People v. Reese ( 2015 )

2015 IL App (1st) 120654
No. 1-12-0654
Filed September 24, 2015
FOURTH DIVISION
IN THE APPELLATE COURT
OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court
Plaintiff-Appellee, ) of Cook County
)
v. ) No. 07 CR 8683
)
WILLIS REESE, ) Honorable
) Kenneth J. Wadas,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Justice Gordon concurred in the judgment and opinion.
Justice Palmer specially concurred in part and dissented in part, with opinion.
OPINION
¶1 Following trial, a jury found defendant, Willis Reese, guilty of aggravated vehicular
hijacking, vehicular invasion, attempted armed robbery, and escape. The trial court subsequently
sentenced him to concurrent extended-term sentences of, respectively, 50, 30, 30, and 14 years in
prison, to be served consecutively to the natural life sentence defendant was serving on a prior
murder conviction. Defendant appeals, arguing (1) the State failed to prove him guilty of
No. 1-12-0654
aggravated vehicular hijacking, as it failed to show that he dispossessed the victim of the bus, (2)
the State failed to prove him guilty of vehicular invasion, as it failed to show he used force to
enter the bus, (3) a fatal variance existed between his attempted armed robbery indictment and
conviction, (4) he was deprived of due process when he was shackled during jury selection
without the trial court articulating the reasons for his shackling, (5) the State introduced
excessive and irrelevant details regarding his prior murder conviction, (6) the trial court failed to
comply with Illinois Supreme Court Rule 401(a) (eff. July 1, 1984), thereby rendering his waiver
of counsel invalid, (7) the court erroneously imposed extended-term sentences on offenses that
were not among the most serious class of felony, and (8) his convictions for both aggravated
vehicular hijacking and vehicular invasion violate the one-act, one-crime doctrine.
¶2 For the following reasons, we reverse defendant's conviction and sentence for aggravated
vehicular hijacking, and affirm his convictions for vehicular invasion, attempted armed robbery,
and escape. We affirm defendant's 30-year sentences for vehicular invasion and attempted armed
robbery, and reduce his sentence for escape to 7 years.
¶3 I. BACKGROUND
¶4 On March 19, 2007, a jury found defendant guilty of first-degree murder. Three days
later, before he was sentenced for that offense, defendant was taken to an appointment at Stroger
Hospital (Stroger). Following his appointment, defendant went into a restroom, removed a shank
he had hidden in his shoe, and fled the building, injuring several people during his escape. Based
on the events that transpired that day, the grand jury returned an indictment charging defendant
with, among other offenses, aggravated vehicular hijacking, vehicular invasion, attempted armed
robbery, escape, disarming a peace officer, and aggravated kidnapping. The indictment also
-2-
No. 1-12-0654
charged him with multiple counts of attempted first-degree murder, which the State later nol-
prossed.
¶5 A. Pretrial Proceedings
¶6 The public defender was appointed to represent defendant, and, in October 2008,
defendant told the trial court that he wished to "exercise [his] constitutional right" to proceed pro
se. He expressed dissatisfaction with the public defender's office and stated he was making his
"decision knowingly and intelligently." The court advised defendant that two of his attempted
first-degree murder counts alone carried 20- to 80-year prison sentences and possible extended-
term sentences of 40 to 160 years' imprisonment. The court stated, "Basically, you are looking at
massive time if you are convicted." Defendant indicated that he understood. The court then
advised defendant of the normal and extended-term sentences that Class 1, Class 2, Class 3, and
Class X felonies carried. When asked whether he understood the penalties and sentencing ranges,
defendant responded, "Perfectly, Your Honor, perfectly." The court did not admonish defendant
that any possible sentence in his case would run consecutively to the sentence he was serving on
his murder conviction. After completing its admonishments, the court permitted the public
defender to withdraw.
¶7 B. Jury Selection and The State's Motions In Limine
¶8 In November 2011, the parties appeared before the trial court for jury selection.
Defendant indicated he was "ready to change into [his] clothes and get out of [his] shackles" so
he could "prepare [his] paper work." The court started to explain the voir dire procedure, and
defendant stated, "I mean I would like to write this stuff down. This is just not good right now. I
want to write what you're saying down. So if you would say it again later on that would be fine,
too." The court told defendant that "[l]ater on," his hands would be free and both tables would be
-3-
No. 1-12-0654
covered with drapery so that the jurors would not be able to see defendant's leg shackles. The
following exchange then occurred.
"THE DEFENDANT: But won't they be able to hear?
THE COURT: I guess if you move your legs around a lot.
THE DEFENDANT: Yeah. And I am a human being so that's a big
possibility that would happen. Also—I mean the shackles why do they need to
stay on at this particular portion of trial?
THE COURT: I will leave it at their discretion. I am not going to order
them to take—
THE DEFENDANT: They take them off with other people. I've shown
you approximately a year and a half ago that I can handle myself without being
shackled when I argued the motion between [the assistant State's Attorneys]. I
didn't have shackles then.
THE COURT: You are preaching to the choir. All you have to do is talk to
the men in charge. If you can convince those three men that you don't need leg
shackles, you don’t have to have them on.
THE DEFENDANT: My point is I didn't have to convince them the first
time you did it. But it's fine. We can do it that way this time."
¶9 After the trial court further explained voir dire to defendant and a recess took place,
defendant again brought up his shackles. The following exchange took place.
"THE DEFENDANT: Judge, one thing before we get started, and I don't
mean to bring this back up and be difficult. But it's a very big problem. Will this
-4-
No. 1-12-0654
be the case these shackles. When the jury come[s] in here, when trial officially
starts, will I still be confined to this?
THE COURT: That's up to the Illinois Department of Corrections.
THE DEFENDANT: Judge, the Illinois Department of Corrections is not
on trial. You see what I am saying. They're not on trial. Their constitutional rights
are not being violated. And so they could care less. They have a system that they
run down there. The only way they are going to come off is by court order."
Defendant told the court, "I will give you my word if I so much as step in the wrong
direction, I will willingly put these back on. But I am here to do a thorough job, and I can
not work under these conditions." The court indicated it would take the matter under
consideration and make a decision the next day.
¶ 10 Later, jury selection commenced. The first panel of six potential jurors consisted of
Tiffany Fourkas, Danielle Quinn, Alvin Hunt, Aaron Perry, Quinn McSorley, and Melissa
Myles. 1 When asked whether he accepted the panel of Fourkas, Quinn, Perry, and McSorley,
defendant stated, "No, I don't accept three individuals." The court asked defendant who he would
not accept, and he indicated Fourkas. He then asked if the trial court could "possibly have him
dismissed for a moment" because an "issue" was "going on" and he did not think the court
"would want" the jurors to hear about it. The court asked whether defendant was only dismissing
Fourkas, and defendant stated "Here's the thing, sir. Our reason for having these drapes here,
what was our reason for having these drapes?" After the court dismissed the prospective jurors,
defendant explained that Fourkas, McSorley, and Myles were "all sitting on this side here. And if
1
The State excused Hunt, who said he had just gotten off of probation and was "kind of on the
fence" about his ability to be fair.
-5-
No. 1-12-0654
you notice this little area right here is completely open. And it basically defeats the purpose of
you having this drape up on the table. They saw me with the shackles on. If they saw me with the
shackles on, then we might as well not have the drapes up." The court asked defendant which
people saw the shackles, and defendant stated Fourkas and McSorley.
¶ 11 The trial court asked that Fourkas and McSorley be brought back into the courtroom
separately. Upon questioning, Forukas said she could not see behind the drapes. Nonetheless,
defendant exercised a peremptory challenge to remove Fourkas.
¶ 12 The trial court then questioned McSorley, who indicated he could see behind the drapery
and saw "a little belt on [defendant]'s strap between his feet." He denied that what he saw would
affect his ability to be fair. Defendant then asked the following questions, and McSorley
provided the following responses.
"Q. Does this [the shackles] mean anything of significance to you?
A. No.
Q. Not at all. Does it give you the impression that I can not control myself?
A. No, not at all.
Q. Are you sure about that?
A. Yes.
Q. So when you see a man with shackles on his feet, what do you think. Tell
me the first thing that came to your mind.
A. What?
Q. Tell me the first thing that came to your mind when you saw these shackles
on my ankles?
A. I knew you were being supervised by these two patrol men.
-6-
No. 1-12-0654
Q. That's a problem in itself. Okay. I won't strike."
The other members of the panel returned to the courtroom, and the court asked whether
anything about defendant's appearance would affect their ability to be fair. The court
explained that it was referring to "[h]is appearance with this drapery in front of him."
Quinn stated, "No I guess" and asked whether there was "something we should know that
we don't know because now I am confused." The court said there was nothing the jury
should know. The record does not contain a response from any of the other potential
jurors. The parties accepted the panel of Myles, Perry, Quinn, and McSorley.
¶ 13 At the conclusion of voir dire, the trial court addressed the State's motions to introduce
defendant's prior murder conviction. The State sought to use the conviction as evidence of
defendant's motive to escape as well as for impeachment purposes. The State also filed a motion
in limine to present a certified copy of the charging instrument from defendant's prior murder
conviction. The State explained that it wanted to "prove up that defendant was convicted three
days before the incident and to introduce evidence of the potential sentence he was facing in so
far as it relates to motive." The trial court ruled that the State could not present that information
in its case-in-chief but could use defendant's prior conviction for impeachment if defendant
testified. The court instructed defendant as follows. "[S]hould you testify and testify in a way
that that could be used to impeach you, then of course I will allow the State to introduce that
certified copy of conviction, cross examine you on the fact that you were convicted of murder.
You knew you were facing a heavy sentence, et cetera, as a motive to escape." The court also
ruled that, with respect to the escape count, the State could say only that defendant "was in
custody on felony charges." Before the proceedings ended, defendant asked the court if it would
"please remember to consider the shackle situation" for trial. The court asked the Department of
-7-
No. 1-12-0654
Corrections (DOC) officer about the shackles, who responded, "We keep them on unless you
order them off." The court then stated as follows. "I am inclined to let him have—to be taken off
when he—people usually like to stand when they give their argument and move around a little
bit. So I'll sign that order tomorrow and you can take the shackles off. And he will have a little
more freedom."
¶ 14 C. Trial
¶ 15 On the first day of trial, the trial court ordered that defendant's shackles be removed
during trial. Thereafter, the parties presented the following evidence.
¶ 16 Cook County sheriff's officer Vito Zaccaro testified that he was working in the external
operations unit at Stroger at around 1 p.m. on March 22, 2007. Zaccaro met and received
defendant at the front of the hospital. Defendant was an inmate at the Cook County jail and was
wearing a DOC uniform, handcuffs, and leg shackles. Zaccaro transported defendant to the
dermatology clinic on the second floor of the hospital.
¶ 17 During his 10- or 15-minute appointment, defendant repeatedly asked to use the
restroom. When his appointment finished, Zaccaro took defendant to a single-occupancy
restroom in a hallway, removing his handcuffs but not his shackles. Zaccaro then waited outside
the restroom, leaving the door "open about a crack" so that he could see defendant. After about
10 minutes, Zaccaro heard a toilet flush. When defendant came out of the restroom, Zaccaro told
him to put his hands out so that he could place him back in handcuffs. Defendant jumped to the
side with a silver metal weapon, held the weapon to Zaccaro's neck, and said, "Move or I'll cut
you." Zaccaro then felt defendant's "hand going down the right side" of Zaccaro's body as though
he was reaching for Zaccaro's gun. Zaccaro threw his arms up to prevent defendant from taking
-8-
No. 1-12-0654
the gun, and defendant stabbed him in the neck. Zaccaro tripped over defendant's shackles, and
they both fell to the ground.
¶ 18 Defendant got up and started to run away. Zaccaro hit the "panic button" on his radio to
signal an emergency and started to pursue defendant through the "maze" of hallways. As
defendant ran, he continued to swing the weapon in his hand. Eventually, he ran through an
emergency stairwell and exited the hospital. Zaccaro followed and observed defendant run onto a
shuttle bus. When Zaccaro attempted to enter the bus, "the door slammed" on him. The bus
proceeded around the circular driveway, made an "unusual maneuver, and "just kind of stopped
and went into a wall." A door opened and defendant exited the bus, at which point Zaccaro
believed that hospital police officers tackled him to the ground.
¶ 19 On cross-examination, defendant asked Zaccaro if he had handcuff keys on his belt, and
Zaccaro responded that he did. Zaccaro also acknowledged that defendant never made a verbal
demand for Zaccaro's weapon.
¶ 20 Victoria Hill, a nurse at Stroger, testified that she was treating a patient named James
Holman at around 1:45 p.m. on March 22. As she was treating Holman, Hill heard "bumping"
outside of the examination room. She opened the door and saw defendant and a sheriff in the
restroom across the hallway, struggling with each other. The sheriff had a gun in his holster and
appeared to be trying to hold defendant from "getting his gun or something or getting away." Hill
started screaming and ran to the nursing station down the hall. After calling the police, Hill
waited at the nursing station and saw defendant run past her out the door. Hill started running
behind the sheriff who was chasing defendant, yelling "Stop him, stop him." Hill's coworker,
Nestor Francia, tried to stop defendant. Hill proceeded down the stairwell and observed
defendant exit the building and run to a shuttle bus.
-9-
No. 1-12-0654
¶ 21 Nestor Francia testified that while he was assisting a patient in the dermatology clinic, he
heard Victoria Hill saying, "don't let him get away." Francia then observed a man in a "scrub"
uniform and shackles running toward the door. Francia chased the man and attempted to grab
him by his pants. The man then turned around to face Francia, swung his hand, and stabbed
Francia in the left arm near his wrist bone. Afterward, the man continued running away and
Francia returned to the clinic area. Francia was unable to identify defendant at trial, but he agreed
that he had identified a photograph of defendant on March 26, 2007.
¶ 22 James Holman testified that he was receiving treatment from Hill at the Stroger
dermatology clinic when he heard "some knocking and banging" outside the room. Afterward, he
heard a male's voice yelling for help. Hill opened the door and said, "oh, my God, help, help,
help." Holman looked out the door and saw defendant and a police officer fighting near the
bathroom across the hall. The inmate was trying to grab whatever the police officer was
protecting on his right side. Holman ran into defendant and the officer to break up their fight,
knocking defendant toward the bathroom sink and knocking the officer into the hallway wall.
Defendant hit Holman in the face and eye, and Holman felt "metal." Holman continued
approaching defendant, but eventually defendant "took off," running down the hallway in the
opposite direction of the officer, who was getting up from the ground. The officer followed
defendant, and Holman lost sight of him. Holman sustained three stab wounds and underwent
surgery for an injury involving his eye.
¶ 23 On cross-examination, Holman acknowledged that he did not see defendant going for the
officer's weapon. Defendant asked whether it was possible that he "was going for something to
take off the shackles?" Holman responded, "No," explaining it looked as if defendant were
"forcefully taking something."
- 10 -
No. 1-12-0654
¶ 24 James Rimmer was driving a shuttle bus between Stroger and a nearby parking lot. He
was waiting in the driver's seat of the bus, with the doors open, outside one of the main hospital
entrances at around 1:45 p.m. on March 22. An inmate in a jail uniform, whose face Rimmer was
not able to clearly see, entered the bus, held his right hand in front of Rimmer, and said, "Drive.
If you stop, I'm gonna stab you in the neck." Rimmer could see an object in the inmate's hand.
Rimmer closed the door, put the bus in drive, and attempted to drive out of the lot.
¶ 25 However, a car was blocking the parking lot entrance. Rimmer got the idea to reach over
to a lever which opened the bus door, because he knew that doing so would cause the brakes to
"lock up." He testified that "if you're standing up and I throw my door open, you automatically
go forward, so it [gave] me a chance to get out of the situation I was in." Rimmer opened the
door, the inmate "went forward," and Rimmer grabbed the inmate's right arm. The two started
wrestling, and the inmate stabbed Rimmer twice on the left side of his face and once in the chest.
Rimmer acknowledged that the inmate's did not touch him until Rimmer grabbed him, and that
the inmate never got behind the wheel of the bus. Rimmer testified that the "whole struggle"
lasted about 10 or 15 seconds, and then the inmate broke free and ran out the bus door. He ran
about five or six feet away before a security guard tackled him.
¶ 26 Sharon Jambrosek testified that she was sitting on the shuttle bus in the seat behind the
shuttle bus driver when an inmate entered and told the bus driver to "drive, mother f***, drive."
The bus driver started to drive before stopping quickly behind a parked car. The inmate made a
forward motion with his fist and appeared to be stabbing the driver. Jambrosek went toward the
back of the bus for her safety, and did not remember much from that point on. She did not see the
bus driver and the inmate "rassling" or the inmate exiting the bus. Jambrosek also acknowledged
that she never saw the inmate's face.
- 11 -
No. 1-12-0654
¶ 27 Sergeant Gregory Hardin, an investigator at the Cook County Hospital, testified that he
was working on the first floor of Stroger when he received a call over his radio that an escaped
prisoner was running down the stairwell from the second floor. Hardin and two or three other
officers ran outside, where people directed him toward the shuttle bus, which was driving around
the cul-de-sac area. Hardin and the other officers ran toward the bus. After the bus stopped,
Hardin saw defendant raising his hand in a fist, striking the bus driver. Hardin ran to the front
door of the bus but could not open it, so he ran to the back door and eventually was able to enter.
Defendant turned around and came toward him, making a forward thrusting motion with his right
hand. Hardin ordered him to stop and get down, and defendant started walking toward the front
of the bus. Additional officers entered the bus, removed defendant, put him on the ground, and
placed him in handcuffs.
¶ 28 Sergeant William Villasana of the John Stroger Hospital Police Department testified that
he learned via his police radio of a "scuffle" involving a corrections officer. Villasana ran to the
second floor, where people directed him to the stairs. He proceeded outside the main entrance
and saw a police officer lying on the ground. When he reached the bus, he entered through the
back door and saw the bus driver, who was bleeding from the neck. He then exited the bus. By
the time he reached the inmate, other officers had already apprehended him. Villasana could not
identify defendant in court but knew the person that was apprehended was wearing a DOC
uniform. After bringing the inmate inside, Villasana went back outside near the bus and found a
shank or piece of steel wrapped with cloth. 2
2
Forensic testing of the metal item that was recovered, as well as Zaccaro's firearm, revealed no
fingerprints suitable for comparison. Deoxyribonucleic acid (DNA) testing indicated defendant
could not be excluded as the source of the mixture of DNA profiles found on the shank's cloth.
- 12 -
No. 1-12-0654
¶ 29 Joe Dugandzic, an investigator with the Cook County sheriff's police department,
testified that on March 22, he was assigned to investigate an attempted escape at Stroger
Hospital. He later met defendant at the jail. He initially testified that he did not speak to
defendant. However, Dugandzic later testified that before the grand jury, upon being asked
whether defendant voluntarily told him anything, Dugandzic responded, "At first, no, and then a
couple of minutes later he stated I had to do what I had to do. If somebody got hurt, oh well. He
said I wanted out and if anything got in my way, I would have done whatever it took." Defendant
did not make his statements during a formal interview.
¶ 30 Following the conclusion of the State's case-in-chief, defendant made a motion for
directed finding in which he admitted he "was trying to escape" but asserted the State had failed
to prove the charges of vehicular hijacking, vehicular invasion, attempted armed robbery, or
disarming a peace officer. The court denied defendant's motion.
¶ 31 Before defendant testified, the trial court admonished him outside of the presence of the
jury that if he chose to testify, he would be cross-examined by the State, who could use his 2007
murder conviction against him to impeach his credibility. The court further explained that the
State in rebuttal would be able to introduce the certified copy of defendant's conviction.
Defendant asked, "how far does that play out?" The court responded that the State would not be
able to talk about the facts of the conviction and would only be able to "read in [defendant] on or
about, so and so was convicted of the offense of first degree murder." The State indicated that
depending on the justification or defense that defendant set forth while testifying, it might ask the
court to revisit its earlier motion seeking to introduce the potential sentence defendant faced,
insofar as it related to his motive to escape. The court stated that if defendant testified regarding
- 13 -
No. 1-12-0654
a "necessity" defense, the State would be able to cross-examine him and rebut his motive with
his murder case.
¶ 32 Defendant chose to testify on his own behalf. During his testimony, he stated as follows.
"Now, when it comes to, because I know you guys want to know, you
know, have I been convicted? Yes. What was I convicted for? Murder, 4 years
ago. Did I do it? Honestly not from the bottom of my heart with everything in me
no, I did not. Am I in jail for it? Yes, I am. And as you guys know, there's many
people down in prison that says this, you know, but all I have is my word up here.
I've sworn to be honest with you guys. That's all I have. I done [sic] have anything
else. And I did not take the life of anyone, including the person that I'm in prison
for right now. And I'm still in the process of clearing my name.
Now when it comes to how I ended up being in prison, it's a long story
but, I'll modify it by saying I was very young, extremely young. I was a kid 17
years old. I was manipulated by officers and through that manipulation put me in
a position to be further taken down the line of going to prison.
When it comes to what I learned out of this situation, I learned you should
never be so naïve as to trust a person because they wear a badge. It's that simple.
And another thing I learned from that situation that's why I was trying to stress so
hard earlier that I would never speak to anyone without an attorney present from
that very experience. I'm traumatized. You can't get too close to me and try to ask
me too many questions without me saying, I plead the 5th or I need an attorney
from that very experience.
- 14 -
No. 1-12-0654
Now when it comes to whether or not I was an inmate in the Cook County
Jail at the time of the escape, yes that's true I was. Had I spent a great deal of time
in the Cook County Jail awaiting trial; yes, I had, 4 and a half years to be exact."
¶ 33 Defendant then went on to detail the "appalling" and "terrible" conditions in jail,
explaining that he did not "trust anybody in the system." He chose to remain in prison to wait for
his trial, believing "they would see [his] innocence." In 2005, a correctional officer kicked and
punched him. When defendant retaliated, other officers responded, jumping on defendant and
badly injuring his eye and causing bruises to his face and cuts where his handcuffs were.
Defendant remained in the hospital for three days. Although he knew he was likely to be beaten
again, he nonetheless returned to jail. Upon his return, he did not immediately attempt to escape.
However, after "going to trial and being found guilty," defendant realized he was "going to be
one of these guys who sits in prison for 30 years, you know, on something that he didn't do."
¶ 34 On March 22, defendant went to the hospital to have a mole checked on his leg. He
carried a knife in his shoe and pretended he had to use the restroom as "a ploy." When defendant
went into the restroom, Officer Zaccaro closed the door and sat down to read a newspaper.
Defendant then tried to remove his shackles with the knife but failed. At that point, defendant
decided he would have to take Zaccaro's keys to undo his shackles.
¶ 35 Defendant exited the restroom and when Zaccaro started to put defendant's handcuffs
back on, defendant "grabbed him" and told Zaccaro to give him his keys. Zaccaro refused, so
defendant tried to take them from their location on Zaccaro's belt. Defendant explained that he
only wanted Zaccaro's keys and not his gun. Defendant wanted to escape because he felt his life
was in danger and if he escaped, he could alert the authorities and help others who were "falling
victim to mistreatment in the Cook County Jail for years."
- 15 -
No. 1-12-0654
¶ 36 As defendant ran through the hallways, Nestor approached him. Defendant held out his
knife because he wanted Nestor "to stay at bay." Nestor then walked toward defendant and "side
swipe[d]" defendant's hand, causing his own injury. When defendant reached the outside of the
hospital, he entered the bus through the open door and told the driver something to the effect of,
"[P]lease driver I'm in trouble I'll explain everything to you later." Rimmer agreed and started to
drive. When the bus pulled up behind the stopped car, defendant saw all of the officers
approaching and "knew the gig [sic] was up." He asked Rimmer to open the door and turned to
exit the bus. Rimmer then jumped up and grabbed him. During their fight, defendant
"accidentally hit" Rimmer with the knife. After his encounter with Rimmer, defendant
surrendered peacefully to the police. Defendant reiterated that he did not belong in prison and
that he feared if he stayed any longer, he would "come up dead" like the people he knew who
had been beaten by officers or other inmates. He wanted to escape so that he could contact the
appropriate authorities and encourage them to investigate the corruption in the jail.
¶ 37 On cross-examination, defendant acknowledged that he tried to escape but did so because
he was attacked and was warned he would be attacked again. The State asked defendant whether
the purported beating by the officers took place on December 14, 2005, while defendant was in
jail "[o]n the charges, among other things of first degree murder." Defendant responded
affirmatively. The State entered photographs of defendant's injuries into evidence, and they were
shown to the jury.
¶ 38 Defendant acknowledged that a jury found him guilty of first-degree murder on March
19, 2007. The State asked whether the jury made an additional finding that, in committing the
murder, defendant personally discharged a firearm that proximally caused the victim to die.
Defendant responded, "Oh, yeah. And when they did that, when they did that, sir." The State
- 16 -
No. 1-12-0654
asked, "Is that what they found?" and defendant responded, "Not that I know of" and that he
"thought it was something different than that." The State continued by asking, "Oh, well as a
result of those findings, [defendant], after being found guilty of first degree murder three days
before your escape and with the additional finding that you shot your victim to death, you were
looking at a potential sentence of 45 years to the rest of natural life in prison?" Defendant
objected, and the trial court overruled his objection. Defendant then agreed that he was found
guilty of a crime, which he "did not commit."
¶ 39 The State said, "Okay. You were found guilty of a crime of first degree murder and the
jury found that you committed that murder by shooting and killing your victim?" Defendant
responded, "Well, the jury found that—found at that time that I was found guilty, yes or no,
[defendant], is that what—I'm not sure I know they found me guilty on a murder, sir. I don't
remember all of that." The State then asked, "And after your findings, after the conviction, you
understood that your potential sentence was 45 years to the rest of your life, somewhere in that
range?" Defendant acknowledged that he knew the sentence he was facing; however, it "didn't
mean anything" to him because he "thought [he] wasn't going to stay in there." Defendant
maintained that his motive for escaping was his fear that he would be beaten again, not the
prospect of spending 45 years in prison. Later, the State again asked defendant whether, on the
date of his escape, he was in prison for being "charged with a felony murder among other
things?" Defendant responded, "I was charged with murder." The State then asked, "In fact, as of
March 22, 2007, you had been convicted and were awaiting sentencing on the murder charges?"
to which defendant responded, "Yes, I was in there."
¶ 40 According to defendant, Rimmer attacked him on the bus because the bus was
surrounded by police and Rimmer realized his act of driving defendant may have looked like he
- 17 -
No. 1-12-0654
was aiding and abetting an escaped prisoner. He denied that when he stood next to Rimmer with
the knife in his hand he was attempting to force Rimmer to drive the bus. He explained he was
holding the knife "in the first place" because he wanted to use it to remove his shackles.
¶ 41 In rebuttal, the State offered into evidence a certified statement of conviction and
disposition, stating "that the defendant was found guilty by a verdict of guilty on the charge of
first degree murder on March 19, 2007." The trial court admitted the document into evidence,
indicating it would give the jury "a limiting instruction at the end of the argument with respect to
that."
¶ 42 The case proceeded to closing arguments. During his closing, defendant argued that he
was reaching for the officer's keys, not his gun. He further argued that he chose to escape for
many reasons, but the "main" reason was that he was "beaten, savagely beaten and hospitalized."
He chose to remain in prison following the beating because he wanted to "do it the right way"
and wait for his trial. He asserted that, "[t]hose are the facts, not that I just woke up one day and
said you know what, the hell with this place, I'm out of here."
¶ 43 In rebuttal, the State challenged defendant's argument that he wanted to escape so that he
could expose the purported inhumane treatment of jail inmates. The State asserted as follows.
"It's not a coincidence that the escape attempt of March 22nd, 2007, comes
3 days on the heels of the guilty verdicts on a charge of first degree murder. On
the verdict, the additional verdict that the murder was committed by personally
discharging a firearm that resulted in death of the victim.
It's not a coincidence that based upon those findings, that he's realizing
he's looking at somewhere between 45 years and the rest of his life in prison.
- 18 -
No. 1-12-0654
You want to know where why he's looking to escape? Nothing to do with
the guards in the jail, nothing to do with the way people are treated, got nothing to
do with the food or the noises in the middle of the night. It's about not going to
prison for at least 45 years. It's about establishing his freedom."
¶ 44 Following instructions, the jury retired to deliberate. In discussing which evidence to give
to the jury, the State commented as follows. "I believe we were going to send back all our
exhibits except for the Grand Jury transcript and the certified copy." The trial court responded,
"Right. The Grand Jury transcript doesn't go back, everything else does."
¶ 45 During deliberations, the jury sent the trial court multiple notes, including one that asked
"Is it attempted robbery on one specific item or anything at all? Example: Pen, badge, socks,
shoes… Anything or one item?" Defendant suggested that the jury be informed the language in
the indictment controlled. He pointed out that the indictment specified he committed attempt
armed robbery by trying to reach for Zaccaro's gun. Thus, defendant said he thought "that's all
they should be worried about." The court responded that the armed robbery instruction correctly
stated the jury could find he reached for any property. The court explained to defendant that an
indictment was not meant to be taken literally and was only meant to inform a defendant of the
charges he faced. The court further explained that an indictment could always be conformed to
the proof at trial if the proof turned out to be "slightly different" than what was alleged.
Defendant responded that he "had a misconception about how this goes" but the judge had
cleared up his misconception. The court responded to the jury, "Your instructions contain the
definition of armed robbery. Reread the instruction. This instruction does not make reference to a
specific piece of property and includes any property of the victim."
- 19 -
No. 1-12-0654
¶ 46 The jury found defendant guilty of aggravated vehicular hijacking, unlawful vehicular
invasion, escape, and attempt armed robbery. It found him not guilty of disarming a peace
officer, and it could not reach a verdict as to aggravated kidnapping. The court declared a
mistrial on the aggravated kidnapping count
¶ 47 D. Posttrial Proceedings and Sentencing
¶ 48 Defendant accepted the appointment of the public defender for posttrial matters. Counsel
filed a motion for new trial on defendant's behalf. At a hearing on the motion, counsel argued,
among other things, that defendant was severely prejudiced at the beginning of voir dire by being
shackled. In denying defendant's motion, the trial court noted that defendant drew attention to his
shackles, the table was protected with drapery, and the juror who saw the shackles already
believed defendant was a security risk based on the guards around him. At a later hearing, the
trial court imposed concurrent extended-term prison sentences of 14 years for aggravated escape,
30 years for attempted armed robbery, 30 years for vehicular invasion, and 50 years for
aggravated vehicular hijacking. The court ordered the sentences to run consecutive to the natural
life sentence defendant was serving for murder. This appeal followed.
¶ 49 II. ANALYSIS
¶ 50 On appeal, defendant argues (1) the State failed to prove him guilty of aggravated
vehicular hijacking, because it failed to show he dispossessed the victim of the bus, (2) the State
failed to prove him guilty of vehicular invasion, because it failed to show he used force to enter
the bus, (3) a fatal variance existed between his attempted armed robbery indictment and
conviction, (4) he was deprived of due process when he was shackled during jury selection
without the trial court articulating the reasons for his shackling, (5) the State introduced
excessive and irrelevant details regarding his prior murder conviction, (6) the trial court failed to
- 20 -
No. 1-12-0654
comply with Illinois Supreme Court Rule 401(a) (eff. July 1, 1984), thereby rendering his waiver
of counsel invalid, (7) the court erroneously imposed extended-term sentences on offenses that
were not among the most serious class of felony, and (8) his convictions for both aggravated
vehicular hijacking and vehicular invasion violate the one-act, one-crime doctrine. We address
defendant's arguments in turn.
¶ 51 A. Defendant's Aggravated Vehicular Hijacking Conviction
¶ 52 Defendant first asserts that his aggravated vehicular hijacking conviction must be
reversed. Relying on People v. McCarter, 2011 IL App (1st) 092864, he argues that to prove he
committed vehicular hijacking, the State was required to show he actually dispossessed Rimmer
of the shuttle bus rather than merely forcing Rimmer to drive it. Although the State
acknowledges the holding in McCarter, it contends that it was wrongly decided because it relied
on People v. Strickland, 154 Ill. 2d 489, 525 (1992), an armed robbery case that predated the
creation of the vehicular hijacking statute. See Pub. Act 88-351, § 5 (eff. Aug. 13, 1993) (adding
720 ILCS 5/18-3, 18-4) (creating the offenses of vehicular hijacking and aggravated vehicular
hijacking). It contends that the offense of vehicular hijacking should be "analyzed on its own
terms," and that it should include "commandeering" a vehicle by forcing the victim to drive it.
¶ 53 In arguing that the undisputed facts of his case did not amount to vehicular hijacking,
defendant has presented a matter of statutory construction; accordingly, our review is de novo.
People v. Brown, 2013 IL 114196, ¶ 35. The primary aim of statutory construction is to ascertain
and give effect to the intent of the legislature. People v. Whitney, 188 Ill. 2d 91, 97 (1999). The
plain language of a statute is the best means of determining legislative intent, and, where the
statutory language is clear and not ambiguous, it should be given its plain and ordinary meaning.
Id. However, if the statutory language is ambiguous, a court may consider other extrinsic aids for
- 21 -
No. 1-12-0654
construction, including legislative history, to resolve the ambiguity and determine legislative
intent. Id. at 97-98. Where the statute we are analyzing is penal in nature, the rule of lenity
requires that any ambiguity be strictly construed and resolved in favor of the defendant (id. at
98), with nothing taken by intendment or implication beyond the obvious or literal meaning of
the statute (People v. Laubscher, 183 Ill. 2d 330, 337 (1998)).
¶ 54 To sustain defendant's aggravated vehicular hijacking conviction, the State was required
to show that he committed vehicular hijacking while armed with a dangerous weapon other than
a firearm. 720 ILCS 5/18-4(a)(3) (West 2006). A person commits vehicular hijacking when he
takes a motor vehicle from the person or immediate presence of another by the use of force or by
threatening the imminent use of force. 720 ILCS 5/18-3(a) (West 2006).
¶ 55 In McCarter, the defendant was charged and convicted of murder, aggravated
kidnapping, armed robbery, concealment of a homicidal death and aggravated vehicular
hijacking, based on evidence which established that he and his brother had entered the victim's
car, forced him to drive it to another location, shot him, and lit his car on fire. McCarter, 2011 IL
App (1st) 092864, ¶ 3. The defendant challenged all five of his convictions, and this court
affirmed the convictions for murder, aggravated kidnapping, and concealment of a homicidal
death. 3 In analyzing his aggravated vehicular hijacking conviction, however, this court
considered whether there was sufficient evidence to support a finding that defendant "took" the
motor vehicle from the victim, when there was no evidence showing that the victim had been
3
We reversed defendant's conviction for armed robbery where the only evidence showing that he
and his brother had taken money from the victim was inadmissible hearsay, and where the victim
was discovered with a "wad of burnt up money," which tended to show that money had not been
taken from him.
- 22 -
No. 1-12-0654
actually dispossessed of his vehicle. Id. ¶¶ 71-74. In rejecting the State's argument that the taking
element could be satisfied by the defendant " 'taking control over the victim's car in his presence,'
" this court noted that there had been no published decision issued as to whether a defendant
could "take" a vehicle, within the meaning of the vehicular hijacking statute, by merely forcing
the victim to drive his car to another location. Id. ¶ 74. Accordingly, we looked to the supreme
court's decision in Strickland, 154 Ill. 2d at 525, in which it considered whether the "taking"
element of the robbery statute (720 ILCS 5/18-1(a) (West 1992)) had been satisfied in similar
factual circumstances. McCarter, 2011 IL App (1st) 092864, ¶¶ 75-76.
¶ 56 In Strickland, the defendant was charged and convicted of a number of offenses relating
to the murder of a police officer. The evidence there showed that after shooting the officer, the
defendant and his brother abandoned their car, got into the backseat of the victim's car in Buffalo
Grove, and ordered him at gunpoint to drive them to California. The group drove to downtown
Chicago, where the victim saw a marked police car and stopped to alert the officer. At that point,
the defendant and his brother fled from the car, and were apprehended thereafter. Strickland, 154
Ill. 2d at 499-500. Defendant was convicted of armed robbery based on the "taking" of the
victim's vehicle, and, on appeal, the defendant argued that there was no evidence to support that
element where the victim remained in operation of the car throughout the time he and his brother
were present. Id. at 525. In response, the State argued that the defendant and his brother
effectively controlled the use of the victim's vehicle such that they were in constructive
possession of the vehicle. Id.
¶ 57 The supreme court agreed with the defendant that the evidence was insufficient to sustain
his armed robbery conviction, noting that the offense of robbery is " 'complete when force or
threat of force causes the victim to part with possession or custody of property against his will.' "
- 23 -
No. 1-12-0654
Id. at 526 (quoting People v. Smith, 78 Ill. 2d 298, 303 (1980)). Although the supreme court
observed that defendant and his brother's actions "certainly denied [the victim] a large measure
of control over his vehicle," it reversed the defendant's armed robbery conviction, finding no
evidence to show that the victim's car was removed from his actual possession. Id.
¶ 58 In so holding, the supreme court "implicitly rejected" the State's argument that " 'taking
control over the victim's car in his presence' " was sufficient to effectuate a "taking," as the
supreme court gave no weight to the defendant's actions that denied the victim a large amount of
control over his car. McCarter, 2011 IL App (1st) 092864, ¶ 78 (citing Strickland, 154 Ill. 2d at
526). After reviewing the Strickland decision, this court similarly found no evidence in
McCarter to show that the victim had been dispossessed of his car, and concluded that the State
had failed to establish the taking element. Id. ¶ 79. Based on this precedent, we conclude that the
taking element of the aggravated vehicular hijacking statute requires that the defendant " 'cause[]
the victim to part with possession or custody of [the vehicle] against his will.' " Strickland, 154
Ill. 2d at 526 (quoting People v. Smith, 78 Ill. 2d 298, 303 (1980)).
¶ 59 After reviewing the evidence presented at defendant's trial, as summarized below, we
conclude that the State failed to prove the taking element beyond a reasonable doubt. The facts
established that defendant boarded the bus, threatened Rimmer with a shank, and told him to
drive. Rimmer began to move the bus, and moments later, reached over and opened the bus door,
which caused the brakes to lock up and throw defendant forward. Rimmer grabbed defendant's
arm and began wrestling with defendant, and shortly thereafter, defendant fled the bus and was
apprehended almost immediately. While defendant's actions may have denied Rimmer a
"measure of control" (id.) over his vehicle, there was no evidence that defendant actually took
possession of the bus, or removed it from Rimmer's custody or possession. In the absence of
- 24 -
No. 1-12-0654
such evidence, we must conclude, like in Strickland and McCarter, that defendant's conviction
must be reversed.
¶ 60 Given the clear instruction of McCarter and Strickland as discussed above, we do not
find the language of the vehicular hijacking statute to be ambiguous. However, even if we were
to so find, our conclusion would remain the same because it is supported by the legislative
history of the Illinois vehicular hijacking statute. As we recognized in McCarter, the language of
the vehicular hijacking statute was written to closely track the language of the robbery statute.
Compare 720 ILCS 5/18-3(a) (West 2006) ("[a] person commits vehicular hijacking when he or
she takes a motor vehicle from the person or the immediate presence of another by the use of
force or by threatening the imminent use of force") and 720 ILCS 5/18-1(a) (West 2006) ("A
person commits robbery when he or she takes property, except a motor vehicle *** from the
person or presence of another by the use of force or threatening the imminent use of force.").
¶ 61 Other than the nature of the property which is taken, one of the key differences between
the vehicular hijacking statute and the robbery statute is the applicable felony classes and
available punishments. While robbery is a Class 2 probationable felony, the legislature created
the offense of vehicular hijacking as a Class 1 nonprobationable felony. 720 ILCS 5/18-1(b), 18-
3(c) (West 2006); 730 ILCS 5/5-5-3(c)(2)(K) (West 2006). If a person commits robbery or
vehicular hijacking while armed with a dangerous weapon other than a firearm, both offenses are
increased to Class X felonies, but aggravated vehicular hijacking is additionally subject to an
increased minimum sentence of seven years' imprisonment. 720 ILCS 5/18-2(b), 18-4(b) (West
2006) ("Aggravated vehicular hijacking in violation of subsection (a)(3) [while armed with a
dangerous weapon other than a firearm] is a Class X felony for which a term of imprisonment of
not less than 7 years shall be imposed.").
- 25 -
No. 1-12-0654
¶ 62 Based on this comparison, we conclude that the intent of the legislature in enacting the
vehicular hijacking statute was to recognize the seriousness of taking a motor vehicle, versus
taking another type of property, and increase the penalty for that offense accordingly. See Ill.
Const. 1970, art. I, § 11 (“[a]ll penalties shall be determined both according to the seriousness of
the offense and with the objective of restoring the offender to useful citizenship” (emphasis
added)).
¶ 63 In explaining Senate Bill 902, which created the offenses of vehicular hijacking and
aggravated vehicular hijacking, its sponsor, Senator Hawkinson, made the following comments:
"Unfortunately, in our society from time to time a new—new genre of crime
comes along. We're all too familiar with the tragedies around the country of—of
car hijacking where someone armed or unarmed attacks a car, and either snatches
the driver out; sometimes the driver, as we read yesterday about one story, is
dragged, because they're caught in the rush, and—and caught by a seat belt or
something and dragged and seriously injured or killed; sometimes these
carjackings occur where a young child is a passenger in the car and is taken for a
ride after a mother or father is—is yanked from the car. *** What it does, if the
aggravating factors of being armed with a weapon or you have a youngster or a
senior citizen passenger, it is a Class X felony with a minimum seven years, and if
there is not an aggravating factor present, it is still a mandatory minimum
sentence that is imposed, so there will be imprisonment in the penitentiary." 88th
Ill. Gen. Assem., Senate Proceedings, April 15, 1993, at 281 (statements of
Senator Hawkinson).
- 26 -
No. 1-12-0654
¶ 64 Senator LaPaille, a chief cosponsor of the bill, added that it was "about time" that the
legislature "put the thugs and the criminals who carjack cars, take children away with them from
their parents when they're in shopping centers, and create havoc on the roads and—and—and
commit crimes and rape, et cetera, behind bars where they belong." Id. at 283 (statements of
Senator LaPaille). In the House, Representative Homer, the House sponsor of the bill, explained
that the bill was meant "to address that situation that an assailant takes a car away from an
individual, from their presence, and it's a growing problem in this state as it is in the nation. We
need to make it a tough crime and send a strong signal to the perpetrators of this offense." 88th
Ill. Gen. Assem., House Proceedings, May 19, 1993, at 39 (statements of Representative Homer).
¶ 65 Around the same time that the legislature was considering Senate Bill 902, it was also
debating a similar piece of legislation, House Bill 35. In discussing House Bill 35,
Representative Novak set out the offense and available penalties, and stated:
"This Bill… is very similar to the one that passed out of the Senate that is now in
the House. And it is also is stronger than the one that we have on the federal level
because the federal carjacking Bill only applies if the defendant was armed with a
firearm. We are all aware of the…this particular category of crime that is
occurring around the country. *** I think it's about time that we put a carjacking
Bill on the books in Illinois to send a very strong message to the gang-bangers
and to those who use this device to perpetrate crimes on innocent people that
it…will not be tolerated, and their particular *** behavior will be punished in a
very definitive manner." 88th Ill. Gen. Assem., House Proceedings, April 20,
1993, at 164 (statements of Representative Novak).
- 27 -
No. 1-12-0654
¶ 66 As these comments make abundantly clear, the legislature's intent in creating the offense
of vehicular hijacking, was to "make it a tough crime" (88th Ill. Gen. Assem., House
Proceedings, May 19, 1993, at 39 (statements of Representative Homer)), and to "send a very
strong message *** [that it would] be punished in a very definitive manner" (88th Ill. Gen.
Assem., House Proceedings, April 20, 1993, at 164 (statements of Representative Novak)).
Accordingly, the vehicular hijacking statute increased the penalties available to those who
commit vehicular hijacking and aggravated vehicular hijacking, beyond that which was
authorized for the analog crimes of robbery and armed robbery.
¶ 67 Concomitantly, we observe that both the vehicular hijacking and robbery statutes require
that the defendant take, respectively, a motor vehicle, or property other than a motor vehicle,
from the victim. Although the taking element of the robbery statute had been previously
interpreted by our supreme court in Strickland to require the defendant to actually dispossess, or
take custody from, the victim, not merely exercise of control over the property, the legislature
chose to track that same language in creating the vehicular hijacking statute in 1993, defining the
offense as occurring when a defendant "takes a motor vehicle from the person or the immediate
presence of another by the use of force or by threatening the imminent use of force." (Emphasis
added.) 720 ILCS 5/18-3(a) (West 2006). The rules of statutory construction recognize that we
are to presume the legislature was aware of how this language has been construed in the courts,
and where the legislature did not modify that language, we presume that it intended to maintain
the previously-settled meaning of the term "takes." See, e.g., People v. Young, 2011 IL 111886, ¶
17 (where a term has a settled legal meaning, we will normally infer the legislature intended to
incorporate the established meaning); People v. Hickman, 163 Ill. 2d 250, 262 (1994) (where
statutes are enacted after judicial opinions, we presume the legislature acted with knowledge of
- 28 -
No. 1-12-0654
the prevailing case law). As a result, we do not believe that the legislature's intent in creating the
vehicular hijacking statute was to change the meaning of a word which had been previously
defined by our supreme court. We therefore adhere to our prior holding in McCarter, and
conclude that the taking element of the aggravated vehicle hijacking statute requires more than
the facts demonstrated here.
¶ 68 The State, however, argues that interpreting McCarter to require evidence of actual
dispossession would lead to "absurd" results and would "negate any 'carjacking' that involve[s]
the victim still inside or on the car itself." Instead, it asks this court to interpret the Illinois statute
in line with decisions interpreting the federal carjacking statute which, it claims, "rightly
recognize that the offense can be committed without having to 'take away' or 'dispossess' the
victim of the vehicle." The State also cites a number of out-of-state cases, which it asks this court
to look to as "persuasive authority for a logical construction of Illinois' own carjacking statute to
include the scenario where an offender commandeers a vehicle by forcing the victim to drive the
vehicle, while the victim is under the defendant's control by force or threat of force." The dissent
agrees, and similarly relies on a number of federal and out-of-state cases for the proposition that
"a defendant need not remove the victim from the car" to be guilty of carjacking.
¶ 69 Initially, we must clarify that we did not conclude in McCarter, nor do we conclude in
this case, that our vehicular hijacking statute requires a defendant to actually remove the victim
from his vehicle. While removing a victim from his vehicle would be one way to dispossess him
of that vehicle, as defendant acknowledges, there are undoubtedly circumstances in which a
defendant can "take" a vehicle from a victim while the victim still remains inside. However, the
determination of whether a victim has been dispossessed of his vehicle is a fact-specific inquiry,
which turns on the particular circumstances of each case. As we noted in McCarter, our decision
- 29 -
No. 1-12-0654
was limited to the facts of that case, and under those circumstances we were "compelled to
conclude that the State failed to establish the taking element." Similarly here, after a review of
the record, we conclude that the evidence was insufficient to show that defendant dispossessed
Rimmer of his vehicle.
¶ 70 We also note that this court is not bound by federal or out-of-state decisions, particularly
where, as here, we are interpreting an Illinois statute. Sundance Homes, Inc. v. County of Du
Page, 195 Ill. 2d 257, 276 (2001); People v. Fern, 240 Ill. App. 3d 1031, 1039-40 (1993) ("In
construing our own State laws, we are not bound by Federal court decisions other than, in
appropriate cases, those of the United States Supreme Court ***."). The dissent cites Andrews v.
Gonzalez, 2014 IL App (1st) 140342, ¶ 23, for the proposition that “comparable court decisions
of other jurisdictions are persuasive authority and entitled to respect,” (internal quotation marks
omitted). In Andrews, however, this court was considering a matter of first impression in
Illinois, and "[g]iven the lack of Illinois case law on point, we [chose] to examine" the foreign
cases. Id. In this case, the State's and dissent's reliance on federal and out-of-state cases is
particularly problematic, because courts in our own jurisdiction have already spoken on this
issue. Where we have clear precedent from Illinois courts interpreting an Illinois statute, we do
not believe it is necessary or appropriate to look to foreign authority to second-guess our own
interpretation.
¶ 71 We acknowledge that some foreign jurisdictions have found the taking element of their
own statutes to be satisfied in situations where a defendant has forced a victim to drive his own
vehicle to a different location (See United States v. DeLaCorte, 113 F.3d 154 (9th Cir. 1997);
Williams v. State, 990 So. 2d 1122 (Fla. Dist. Ct. App. 2008); People v. Duran, 106 Cal. Rptr. 2d
812, 814, 816 (Cal. Ct. App. 2001)), however, we find that this interpretation is clearly contrary
- 30 -
No. 1-12-0654
to the approach instructed by our supreme court. The foreign cases relied on by the dissent have
generally utilized a "control" based analysis to the taking element of their respective statutes—an
approach which our supreme court has explicitly rejected. Compare DeLaCorte, 113 F.3d at 156
(noting that the federal carjacking statute, and other robbery offenses, require " 'simply the
acquisition by the robber of possession, dominion or control of the property for some period of
time' " (emphasis added) (quoting United States v. Moore, 73 F.3d 666, 669 (6th Cir. 1996), cert.
denied, 517 U.S. 1228 (1996) and Williams, 990 So. 2d at 1123 ("It is enough that the defendant
obtains control over the driver of the vehicle through force or violence, threats of force or
violence, or by putting the driver in fear") with Strickland, 154 Ill. 2d at 526 ("Although the
[defendants'] actions certainly denied [the victim] a large measure of control over his vehicle ***
the automobile was never removed from [the victim's] actual possession." As this comparison
makes clear, our supreme court has indicated that merely denying the victim "a large measure of
control over his vehicle" is not enough to find that defendant "took" that vehicle, while such a
showing would be enough to establish the taking element of various federal and out-of-state
carjacking statutes. Instead, in Illinois the taking element of the vehicular hijacking statute is
only established when defendant "causes the victim to part with possession or custody of [the
vehicle] against his will.” (Internal quotation marks omitted.) Id.
¶ 72 Although the dissent contends that the carjacking statutes from foreign jurisdictions have
"almost identical" language to our own, our review of those statutes shows that they are not
particularly similar to the Illinois statute. As noted above, the Illinois vehicular hijacking statute
applies when a defendant knowingly "takes a motor vehicle from the person or the immediate
presence of another by the use of force or by threatening the imminent use of force." 720 ILCS
5/18-3(a) (West 2006). By contrast, a person violates the federal carjacking statute when he or
- 31 -
No. 1-12-0654
she "with the intent to cause death or serious bodily harm takes a motor vehicle that has been
transported, shipped, or received in interstate or foreign commerce from the person or presence
of another by force and violence or by intimidation, or attempts to do so." (Emphasis added.) 18
U.S.C. § 2119 (2006). This statute is different, and in some ways much broader, than the Illinois
vehicular hijacking offense: most glaringly, it applies in situations in which a defendant merely
attempts to take a motor vehicle. Also, the taking requirement of the federal statute has also been
interpreted to require " 'simply the acquisition *** of possession, dominion or control of the
[vehicle] for some period of time.' " (Emphasis added.) DeLaCorte, 113 F.3d at 156 (quoting
United States v. Moore, 73 F.3d 666, 669 (6th Cir. 1996), cert. denied, 517 U.S. 1228 (1996).
Our statute has never been interpreted to apply in such broad temporal contexts.
¶ 73 The out-of-state statutes relied on by the dissent are equally broad, dissimilar, and
ultimately unhelpful to an analysis of our vehicular hijacking statute. In Williams v. State, 990
So. 2d 1122 (Fla. Dist. Ct. App. 2008), the Florida appellate court considered the Florida
carjacking statute, which provides that " '[c]arjacking' means the taking of a motor vehicle which
may be the subject of larceny from the person or custody of another, with intent to either
permanently or temporarily deprive the owner of the motor vehicle, when in the course of the
taking there is the use of force, violence, assault, or putting in fear." (Emphases added and
omitted). Id. (quoting Fla. Stat. § 812.133(1) (2006). This statute interjects the concept of
"larceny" and prohibits mere temporary deprivations—notions which are notably absent in our
own statute. See also People v. Duran, 106 Cal. Rptr. 2d 812, 815 (Cal. Ct. App. 2001)
(considering the California carjacking statute, which states that " ' "carjacking" ' is the felonious
taking of a motor vehicle in the possession of another, from his or her person or in the immediate
presence *** against his or her will and with the intent to either permanently or temporarily
- 32 -
No. 1-12-0654
deprive the person in possession of the motor vehicle of his or her possession, accomplished by
force or fear." (Emphases added and omitted.) (quoting Cal. Penal Code § 215 (West 2000))).
¶ 74 In Bruce v. State, 555 S.E.2d 819 (Ga. Ct. App. 2001), the Georgia appellate court
reflected on the Georgia offense of hijacking a motor vehicle, which is complete when a "person
while in possession of a firearm or weapon obtains a motor vehicle from the person or presence
of another by force and violence or intimidation or attempts or conspires to do so." (Emphases
added). Ga. Code Ann. § 16-5-44.1(b) (2000).The Georgia statute includes both attempts and
conspiracy, and couches its language in terms of "obtaining" a motor vehicle, which the court
explained, "encompasses the notion of acquiring control thereof, regardless of whether the victim
remains with the vehicle." Bruce, 555 S.E.2d at 823. By contrast, our statute contains no
references to conspiracy, attempt, or obtaining, and, as stated, our supreme court has specifically
rejected a control-based application of our statute. See also People v. Green, 580 N.W.2d 444,
449-50 (Mich. Ct. App. 1998) (Under the pre-2004 version of the Michigan carjacking statute,
"A person who by force or violence, or by threat of force or violence, or by putting in fear robs,
steals, or takes a motor vehicle *** from another person, in the presence of that person or the
presence of a passenger or in the presence of any other person in lawful possession of the motor
vehicle, is guilty of carjacking ***." (Emphasis added.) (Citing Mich. Comp. Laws Ann. §
750.529a(1) (West 1994); Winstead v. United States, 809 A.2d 607, 610 n.3 (D.C. 2002) (In
D.C., " 'A person commits the offense of carjacking if, by any means, that person knowingly or
recklessly by force or violence, whether against resistance or by sudden or stealthy seizure or
snatching, or by putting in fear, or attempts to do so, shall take from another person immediate
actual possession of a person's motor vehicle.' " (Emphases added.) (quoting D.C. Code § 22-
2803 (2001)). As the foregoing analysis shows, the carjacking statutes used in the federal system
- 33 -
No. 1-12-0654
and in other states, are far from "almost identical" to our own statute, and for this reason, we do
not find their analyses compelling to an interpretation of the Illinois statute.
¶ 75 In addition, none of the federal cases the State cites involve an analysis of the taking
element of the statute, or whether it can be established without proof that the defendant
dispossessed the victim of his vehicle. See United States v. Figueroa-Cartagena, 612 F.3d 69, 75
(1st Cir. 2010) (analyzing whether there was sufficient evidence to sustain the defendant's
various carjacking convictions where her involvement in the offense began after the other
perpetrators had seized the vehicle); United States v. Lebrón-Cepeda, 324 F.3d 52 (1st Cir.
2003) (considering whether the mens rea element of the carjacking statute had been proven over
the defendants' claim that their intent to seriously harm or kill the victim was formed after taking
control of his vehicle); Chatman v. Arnold, No. 2:2014CV05896 (C.D. Cal. Apr. 29, 2015)
(unpublished federal magistrate order dismissing the defendant's habeas corpus petition, which
alleged he was denied effective assistance of counsel where counsel failed to obtain phone
records which he claimed would have shown that he did not carjack the victim, but instead, that
he was trying to purchase drugs from the victim and that the "drug deal [had] gone wrong.");
People v. Johnson, 60 Cal. 4th 966, 343 P.3d 808 (Cal. 2015), (analyzing whether there was
sufficient evidence to prove that defendant intended to take the victim's car at the time he killed
her, and whether he took the victim's vehicle from her “person or immediate presence”). Because
these cases did not consider the taking element of a state or federal carjacking statute—let alone
the taking element of our own state statute—we find the State's reliance on them unconvincing.
¶ 76 Furthermore, the factual scenarios underlying these cases are decidedly different than the
facts of this case, and show that those defendants did far more than "force[] the victim[s] to drive
on [their] command." In Figueroa-Cartagena, the evidence showed that one of the perpetrators
- 34 -
No. 1-12-0654
bragged about taking the victim's vehicle "policeman style," which was understood to mean “that
they stopped the car . . . with the weapon, and they said, this is the police.” The perpetrators then
drove the vehicle to defendant's brother's house with the victim in the backseat, and the victim's
dead body was later discovered in the backseat of the vehicle. United States v. Figueroa-
Cartagena, 612 F.3d 69, 72 (1st Cir. 2010) (referring to the codefendant's companion opinion,
United States v. Castro-Davis, 612 F.3d 53 (1st Cir. 2009), for the evidence adduced at trial). In
United States v. Lebrón-Cepeda, 324 F.3d 52, 55 (1st Cir. 2003), the three offenders "pulled
open the car doors and ordered [the victims] *** to move into the car's backseat." The victims
complied, and the defendant "took the wheel" and "drove away."
¶ 77 In Chatman v. Arnold, No. 2:2014CV05896 (C.D. Cal. Apr. 29, 2015), the petitioner
entered the passenger side of the victim's truck, and "tried to position himself between [the
victim] and the steering wheel." The petitioner "fought [with the victim] to control the steering
wheel," "stepped on the gas" and "eventually was able to commandeer the truck down the street a
short way ***, veering onto the sidewalk, hitting three parked cars and eventually crashing to a
stop."
¶ 78 Finally, in Johnson, 343 P.3d 808, the defendant found and murdered the victim in her
kitchen, stole her car keys, and used those keys to steal her car from the garage. In determining
whether there was evidence to show that the vehicle had been taken from her "immediate
presence," the California Supreme Court looked to the state's robbery statute, observing that the
legislature enacted the carjacking statute after it had "definitively interpreted the phrase
'immediate presence' " in the robbery statute. Id. at 827. Accordingly, the court "presume[d] that
when the Legislature employs words that have been judicially construed (and especially so
recently), it intends the words to have the meaning the courts have given them." Id. Rather than
- 35 -
No. 1-12-0654
provide support for the State's suggested interpretation of the Illinois vehicular hijacking statute,
we find that the cases cited by the State draw attention to the deficiency of evidence of a taking
in this case, and confirm our conclusion that defendant's conviction must be reversed.
¶ 79 The dissent also relies on a dictionary definition of the word "hijacking" from the
statutory title to conclude that a defendant need not dispossess the victim of his vehicle. We do
not believe that the consideration of the statutory title is appropriate in this case. Our supreme
court has repeatedly indicated that “[w]hen the legislature enacts an official title or heading to
accompany a statutory provision, that title or heading is considered only as a ‘short-hand
reference to the general subject matter involved’ in that statutory section, and ‘cannot limit the
plain meaning of the text.’ ” Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493,
505-06 (2000) (quoting Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S.
519, 528-29 (1947)). Official headings or titles are of use “ ‘only when they shed light on some
ambiguous word or phrase’ ” within the text; they “ ‘cannot undo or limit that which the text
makes plain.’ ” Id. at 506 (quoting Brotherhood of R.R. Trainmen, 331 U.S. at 529). Because we
do not find the statute's meaning to be ambiguous, we need not, and indeed should not, look to
the statutory heading for an alternative interpretation.
¶ 80 Before ending our discussion, we reiterate that the determination of whether a taking has
occurred must be a fact based inquiry, and our decision here is limited to the facts of this case.
Although the dissent contends that our decision leads to an "absurd legislative result" by posing a
specific scenario, we will not speculate on whether another set of facts would constitute a
dispossession, because our decision is limited to the facts presented here.
¶ 81 Finally, we address the State's contention that even if the evidence is insufficient to
support defendant's aggravated vehicular hijacking conviction, "outright reversal is not
- 36 -
No. 1-12-0654
warranted" and we should "enter judgment on an attempt." It maintains that "[b]y defendant's
own reasoning, the offense is not completed until defendant is successful in 'taking' the bus away
from the victim. Since that did not happen because the driver quickly responded to defendant's
threat and police were able to capture defendant before he was able to complete the crime, the
offense was attempt[ed] vehicular hijacking."
¶ 82 However, the State points to no evidence, and we find none, which would suggest that
defendant intended to remove the bus from Rimmer's possession as would be required to support
an attempt conviction. See 720 ILCS 5/8-4(a) (West 2006) (an attempt crime is proven if a
defendant does any act that constitutes a substantial step toward commission of a specific
offense, with the intent to commit that offense). We therefore decline the State's invitation to
enter judgment for an attempt crime, and reverse defendant's conviction for aggravated vehicular
hijacking.
¶ 83 B. Defendant's Vehicular Invasion Conviction
¶ 84 Defendant next argues that his vehicular invasion conviction must be reversed, because
there was insufficient evidence to prove that he used force to enter the shuttle bus. The State
responds that defendant was properly convicted of that offense, where he used and threatened
force immediately after entering the bus, and where his actions were "connected, related, and
together comprised the offense of vehicular invasion."
¶ 85 To sustain defendant's vehicular invasion conviction in this case, the State was required
to prove that defendant knowingly, by force and without lawful justification, entered the interior
of the occupied bus, with the intent to commit the felony of escape therein. 720 ILCS 5/12-11.1
(West 2006). Defendant challenges only the evidence to prove that he entered the bus "by force,"
maintaining that his entry was not forceful, as he entered through the open door. Because
- 37 -
No. 1-12-0654
defendant argues that the undisputed facts of his case did not amount to vehicular invasion,
defendant has, again, presented a matter of statutory construction, for which our review is de
novo. Brown, 2013 IL 114196, ¶ 35.
¶ 86 In arguing that his entry was not forceful, defendant acknowledges that the Second
District Appellate Court "rejected a similar argument" in People v. Isunza, 396 Ill. App. 3d 127
(2009), but he maintains that the facts of that case are distinguishable from the case at bar. In
Isunza, the defendant similarly argued that he did not use force to enter the victim's vehicle when
he reached in through the open window and punched her. Id. at 131. The court, however,
determined that the open window was not dispositive of whether defendant used force to reach
into the vehicle, and that defendant’s act of punching the victim while he stood outside her
vehicle as she was sitting inside her car satisfied the element of using force to reach into the car.
Id. We reach the same conclusion here where the evidence showed that defendant rushed onto
the bus, threatened to stab Rimmer in the neck with a knife, and then engaged in a struggle with
Rimmer during which he repeatedly stabbed him in the face and chest.
¶ 87 Defendant, however, distinguishes his entry from that in Isunza, and contends that his
"entry into the bus and subsequent acts inside were distinct physical acts" whereas in Isunza, the
"acts of force and entry *** were one and the same." Relatedly, he maintains that he did not use
actual force but merely "threatened the use of force" (emphasis in original) upon entering the
bus. See 720 ILCS 5/12-11.1(a) (West 2006) (requiring entry "by force"). He acknowledges that
he subsequently "used force" when Rimmer "engaged him in a struggle" but contends that this
use of force was insufficient to sustain his conviction because it "only occurred after he
completed his entry."
- 38 -
No. 1-12-0654
¶ 88 In considering defendant's claims, we are instructed by cases interpreting the force
element in the robbery context, which have concluded that the force need not occur at the actual
moment of taking, but it is sufficient if the force and the taking are part of a series of events
constituting a single incident. People v. Lewis, 165 Ill. 2d 305, 339 (1995) ("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."); People v. Brooks, 202 Ill. App. 3d 164, 170 (1990),
abrogated on other grounds by People v. Williams, 149 Ill. 2d 467 (1992).
¶ 89 In Brooks, (id. at 167-68), the defendant challenged his robbery conviction, claiming that
the evidence was insufficient to prove that he took the victim's property by force or threat of
force. At trial, the victim testified that she was seated on a CTA bus in Chicago, when she
discovered that her wallet was missing from her purse. The victim turned around and saw
defendant, who was seated behind her, with her wallet in his hands. The victim demanded the
return of her wallet, but defendant pushed her left shoulder and ran away from the bus. On
appeal, the defendant argued that his conviction should be reversed because no force was used in
the actual taking of the wallet. The court disagreed, noting that the force or threatened force
"need not transpire before or during the time the property is taken" but that it could be "used as
part of a series of events constituting a single incident." Id. at 170. The court further stated that
an offense can "constitute robbery where the perpetrator defends against a challenge immediately
upon the taking or where the perpetrator's departure is accomplished by the use of force.
[Citations.]" Id. The court then concluded that the defendant's push, "used in a series of events
involving a single incident and in response to the victim's challenge immediately upon the taking
and before defendant's departure, is sufficient to sustain the robbery conviction." Id.
- 39 -
No. 1-12-0654
¶ 90 Similarly here, the evidence established at trial shows that defendant struggled with
Rimmer, and repeatedly stabbed him in the face and chest, when he attempted to resist
defendant's demands. This use of force was part of a series of closely connected events, and
occurred "in response to the victim's challenge" and "before defendant's departure." Id. In these
circumstances, we conclude that defendant's actions were sufficient to sustain his vehicular
invasion conviction.
¶ 91 In so holding, we also note that we need not reach defendant's alternative challenge to his
vehicular invasion conviction—that it must be reversed because the imposition of convictions for
both aggravated vehicular hijacking and vehicular invasion violate the one-act, one-crime rule.
Because we previously found that his conviction for aggravated vehicular hijacking must be
reversed, there can be no one-act, one-crime rule violation.
¶ 92 C. The Variance In Defendant's Attempted Armed Robbery Charge and Conviction
¶ 93 Defendant next contends that a fatal variance existed between his attempted armed
robbery indictment and the proof and jury instructions as to that charge. The State responds that
defendant caused any variance between the indictment and the proof and conviction and thus
cannot claim that he was misled by it. Furthermore, the State argues, no fatal variance occurred,
as the indictment contained all of the essential elements of attempted armed robbery and
defendant is not subject to double jeopardy.
¶ 94 To be fatal, "a variance between the allegations in a criminal complaint and the proof at
trial must be material and be of such character as may mislead the defendant in making his or her
defense, or expose the defendant to double jeopardy." People v. Maggette, 195 Ill. 2d 336, 351
(2001). Where an indictment charges all of the essential elements of a crime, matters that are
unnecessarily added may be regarded as surplusage. People v. Collins, 214 Ill. 2d 206, 219
- 40 -
No. 1-12-0654
(2005). A complaint must state the name of the accused; set forth the name, date and place of the
offense; cite the statutory provision the defendant allegedly violated; and set forth in the statutory
language the nature and elements of the charged offense. Id.
¶ 95 Defendant's attempted armed robbery indictment alleged that on or about March 22,
2007, he, with the intent to commit armed robbery, "did any act, to wit: reached for Vito
Zaccaro's gun, which constituted a substantial step towards the commission of the offense of
armed robbery." At trial, defendant testified that he was not reaching for Zaccaro's gun, but
rather, his keys. During deliberations, the jury sent a note asking, "Is it attempted robbery on one
specific item or anything at all? Example: Pen, badge, socks, shoes… Anything or one item?"
The trial court responded to the jury, "Your instructions contain the definition of armed robbery.
Reread the instruction. This instruction does not make reference to a specific piece of property
and includes any property of the victim." The jury ultimately found defendant guilty of attempted
armed robbery but not guilty of disarming a peace officer. Based on the jury's findings,
defendant argues that it found him guilty of attempted armed robbery for attempting to take
Zaccaro's keys. Accordingly, he argues a fatal variance existed between the crime he was
charged with and the crime for which he was convicted.
¶ 96 Contrary to defendant's assertions, we find no fatal variance occurred. First, the allegation
that defendant reached for Zaccaro's gun was not a material element of the attempted armed
robbery charge. See People v. Lewis, 165 Ill. 2d 305, 340 (1995) (the essential elements of
robbery are "taking property by force or threat of force. Nothing more is required to sustain the
conviction."); see also People v. Santiago, 279 Ill. App. 3d 749, 754 (1996) (affirming the
defendant's armed robbery conviction even though the information named the wrong victim).
The indictment alleged that defendant, with the intent to commit armed robbery, by use of force
- 41 -
No. 1-12-0654
and while armed with a dangerous weapon other than a firearm, did any act which constituted a
substantial step towards the commission of the offense of armed robbery. Thus, the indictment
set forth all of the essential elements of attempted armed robbery, and the naming of the item that
defendant attempted to take from Zaccaro was surplusage.
¶ 97 Defendant's reliance on People v. Daniels, 75 Ill. App. 3d 35 (1979), does not convince
us otherwise. In Daniels, the defendants were charged with armed robbery for taking United
States currency from the victim. Id. at 40. At trial, however, the only evidence presented in
connection with the robbery related to the taking of a watch. Id. Furthermore, the State failed to
prove defendant took the watch. Id. at 41. Thus, the Daniels court reversed the defendants' armed
robbery convictions. Id. Unlike in Daniels, the evidence in this case was sufficient to establish
that defendant tried to take Zaccaro's keys. Defendant admitted as much at trial. Defendant notes
the Daniels court prefaced its discussion regarding the insufficiency of the evidence with the
phrase, "We note additionally ***." Id. Thus, defendant argues the insufficiency of the evidence
in Daniels had little bearing on the court's decision to reverse. However, our reading of Daniels
shows both the variance and the insufficiency of the evidence factored into the court's
determination that reversal was warranted.
¶ 98 In addition, the variance in defendant's case was not fatal because defendant is not
exposed to the possibility of double jeopardy. "If any future prosecution were attempted, prior
prosecution on the same facts could be proved by resort to the record." (Internal quotation marks
omitted.) People v. Lattimore, 2011 IL App (1st) 093238, ¶ 71. Furthermore, we disagree with
defendant that the variance in this case materially misled him. Notably, it was defendant and not
the State who caused the variance in this case. While defendant argues that he was misled in the
preparation of his defense, it is clear that any prejudice defendant suffered stemmed from his
- 42 -
No. 1-12-0654
own misapprehension of the law regarding the nature of indictments. Indeed, defendant
acknowledged after receiving the jury's note that he "had a misconception" about indictments.
Yet, the determination of whether a defendant is "materially misled" in the context of fatal
variance cases focuses on whether the State's introduction of evidence that was not alleged in the
indictment hampered the defendant's ability to prepare a defense. See, e.g., People v. Winford,
383 Ill. App. 3d 1, 5-6 (2008) (the record contained no indication that the indictment's reference
to cocaine misled defendant in making his defense or that the State's evidence surprised him, as
the record showed the defendant believed he was on trial for heroin and his sole defense was that
the State failed to prove his intent to deliver beyond a reasonable doubt); People v. Jones, 245 Ill.
App. 3d 674, 676-77 (1993) (the defendant was not misled in preparing her defense where the
indictment alleged the defendant exchanged a comforter for currency and the State's evidence
established she conveyed a comforter in exchange for a refund slip, as her defense had nothing to
do with whether she received a refund slip or currency in exchange for the comforter); People v.
Montgomery, 96 Ill. App. 3d 994, 996, 998 (1981) (the defendant could not have been misled in
preparing his defense where he was charged with the aggravated assault of one officer and the
officers' testimony at trial established the defendant pointed a gun at another officer, since "the
only issue [defendant] contested was whether he had a gun in his hand"). Where defendant
caused the variance in his case, he cannot claim he was misled in the preparation of his defense.
¶ 99 In so concluding, we find unpersuasive defendant's reliance on People v. Durdin, 312 Ill.
App. 3d 4 (2000), which he cites as providing an example of a situation like his wherein a
defendant conceded a criminal act other than the one specified in the charging instrument. In
Durdin, the defendant was charged with both delivery of cocaine within 1,000 feet of a public
school and delivery of heroin. Id. He conceded that he bought heroin for an undercover officer
- 43 -
No. 1-12-0654
but claimed entrapment. Id. Thus, the Durdin defendant's confession that he bought heroin was
not made in an attempt to defeat the language charging him with delivery of cocaine, but rather,
to refute his delivery of heroin charge. Furthermore, unlike defendant, the defendant in Durdin
was convicted of the wrong crime. Id. at 8. Here, defendant was convicted of the correct crime,
and "[i]t would be an exercise in pointless formalism for us to reverse" defendant's conviction.
Santiago, 279 Ill. App. 3d at 754.
¶ 100 D. Shackles During Jury Selection
¶ 101 Defendant next asserts that he was deprived of due process where the trial court allowed
him to remain shackled during jury selection without articulating the reasons establishing a
manifest need for his restraints. He contends the shackles inhibited his ability to represent
himself and prejudiced him in the eyes of the jurors, at least one of whom saw his restraints
despite the curtain placed around his table.
¶ 102 The shackling of a defendant is generally disfavored because (1) it tends to prejudice the
jury against the defendant, (2) it restricts the defendant's ability to assist his counsel during trial,
and (3) it offends the dignity of the judicial process. People v. Boose, 66 Ill. 2d 261, 265 (1977).
Nonetheless, a defendant may be shackled when the court has reason to believe the defendant
may try to escape, he may pose a threat to the safety of people in the courtroom, or shackling is
necessary to maintain order during trial. Id. at 266. Factors the court should consider in making
its determination regarding shackling may include "[t]he seriousness of the present charge
against the defendant; defendant's temperament and character; his age and physical attributes; his
past record; past escapes or attempted escapes, and evidence of a present plan to escape; threats
to harm others or cause a disturbance; self-destructive tendencies; the risk of mob violence or of
attempted revenge by others; the possibility of rescue by other offenders still at large; the size
- 44 -
No. 1-12-0654
and mood of the audience; the nature and physical security of the courtroom; and the adequacy
and availability of alternative remedies." (Internal quotation marks omitted.) Id. at 266-67. The
court should place its reasons for shackling on the record and provide defense counsel with an
opportunity to present reasons why the defendant should not be shackled. People v. Allen, 222
Ill. 2d 340, 353 (2006). We review a trial court's decision that shackling is necessary for an abuse
of discretion. People v. Urdiales, 225 Ill. 2d 354, 416 (2007). 4
¶ 103 We agree with defendant that the trial court violated his right to due process by failing to
undertake a Boose analysis and state the reasons for shackling on the record before requiring him
to remain shackled. We are guided by the supreme court's decision in Allen. There, the court did
not undertake a Boose analysis before requiring a defendant to wear a stun belt, instead deferring
to the sheriff's judgment. Allen, 222 Ill. 2d at 348. The supreme court held that the court's actions
violated the defendant's due process rights. Id. at 349. As in Allen, here, the trial court conducted
no Boose analysis and instead deferred to the DOC officers. When defendant asked prior to jury
selection whether his shackles could be removed, the court responded it would "leave it at
[DOC's] discretion." After defendant reminded the court that he had behaved appropriately at a
prior hearing without shackles, the court stated, "You are preaching to the choir. All you have to
do is talk to the men in charge. If you can convince those three men that you don't need leg
4
Defendant contends our standard of review is de novo, arguing the trial court's failure to make a
Boose analysis was undisputed and that the issue is therefore "the legal significance" of the
court's failure to comply with Boose. However, defendant has cited no authority applying a de
novo standard of review where a Boose analysis has not been conducted. To the contrary, Illinois
courts have continued to cite the abuse of discretion standard even where no Boose analysis is
made. See, e.g., Allen, 222 Ill. 2d at 354.
- 45 -
No. 1-12-0654
shackles, you don't have to have them on." Later, defendant asked the court whether his shackles
could be removed when trial "officially" commenced, and the court stated, "That's up to the
Illinois Department of Corrections." After defendant persisted in his argument, the court stated it
would take the matter under consideration and make a decision the following day. At the end of
jury selection, the court asked a DOC officer about defendant's shackles, and the officer
responded, "We keep them on unless you order them off." The court then entered an order that
defendant's shackles be removed for the remainder of trial. Thus, rather than conduct a Boose
analysis, the court initially deferred to the judgment of DOC but then subsequent to jury
selection, after consulting with DOC officers, ordered the shackles removed for the trial.
¶ 104 The State suggests that rather than initially defer to the DOC officers, the trial court in
fact agreed with them that defendant was a flight risk. Actually, the record shows that although
initially deferring to the DOC on this issue, the trial court to its credit maintained a continuous
dialogue with the defendant on the issue. At the same time, the trial court limited any prejudice
incurred by the defendant by utilizing curtains during jury selection and also questioning the
prospective jurors who noticed the shackles as to any effect that may have had on them.
Ultimately, through this ongoing discussion, the defendant was able to convince the trial court
that his shackles should be removed during trial based on his promises to comport himself
appropriately as well as the limitations the shackles would impose on him during the trial
process. In this regard, the trial court stated, at the end of jury selection, that it would sign an
order allowing defendant's shackles to be removed the following day, as "people usually like to
stand when they give their argument and move around a little bit." It is for these reasons, as well
as others discussed below, that we ultimately find the error here to be very limited and in fact
harmless.
- 46 -
No. 1-12-0654
¶ 105 Furthermore, because it is distinguishable, we find unpersuasive the State's reliance on
People v. Buss, 187 Ill. 2d 144, 217 (1999), abrogated on other grounds by In re G.O., 191 Ill.
2d 37, 46-50 (2000). In that case, the trial court did not state its reasons for requiring shackles
prior to trial but later explained at a posttrial hearing that the basis for its decision was courtroom
security, the serious nature of the offense with which the defendant was charged, and the large
courtroom audience. Id. Unlike in Buss, at defendant's posttrial motion in this case, the court did
not articulate why the shackles were necessary. In sum, we conclude the court violated
defendant's right to due process by failing to conduct a Boose hearing with regard to the shackles
during jury selection.
¶ 106 As defendant objected to his shackles at trial and in his posttrial motion, the State bears
the burden of establishing " 'beyond a reasonable doubt that the [shackling] error complained of
did not contribute to the verdict obtained.' " Deck v. Missouri, 544 U.S. 622, 635 (2005) (quoting
Chapman v. California, 386 U.S. 18, 24 (1967)); see also People v. Robinson, 375 Ill. App. 3d
320, 333 (2007) ("The improper shackling of a defendant may be harmless error."). Three
approaches exist for determining whether an error in a criminal trial is harmless under Chapman:
(1) focusing on the error to determine whether it might have contributed to the conviction, (2)
examining the other evidence in the case to see if overwhelming evidence supports the
defendant's conviction, and (3) determining whether the evidence is cumulative or merely
duplicates properly admitted evidence. In re A.H., 359 Ill. App. 3d 173, 183-84 (2005).
¶ 107 In this case, the evidence overwhelmingly supported defendant's convictions for
vehicular invasion, attempted armed robbery, and escape. At trial, defendant admitted that he
attempted to take Zaccaro's keys. He also admitted that he escaped, and the State strongly refuted
his necessity defense with evidence that he had been convicted of murder just three days before
- 47 -
No. 1-12-0654
his escape, for which he faced a lengthy prison sentence. Further, although defendant claimed
that his motive for escaping was an innocent one, his self-protection, his conduct as shown by the
evidence was less than innocent, as it was extremely violent. During this chaotic escape, he
inflicted injuries by stabbing or cutting no less than four people. Rimmer testified defendant
entered the bus and threatened Rimmer to drive while holding an object in his hand.
Furthermore, the record demonstrates that only one juror, McSorley, saw defendant's shackles,
and upon questioning, McSorley said the shackles would not impede his ability to be fair and
that he already knew defendant was being supervised based on the officers who were with
defendant. Even assuming any of the other jurors saw or heard defendant's shackles, those jurors
were already aware that defendant had been convicted of murder and was in custody for that
offense. Furthermore, defendant was also released from his shackles and able to move freely
about the courtroom for all portions of the trial except jury selection. Lastly, we are compelled to
note that the policy considerations underlying the Boose decision and its progeny do not apply
with equal force here. Based on the foregoing, we conclude the court's failure to conduct a Boose
analysis was harmless error.
¶ 108 Contrary to defendant's assertions, the jury's notes and the length of time it spent
deliberating does not show the evidence was close. While the jury sent notes during deliberation,
those notes merely sought clarification on different terms and expressed that it was deadlocked
on the kidnapping charge. However, the jury never stated that it was deadlocked on any of the
charges for which defendant was convicted. See People v. Wilmington, 2013 IL 112938, ¶ 35
(concluding the evidence was not closely balanced under the first plain-error prong where the
jury sent notes during deliberation but the record contained no indication "that the jury at any
time had reached an impasse or that the jurors themselves considered this a close case").
- 48 -
No. 1-12-0654
Likewise, "the length of time a jury deliberates is not always an accurate indicator of whether the
evidence was closely balanced." People v. Walker, 211 Ill. 2d 317, 342 (2004). The record does
not disclose when the jury's deliberations commenced or finished; however, it shows the jury
sent its first note at 2:15 p.m. and the court responded to the last note at 7:12 p.m. Given the
number of charges and all of the evidence in this case, nothing about the length of the juror's
deliberations leads us to conclude the evidence was close.
¶ 109 In sum, although the trial court erred when it failed to conduct a Boose analysis, we
conclude that the error was harmless.
¶ 110 E. Details About Defendant's Prior Murder Conviction
¶ 111 Defendant next contends that the State injected excessive and irrelevant details regarding
his prior murder conviction. Specifically, he contends the jury received a certified copy of
conviction, which revealed, among other things, that he faced charges in addition to murder, that
he was ordered to complete fitness examinations, that he was found guilty of seven counts of
murder, that he was sentenced to life in prison, that he lost his appeal, and that he filed a
postconviction petition that was denied. Defendant also notes that during cross-examination, the
State elicited that he faced charges in addition to murder and asked him whether he personally
discharged a firearm that caused death. Defendant was acquitted of aggravated kidnapping and
convicted of only one count of first degree murder. People v. Reese, No. 1-07-1681 (2009)
(unpublished order under Supreme Court Rule 23). Finally, defendant observes that although he
testified he could not recall the jury finding he personally discharged a firearm that killed the
victim, the State nonetheless argued that fact during closing argument. Based on all of the
foregoing, defendant argues we should reverse and remand for a new trial.
- 49 -
No. 1-12-0654
¶ 112 Initially, we agree with the State that defendant invited the introduction of any evidence
concerning his prior murder conviction. See People v. Carter, 208 Ill. 2d 309, 319 (2003) (under
the doctrine of invited error, a defendant may not request to proceed in one manner and then
claim on appeal that the course of action was erroneous). During a hearing on the State's motions
in limine, the trial court ruled that the State could indicate only that defendant "was in custody on
felony charges" and could not introduce defendant's murder conviction in its case-in-chief for
purposes of proving motive. The court further ruled that if defendant testified, the State could
introduce the murder conviction as impeachment and could introduce a certified copy of
conviction and cross-examine defendant on the fact that he was convicted of murder in order to
establish his motive. Before defendant testified at trial, the court reminded him that he would be
cross-examined by the State, which could use his murder conviction as impeachment. The court
told defendant that the State would be able to read in that he was convicted of first degree murder
but would not be able to discuss the facts of the conviction. The court further explained that if
defendant testified regarding a "necessity" defense, the State would be able to cross-examine him
and rebut his motive with his murder case.
¶ 113 Despite the trial court's admonishments, defendant elected to testify on his own behalf.
During his testimony, he maintained that he wanted to escape because he was attacked by guards
and he wanted to expose the inhumane conditions in jail. Thus, consistent with the trial court's
ruling, the State then introduced defendant's prior murder conviction and the sentence he faced in
that case to both impeach his credibility and to rebut his "necessity" defense on the escape
charge.
¶ 114 Moreover, even applying the plain-error doctrine, we find no cause for reversal. Under
the plain-error doctrine, we may consider an unpreserved claim of error where a clear or obvious
- 50 -
No. 1-12-0654
error occurred and either (1) the evidence is so closely balanced that the error alone threatened to
tip the scales of justice against defendant, regardless of the seriousness of the error, or (2) the
error is so serious that it affected the fairness of the defendant's trial and challenged the integrity
of the judicial process, regardless of the closeness of the evidence. People v. Belknap, 2014 IL
117094, ¶ 48. Our first step in plain-error review is determining whether error occurred. People
v. Thompson, 238 Ill. 2d 598, 613 (2010).
¶ 115 Evidence of other crimes is generally inadmissible to demonstrate a defendant's
propensity to commit crimes. People v. Donoho, 204 Ill. 2d 159, 170 (2003). However, a
defendant's prior conviction may be admitted for impeachment purposes. Ill. R. Evid. 609(a) (eff.
Jan. 1, 2011); People v. Mullins, 242 Ill. 2d 1, 14 (2011) (citing People v. Montgomery, 47 Ill. 2d
510, 516 (1971)). In addition, other-crimes evidence may be admissible to demonstrate motive.
Donoho, 204 Ill. 2d at 170.
¶ 116 First, the record does not support defendant's claim that the jury was given a copy of the
unredacted certified copy of conviction. When the State offered defendant's prior conviction into
evidence during rebuttal, it read to the jury only that "defendant was found guilty by a verdict of
guilty on the charge of first degree murder on March 19th, 2007." The court admitted the
statement of conviction and disposition into evidence but indicated it would give a limiting
instruction. Later, outside the presence of the jury, the State expressed that it was "going to send
back all of [its] exhibits" to the jury "except for the Grand Jury transcript and the certified copy."
The court responded, "Right. The Grand Jury transcript doesn't go back, everything else does."
Thus, although the court stated only that the grand jury transcript would not be given to the jury,
reading the court's response in conjunction with the State's comment makes clear that the State
did not give the jury the certified copy of conviction. Absent any evidence that the certified copy
- 51 -
No. 1-12-0654
was actually brought to the jury room, we will not accept defendant's invitation to speculate that
it was.
¶ 117 Turning to the State's cross-examination of defendant, we find no impropriety in the
State's questioning of defendant as to whether the jury found he personally discharged a weapon.
During his testimony, defendant maintained that he wanted to escape out of necessity after being
beaten by prison officials. He also testified that he was convicted of a murder he did not commit.
Thus, the State properly sought to refute defendant's testimony by establishing that he faced a
life sentence. It was not just defendant's murder conviction but also the jury's finding that he
personally discharged a weapon that exposed defendant to such a lengthy sentence. Defendant
points out that the jury was never told the firearm finding exposed him to a life sentence;
however, it was through its questioning of defendant that the State sought to explain that the
finding did, in fact, expose defendant to a potential life sentence. In sum, where defendant
testified that he tried to escape out of necessity, the State was entitled to present evidence of the
jury's finding to establish defendant faced a potential life sentence and sought to escape for that
reason and not, as he claimed, to avoid another beating and to expose the inhumane conditions of
the jail.
¶ 118 Additionally, we find defendant's argument that it was improper for the State to include
in its closing argument the fact that the murder conviction was accompanied by a finding that
defendant personally discharged a firearm that caused death to be wholly without merit.
Defendant contends that this fact was not admitted by defendant on cross-examination and was
not proved up by the State. This argument ignores, however, that this factual assertion was
correct and that the certified copy of conviction, which included all the matters defendant was
convicted of, was admitted into evidence even though it was not given to the jury. Further,
- 52 -
No. 1-12-0654
defendant's argument that the prosecutor's passing remark on cross-examination that defendant
was charged with murder, "among other things," was improper is also without merit. First, this
was a brief, passing remark, and second, this remark may be interpreted to be a reference to the
additional allegation concerning the discharge of the firearm.
¶ 119 In sum, we find no error in that regard.
¶ 120 F. Defendant's Waiver of Counsel
¶ 121 Defendant next contends that the trial court failed to substantially comply with Rule
401(a), thereby rendering his waiver of counsel invalid. Acknowledging that he has forfeited
review of his claim by failing to object at trial, defendant urges us to consider the matter under
the plain-error doctrine. Our first step in plain-error review is to determine whether error
occurred. Thompson, 238 Ill. 2d at 613.
¶ 122 The sixth amendment guarantees a defendant in a criminal proceeding "both the right to
the assistance of counsel and the correlative right to proceed without counsel." People v. Haynes,
174 Ill. 2d 204, 235 (1996) (citing Faretta v. California, 422 U.S. 806, 833-34 (1975)). A
defendant may waive his right to counsel if his waiver is voluntary, knowing, and intelligent. Id.
To that end, Rule 401(a) sets forth certain admonishments that the trial court must provide before
a defendant may be found to have knowingly and intelligently waived counsel. Id. at 235-36.
Specifically, the court must inform the defendant and determine that he understands (1) the
nature of the charge, (2) "the minimum and maximum sentence prescribed by law, including,
when applicable, the penalty to which the defendant may be subjected because of prior
convictions or consecutive sentences," and (3) that he has a right to counsel and to have counsel
appointed if he is indigent. Ill. S. Ct. R. 401(a) (eff. July 1, 1984). Strict compliance with Rule
401(a) is not always required. Haynes, 174 Ill. 2d at 236. Instead, substantial compliance is
- 53 -
No. 1-12-0654
sufficient to effectuate a valid waiver of counsel if the record shows the defendant made his
waiver knowingly and voluntarily and the admonishment he received did not prejudice his rights.
Id. We review the trial court's compliance with Rule 401 de novo. People v. Wright, 2015 IL App
(1st) 123496, ¶ 46.
¶ 123 Here we find that the trial court substantially complied with Rule 401(a). Defendant's
sole argument as to the insufficiency of the court's admonishments is that it failed to inform him
that any potential prison sentence would run consecutive to the sentence imposed for his murder
conviction. However, even assuming that Rule 401(a)(2) required the court to provide such an
admonishment, the record clearly reflects that defendant's waiver of counsel was knowing and
voluntary despite the absence of that admonishment. The court informed defendant that he faced
a sentence of up to 160 years on two of the attempted murder charges alone. The court also told
defendant he was "looking at massive time" if he was convicted. Defendant indicated that he
understood. The court then continued by explaining the extended-term sentences that could apply
to defendant's other charges. When the court asked defendant whether he understood, defendant
responded, "Perfectly, Your Honor, perfectly."
¶ 124 Thus, defendant clearly understood that he faced up to 160 years in prison on just two of
the charges alone. He also knew that he was already serving a natural life sentence for his murder
conviction. Based on the foregoing, defendant cannot claim that his waiver was not knowingly or
intelligently made simply because the court did not inform him that his sentences would run
consecutive to his murder sentence. See People v. Campbell, 224 Ill. 2d 80, 84 (2006) (the
purpose of Rule 401(a) "is 'to ensure that a waiver of counsel is knowingly and intelligently
made' " (quoting Haynes, 174 Ill. 2d at 241)). Whether defendant believed he would serve the
possible 160-year sentence concurrent with or consecutive to the natural life sentence he was
- 54 -
No. 1-12-0654
already serving, defendant knew that he faced a possible 160-year sentence, which meant that he
would spend the rest of his life in prison even if his prior murder conviction was overturned. For
this reason, People v. Koch, 232 Ill. App. 3d 923 (1992), is distinguishable. There, the trial court
admonished the defendant that he could receive a one- to three-year prison sentence but later
imposed a five-year extended-term sentence. Id. at 925-26. By contrast, the court in this case told
defendant he could serve 160 years in prison on just two charges, thereby admonishing defendant
that he could spend the rest of his life in prison. Based on the foregoing, we conclude the court
substantially complied with Rule 401(a).
¶ 125 G. Extended-Term Sentences
¶ 126 Defendant next argues that the trial court's imposition of extended term sentences on all
of his convictions was improper. The State concedes this error, and agrees that an extended term
sentence was only authorized for those convictions within the most serious class of offenses.
¶ 127 When a defendant has been convicted of multiple offenses of differing classes, the trial
court may impose an extended-term sentence only for the conviction or convictions that fall
within the most serious class of offenses. People v. Jordan, 103 Ill. 2d 192, 206 (1984).
However, extended-term sentences may be imposed "on separately charged, differing class
offenses that arise from unrelated courses of conduct." People v. Coleman, 166 Ill. 2d 247, 257
(1995). To determine whether multiple convictions arise from unrelated courses of conduct, we
must consider "whether there was a substantial change in the nature of the defendant's criminal
objective." People v. Bell, 196 Ill. 2d 343, 354 (2001). Although defendant failed to challenge his
extended-term sentences in the trial court, a sentence or portion thereof that is unauthorized by
statute is void and may be attacked at any time or in any court. People v. Thompson, 209 Ill. 2d
19, 23, 27 (2004).
- 55 -
No. 1-12-0654
¶ 128 As the parties concede, the record in this case reflects that defendant's criminal objective
throughout the commission of his crimes was to escape. During sentencing, the trial court
expressly rejected the idea that defendant's escape was completed prior to the later offenses.
Based on the foregoing, we agree with the parties that defendant's convictions did not arise from
unrelated courses of conduct. Therefore, the court could only impose an extended term sentence
on the offenses within the most serious class of felony.
¶ 129 As we have reversed defendant's conviction for Class X vehicular hijacking, the
remaining offenses within the most serious class are defendant's Class 1 convictions for
vehicular invasion (720 ILCS 5/12-11.1(b) (West 2006)) and attempted armed robbery (720
ILCS 5/8-4(c)(2), 18-2(a)(1), (b) (West 2006)). We therefore affirm the 30-year extended term
sentences imposed on those two offenses, which were made consecutive to the life sentence
defendant is serving on his prior murder conviction.
¶ 130 As to defendant's remaining Class 2 felony escape conviction, we conclude that it must
be reduced to a nonextended term. Where, as here, "it is clear from the record the trial court
intended to impose the maximum available sentence, we may use our power under Illinois
Supreme Court Rule 615(b)(4), to reduce the sentence to the maximum nonextended term
sentence." People v. Ware, 2014 IL App (1st) 120485, ¶ 32. Accordingly, we reduce defendant's
sentence for escape to seven years, which is the maximum nonextended term for committing a
Class 2 felony. 720 ILCS 5/31-6 (West 2006); 730 ILCS 5/5-8-1(a)(5) (West 2006) (now
codified as 730 ILCS 5/5-4.5-35(a)).
¶ 131 III. CONCLUSION
¶ 132 For the reasons stated, we reverse defendant's conviction for aggravated vehicular
hijacking, and affirm his convictions for vehicular invasion, attempted armed robbery, and
- 56 -
No. 1-12-0654
escape. We affirm defendant's 30-year extended term sentences for vehicular invasion and
attempted armed robbery, and reduce his sentence for escape to 7 years.
¶ 133 Reversed in part, affirmed in part, and modified in part.
¶ 134 JUSTICE PALMER, specially concurring in part and dissenting in part:
¶ 135 A. Shackling During Jury Selection – Special Concurrence
¶ 136 I agree with the majority that the trial court should have conducted a Boose analysis, but
that any error in that regard was harmless. I write separately on this issue to additionally point
out that the policy considerations underlying the Boose decision and its progeny do not apply
with equal force here. At the core of these cases is the recognition that unnecessary restraint runs
afoul of the presumption of innocence and demeans both the defendant and the proceedings. See
Allen, 222 Ill. 2d at 368 (quoting In re Staley, 67 Ill. 2d 33, 37 (1977)). This case however is
unique, as the defendant here did not enjoy the presumption of innocence with regard to the
charge of first degree murder. He had already been convicted of that charge and the jury in this
case was so informed. It cannot be said therefore that the limited period of shackling he endured
deprived him of a presumption of innocence, as he no longer enjoyed that presumption. Nor can
it reasonably be argued that it demeaned the defendant or the proceedings, as he was a convicted
murderer who also admitted that he attempted to escape from custody. Based on these policy
considerations as well as all the other reasons set forth in the majority opinion, I agree that the
court's failure to conduct a Boose analysis was harmless error.
¶ 137 B. Aggravated Vehicular Hijacking – Dissent
¶ 138 The majority concludes that the defendant’s conduct did not constitute aggravated
vehicular hijacking because even though the defendant commandeered the bus at knifepoint, he
did not literally “take” the vehicle away from the bus driver by dispossessing him of the vehicle.
- 57 -
No. 1-12-0654
In other words, as the defendant did not throw the driver off the bus but rather forced the driver
to drive him some distance at knifepoint, this was not a hijacking. In coming to this conclusion
the majority relies on a prior precedent from this district, McCarter, which in turn relied on our
supreme court’s decision in Strickland, interpreting the word “takes” in our robbery statute, as
well as several time-honored rules of statutory construction. Most respectfully, I cannot concur
in this result, as I do not believe that it is mandated by Strickland, the legislative history, or rules
of statutory construction. The majority’s narrow interpretation of the word “takes” here is in
sharp contrast to the much broader meaning found in every federal circuit case and every state
court case, save Indiana’s, that my research has disclosed in which the courts considered almost
identical language. I cannot accept the conclusion that the legislature meant Illinois to be an
outlier on this issue. The majority’s decision to reject the most often accepted interpretation of
the word “takes” in this context, as meaning to deprive one of control, violates the rule of
statutory construction that we must presume the legislature did not intend an absurd result. I do
not believe this to be the true intent of our legislature.
¶ 139 To sustain defendant's aggravated vehicular hijacking conviction, the State was required
to show that he committed vehicular hijacking while armed with a dangerous weapon other than
a firearm. 720 ILCS 5/18-4(a)(3) (West 2006). A person commits vehicular hijacking when he
takes a motor vehicle from the person or immediate presence of another by the use of force or by
threatening the imminent use of force. 720 ILCS 5/18-3(a) (West 2006). In arguing that the
undisputed facts of his case did not amount to vehicular hijacking, defendant has presented a
matter of statutory construction; accordingly, our review is de novo. People v. Brown, 2013 IL
114196, ¶ 35.
- 58 -
No. 1-12-0654
¶ 140 In interpreting a statute, our primary objective is to ascertain and give effect to the
legislature's intent. People v. Baskerville, 2012 IL 111056, ¶ 18. The best indication of the
legislature's intent is the language of the statute, given its plain and ordinary meaning. People v.
Gaytan, 2015 IL 116223, ¶ 23. In addition, we "may consider the purpose and necessity for the
law as well as the consequences that would result from construing the statute one way or the
other." Id. In construing statutory language, we presume the legislature "did not intend absurdity,
inconvenience, or injustice." Brown, 2013 IL 114196, ¶ 36. We also give the language the fullest,
rather than the narrowest, meaning possible. People v. Simpson, 2015 IL 116512, ¶ 30.
¶ 141 In McCarter, the defendant was convicted of aggravated vehicular hijacking based on
evidence that he and his brother kidnapped a victim from the victim's driveway by entering the
victim's car, armed, while the victim sat in the driver's seat. McCarter, 2011 IL App (1st)
092864, ¶ 78. Later, the victim was discovered in his burned out car, still behind the wheel. Id.
On appeal, the defendant argued the State failed to establish he "took" the victim's car within the
meaning of the vehicular hijacking statute. Id. ¶ 71. Specifically, he asserted that to "take" a
vehicle, he had to physically remove or dispossess the owner from the owner's car. Id. ¶ 72. In
considering the defendant's argument, our court noted that no published decision had been issued
as to whether a defendant could "take" a vehicle, within the meaning of the vehicular hijacking
statute, by forcing the victim to drive his car to another location. Id. ¶ 74. Accordingly, we
looked to the supreme court's decision in Strickland, 154 Ill. 2d at 525, in which it considered the
"taking" element of the robbery statute (citing Ill. Rev. Stat. 1985, ch. 38, ¶ 18-1). McCarter,
2011 IL App (1st) 092864, ¶¶ 75-76.
¶ 142 In Strickland, the defendant and his brother ordered a man at gunpoint to drive them to
California. Strickland, 154 Ill. 2d at 499. The defendant and his brother then got into the backseat
- 59 -
No. 1-12-0654
of the victim's car, and the victim drove them to the downtown area of Chicago. Id. Eventually,
the defendant and his brother exited the car and ran away. Id. at 500. On appeal, the defendant
argued no evidence was presented that he took the vehicle from the victim because the victim
remained in operation of the car throughout the time the defendant and his brother were present.
Id. at 525. In response, the State argued the defendant and his brother effectively controlled the
use of the victim's vehicle such that they were in constructive possession of the vehicle. Id.
¶ 143 The supreme court agreed with the defendant that the evidence was insufficient to sustain
his armed robbery conviction, noting that the offense of robbery was " 'complete when force or
threat of force causes the victim to part with possession or custody of property against his will.' "
Id. at 526 (quoting People v. Smith, 78 Ill. 2d 298, 303 (1980)). The Strickland court reasoned
that no evidence was presented that the victim's car was ever taken from him. Id. It noted that
although the defendant and his brother's actions "certainly denied [the victim] a large measure of
control over his vehicle," the defendant and his brother never removed the vehicle from the
victim's actual possession. Id. Thus, the supreme court reversed the defendant's armed robbery
conviction. Id.
¶ 144 In reviewing the Strickland decision, the McCarter court noted that the supreme court
had implicitly rejected the State's argument that "taking control over the victim's car in his
presence" was sufficient to effectuate a "taking," as the supreme court gave no weight to the
defendant's actions that denied the victim a large amount of control over his car. McCarter, 2011
IL App (1st) 092864, ¶ 78. Because, as in Strickland, no evidence was presented that the victim
was ever dispossessed of his car, the McCarter court stated that it was "compelled to conclude
that the State failed to establish the taking element." Id. ¶ 79. Justice Gordon dissented due to the
- 60 -
No. 1-12-0654
majority's failure to consider whether burning out the vehicle deprived the owner or his
successor in interest of possession or custody of the vehicle. Id. ¶ 120 (Gordon, J., dissenting).
¶ 145 The State contends that the McCarter court should not have relied exclusively on
Strickland, which dealt only with the armed robbery statute. The State posits that the decision in
Strickland was driven in large part by the historical and common law roots of the offense of
armed robbery, which included the understanding that the completion of armed robbery required
the removal of an item from the victim. According to the State, the vehicular hijacking statute is
not beholden to such historical reasoning, given that it was created in 1993. See Pub. Act 88-351,
§ 5 (eff. Aug. 13, 1993) (creating the offenses of vehicular hijacking and aggravated vehicular
hijacking). The State contends the legislature's decision to carve the taking of cars out of the
robbery statute and create the vehicular hijacking statute shows it intended vehicular hijacking to
be analyzed on its own terms, particularly in light of the fact that vehicles are different than other
objects "taken." In sum, the State argues a "hijacking" should not require the physical
dispossession of a victim from his vehicle.
¶ 146 In interpreting the federal carjacking statute, The Ninth Circuit recognized that
interpreting the "taking" element as requiring the physical relinquishment of a vehicle would be
unduly restrictive. See United States v. DeLaCorte, 113 F.3d 154, 156 (9th Cir. 1997). Similar to
Illinois' hijacking statute, the federal carjacking statute applies when a defendant "takes a motor
vehicle *** from the person or presence of another by force and violence or by intimidation, or
attempts to do so." 18 U.S.C. § 2119 (2006). In DeLaCorte, the defendant pointed a gun at the
victim, entered the passenger side of the victim's truck with his companion, and ordered the
victim to drive to a specific location. DeLaCorte, 113 F.3d at 155. The Ninth Circuit concluded
the defendant "took" the victim's truck even though the victim was never forced to leave it. Id. at
- 61 -
No. 1-12-0654
156. The court reasoned that interpreting a "taking" as requiring the physical relinquishment of a
vehicle ignored that a defendant could take control of a vehicle from its owner even though the
victim remained in the car and continued to drive it. Id. The court further reasoned that the
crucial elements of the carjacking statute were "force and violence" and "intimidation," and a
victim forced to remain in the car with his assailant, subject to continuing threats and possible
violence, often faced greater intimidation and threat of violence than a victim who was
immediately released. (Internal quotation marks omitted.) Id. Thus, the court concluded the
carjacking statute did not require a showing that the victim was forced out of his vehicle. Id.; see
also United States v. Gurule, 461 F.3d 1238, 1243-44 (10th Cir. 2006) (the evidence was
sufficient to satisfy the "taking" element of the carjacking statute, despite the defendant's
contention that his motive in acquiring possession or control of the vehicle was to receive a
"ride," as the defendant's subjective motive was irrelevant and the evidence showed he entered
the victim's home and forced the victim at knife point and repeated threats to drive him to a
particular location). In addressing defendants' arguments relating to other components of the
federal carjacking statute, other circuit courts have likewise affirmed the defendants' convictions
where the victims were not in the driver's seat but remained somewhere in the car. See, e.g.,
United States v. Castro-Davis, 612 F.3d 53, 57, 61-62 (1st Cir. 2010) (the victim was transported
in the backseat of his car); United States v. Moore, 73 F.3d 666, 669 (6th Cir. 1996) (a cab driver
was forced out of the cab and into the trunk at gunpoint). The majority acknowledges the
holdings of these cases but contrasts them with Strickland. However, again, as the State points
out, there is substantial federal precedent on carjacking, and Strickland is an armed robbery case.
The Illinois Supreme Court has not spoken on this issue in this context while these cases have
specifically done so.
- 62 -
No. 1-12-0654
¶ 147 Several state courts have also recognized that to "take" or "obtain" a vehicle under similar
state statutes, a defendant need not remove the victim from the car. See Williams v. State, 990
So. 2d 1122, 1123 (Fla. Dist. Ct. App. 2008) (affirming the defendant's conviction for carjacking,
which prohibits the taking of a motor vehicle from the person or custody of another, where he
jumped into two victims' vehicles and ordered them to drive; a defendant "need not be in
physical control of the vehicle" but instead must merely obtain control over the driver through
force or violence, threats, or placing the driver in fear); People v. Duran, 106 Cal. Rptr. 2d 812,
816 (Cal. Ct. App. 2001) (a "taking" occurred, even though the victims remained in the car, when
the defendant imposed his dominion and control over the car by ordering one victim to drive at
gunpoint); Bruce v. State, 555 S.E.2d 819, 822-23 (Ga. Ct. App. 2001) (affirming the defendant's
conviction for hijacking a motor vehicle where he ordered a cab driver to drive him at knifepoint;
the concept of "obtaining" a motor vehicle encompassed acquiring control of the vehicle
regardless of whether the victim remained inside the vehicle); People v. Green, 580 N.W.2d 444,
450 (Mich. Ct. App. 1998) (a victim need not be physically separated from a vehicle for a
defendant to "take" the victim's car). In Winstead v. United States, 809 A.2d 607, 609, 611 (D.C.
2002), the District of Columbia Court of Appeals affirmed the defendant's conviction for
carjacking, concluding the defendant took "immediate actual possession" of the victim's car
when, after ordering the victim to get into her car, the defendant ordered her to drive at gunpoint.
Id. at 611. The Winstead court recognized that, "[w]hile [the victim] remained at the wheel, it
was [the defendant] who directed her movements and usurped actual physical control of the
vehicle. It was no less a carjacking because [the defendant] took his victim along with the car."
Id.; but see Burton v. State, 706 N.E.2d 568, 569 (Ind. Ct. App. 1999) (Concluding that
carjacking and kidnapping were distinct offenses, as the carjacking statute "specifically
- 63 -
No. 1-12-0654
contemplates that the person who takes the vehicle leaves the person from whom the vehicle is
taken at the scene. If the occupant remains in the vehicle being taken, there is no crime of
carjacking."). 5
¶ 148 While not binding on our court, "comparable court decisions of other jurisdictions are
persuasive authority and entitled to respect." (Internal quotation marks omitted.) Andrews v.
Gonzalez, 2014 IL App (1st) 140342, ¶ 23. Here, I find the cases holding that a defendant need
not remove his victim from the car to be more persuasive than our decision in McCarter. As the
McCarter court recognized, the vehicular hijacking statute is written in the same way that the
armed robbery statute is written. However, the physical characteristics of a car make it different
than other objects that are taken in a robbery in that a defendant can use a car for his own
purposes by merely taking control of the car from the victim rather than taking the actual car
away. Furthermore, as the DeLaCorte court recognized, in some instances, a victim forced to
drive a defendant around at gunpoint will suffer more prolonged fear and danger than a victim
removed from his car after only a brief interaction with a defendant. However, if vehicular
hijacking required the dispossession of a victim from his car, then a defendant who removed his
victim from the car before driving away would be guilty of vehicular hijacking but a defendant
who forced his victim to remain in the driver's seat would not. Viewed another way, if vehicular
hijacking applied only when a victim was forced out of the driver's seat, a defendant would have
5
I note that Michigan's hijacking statute has been modified since the decision in Green and
Indiana's hijacking statute has been repealed since the decision in Burton. See Ind. Code Ann. §
35-42-5-2 (West 2014); Mich. Comp. Laws Ann. § 750.529a (West 2014). However, to the
extent that Green and Burton considered language similar to our statutory language, I find they
continue to provide guidance regarding the meaning we should ascribe to our statute.
- 64 -
No. 1-12-0654
the incentive to force his victim to remain in the driver's seat rather than remove the victim from
the car. This cannot have been the legislature's intent. See Brown, 2013 IL 114196, ¶ 36 (when
interpreting statutory language, we presume the legislature did not intend absurdity or injustice).
Moreover, a defendant who forces his victim to drive his vehicle, under the threat or use of force,
can cause just as much danger to others on the road as a defendant who actually drives the car
himself.
¶ 149 In addition, I find it significant that in removing the taking of vehicles from the robbery
statute, the legislature elected to call the offense "vehicular hijacking" instead of, for example,
“robbery of a vehicle.” See Alvarez v. Pappas, 229 Ill. 2d 217, 230-31 (2008) (a statute's title
may provide guidance as to a statutory term's meaning if the term is ambiguous). "Hijack" is
defined, in relevant part, as "[t]o commandeer (a vehicle or airplane), esp. at gunpoint." Black's
Law Dictionary 735 (7th ed. 1999); see also Merriam-Webster's Collegiate Dictionary 548 (10th
ed. 1995) (defining "hijack" as, among other things, "to steal by stopping a vehicle on the
highway" and "to commandeer (a flying airplane) esp. by coercing the pilot at gunpoint"). Thus,
the plain and ordinary meaning of the word "hijack" does not include a requirement that a
vehicle be taken away from the victim. Rather, the ordinary meaning of "hijack" includes an
understanding that a defendant can "hijack" a vehicle by simply obtaining control of it. It states
the obvious that one who commandeers an airplane in midflight is guilty of hijacking even
though he has not forced the occupants to leave the plane in midair.
¶ 150 In support of their respective positions, both defendant and the State rely on portions of
the General Assembly debates concerning the vehicular hijacking statute. See Simpson, 2015 IL
116512, ¶ 30 (if a statute is ambiguous, i.e., subject to two or more reasonable interpretations, we
may consider other sources, such as the legislative history, to determine the legislature's intent).
- 65 -
No. 1-12-0654
It must be noted that the word "taking" in this context is obviously ambiguous as there are
several opinions throughout the country and the federal system that ascribe different meanings to
the word in this context. The legislative history makes abundantly clear that the legislature
intended the vehicular hijacking statute to apply when a victim is removed from his car. Yet, the
debates do not warrant the conclusion that removing a victim from a car is the only way in which
a defendant can commit vehicular hijacking. To construe the statute as requiring the defendant to
dispossess the victim of his car would have the effect of weakening and narrowing the scope of
the statute, despite the legislature's clear concern with the danger and havoc that vehicular
hijacking causes and its desire to send a strong message to would-be hijackers.
¶ 151 It is clear from the debates that our legislature was responding to a serious violent threat
that had appeared as “a new genre of crime” and was on the rise. The legislature clearly
intended this legislation to be a strong response to this dangerous trend. It does not follow
therefore, that we should take so narrow an interpretation of the statute when it is clear that the
legislature intended to enact a strong response to this danger. In fact, I find it most notable that in
discussing House Bill 35, Representative Novak described the proposal as being, “stronger than
the one that we have on the federal level because the federal carjacking Bill only applies if the
defendant was armed with a firearm.” 88th Ill. Gen. Assem., House Proceedings, April 20, 1993,
at 164 (statements of Representative Novak).While Representative Novak was referring to the
firearm component, I find it disconcerting that the legislator was claiming that Illinois’
legislation was stronger than the federal response and yet today the majority is making it weaker
than its federal counterpart by way of interpreting the very same language, “takes.”
¶ 152 The majority attempts to distinguish the federal hijacking statute from ours by noting that
it includes language applying to situations “in which a defendant merely attempts to take a motor
- 66 -
No. 1-12-0654
vehicle.” Supra ¶ 72. The majority characterizes this as a glaring difference. I find that this
attempt to distinguish these statutes fails for at least two reasons. First, our legislative scheme
separately provides for criminal responsibility for the inchoate crime of attempt (720 ILCS 5/8-
4(a) (West 2006)) ("A person commits the offense of attempt when, with intent to commit a
specific offense, he or she does any act that constitutes a substantial step toward the commission
of that offense.") As a result, in Illinois, choate crimes, such as vehicular hijacking, can also be
attempted. The only difference is that the federal scheme provides for this in the same paragraph.
As a result, I find the contention that the federal statute is broader because of this attempt
language to be without basis. Second, and most importantly, the fact that the federal statute
includes attempt language is irrelevant for this discussion. None of the federal circuit cases cited
above relied on attempt language in their rulings, rather they interpreted the word “takes,” which
appears in both statutes, in its broadest sense to include the deprivation of control. These cases
are in direct conflict to McCarter, this conflict cannot be distinguished away, and we should
meet the conflict head-on. Tellingly, at oral argument, when asked about the attempt language in
the federal statute and whether that is a distinguishing factor, both defendant’s own attorney, the
assistant State Appellate Defender, and the assistant State’s Attorney agreed that it was irrelevant
for this discussion. Specifically, defendant’s attorney rejected the notion that this crime could be
characterized as an attempt and agreed that the federal attempt language did not enter into this
calculation. Similarly, the prosecutor stated the attempt language in the federal statute is “a
distinction without a relevant difference in this case” and that this language, as well as other
additional language therein, were “not really relevant distinctions for the questions before this
court.” I completely agree with both attorneys. This case has nothing to do with the crime of
attempt. The cases I have cited do not refer to any attempt language and neither does McCarter.
- 67 -
No. 1-12-0654
Their holdings only concern the actual taking of a motor vehicle, not the attempt to do so. They
are in conflict with our McCarter decision. We should resolve the conflict and not be led down
the blind alley of attempt.
¶ 153 One last point on the rule of lenity. The majority briefly refers to the rule of lenity and
argues that it constrains us to interpret the word “takes” here in such a way as to favor the
defendant. However, our supreme court has repeatedly stated "that the rule of lenity must not be
stretched so far or applied so rigidly as to defeat the legislature’s intent." People v. Gutman, 2011
IL 110338, ¶ 43. In Gutman, our supreme court cited to the United States Supreme Court’s
explanation of how the rule of lenity is to be applied as follows.
“ 'Finally, petitioners and the dissent invoke the "rule of lenity." The simple
existence of some statutory ambiguity, however, is not sufficient to warrant
application of that rule, for most statutes are ambiguous to some degree. Cf.
Smith, 508 U.S., at 239 ("The mere possibility of articulating a narrower
construction ... does not by itself make the rule of lenity applicable"). " 'The rule
of lenity applies only if, "after seizing everything from which aid can be derived,"
... we can make "no more than a guess as to what Congress intended." ' " United
States v. Wells, 519 U.S. 482, 499 (1997) (quoting Reno v. Koray, 515 U.S. 50, 65
(1995), in turn quoting Smith, supra, at 239, and Ladner v. United States, 358
U.S. 169, 178 (1958)). To invoke the rule, we must conclude that there is a " '
"grievous ambiguity or uncertainty" ' in the statute." Staples v. United States, 511
U.S. 600, 619, n.17 (1994) (quoting Chapman v. United States, 500 U.S. 453, 463
(1991)). Certainly, our decision today is based on much more than a "guess as to
what Congress intended," and there is no "grievous ambiguity" here. The problem
- 68 -
No. 1-12-0654
of statutory interpretation in these cases is indeed no different from that in many
of the criminal cases that confront us. Yet, this Court has never held that the rule
of lenity automatically permits a defendant to win.' Muscarello v. United States,
524 U.S. 125, 138-39 (1998).
See also Santos, 553 U.S. at 548, 128 S. Ct. 2020 (Alito, J., dissenting, joined by
Roberts, C.J., Kennedy and Breyer, JJ.) ('the rule of lenity does not require us to
put aside the usual tools of statutory interpretation or to adopt the narrowest
possible dictionary definition of the terms in a criminal statute')."Id.
¶ 154 In applying these lessons from the United States Supreme Court as well as our own
supreme court, I cannot find that our statute contains a “grievous ambiguity or uncertainty,”
especially in light of the fact that so many courts have had no trouble giving similar statutes a
broad interpretation. Further, in applying the rule of lenity, we should not put aside the rule of
statutory construction that warns us of achieving an absurd result. We are also not required to
adopt the narrowest possible dictionary definition of the terms in a criminal statute, especially
where as here, the word hijacking is ordinarily defined as the commandeering of a vehicle.
¶ 155 In coming to the conclusion that the majority’s decision leads to an absurd legislative
result, I have noted that it makes Illinois an outlier on this issue. Additionally, as noted above, it
is appropriate to consider the consequences that would result from construing the statute one way
or the other. See Gaytan, 2015 IL 116223, ¶ 23. Interpreting the statute broadly would put
Illinois in line with most jurisdictions, would effectuate the legislature’s desire to enact a strong
response to a growing problem, and accept the common dictionary definition of hijacking. On
the other hand, interpreting the statute as narrowly as defendant and the majority suggests could
lead to many absurd scenarios. Suppose a similarly escaping felon suddenly commandeers a
- 69 -
No. 1-12-0654
shuttle bus at knifepoint and forces the driver to head north to Wisconsin. Throughout the long
drive north the driver’s life is in constant danger. However, just before the Wisconsin border, say
at Russell Road, the offender tells the driver to stop and he jumps off the bus. At this point, under
the majority’s strict interpretation of the word “takes,” the offender has not committed
aggravated vehicular hijacking. This is so even though the offender was in complete control of
the bus from the moment he entered it. If however, the offender allowed the bus to cross the state
line into Wisconsin, then he would have committed federal carjacking. Lastly, if the offender had
put the driver off the bus at the outset, and driven it away himself, he would have committed the
more serious offense of aggravated vehicular hijacking, even though the bus driver was subjected
to far less danger. I cannot agree that this can be interpreted to be our legislature’s intent.
¶ 156 In sum, although vehicular hijacking is defined in the same manner that robbery is
defined, I agree with the State that the legislature intended vehicular hijacking to be interpreted
on its own terms, particularly given that vehicles are different than objects normally taken during
a robbery. For the reasons stated, I would thus respectfully depart from our holding in McCarter
and conclude that a defendant can "take" a vehicle even if he does not dispossess the victim of
the vehicle. As to our supreme court's decision in Strickland, I acknowledge that the legislature
utilized the same "taking" language as was in issue there. I further acknowledge the rule of
statutory construction that we are to presume the legislature was aware of how that language has
been construed in the courts. See supra ¶ 67. However, I first note that Strickland was
interpreting the language of our robbery statute and that the vehicular hijacking statute did not
yet exist. Further, I find the State's argument persuasive that the legislature saw fit to
subsequently enact a separate and distinct offense, entitled vehicular hijacking, dealing only with
vehicles and that it should be interpreted on its own terms. In that regard, I also find persuasive
- 70 -
No. 1-12-0654
the abundant federal precedent that recognizes that a vehicle is uniquely different than other
forms of property that could be taken in a robbery. Lastly, I find that the narrow interpretation of
the statute utilized by the majority produces an absurd legislative result.
¶ 157 In this case, Rimmer testified that defendant held an object in front of his face and
threatened to stab him in the neck if he did not drive, causing him to drive the bus some distance.
Under these circumstances, defendant obtained control over Rimmer's vehicle; thus, I would find
the evidence was sufficient to establish defendant "took" Rimmer's vehicle. Accordingly, I would
affirm defendant's conviction for aggravated vehicular hijacking.
¶ 158 I concur with the remainder of the majority’s decision that I have not commented on,
except that in light of my position on the hijacking charge, I would find that the vehicular
invasion count should be merged.
- 71 -