People v. Lee

No. 4--97--0457
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998
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THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Tazewell County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 96--CF--376
)
MARK E. LEE, ) Honorable
) Scott A. Shore,
Defendant-Appellant. ) Judge Presiding
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JUSTICE McCUSKEY delivered the opinion of the court:
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On April 2, 1997, a jury found the defendant, Mark E. Lee,
guilty of armed robbery (720 ILCS 5/18--2 (West 1994)). He was
subsequently sentenced to six years' imprisonment. On appeal, the
defendant argues that his conviction should be reversed because:
(1) the indictment was defective in that it did not allege a mental
state; (2) the jury relied upon improper comments made by the
prosecutor; and (3) the State did not prove all of the elements of
armed robbery beyond a reasonable doubt. Alternatively, the
defendant asks this court to reduce the charge for which he was
convicted in accordance with Supreme Court Rule 615(b). 134 Ill.
2d R. 615(b). After a careful review of the record, we affirm.
FACTS
On August 22, 1996, the defendant was indicted with the
offense of armed robbery. The indictment charged:
"That on or about August 2, 1996, at or near No.
14 Valley Forge Plaza, Washington, Tazewell
County, Illinois, said defendant, Mark E. Lee
committed the offense of armed robbery (Class X)
in that said defendant while armed with a
dangerous weapon, a knife, took property, being
U.S. Currency, from the presence of Judith K.
Wilder, by threatening the imminent use of force
in violation of 720 ILCS 5-18-2(a)."
Prior to trial on March 31, 1997, the defendant filed a motion
to dismiss the indictment which was denied by the trial court as
was his motion to reconsider filed on April 1, 1997. The jury
trial therefore proceeded on April 1, 1997.
At trial, the testimony of Hester Lee, Lindie Lee, and Judith
Wilder established the following facts. On August 2, 1996, Hester
and Lindie were at the Complexions Beauty Shop in Washington,
Illinois when the defendant entered the shop with a knife having a
blade approximately four to five inches long. After telling Hester
to open the cash register, the defendant proceeded to beat on the
cash register with the knife. Upon learning that Hester was unable
to open the register, he told Lindie to open it. She too, however,
was unable to do so, and she therefore called for Judith, the owner
of the shop.
When Judith came up the stairs from the back of the shop, the
defendant was at the top of the stairs and put the knife one foot
in front of her face. He then demanded that she open the cash
register, which she did. The defendant then removed $49 from the
register, fled the shop, and was later apprehended in a cornfield
by the police.
The defendant testified on his own behalf. He stated that he
entered the shop with his pocket knife, demanded the cash, but
never threatened anyone.
During closing argument, the prosecutor made two statements to
which defense counsel objected. The first comment was as follows:
"Now, in this matter, in this case, this specific
case here, you are also going to be instructed on
a charge of theft, which is what we call a lesser
included offense of the charge of armed robbery."
Following this comment, defense counsel made an objection which was
sustained by the trial court, although the defense's motion for a
mistrial was denied. Instead, the trial court instructed the jury
as follows:
"The objection raised by the defense is
sustained. The offense of armed robbery and the
offense of theft are to be considered by the jury
as having equal weight, and the instruction that
is to be given to the jury in this regard is as
follows. The defendant -- and I will be reading
this again if you will permit me, as I read the
instructions to you. The defendant is charged
with the offense of armed robbery. The defendant
has pleaded not guilty. Under the law, a person
charged with armed robbery may be found, number
one, not guilty, or number two, guilty, or number
three, guilty of theft, and from that point, if
counsel will continue his argument."
Notwithstanding the trial judge's admonition, the prosecutor
later made a second, similar statement to which the defendant
objected. Once again, the trial court sustained the objection and
gave a curative instruction.
After retiring to deliberate, the jury returned a verdict of
guilty on April 2, 1996. On May 16, 1997, the defendant filed a
motion for a new trial in which he attached the affidavits of three
jurors. In those affidavits, the jurors stated that although
instructed by the court to disregard the improper statements of the
prosecutor, the jury did in fact consider the statements during
deliberations. Notwithstanding the affidavits, the trial court
denied the defendant's motion. The defendant was sentenced to a
term of six years' imprisonment in the Department of Corrections.
Thereafter, the defendant filed a timely notice of appeal.
ANALYSIS
I. The Indictment
The defendant first argues that the trial court erred when it
failed to dismiss the indictment. Specifically, he argues that the
indictment was defective because it failed to include a mental
state as required by People v. Jones, 149 Ill. 2d 288, 595 N.E.2d 1071 (1992). The State responds that the crime of armed robbery is
a general intent crime. Consequently, the statutory definition of
armed robbery contains no intent element, and an allegation of a
particular mental state is not required in the indictment.
When the sufficiency of an indictment is attacked in the trial
court either before or during a trial, a court must determine
whether the charging instrument strictly complies with the
requirements of section 111--3(a) of the Code of Criminal Procedure
of 1963. 720 ILCS 5/111--3(a) (West 1994); People v. Thingvold,
145 Ill. 2d 441, 448, 584 N.E.2d 89, 91 (1991).
According to section 111--3(a), a charge must: (1) be in
writing; (2) allege the commission of an offense by stating the
name of the offense, citing the statutory provision alleged to have
been violated; and (3) set forth the nature and elements of the
offense. 720 ILCS 5/111--3(a) (West 1994).
When an instrument charges an offense in the language of the
statute, the instrument is deemed sufficient when the words of the
statute particularize the offense so that by their use alone an
accused is apprised with reasonable certainty of the precise
offense with which he or she is charged. People v. Smith, 259 Ill.
App. 3d 492, 496, 631 N.E.2d 738, 740 (1994). Therefore, an
indictment charging an accused is not defective for failing to
allege a mental state where the statute defining the offense does
not include a mental state. People v. Bofman, 283 Ill. App. 3d
546, 551, 670 N.E.2d 796, 799 (1996).
The crime of armed robbery is defined as follows:
"Armed Robbery. (a) A person commits armed
robbery when he or she violates Section 18-1
while he or she carries on or about his or her
person, or is otherwise armed with a dangerous
weapon." 720 ILCS 5/18--2 (West 1994).
Section 18--1 states that a person commits robbery:
"when he or she takes the 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 1994).
The plain language of the statute makes it clear that no
mental state is included as an element of the offense of either
robbery or armed robbery. Indeed, robbery has been characterized
by the courts as a general intent crime which therefore does not
require the allegation of a specific mental state. People v.
Lewis, 165 Ill.2d 3d 305, 337, 651 N.E.2d 72, 87 (1995). Given
that the crime charged is a general intent crime and the statute
does not include a mental state as an element, an indictment
charging armed robbery need not allege a mental state to be
sufficient.
Moreover, the defendant's citation to Jones is misplaced.
Jones addressed the question of whether an indictment charging
armed robbery also sufficiently charged the crime of theft. Jones,
149 Ill. 2d at 291, 595 N.E.2d at 1072. The court held that an
information charging armed robbery sufficiently alleges both the
conduct and the mental states required for the lesser offense of
theft. Jones, 149 Ill. 2d at 295, 595 N.E.2d at 1074. The court
noted that the statutory definition of robbery does not expressly
set forth a mental state. Jones, 149 Ill. 2d at 297, 595 N.E.2d at
1075. However, the court also noted that the Criminal Code of 1961
provides:
"If the statute does not prescribe a particular mental
state applicable to an element of an offense ***, any
mental state defined in Sections 4-4, 4-5 or 4-6 is
applicable." Jones, 149 Ill. 2d at 297, 595 N.E.2d at
1075.
The court stated that sections 4--4 through 4--6 define the mental
states of intent, knowledge and recklessness, respectively. Jones,
149 Ill. 2d at 297, 595 N.E.2d at 1075. Thus, the court reasoned
that either intent, knowledge, or recklessness is an element of
robbery even though the statutory definition of robbery does not
expressly set forth a mental state. Jones, 149 Ill. 2d at 297, 595 N.E.2d at 1075. Based upon the foregoing, the court concluded that
the mental state is implied in the definition of the offense of
armed robbery. Jones, 149 Ill. 2d at 297, 595 N.E.2d at 1075.
The clear implication from the reasoning in Jones is not, as
the defendant suggests, that armed robbery requires the inclusion
of a mental state in the indictment or information, but instead,
that a mental state need not be included because the mental state
is implied when the other elements of the offense are properly
included. Consequently, we find that the indictment was
sufficient, and the trial court properly denied the defendant's
motion to dismiss the indictment and his motion in arrest of
judgment.
II. Prosecutorial Remarks
The defendant also argues that the affidavits of the three
jurors previously mentioned are evidence that the improper comments
of the prosecutor materially affected the jury's verdict. He
therefore claims that the trial court erred when it denied his
motion for a new trial. After reviewing the record and applicable
law, we find the defendant's claim is without merit.
Improper remarks by a prosecutor generally do not constitute
reversible error unless they result in substantial prejudice to the
accused. People v. Johnson, 119 Ill. 2d 119, 139-40, 518 N.E.2d 100, 109-10 (1987). Such prejudice does not ordinarily occur where
the trial court sustains an objection to the improper comments and
gives a curative instruction. See, e.g., People v. Tenner, 157 Ill. 2d 341, 369, 626 N.E.2d 138, 150 (1993) (finding no harm where
the trial judge sustained an objection to a prosecutor's improper
comment). Moreover, reversal is not warranted if the State's
evidence of guilt is substantial and not closely balanced. Tenner,
157 Ill. 2d at 368, 626 N.E.2d at 150 (quoting People v. Henderson,
142 Ill. 2d 258, 323, 568 N.E.2d 1234, 1265 (1990)).
The evidence in the present case is overwhelmingly balanced in
favor of the defendant's conviction for armed robbery. Hester,
Lindie, and Judith all testified that the defendant entered the
shop and displayed his knife within one foot of Judith's face while
demanding that she open the cash register. Indeed, the defendant
himself admitted both to the police and on the witness stand that
he entered the shop with the knife and demanded the cash.
Moreover, the trial court sustained the defense's objections to
both comments and gave a curative instruction after sustaining each
objection. Based on these facts, we find the trial court properly
denied the defendant's motion for a new trial because the balance
of evidence in conjunction with the trial court's careful curative
instructions show that the defendant was not prejudiced by the
prosecutor's comments.
Moreover, the jurors' affidavits do not alter this conclusion.
As the State correctly argues, "[i]t is a well-settled principle
that a jury's verdict may not be impeached by the testimony or
affidavit of a juror which shows the motive, method or process by
which that verdict was reached." People v. Boclair, 129 Ill. 2d 458, 485, 544 N.E.2d 715, 727 (1989); see also People v. Rhoden,
253 Ill. App. 3d 805, 809, 625 N.E.2d 940, 943 (1993). "The only
way to impeach a jury's verdict is to reveal physical intimidation
or excluded events brought to the jury's attention without showing
how these events affected the jury's reasoning." (Emphasis added.)
Rhoden, 253 Ill. App. 3d at 809, 625 N.E.2d at 943; see also People
v. Wilson, 246 Ill. App. 3d 311, 322, 615 N.E.2d 1283, 1290 (1993).
After reviewing the jurors' affidavits in this case, we find
the affidavits to be an improper form of jury impeachment. The
affidavits reveal neither physical intimidation nor excluded events
to which the jury became aware. Instead, the affidavits reveal
only the motive, method, and process by which the jury reached a
verdict. The affidavits therefore contain precisely the type of
information which the law prohibits from impeaching a jury's
verdict. Rhoden, 253 Ill. App. 3d at 809, 625 N.E.2d at 943. As
a consequence, we conclude that the trial court did not err when it
denied the defendant's motion for a new trial.
III. Sufficiency of the Evidence
Although couched as an argument regarding the remarks of the
prosecutor, the defendant also claims that the evidence was
insufficient to prove him guilty of armed robbery. The defendant
posits that "[i]t is clear from the evidence that the ladies in the
salon were neither amused nor frightened by this person carrying a
brown paper sack and a pocket knife in his gloved hands."
Consequently, the defendant claims that the defendant could have
only been found guilty of theft because the requisite threat of
force was not proven.
Force or threat of force is an element of the offense of armed
robbery. 720 ILCS 5/18--1 (West 1994); Lewis, 165 Ill. 2d at 339,
651 N.E.2d at 88. The necessary force or threat of force must be
used as a means of taking the property from the victim. Lewis, 165 Ill. 2d at 339, 651 N.E.2d at 88. "As long as there is some
concurrence between the defendant's threat of force and the taking
of the victim's property, a conviction for armed robbery is
proper." (Emphasis added.) Lewis, 165 Ill. 2d at 339, 651 N.E.2d
at 88.
In the instant case, as already discussed, the evidence
overwhelmingly showed that the defendant took the currency from the
shop by means of a threat of force. The defendant entered the shop
displaying a four to five inch knife, placed it within one foot of
Judith's face, and demanded the money from the register. The
display of the knife in conjunction and concurrence with the
defendant's taking of the cash is clearly sufficient to sustain his
conviction for armed robbery. See People v. Hovenec, 232 Ill. App.
3d 57, 60, 596 N.E.2d 749, 752 (1992) (finding the evidence
sufficient for an armed robbery conviction where the defendant
waived around a knife while exiting the liquor store he robbed).
IV. Supreme Court Rule 615(b)
Finally, the defendant argues that this court should use its
authority under Supreme Court Rule 615(b) to reduce his sentence.
134 Ill. 2d R. 615(b).
Rule 615(b) provides that a reviewing court may reduce the
degree of offense for which the appellant was convicted and reduce
the punishment imposed by the trial court. 134 Ill. 2d R.
615(b)(3)-(4). A reviewing court may exercise this authority only
where a lesser-included offense is involved. People v. Sims, 245
Ill. App. 3d 221, 225, 614 N.E.2d 893, 896 (1993). Moreover, this
power should be used only in rare instances with "caution and
circumspection." People v. Jones, 286 Ill. App. 3d 777, 783, 676 N.E.2d 1335, 1339-40 (1997).
In the instant case, as already discussed, the evidence was
sufficient to sustain the defendant's conviction for armed robbery.
Additionally, as the trial court noted, he was sentenced to the
minimum term of imprisonment for his offense. The trial court
stated that although the defendant had no "substantial criminal
history whatsoever," this lack of a criminal record did not alter
the fact that he entered the salon armed with a dangerous weapon in
his hand. Given that the Illinois General Assembly has determined
the minimum sentence which the defendant may be given for his
offense of armed robbery (730 ILCS 5/5--8--1(a)(3) (West 1994)), we
decline to depart from the legislature's determination.
CONCLUSION
For the reasons stated, we find that the trial court properly
denied the defendant's motions concerning the sufficiency of the
indictment and properly denied his motion for a new trial.
Additionally, we decline to reduce either the charge for which the
defendant was convicted or his sentence. As a result, the judgment
of the circuit court of Tazewell County is affirmed.
Affirmed.
SLATER and HOLDRIDGE, JJ., concur.