People v. Smith

People v. Smith, No. 84047 (10/1/98)
Docket No. 84047--Agenda 28--May 1998.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
KENNY W. SMITH, Appellant.
Opinion filed October 1, 1998.

JUSTICE MILLER delivered the opinion of the court:
Defendant, Kenny W. Smith, and two codefendants, who
are not parties to this appeal, participated in the armed robbery
of a Jiffy Lube oil-change service center. Douglas Petan, a Jiffy
Lube employee, was shot in the head during the robbery and
died as a result of the gunshot wound. Defendant was found
guilty of armed robbery and felony murder following a jury trial
in the circuit court of Will County.
The trial judge sentenced defendant to 60 years'
imprisonment for felony murder and 20 years' imprisonment for
armed robbery. The sentences were to be served consecutively.
The appellate court affirmed. No. 3--94--0920 (unpublished
order under Supreme Court Rule 23). We granted defendant's
petition for leave to appeal. 166 Ill. 2d R. 315.

BACKGROUND
Defendant was employed as a technician at a Jiffy Lube
service center. Defendant believed that a large sum of money
would be present at the Jiffy Lube when it closed for business
at 3 p.m. on Sunday, October 31, 1993 (Halloween). Defendant
told Ivan Dockins, a codefendant, about the money. Pursuant to
their plan, defendant left a garage door partially open so that
Dockins could gain entry to the Jiffy Lube. Dockins entered and
encountered Dominick Roti, the assistant manager.
Dockins pointed a gun at Roti's head and demanded money
from the cash register. At first, Roti thought the holdup was a
Halloween prank. After being struck in the head with the gun,
Roti gave the money from the cash register to Dockins. With
the gun held to Roti's head, Dockins prodded Roti down the
stairs of the Jiffy Lube to an office in the basement. The office
contained a safe. At that time, defendant and two other
employees, Scott Fricano and Douglas Petan, were in the office.
Fricano asked if the holdup was a joke. Dockins stated that
the holdup was no joke and hit Fricano in the head with the
gun. Dockins then pointed the gun at Petan. When the gun went
off, the Jiffy Lube employees all dropped to the floor. Dockins
ran up the stairs and out of the building. Once Dockins left,
Fricano noticed that Petan had been shot in the head.
Defendant called 911 for emergency assistance. Defendant,
however, hung up the phone after only a short period of time.
Following additional contact with a 911 operator by both
Dominick Roti and Scott Fricano, the police and an ambulance
arrived at the Jiffy Lube. The ambulance transported Douglas
Petan to the hospital, where he was pronounced dead.
A police investigation revealed that defendant and Dockins
had together planned the robbery of the Jiffy Lube. Another
codefendant, Leo Williamson, did not assist in planning the
robbery but did participate as the driver of the getaway car.
Both Dockins and Williamson made statements to the police
implicating defendant.
The State charged defendant and Dockins by indictment
with felony murder (720 ILCS 5/9--1(a)(3) (West 1992))
predicated on armed robbery (720 ILCS 5/18--2 (West 1992)).
The State charged all three men by indictment with both armed
robbery (720 ILCS 5/18--2 (West 1992)) and robbery (720 ILCS
5/18--1 (West 1992)). Dockins and Williamson entered pleas of
guilty, and they are not parties to this appeal.
Prior to trial, the State nol-prossed the robbery charge
against defendant contained in the indictment. The State
proceeded against defendant on the two remaining counts of the
indictment under a theory of accountability: (1) felony murder,
for causing the death of Douglas Petan while committing the
predicate felony of armed robbery; and (2) armed robbery, for
using a gun in taking United States currency from the presence
of Dominick Roti by the use of force.
At the conclusion of the trial, the jury was instructed on the
offenses of felony murder and armed robbery as charged by the
State in the indictment. The instructions were given to the jury
both orally and in writing. The jury found defendant guilty of
armed robbery and felony murder. The judge sentenced
defendant to 60 years' imprisonment for felony murder and 20
years' imprisonment for armed robbery. The sentences were to
be served consecutively.
The appellate court affirmed. The court believed that both
an armed robbery and an attempted armed robbery occurred at
the Jiffy Lube: an armed robbery of Dominick Roti at the cash
register and an attempted armed robbery of the safe in the
basement office. The court found that the armed robbery of
Dominick Roti supported defendant's conviction and sentence
for armed robbery and that the attempted armed robbery of the
safe could serve as the predicate offense for the felony murder
conviction and sentence. Because the court believed that both an
armed robbery and an attempted armed robbery had taken place,
the court found that defendant was properly convicted and
sentenced for armed robbery and felony murder predicated on
attempted armed robbery.
The appellate court also found that the trial judge properly
exercised discretion in denying a jury request to review the
testimony of Scott Fricano and Dominick Roti. The court stated
that the judge's response to the jury's request did not indicate
the judge believed that he lacked the discretion to order a
transcript of the requested testimony.

DISCUSSION
Defendant argues that he cannot be convicted and sentenced
for both felony murder and the underlying predicate offense of
armed robbery because the armed robbery was, in this case, a
lesser included offense of felony murder. Defendant contends
that the appellate court, in upholding the armed robbery
conviction, improperly combed the record for evidence to
support an offense of attempted armed robbery of the safe, an
offense not specifically charged by the State in the indictment
and not presented to the jury in closing argument or the jury
instructions.
Initially, the State argues that defendant has waived the
lesser included offense issue. The State notes that defendant
failed to object at the sentencing hearing in the trial court to his
armed robbery conviction and sentence on the basis that the
armed robbery was a lesser included offense of felony murder.
The State also notes that defendant failed to include this issue
in his motion for a new trial. On the merits, the State argues
that the appellate court properly affirmed defendant's
convictions and sentences for both armed robbery and felony
murder.
Defendant did not object at the sentencing hearing to having
been convicted and sentenced for armed robbery on the basis
that the armed robbery was a lesser included offense of felony
murder. Accordingly, defendant has waived this issue on appeal.
People v. Enoch, 122 Ill. 2d 176, 186-87 (1988). Despite a
defendant's waiver, however, plain errors affecting substantial
rights may be reviewed on appeal. 134 Ill. 2d R. 615(a); People
v. Hicks, 181 Ill. 2d 541, 544-45 (1998).
In this case, in addition to a 60-year sentence for felony
murder, defendant was sentenced to a consecutive 20-year term
for armed robbery, the predicate offense for felony murder.
Because the conviction and sentence for armed robbery affect
defendant's substantial rights, we address the lesser included
offense issue. See People v. Davis, 156 Ill. 2d 149, 159-60
(1993) (vacating a defendant's conviction on a lesser included
offense despite waiver); Hicks, 181 Ill. 2d at 545 ("The
imposition of an unauthorized sentence affects substantial
rights").
In count I of the indictment, the State charged both Ivan
Dockins and defendant with:
"FIRST DEGREE MURDER in that they, without
lawful justification, while committing a felony, Armed
Robbery, in violation of Chapter 720, Section 5/18--2(a) of
the Illinois Compiled Statutes, shot Douglas Petan in the
head with a gun and thereby caused the death of Douglas
Petan, in violation of Chapter 720, Section 5/9--1(a)(3) &
(b)(6) of the Illinois Compiled Statutes."
In count II, the State charged defendant and codefendants with
armed robbery in that they, "while armed with a dangerous
weapon, a gun, took property, being United States Currency,
from the presence of Dominic[k] Roti by the use of force."
Count I, the felony-murder charge, does not specify which
armed robbery is the basis for the charge of felony murder, and
count II, the armed robbery charge, refers only to the armed
robbery of the cash register on the upper floor of the Jiffy Lube.
The State argues that the offense of attempted armed robbery of
the safe may be substituted for that of armed robbery of the
cash register as the predicate offense for the felony-murder
charge. We find this argument unpersuasive.
In the indictment, the State did not specifically charge
defendant with attempted armed robbery of the safe. In closing
argument before the jury, the prosecution never discussed an
attempted armed robbery of the safe, and the elements of an
attempted armed robbery of the safe were never mentioned.
Instead, in its argument, the prosecution focused only on the
armed robbery of Dominick Roti at the cash register on the
upper floor of the Jiffy Lube.
In addition, we note that the jury instructions for felony
murder setting out the elements of armed robbery did not
describe an attempted armed robbery of the safe. Rather, the
jury instructions referred only to the armed robbery of Dominick
Roti. Thus, the jury instructions and the State's theory of the
case demonstrate that the State believed that the armed robbery
that was the predicate offense charged in the felony murder
count was the armed robbery of Dominick Roti, and not the
attempted armed robbery of the safe. Accordingly, the following
essential elements were required to find defendant guilty of
felony murder: causing the death of Douglas Petan, without
lawful justification, while committing the armed robbery of
Dominick Roti.
For these reasons, we reject the State's belated attempt to
make the attempted armed robbery of the safe the predicate
offense of felony murder in this case. " `[I]t is as much a denial
of due process to send an accused to prison following conviction
for a charge that was never made as it is to convict him upon a
charge for which there is no evidence to support that
conviction.' " Gregory v. City of Chicago, 394 U.S. 111, 112,
22 L. Ed. 2d 134, 136, 89 S. Ct. 946, 947 (1969), quoting
Garner v. Louisiana, 368 U.S. 157, 164, 7 L. Ed. 2d 207, 214,
82 S. Ct. 248, 251-52 (1961).
Under People v. King, 66 Ill. 2d 551 (1977), multiple
convictions are improper if they are based on lesser included
offenses. People v. Rodriguez, 169 Ill. 2d 183, 186 (1996).
Because the armed robbery of Dominick Roti is a lesser
included offense of felony murder in this case, the included
offense of armed robbery will not support a separate conviction
and sentence. As this court stated in People v. Coady, 156 Ill. 2d 531 (1993), "defendant correctly notes that armed robbery
was the offense underlying the felony murder charge and, as an
included offense, will not support a separate conviction and
sentence." Coady, 156 Ill. 2d at 537, citing People v.
Donaldson, 91 Ill. 2d 164, 170 (1982); People v. Johnson, 167
Ill. App. 3d 659, 669-70 (1988); see also People v. Johnson, 154 Ill. 2d 356, 370-72 (1993) (predicate felony of home invasion
was a lesser included offense of felony murder requiring
defendant's conviction and sentence for home invasion to be
vacated). Accordingly, defendant's conviction and sentence for
the lesser included offense of armed robbery must be vacated.
The State argues, however, that defendant's convictions and
sentences for both felony murder and armed robbery are proper.
In support of its position, the State relies on People v. Green, 62 Ill. 2d 146 (1975). In Green, this court found a defendant
properly convicted and sentenced for attempted robbery and
felony murder where the attempted robbery was the predicate
offense for felony murder. Green, 62 Ill. 2d at 148-50. The
court in Green noted that its decision was governed by People
v. Williams, 60 Ill. 2d 1 (1975). Green, 62 Ill. 2d at 148.
The State's reliance on Green is not appropriate.
Subsequent to the decisions in both Green and Williams, this
court decided People v. King, 66 Ill. 2d 551 (1977). In King, the
court held that prejudice, with regard to multiple acts, exists
when a defendant is convicted of more than one offense, some
of which are, by definition, lesser included offenses. King, 66 Ill. 2d at 566. Moreover, King, 66 Ill. 2d at 562-66, rejected the
"independent motivation" test used by the court in Williams and
relied upon in Green. Thus, the decision in King changed the
law with regard to lesser included offenses. We note that the
decision in King has been followed subsequently by this court
on the lesser included offense issue. See, e.g., People v.
Rodriguez, 169 Ill. 2d 183, 186 (1996); People v. Davis, 156 Ill. 2d 149, 153 (1993); People v. Chandler, 129 Ill. 2d 233, 255
(1989); People v. Segara, 126 Ill. 2d 70, 76 (1988).
Defendant next argues that the trial judge erred in denying
a jury request to review the testimony of Scott Fricano and
Dominick Roti. Defendant claims the judge failed to recognize
that he had the discretion to grant such a request. See People v.
Autman, 58 Ill. 2d 171 (1974) (denial of jury's request to review
testimony was reversible error where judge erroneously believed
that he had no discretion to consider the request).
The State argues that defendant has waived this issue. The
State notes that defendant did not object in the trial court to the
judge's response to the jury's request nor did defendant include
the issue in his motion for a new trial. On the merits, the State
argues that unlike the judge in Autman, the judge in this case
knew that it was within his discretion to have Fricano's and
Roti's testimony transcribed and submitted to the jury. The State
contends the judge exercised his discretion and properly refused
the jury's request.
We agree with the State that defendant's failure to object in
the trial court results in the waiver of this issue on appeal. See
Enoch, 122 Ill. 2d at 186-87; see also People v. Flores, 128 Ill. 2d 66, 93 (1989) (assuming comments indicated that the judge
believed he lacked the discretion to provide transcripts of
testimony to the jury, the issue was waived). Despite waiver,
plain errors affecting substantial rights may be reviewed on
appeal. 134 Ill. 2d R. 615(a); People v. Vargas, 174 Ill. 2d 355,
363 (1996).
In the present case, however, the evidence was not closely
balanced and defendant was not deprived of a fair and impartial
trial by the failure of the trial judge to provide the jury with the
requested testimony. At trial, the State's theory of the case was
overwhelmingly supported by the testimony of the codefendants,
the Jiffy Lube employees, and other witnesses. Only defendant's
testimony indicated that he was not involved in the crimes
charged in the indictment. Because the evidence was not closely
balanced and defendant was not denied a fair trial, the plain
error doctrine does not apply here.

CONCLUSION
For the foregoing reasons, defendant's conviction and
sentence for felony murder are affirmed. Defendant's conviction
and sentence for armed robbery are vacated.

Appellate court judgment affirmed in part
and vacated in part;
circuit court judgment affirmed in part
and vacated in part.