People v. LaRue modified July 16
Annotate this Case
FOURTH DIVISION
JULY 16, 1998
No. 1--95--3991
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
DON LARUE,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 93--CR--22217
Honorable
James Schreier,
Judge Presiding.
OPINION ON REHEARING
PRESIDING JUSTICE CERDA delivered the opinion of the court:
Following a jury trial, defendant, Don LaRue, was convicted
of first-degree murder (720 ILCS 5/9(a)(West 1994)), aggravated
vehicular hijacking (720 ILCS 5/18--4(a)(3)(West 1996)), and
armed robbery (720 ILCS 5/18--2--A (West 1994)). He was
sentenced to concurrent terms of 50 years' imprisonment for the
first-degree murder, 30 years' imprisonment for the aggravated
vehicular hijacking, and 30 years' imprisonment for the armed
robbery. Defendant requests that his conviction be reversed
because (1) he was charged in an indictment alleging the offense
of aggravated vehicular hijacking had been committed on July 31,
1993, which was before August 13, 1993, the effective date of the
statute; and (2) the jury instructions did not require a
unanimous verdict on a legally adequate theory of guilty. For
the following reasons, we affirm in part, vacate in part, and
remand for resentencing.
At trial, Vincent Johnson testified that he and his brother-
in-law, Terron Jackson, went to the Lake Meadows apartment
complex on July 31, 1993. Terron parked the car, then left
Vincent in the car while he went inside one of the buildings.
When Terron returned a few minutes later, two cars surrounded
Terron's car. Defendant, who was holding a revolver that looked
like a .357, got out of one of the cars and approached the
driver's side of Terron's car while another man came to the
passenger side where Vincent was seated, pointed a gun at him,
and told him to get out of the car. Terron and Vincent both got
out of the car and lay face down on the ground next to each
other. While Vincent was on the ground, someone removed a
bracelet from his wrist and took $13 and a beeper from his
pocket. With defendant pointing a gun at them, Vincent and
Terron were forced into the back seat of Terron's car between two
of the offenders. Defendant got into the driver's seat and drove
away. The two offenders in the back seat punched Vincent and
Terron while asking them where they lived and where the offenders
could get money.
A short time later, Terron reached over the front seat and
grabbed defendant around the neck, placing him in a headlock. As
Terron punched defendant, the two offenders in the back seat
started struggling with Terron and Vincent. Defendant lost
control of the car and crashed it into a tree. Then, defendant
told Terron, "You're dead," and shot him in the head. The three
offenders ran and Vincent ran for help. As he did so, he heard
gunshots behind him, but did not see who was shooting. Vincent
ran to the porch of a nearby building where he told James Attaway
to call the police because his brother-in-law had been shot.
Dr. Larry Simms, Cook County deputy medical examiner,
testified that Terron had died of a gunshot wound to the left
side of his head. Powder burns indicated a close range shot, but
not a contact wound. Dr. Simms stated that the downward angle of
the bullet's entrance was consistent with Terron leaning over the
car seat.
After deliberations, the jury found defendant guilty of
first-degree murder, aggravated vehicular hijacking, and armed
robbery. The trial court sentenced him to 50 years' imprisonment
for the first-degree murder, 30 years' imprisonment for the armed
robbery, and 30 years' imprisonment for the aggravated vehicular
hijacking, all to be served concurrently.
On appeal, defendant argues that his conviction for
aggravated vehicular hijacking should be reversed because the
relevant statute was not in effect on the date of the offense.
He contends that the aggravated vehicular hijacking was not
merely a rewording of the armed robbery statute, but is a new
statute because it adds one year to the minimum sentence.
Although defendant failed to raise this issue at trial, it
is reviewable on appeal. People v. Spain, 24 Ill. App. 3d 377,
321 N.E.2d 520 (1974). The offense was committed on July 31,
1993, which was before the August 13, 1993, effective date of the
aggravated vehicular hijacking statute. The armed robbery and
aggravated vehicular hijacking statutes are not substantially the
same because the minimum sentence for armed robbery is 6 years'
imprisonment and for aggravated vehicular hijacking, it is 7
years' imprisonment. 720 ILCS 5/18-2(b),5/18-4(b)(West 1996);
730 ILCS 5/5-8-1(a)(3)(West 1996). It is irrelevant that
defendant was sentenced to the maximum sentence allowable because
defendant was tried for a nonexisting offense that carried a
higher sentence. Defendant's conviction for aggravated vehicular
hijacking must be vacated because it is a new enactment that is
not substantially the same as the prior law. See People v.
Wasson, 175 Ill. App. 3d 851, 854, 530 N.E.2d 527 (1988); People
v. Hooper, 21 Ill. App. 3d 28, 29 314 N.E.2d 618 (1974). Since
aggravated vehicular hijacking was not in effect on July 31,
1993, the indictment failed to state an "offense" as defined in
section 18--4(a)(3) of the Criminal Code (720 ILCS 5/18--
4(a)(3)(West 1996)). See Spain, 24 Ill. App. 3d 377.
Defendant's next argument is that the jury instructions for
the first-degree murder counts were improperly phrased in the
disjunctive, thus incorrectly advising the jury that it was
permissible to find defendant guilty of first-degree murder
predicated on aggravated vehicular hijacking, which we have
vacated.
According to the record, the jury was given I.P.I. first-
degree murder instructions Nos. 7.01A and 7.02A (Illinois Pattern
Jury Instructions, Criminal, No. 7.01A; 7.02A), and then returned
a general verdict of guilty of first-degree murder. It is well-
established in Illinois that where an indictment contains several
counts arising out of a single transaction and a general verdict
is returned, the effect is that the defendant is guilty as
charged in each count to which the proof is applicable. People
v. Cardona, 158 Ill. 2d 403, 411, 634 N.E.2d 720 (1994). In this
case, the defendant was sentenced for intentional murder and not
for felony murder. Only the conviction for the most serious
murder charge will be upheld, the rest of the charges must be
vacated. Cardona, 158 Ill. 2d at 411. If charges of
intentional, knowing, and felony murder have been proved,
intentional murder is deemed the most serious offense. Cardona,
158 Ill. 2d at 412.
Since defendant was charged with intentional murder, knowing
murder, and felony murder, and the proof was applicable to both
intentional murder and knowing murder, vacating the felony murder
conviction does not affect the intentional murder conviction and
sentence, which we affirm.
Finally, we are remanding this case for resentencing on the
armed robbery conviction, which could have been affected by the
vacated aggravated vehicular hijacking conviction. People v.
Beals, 162 Ill. 2d 497, 509, 643 N.E.2d 789 (1994).
Based on the foregoing, we vacate the convictions for
aggravated vehicular hijacking, knowing murder, and felony
murder; affirm the first-degree intentional murder conviction and
sentence; affirm the armed robbery conviction, but vacate the
sentence; and remand for resentencing on the armed robbery
conviction.
Affirmed in part, vacated in part, and remanded for
resentencing.
McNamara, J., and Burke, J., concur.
JULY 16, 1998
No. 1--95--3991
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
DON LARUE,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 93--CR--22217
Honorable
James Schreier,
Judge Presiding.
OPINION ON REHEARING
PRESIDING JUSTICE CERDA delivered the opinion of the court:
Following a jury trial, defendant, Don LaRue, was convicted
of first-degree murder (720 ILCS 5/9(a)(West 1994)), aggravated
vehicular hijacking (720 ILCS 5/18--4(a)(3)(West 1996)), and
armed robbery (720 ILCS 5/18--2--A (West 1994)). He was
sentenced to concurrent terms of 50 years' imprisonment for the
first-degree murder, 30 years' imprisonment for the aggravated
vehicular hijacking, and 30 years' imprisonment for the armed
robbery. Defendant requests that his conviction be reversed
because (1) he was charged in an indictment alleging the offense
of aggravated vehicular hijacking had been committed on July 31,
1993, which was before August 13, 1993, the effective date of the
statute; and (2) the jury instructions did not require a
unanimous verdict on a legally adequate theory of guilty. For
the following reasons, we affirm in part, vacate in part, and
remand for resentencing.
At trial, Vincent Johnson testified that he and his brother-
in-law, Terron Jackson, went to the Lake Meadows apartment
complex on July 31, 1993. Terron parked the car, then left
Vincent in the car while he went inside one of the buildings.
When Terron returned a few minutes later, two cars surrounded
Terron's car. Defendant, who was holding a revolver that looked
like a .357, got out of one of the cars and approached the
driver's side of Terron's car while another man came to the
passenger side where Vincent was seated, pointed a gun at him,
and told him to get out of the car. Terron and Vincent both got
out of the car and lay face down on the ground next to each
other. While Vincent was on the ground, someone removed a
bracelet from his wrist and took $13 and a beeper from his
pocket. With defendant pointing a gun at them, Vincent and
Terron were forced into the back seat of Terron's car between two
of the offenders. Defendant got into the driver's seat and drove
away. The two offenders in the back seat punched Vincent and
Terron while asking them where they lived and where the offenders
could get money.
A short time later, Terron reached over the front seat and
grabbed defendant around the neck, placing him in a headlock. As
Terron punched defendant, the two offenders in the back seat
started struggling with Terron and Vincent. Defendant lost
control of the car and crashed it into a tree. Then, defendant
told Terron, "You're dead," and shot him in the head. The three
offenders ran and Vincent ran for help. As he did so, he heard
gunshots behind him, but did not see who was shooting. Vincent
ran to the porch of a nearby building where he told James Attaway
to call the police because his brother-in-law had been shot.
Dr. Larry Simms, Cook County deputy medical examiner,
testified that Terron had died of a gunshot wound to the left
side of his head. Powder burns indicated a close range shot, but
not a contact wound. Dr. Simms stated that the downward angle of
the bullet's entrance was consistent with Terron leaning over the
car seat.
After deliberations, the jury found defendant guilty of
first-degree murder, aggravated vehicular hijacking, and armed
robbery. The trial court sentenced him to 50 years' imprisonment
for the first-degree murder, 30 years' imprisonment for the armed
robbery, and 30 years' imprisonment for the aggravated vehicular
hijacking, all to be served concurrently.
On appeal, defendant argues that his conviction for
aggravated vehicular hijacking should be reversed because the
relevant statute was not in effect on the date of the offense.
He contends that the aggravated vehicular hijacking was not
merely a rewording of the armed robbery statute, but is a new
statute because it adds one year to the minimum sentence.
Although defendant failed to raise this issue at trial, it
is reviewable on appeal. People v. Spain, 24 Ill. App. 3d 377,
321 N.E.2d 520 (1974). The offense was committed on July 31,
1993, which was before the August 13, 1993, effective date of the
aggravated vehicular hijacking statute. The armed robbery and
aggravated vehicular hijacking statutes are not substantially the
same because the minimum sentence for armed robbery is 6 years'
imprisonment and for aggravated vehicular hijacking, it is 7
years' imprisonment. 720 ILCS 5/18-2(b),5/18-4(b)(West 1996);
730 ILCS 5/5-8-1(a)(3)(West 1996). It is irrelevant that
defendant was sentenced to the maximum sentence allowable because
defendant was tried for a nonexisting offense that carried a
higher sentence. Defendant's conviction for aggravated vehicular
hijacking must be vacated because it is a new enactment that is
not substantially the same as the prior law. See People v.
Wasson, 175 Ill. App. 3d 851, 854, 530 N.E.2d 527 (1988); People
v. Hooper, 21 Ill. App. 3d 28, 29 314 N.E.2d 618 (1974). Since
aggravated vehicular hijacking was not in effect on July 31,
1993, the indictment failed to state an "offense" as defined in
section 18--4(a)(3) of the Criminal Code (720 ILCS 5/18--
4(a)(3)(West 1996)). See Spain, 24 Ill. App. 3d 377.
Defendant's next argument is that the jury instructions for
the first-degree murder counts were improperly phrased in the
disjunctive, thus incorrectly advising the jury that it was
permissible to find defendant guilty of first-degree murder
predicated on aggravated vehicular hijacking, which we have
vacated.
According to the record, the jury was given I.P.I. first-
degree murder instructions Nos. 7.01A and 7.02A (Illinois Pattern
Jury Instructions, Criminal, No. 7.01A; 7.02A), and then returned
a general verdict of guilty of first-degree murder. It is well-
established in Illinois that where an indictment contains several
counts arising out of a single transaction and a general verdict
is returned, the effect is that the defendant is guilty as
charged in each count to which the proof is applicable. People
v. Cardona, 158 Ill. 2d 403, 411, 634 N.E.2d 720 (1994). In this
case, the defendant was sentenced for intentional murder and not
for felony murder. Only the conviction for the most serious
murder charge will be upheld, the rest of the charges must be
vacated. Cardona, 158 Ill. 2d at 411. If charges of
intentional, knowing, and felony murder have been proved,
intentional murder is deemed the most serious offense. Cardona,
158 Ill. 2d at 412.
Since defendant was charged with intentional murder, knowing
murder, and felony murder, and the proof was applicable to both
intentional murder and knowing murder, vacating the felony murder
conviction does not affect the intentional murder conviction and
sentence, which we affirm.
Finally, we are remanding this case for resentencing on the
armed robbery conviction, which could have been affected by the
vacated aggravated vehicular hijacking conviction. People v.
Beals, 162 Ill. 2d 497, 509, 643 N.E.2d 789 (1994).
Based on the foregoing, we vacate the convictions for
aggravated vehicular hijacking, knowing murder, and felony
murder; affirm the first-degree intentional murder conviction and
sentence; affirm the armed robbery conviction, but vacate the
sentence; and remand for resentencing on the armed robbery
conviction.
Affirmed in part, vacated in part, and remanded for
resentencing.
McNamara, J., and Burke, J., concur.
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