore argues that because aggravated battery is a
lesser offense than aggravated battery with a firearm and armed violence,
aggravated battery with the possession of a category I weapon should not yield
a greater penalty than the greater offense of aggravated battery with a firearm.
However, in Wisslead, the less serious offense of unlawful restraint, when
enhanced by a category I weapon, amounted to armed violence based on unlawful
restraint (a Class X felony) while at the same time could also have been
prosecuted as aggravated kidnapping (a Class 1 felony).
In Wade, the defendant was charged with armed violence predicated on the
felony of intimidation and attempted armed robbery. The trial court entered
judgment on the more serious charge of armed violence. The issue before the
court in Wade was whether the offense of intimidation properly served as the
predicate felony for the offense of armed violence. The Wade court examined the
relevant statutes and found that intimidation and attempted robbery were both
Class 3 felonies: attempted armed robbery was a Class 1 felony; armed violence
was committed by a person when that person committed any felony while armed with
a dangerous weapon; and commission of armed violence while armed with a category
I weapon was a Class X felony. The Wade court concluded, therefore, that the
commission of intimidation while armed with a category I weapon constituted the
offense of armed violence and was a Class X felony, and commission of attempted
robbery while armed with a similar weapon constituted a Class 1 felony of
attempted armed robbery.
Relying on Wisslead, the defendant in Wade argued that the availability
of the separate offenses of armed violence and attempted armed robbery based on
the same acts and resulting in different punishments created disproportionate
sentencing. Wade, 131 Ill. 2d at 376-77. The Wade court held that the
defendant's reliance on Wisslead was misplaced because the sentencing scheme in
that case punished the less serious offense of unlawful restraint more severely
than the more serious offense of kidnapping when the identical enhancing element
of a handgun was added to each. However in Wade, the unenhanced offenses of
attempted robbery and intimidation were both Class 3 felonies. Intimidation,
therefore, was not considered a less serious offense than attempted robbery, nor
could the commission of intimidation while armed be a less serious offense than
attempted armed robbery. The court held that the defendant's claim--reduced to
the argument that identically classified offenses may not be enhanced by the
same circumstance to offenses of different classifications--was unfounded.
Wade, 131 Ill. 2d at 378-80.
The Wade court also noted that in the aggravated kidnapping and forcible
detention statutes at issue in Wisslead, the legislature expressly adopted the
definition of "dangerous weapon" in the armed violence provisions in providing
for the enhanced offenses, but no such provision was made for the commission of
unlawful restraint while similarly armed. Therefore, intimidation could not be
considered a less serious offense than attempted armed robbery, nor could the
commission of intimidation while armed be considered a less serious offense than
attempted armed robbery. Wade, 131 Ill. 2d at 379.
Wade is distinguishable from the case at bar because the issue in that
case was whether the statutes permitting enhancement of both the Class 3
felonies of attempted robbery and intimidation to the Class 1 offense of armed
robbery and the Class X offense of armed violence when the presence of a weapon
was added, was disproportionate. In the present case, while the offense of
aggravated battery based on great bodily harm was enhanced to armed violence due
to the presence of a category I weapon, the offense of aggravated battery with
a firearm was not similarly enhanced. Instead, it contained the element of
discharge of a firearm by its own definition. In the case at bar, the two
offenses that defendant argues are disproportionate--armed violence predicated
on aggravated battery and aggravated battery with a firearm--are both Class X
felonies. Therefore, as previously discussed, we find that the penalties
prescribed for these offenses are not so wholly disproportionate as to shock the
moral sense of the community. Lee, 167 Ill. 2d at 145. Moreover, a defendant
prosecuted under the two offenses at issue in this case would have to perform
different and/or additional acts, unlike the Wisslead defendant who could have
been prosecuted disproportionately under either offense involved there under
similar facts.
We further observe that even if, as defendant argues, the legislature
intended aggravated battery with a firearm to be a more serious violation than
aggravated battery based on great bodily harm, defendant cites to no additional
authority for his more specific proposition that aggravated battery based on
great bodily harm, when coupled with the possession of a weapon, is a lesser
offense than aggravated battery with a firearm, which requires the actual
discharge of the gun. As our supreme court noted in Lee, after holding that the
aggravated battery with a firearm statute withstood the defendant's
constitutional challenges, there are several factors the legislature may take
into consideration when determining the seriousness of a crime and the
punishment for it. For example, the legislature may consider the frequency of
the crime and the high risk of bodily harm associated with it. The legislature
may also perceive a need to enact a more stringent penalty in order to halt an
increase in the commission of a particular crime. Lee, 167 Ill. 2d at 146-47.
Because the authority defendant relies upon is unpersuasive in support of his
argument that aggravated battery with a firearm is a "more serious" offense than
aggravated battery based on great bodily harm, we find no reason to interfere
with the sentencing schemes developed by the legislature in relation to the
offenses at issue in the present case. See Wade, 131 Ill. 2d at 380.
Accordingly, we hold that defendant's constitutional rights have not been
violated and that his convictions for armed violence and aggravated battery with
a firearm were proper.
(Nonpublishable material under Supreme Court Rule 23 omitted.)
For the reasons stated, the judgment of the circuit court is affirmed.
Affirmed.
LEAVITT, P.J., and CAHILL, J., concur.
[fn1]The underlying predicate offense for all the offenses defendant was
charged with was battery, with which defendant was not charged. The statute
defines the offense of battery as the intentional or knowing causing of bodily
harm, without legal justification, and by any means, to any individual. 720
ILCS 5/12--3 (West 1993).
September 16, 1998
(NUNC PRO TUNC AS OF JUNE 30, 1998)
No. 1--96--3644
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
RHAMAL POWELL, ) Honorable
) Joseph J. Urso,
Defendant-Appellant. ) Judge Presiding.
JUSTICE BURKE delivered the opinion of the court:
Defendant Rhamal Powell was charged with two counts each of aggravated
battery, aggravated battery with a firearm, armed violence and attempted first
degree murder. After a bench trial, defendant was found guilty of wounding two
persons, and sentenced to 16 years' imprisonment on each count of attempted first
degree murder and armed violence, to be served concurrently. The remaining
counts merged with the attempted first degree murder and armed violence
convictions. On appeal, defendant contends that(Nonpublishable material under
Supreme Court Rule 23 omitted.) his sentence for armed violence violated the
proportionate penalties clause of the Illinois Constitution of 1970 because the
penalty for armed violence was disproportionate to the penalty for the predicate
offense of aggravated battery (Nonpublishable material under Supreme Court rule
23 omitted.) For the reasons set forth below, we affirm.
On August 25, 1995, at approximately 2:30 a.m., Patricia Baker (Baker) and
Cherie Morris (Morris) were each shot when gunfire was exchanged in a gang
related altercation which occurred in the vicinity of their Chicago Housing
Authority (CHA) rowhouse located at 13141 South Langley. After Baker and Morris
subsequently picked defendant out of a police lineup, defendant was indicted by
a grand jury and charged with two counts each of attempted first degree murder,
armed violence, aggravated battery with a firearm, and aggravated battery.
On August 12, 1996, the trial court simultaneously heard the separate bench
trials of defendant and codefendants, Kareem Muhammad and Martize Dellinger.
Baker testified that she was sitting on the back porch of the CHA rowhouse with
Morris and two other persons named "Jermaine and Joseph" when she saw defendant
and codefendants walk from around the corner approximately 10 to 12 feet from the
porch, and pull out guns. Joseph then said, "Something don't look right; those
Hooks goin' to pop." Everyone on the porch jumped up and started running as
Baker heard one of the three men say, "Don't a motherfucker move." As Baker
attempted to run inside the house, she heard "a lot" of shots. Baker was able
to get into the house, fell and crawled into the living room. She realized she
had been shot in the upper buttocks. Baker stayed on the floor for approximately
five minutes when she heard Morris screaming at the front door for her children
to let her inside. Baker saw that Morris had been shot in the foot.
Subsequently, Baker and Morris were taken in an ambulance to the hospital where
Baker was treated for her gunshot wound with a wet saline dressing and was
released from the hospital approximately three hours later.
Morris testified that she was sitting on the back porch with Baker,
Jermaine and Joseph White. As Morris was speaking to Joseph, Joseph said to her,
"Don't look right," and "That's them Hooks. They fixin' to shoot." Morris
looked behind her and saw defendant and codefendants approximately eight or nine
feet from the porch. Defendant and codefendants all had guns in their hands at
the time. Morris started running as defendant and codefendants "proceeded to
shoot" and "continued to shoot" a number of shots that were "too many to count."
Because defendant and codefendants were shooting in the direction of the back
door to the rowhouse, Morris had to run in the opposite direction toward the
corner. As Morris ran approximately three or four feet from the back door, she
fell, not knowing that she was shot; a bullet had gone through her right foot.
After "a second," she jumped up, started running, and fell again. After she fell
the second time, she could not get back up, so she "just laid there." As Morris
was lying on the ground, she saw defendant and codefendants run through the
parking lot and across the street. Morris got up and hopped around the corner
and to her front door where her daughter let her in the house. Morris saw Baker,
who had also been shot "up by her butt," lying on the floor. An ambulance
subsequently took Morris and Baker to the hospital where they stayed until
approximately 6 a.m. Morris had an x-ray taken of her foot which revealed no
fractures or dislocations.
Various photographs were identified and introduced into evidence depicting
the scene of the shooting. One photograph showed a bullet hole in the top half
of the back door of the rowhouse around a person's waist level. Another
photograph showed a gym shoe with a hole in it, which Baker identified as Morris'
gym shoe.
Defendant's written statement, taken by the police after defendant had been
arrested, was introduced into evidence by stipulation of the parties. The
statement revealed that at the time of the shooting, defendant was 16 years old
and a member of the Conservative Vice Lords street gang. At approximately 2:30
a.m. on March 25, 1998, defendant and codefendants, also Vice Lords, were in the
area of 133rd and Langley because they knew that rival members of the Black
Disciples street gang would be there. Defendant stated that he and codefendants
were carrying loaded handguns and that they were "looking for" Black Disciples
who had shot at defendant and other Vice Lords earlier that night.
Defendant's written statement further stated that when defendant approached
133rd and Langley, he saw two Black Disciples, whom defendant knew as "J.J." and
"Woo Woo," sitting on a porch with two women whom defendant did not know.
Defendant kept walking toward the porch with codefendants, and when defendant was
approximately 10 feet away, J.J. and the two women got up and started to run.
At this point, defendant was "right behind" one of the women. Defendant pulled
his gun in an attempt to shoot J.J., pointing the gun in the direction of J.J.
and the women, and fired it three times. After defendant fired at J.J., Woo Woo
shot back. Codefendants then started shooting in the direction of J.J., Woo Woo
and the women, and defendant ran to "Block 17." Defendant kept the gun
overnight, and then gave it to someone named "Reno" the next day.
Defendant presented no evidence other than his written statement. The
trial court subsequently found defendant guilty of both counts each of attempted
first degree murder, aggravated battery with a firearm, armed violence and
aggravated battery based on great bodily harm. Defendant was sentenced to 16
years' imprisonment on each count of attempted first degree murder and armed
violence, to be served concurrently. The counts for aggravated battery with a
firearm and aggravated battery merged into the attempted murder and armed
violence counts for which sentence was imposed. This appeal followed.
(Nonpublishable material under Supreme Court rule 23 omitted.)
Defendant Contends that his sentence for armed violence was
disproportionate to the penalties imposed for the predicate offense of aggravated
battery and, therefore, the armed violence charge and his ultimate conviction for
that offense violated the proportionate penalties clause of the Illinois
Constitution. (Ill. Const. 1970, art. I). The State contends that defendant's
conviction for armed violence predicated on aggravated battery causing great
bodily harm was proper because the statutes defendant attempts to compare as
having disproportionate penalties do not require proof of substantively identical
elements, but rather, both armed violence and aggravated battery have different
elements. The State argues that because each statute governing armed violence
and aggravated battery requires an element not found in the other, they are
merely different punishments for separate and distinct offenses based on the
commission of the same acts, which do not offend the Illinois constitution.
The Constitution of Illinois provides that "[n]o person shall be deprived
of life, liberty or property without due process of law nor be denied the equal
protection of the laws" (Ill. Const. 1970, art. I, 11), and that "[a]ll
penalties shall be determined both according to the seriousness of the offense
with the objective of restoring the citizen to useful citizenship" (Ill. Const.
1970, art. I, 2). While the legislature has the power to declare and define
conduct constituting a crime, and to determine the nature and extent of
punishment for a crime committed, the preceding constitutional provisions mandate
penalties which are proportionate to the offenses and require the legislature,
in defining crimes and their penalties, to consider the constitutional goal of
providing penalties according to the seriousness of the offense. People v. Lee,
167 Ill. 2d 140, 144-45, 656 N.E.2d 1065 (1995); People v. Christy, 139 Ill. 2d 172, 177, 564 N.E.2d 770 (1990).
On appeal, the "constitutionally required task" of a reviewing court is to
examine a sentencing scheme and determine whether it provides a proportionate
penalty for the offense at issue. People v. Lewis, 175 Ill. 2d 412, 422, 677 N.E.2d 830 (1997). The general practice of comparing different offenses and
their respective penalties is an accepted part of a reviewing court's
proportionality review. Lewis, 175 Ill. 2d at 420. Interference with
legislative judgment is justified only where the designated punishment is cruel,
degrading, or so wholly disproportionate to the offense committed as to shock the
moral sense of the community. Because courts recognize that the legislature is
institutionally more capable of determining the seriousness of offenses, they are
reluctant to invalidate penalties prescribed by the legislature. Lee, 167 Ill. 2d at 145.
In the present case, the following statutes were applicable to the charges
against defendant for aggravated battery, aggravated battery with a firearm and
armed violence. Section 2--4 of the Criminal Code provided:
"Aggravated Battery.
(a) A person who, in committing a battery,[fn1]
intentionally or knowingly causes great bodily harm, or
permanent disability or disfigurement commits aggravated
battery." (Emphasis added). 720 ILCS 5/12--4(a) (West
1993).
Aggravated battery is a Class 3 felony for which the penalty is two to five
years' imprisonment. 730 ILCS 5/5--8--1 (West 1994). Section 12--402 provided:
"Aggravated Battery with a firearm.
(a) A person commits aggravated battery with a
firearm when he, in committing a battery, knowingly or
intentionally by means of the discharging of a firearm
(1) causes any injury to another person, ***."
(Emphasis added.) 720 ILCS 5/12--4.2(a) (West 1993).
Aggravated battery with a firearm is a Class X felony for which the penalty is
imprisonment from 6 to 30 years. 730 ILCS 5/5--8--1 (West 1994). Section 33A--
2 provided:
"Armed violence-Elements of the offense.
A person commits armed violence when, while armed with a
dangerous weapon, he commits any felony defined by
Illinois Law." (Emphasis added.) 720 ILCS 5/33A--2
(West 1993).
A person is considered armed with a dangerous weapon when he or she carries on
or about his or her person or is otherwise armed with a Category I weapon. A
Category I weapon includes a handgun or any other firearm small enough to be
concealed upon the person. 720 ILCS 5/33A--1(a)(b) (West 1993). Violation of
the armed violence offense while armed with a Category I weapon is a Class X
felony for which a defendant shall be sentenced to a minimum of 15 years'
imprisonment. 720 ILCS 5/33A--3(a) (West 1993).
Defendant argues that under this statutory scheme, committing a battery
while armed with a handgun also constitutes the separate offenses of aggravated
battery with a firearm and armed violence. Therefore, defendant maintains that
he was charged and convicted with the substantively identical offenses of armed
violence and aggravated battery with a firearm, which are not logically
punishable with disparate penalties.
The State argues that while the cases relied upon by defendant, People v.
Christy, 139 Ill. 2d 172, 177, 564 N.E.2d 770 (1990) and People v. Lewis, 175 Ill. 2d 412, 422, 677 N.E.2d 830 (1997), provide "persuasive authority in
reviewing the proportionality of penalties of identical offenses," they are "not
particularly relevant" in the present case where the offenses are not identical.
The State maintains that despite dealing with "slightly similar conduct," the
offenses in this case each contain elements that the other does not.
Defendant counters that the "technical distinction" argued by the State
that the charge of aggravated battery with a firearm requires the discharge of
a firearm, whereas the charge of armed violence predicated on aggravated
battery, of which great bodily harm is an element, can be sustained with only
the possession of a firearm, is "an entirely sophistic distinction." Defendant
argues that regardless of how a "different defendant" might be properly charged
under "different circumstances," because he was convicted of armed violence for
causing great bodily harm by discharging a firearm and not just possessing one,
his convictions violate the proportionate penalties clause.
In Christy, the defendant abducted two teenage boys from a campsite and
took them to a storage unit where he forced them to undress and repeatedly
threatened to kill them with a knife. The defendant was charged with armed
violence, kidnapping and aggravated criminal sexual abuse, and found guilty of
armed violence predicated on kidnapping with a Category I weapon, and one count
of kidnapping. This court affirmed the defendant's conviction for kidnapping.
On appeal to our supreme court, the court held that the penalties were
"unconstitutionally disproportionate, because aggravated kidnapping is a more
serious offense than the lesser included offense of kidnapping; yet, when armed
violence is predicated on kidnapping with a category I weapon, kidnapping is,
in effect, enhanced to a Class X felony and is punished more severely than
aggravated kidnapping." Christy, 139 Ill. 2d at 173-75, citing People v.
Christy, 188 Ill. App. 3d 330, 332, 544 N.E.2d 88 (1989). The supreme court
examined the relevant statutory provisions and found that kidnapping while armed
with a knife having a three-inch blade constituted both aggravated kidnapping
and armed violence. (Emphasis in original.) Christy, 139 Ill. 2d at 181.
Because the elements constituting both crimes were "identical," the court held
that "common sense and sound logic would seemingly dictate that their penalties
be identical." Christy, 139 Ill. 2d at 181. However, because aggravated
kidnapping was a Class 1 felony punishable by 4 to 15 years' imprisonment, while
armed violence was a Class X felony punishable by 6 to 30 years' imprisonment,
the court held that the penalties for the two crimes were unconstitutionally
disproportionate. Christy, 139 Ill. 2d at 181.
In Lewis, the defendant was charged with one count of robbery, one count
of armed violence predicated on robbery committed with a category I weapon and
one count of armed robbery. Lewis, 175 Ill. 2d at 414. Relying on the Christy
holding, the supreme court in Lewis examined the relationship between the three
statutory offenses. The court noted that robbery was defined as the taking of
property, except a motor vehicle, from the person or presence of another by the
use of force or by threatening the imminent use of force; armed robbery was
defined as the commission of a robbery while being armed with a dangerous weapon
(punishable by imprisonment from 6 to 30 years); and armed violence was defined
as the commission of any felony while armed with a dangerous weapon (punishable
by imprisonment from 15 to 30 years). The Lewis court found that because the
offense of armed violence predicated on robbery committed with a category I
weapon and the offense of armed robbery contained identical elements which were
illogically punished with disparate penalties, the penalty for armed violence
predicated on robbery committed with a category I weapon violated the
proportionate penalties clause. Lewis, 175 Ill. 2d at 418.
We agree with the State that Christy and Lewis are distinguishable from
the case at bar. Based on a plain reading of the relevant statutes in this
case, armed violence predicated on aggravated battery and aggravated battery
with a firearm are not substantively identical offenses because they require
different and/or additional elements. Specifically, aggravated battery with a
firearm does not require the intentional or knowing infliction of great bodily
harm as does the offense of armed violence predicated on aggravated battery.
Aggravated battery with a firearm also has the additional and different
requirement of the discharge of a firearm, whereas armed violence does not
require proof of the discharge of a firearm, but only possession of the firearm
on the person of the defendant. Moreover, a different level of harm is required
under each offense. While a defendant can be prosecuted for aggravated battery
with a firearm for causing "any injury to another person," armed violence
requires that a defendant cause "great bodily harm" or "permanent disability"
to another person before he can be prosecuted for the offense of armed violence
predicated on aggravated battery pursuant to the Criminal Code.
We also find that the case at bar is more similar to the facts of People
v. Townsend, 275 Ill. App. 3d 413, 654 N.E.2d 1096 (1995). In Townsend, the
defendant contended that the aggravated discharge of a firearm statute under
which he was convicted created an unconstitutionally disproportionate penalty
because that statute and the aggravated assault statute required virtually the
same elements, yet were punished differently. The Townsend court disagreed
because it found that the two offenses were distinct since "only aggravated
discharge of a firearm requires the firearm to be discharged in the direction
of another person, and only aggravated assault requires awareness of the
offender's conduct." Townsend, 275 Ill. App. 3d at 418. The Townsend court
therefore held that because these two offenses are distinct offenses, the
legislature is fully within its power to punish them separately. Townsend, 275
Ill. App. 3d at 418.
Similarly, the ranges of punishment for the offenses in the present case
are not unconstitutionally disproportionate so as to justify interference with
the legislature's judgment. Unlike the facts in Christy, where the court found
that aggravated kidnapping was a Class 1 felony punishable from 4 to 15 years'
imprisonment, while armed violence was a Class X felony punishable from 6 to 30
years' imprisonment, we find that the offenses of armed violence (a Class X
felony punishable with a minimum of 15 years) and aggravated battery with a
firearm (a Class X felony punishable from 6 to 30 years) do not result in such
disproportionate penalties. Therefore, defendant's conclusory assertion that
in the present case the disproportionality between the penalties of armed
violence predicated on aggravated battery and aggravated battery with a firearm
is "even greater" than in either Christy and Lewis, and that the "distinction"
between the discharge of a firearm and the possession of a firearm is merely
"technical" and "entirely sophistic," is unsupported by either the facts here
or the relevant authority. Therefore, Christy and Lewis do not support
defendant's argument.
Defendant next argues that even if the statutory elements of the offenses
of armed violence predicated on aggravated battery and aggravated battery with
a firearm are materially different, People v. Wisslead, 94 Ill. 2d 190, 446 N.E.2d 512 (1983), and People v. Wade, 131 Ill. 2d 370, 546 N.E.2d 553 (1989),
support his argument that defendant's charge of armed violence predicated on
aggravated battery of which great bodily harm is an element, violated the
proportionate penalties clause because "it is clear that the offense of
aggravated battery with a firearm is a more serious violation than aggravated
battery in which great bodily harm is inflicted."
In Wisslead, the defendant was charged with unlawful restraint and armed
violence based on the underlying felony of unlawful restraint. The Wisslead
court examined the different penalties available for various related statutory
offenses, and found that the penalty for armed violence predicated on unlawful
restraint was not proportionate to the penalties for aggravated kidnapping and
forcible detention. The court reasoned that from the clear language of the
statutes involved, unlawful restraint (classified by the legislature as a Class
4 felony) was a less serious offense than kidnapping (classified as a Class 2
felony), as evidenced by the type of conduct involved in the commission of each
of the crimes and the penalties prescribed. Unlawful restraint required an
illegal detention while kidnaping involved secret confinement, deceit or
enticement, or force or threat of imminent force. However, when the presence
of a category I weapon was added to the elements of either of those offenses,
they could be prosecuted as armed violence predicated on unlawful restraint and
aggravated kidnapping, respectively. One who kidnaps another while armed with
a dangerous weapon could be prosecuted under the aggravated kidnapping statute
and would be subject to a lesser penalty than one prosecuted on similar facts
for armed violence based on unlawful restraint. The court reasoned that because
each offense was enhanced by the identical additional element of a category I
weapon, the lesser offense of unlawful restraint should not become a graver
offense than kidnapping. Wisslead, 94 Ill. 2d at 193-95.
Defendant here therefore argues that because aggravated battery is a
lesser offense than aggravated battery with a firearm and armed violence,
aggravated battery with the possession of a category I weapon should not yield
a greater penalty than the greater offense of aggravated battery with a firearm.
However, in Wisslead, the less serious offense of unlawful restraint, when
enhanced by a category I weapon, amounted to armed violence based on unlawful
restraint (a Class X felony) while at the same time could also have been
prosecuted as aggravated kidnapping (a Class 1 felony).
In Wade, the defendant was charged with armed violence predicated on the
felony of intimidation and attempted armed robbery. The trial court entered
judgment on the more serious charge of armed violence. The issue before the
court in Wade was whether the offense of intimidation properly served as the
predicate felony for the offense of armed violence. The Wade court examined the
relevant statutes and found that intimidation and attempted robbery were both
Class 3 felonies: attempted armed robbery was a Class 1 felony; armed violence
was committed by a person when that person committed any felony while armed with
a dangerous weapon; and commission of armed violence while armed with a category
I weapon was a Class X felony. The Wade court concluded, therefore, that the
commission of intimidation while armed with a category I weapon constituted the
offense of armed violence and was a Class X felony, and commission of attempted
robbery while armed with a similar weapon constituted a Class 1 felony of
attempted armed robbery.
Relying on Wisslead, the defendant in Wade argued that the availability
of the separate offenses of armed violence and attempted armed robbery based on
the same acts and resulting in different punishments created disproportionate
sentencing. Wade, 131 Ill. 2d at 376-77. The Wade court held that the
defendant's reliance on Wisslead was misplaced because the sentencing scheme in
that case punished the less serious offense of unlawful restraint more severely
than the more serious offense of kidnapping when the identical enhancing element
of a handgun was added to each. However in Wade, the unenhanced offenses of
attempted robbery and intimidation were both Class 3 felonies. Intimidation,
therefore, was not considered a less serious offense than attempted robbery, nor
could the commission of intimidation while armed be a less serious offense than
attempted armed robbery. The court held that the defendant's claim--reduced to
the argument that identically classified offenses may not be enhanced by the
same circumstance to offenses of different classifications--was unfounded.
Wade, 131 Ill. 2d at 378-80.
The Wade court also noted that in the aggravated kidnapping and forcible
detention statutes at issue in Wisslead, the legislature expressly adopted the
definition of "dangerous weapon" in the armed violence provisions in providing
for the enhanced offenses, but no such provision was made for the commission of
unlawful restraint while similarly armed. Therefore, intimidation could not be
considered a less serious offense than attempted armed robbery, nor could the
commission of intimidation while armed be considered a less serious offense than
attempted armed robbery. Wade, 131 Ill. 2d at 379.
Wade is distinguishable from the case at bar because the issue in that
case was whether the statutes permitting enhancement of both the Class 3
felonies of attempted robbery and intimidation to the Class 1 offense of armed
robbery and the Class X offense of armed violence when the presence of a weapon
was added, was disproportionate. In the present case, while the offense of
aggravated battery based on great bodily harm was enhanced to armed violence due
to the presence of a category I weapon, the offense of aggravated battery with
a firearm was not similarly enhanced. Instead, it contained the element of
discharge of a firearm by its own definition. In the case at bar, the two
offenses that defendant argues are disproportionate--armed violence predicated
on aggravated battery and aggravated battery with a firearm--are both Class X
felonies. Therefore, as previously discussed, we find that the penalties
prescribed for these offenses are not so wholly disproportionate as to shock the
moral sense of the community. Lee, 167 Ill. 2d at 145. Moreover, a defendant
prosecuted under the two offenses at issue in this case would have to perform
different and/or additional acts, unlike the Wisslead defendant who could have
been prosecuted disproportionately under either offense involved there under
similar facts.
We further observe that even if, as defendant argues, the legislature
intended aggravated battery with a firearm to be a more serious violation than
aggravated battery based on great bodily harm, defendant cites to no additional
authority for his more specific proposition that aggravated battery based on
great bodily harm, when coupled with the possession of a weapon, is a lesser
offense than aggravated battery with a firearm, which requires the actual
discharge of the gun. As our supreme court noted in Lee, after holding that the
aggravated battery with a firearm statute withstood the defendant's
constitutional challenges, there are several factors the legislature may take
into consideration when determining the seriousness of a crime and the
punishment for it. For example, the legislature may consider the frequency of
the crime and the high risk of bodily harm associated with it. The legislature
may also perceive a need to enact a more stringent penalty in order to halt an
increase in the commission of a particular crime. Lee, 167 Ill. 2d at 146-47.
Because the authority defendant relies upon is unpersuasive in support of his
argument that aggravated battery with a firearm is a "more serious" offense than
aggravated battery based on great bodily harm, we find no reason to interfere
with the sentencing schemes developed by the legislature in relation to the
offenses at issue in the present case. See Wade, 131 Ill. 2d at 380.
Accordingly, we hold that defendant's constitutional rights have not been
violated and that his convictions for armed violence and aggravated battery with
a firearm were proper.
(Nonpublishable material under Supreme Court Rule 23 omitted.)
For the reasons stated, the judgment of the circuit court is affirmed.
Affirmed.
LEAVITT, P.J., and CAHILL, J., concur.
[fn1]The underlying predicate offense for all the offenses defendant was
charged with was battery, with which defendant was not charged. The statute
defines the offense of battery as the intentional or knowing causing of bodily
harm, without legal justification, and by any means, to any individual. 720
ILCS 5/12--3 (West 1993).
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