People v. Alejos

• Decision Date: 04 October 1983
• Docket Number: No. 56461,56461
• Citation: 97 Ill.2d 502,455 N.E.2d 48,74 Ill.Dec. 18
• Parties: , 74 Ill.Dec. 18 The PEOPLE of the State of Illinois, Appellant, v. Edward ALEJOS, Jr., Appellee.
• Court: Illinois Supreme Court

Page 48

455 N.E.2d 48

97 Ill.2d 502, 74 Ill.Dec. 18

The PEOPLE of the State of Illinois, Appellant, v. Edward ALEJOS, Jr., Appellee.

No. 56461.

Supreme Court of Illinois.

Oct. 4, 1983.

Tyrone C. Fahner, Neil F. Hartigan, Attys. Gen., Chicago, for appellant; Richard M. Daley, State's Atty., County of Cook, Chicago, Michael E. Shabat, Joan S. Cherry, Raymond Brogan, Asst. State's Attys., Chicago, of counsel.

Steven Clark, Deputy Defender, Richard F. Faust, Asst. Appellate Defender, Chicago, for appellee.

SIMON, Justice:

Defendant, Edward Alejos, Jr., was charged by information with murder, armed violence based on murder, and armed violence based on voluntary manslaughter, and was convicted in a bench trial in the circuit court of Cook County of voluntary manslaughter and armed violence based on voluntary manslaughter. In this appeal we are called upon to decide whether the armed-violence conviction was proper.

The defendant and the victim, Christian Arntzen, did not know each other. On the evening of October 27, 1978, defendant was sitting in his car in his own neighborhood conversing with an acquaintance, Jeanne Moffat. Bobby Malcolm, a friend of Moffat, had parked his car across the street from defendant's car, narrowing the traffic lane somewhat. Malcolm was standing beside his car and not participating in the conversation. Arntzen drove past the two parked cars but made a U turn at the next intersection, waited for a few minutes, and then left his car and approached Malcolm, accusing him of blocking the street. Malcolm promised to leave, but Arntzen swung his fist at him and then began chasing him around defendant's car, the engine of which was running. Arntzen then pounded five or six times on the hood of defendant's car and shouted that defendant had tried to run over him. He approached the open window on the driver's side and repeated the accusation, and according to defendant's testimony stated that he wished to fight with defendant and reached into the car to grab him. Defendant thereupon drew a handgun and shot him six times. Arntzen died four days later.

At trial defendant claimed that he had not tried to run over Arntzen and took the position that the shooting was justified because he had reason to fear for his safety. In announcing his decision the trial judge stated that this was a "[c]lassic case of voluntary manslaughter" and found him guilty of that crime and of armed violence based on voluntary manslaughter.

Defendant appealed on three grounds. His first contention was that the information was insufficient to charge the crime of armed violence based on voluntary manslaughter in that it failed to set forth the elements of voluntary manslaughter, which can be committed in either of two ways. Second, he argued that armed violence could not be predicated on voluntary manslaughter, which is by its nature not a premeditated felony and is typically committed with a "dangerous weapon" which the armed-violence statute requires (see Ill.Rev.Stat.1979, ch. 38, pars. 33A-1, 33A-2). His third ground was that his simultaneous conviction of manslaughter and armed violence in this case was improper because the same physical act provided the basis for both charges (e.g., People v. Mormon (1982), 92 Ill.2d 268, 65 Ill.Dec. 939, 442 N.E.2d 250; People v. Donaldson (1982), 91 Ill.2d 164, 61 Ill.Dec. 780, 435 N.E.2d 477). The appellate court reversed the armed-violence conviction on the basis of defendant's first argument and remanded for resentencing on the manslaughter charge, as the two original sentences were concurrent and for the same length of time. (104 Ill.App.3d 414, 60 Ill.Dec. 147, 423 N.E.2d 1046.)

We do not reach the issue concerning the sufficiency of the armed-violence count because we agree with defendant that the legislature did not intend that crime to apply to voluntary manslaughter.

Because it requires that the defendant's act be motivated by either a sudden and intense passion resulting from serious provocation or an unreasonable but actual belief that the circumstances required the use of deadly force (Ill.Rev.Stat.1979, ch. 38, pars. 9-2(a), (b)), voluntary manslaughter, by its common law as well as its statutory definition, is an unpremeditated crime, induced by sudden fear or duress and committed without time for proper reflection. (See People v. Sudduth (1958), 14 Ill.2d 605, 607, 153 N.E.2d 557; People v. Brown (1946), 392 Ill. 519, 521, 64 N.E.2d 739; Moore v. People (1893), 146 Ill. 600, 602, 35 N.E. 166; see generally Clark & Marshall, Law of Crimes sec. 10.11 (6th ed. 1958); Ill.Ann.Stat., ch. 38, par. 9-2, Committee Comments, at 392 (Smith-Hurd 1979).) The penalty for murder has traditionally been, and at the time of this homicide was, more severe than that for voluntary manslaughter. However, voluntary manslaughter is not distinguished from murder merely by the punishment or price tag which the law places on the guilty act. The punishment is simply a reflection of the common-sense judgment, which our criminal code has always recognized, that an unlawful homicide which is committed with no planning and no prior intent to commit a crime is neither as serious as a homicide born of criminal deliberation or design, nor as likely to be deterred by threat of punishment as a killing which results from planned criminal acts.

The armed-violence section makes it a Class X felony to commit, while armed with a dangerous weapon such as a handgun, knife or bludgeon, any crime which is a felony under Illinois law (Ill.Rev.Stat.1979, ch. 38, par. 33A-1 et seq.); it was enacted in 1967 "to respond emphatically to the growing incidence of violent crime" (People v. Graham (1975), 25 Ill.App.3d 853, 858, 323 N.E.2d 441) and amended in 1977 to apply to felonies in general rather than, as in its original version, to certain enumerated crimes only, none of which were homicide offenses. The two essential elements of armed violence are being armed with a dangerous weapon and committing a felony, and while they must coincide, the mere presence of a weapon of the proscribed character is sufficient; the defendant need not actually use the weapon in the commission of the felony (People v. Haron (1981), 85 Ill.2d 261, 266-68, 52 Ill.Dec. 625, 422 N.E.2d 627). The presence of a weapon enhances the danger that any felony that is committed will have deadly consequences should the victim offer resistance. Thus, it is viewed as an aggravating factor which enhances the severity of the underlying felony and upgrades the punishment available for it to Class X. See People v. Donaldson (1982), 91 Ill.2d 164, 168, 61 Ill.Dec. 780, 435 N.E.2d 477.

Just as the presence of a weapon colors the way the law views the felony which defendant commits, so the felony changes the way the law regards the possession of the weapon. Even though the carrying of dangerous weapons in public is always fraught with some danger regardless of what the bearer is doing or intends to do, the armed-violence statute stops short of criminalizing all possession of guns, knives or baseball bats. The commission of a felony while so armed provides the basis for assessing criminal penalties for the act of carrying a dangerous weapon in society, an act which is not in all instances criminal. (Compare Ill.Rev.Stat.1979, ch. 38, pars. 24-1, 24-3.1 (setting forth the limited circumstances under which the physical possession of certain weapons without more can be a crime).) The reason for the difference in treatment is presumably the belief that the chances that violence will erupt and cause great bodily harm because of the weapon are increased when a felony is committed; one who creates such danger by committing the felony while possessing the weapon is culpable and should bear the consequences for the danger his conduct poses. The stiff punishment mandated by the armed-violence provision is intended not only to punish the criminal and protect society from him but also to deter his conduct--that of carrying the weapon while committing a felony. See Ill.Rev.Stat.1979, ch. 38, par. 1001-1-2.

We have noted above the difficulty of thinking conceptually of "deterring" a crime such as voluntary manslaughter which is committed on the spur of the moment and, by definition, without any deliberation. (See, e.g., M. Bassiouni, Criminal Law 95 (1978).) It is similarly difficult to understand the deterrent purpose the armed-violence provision could serve when applied to voluntary manslaughter. The general application of the armed-violence provision could be expected to discourage those who contemplate a felonious act beforehand from carrying a weapon when they set forth to perform the act, and from this perspective the provision serves a needed purpose. Yet no one who commits voluntary manslaughter intends in advance to take a life or employ deadly force; the only "intent" of this sort that enters into the crime is the decision, arrived at without deliberation and in most cases instantaneously, to use force capable of killing. Before that decision is arrived at, the person who is guilty of voluntary manslaughter typically has no criminal intent whatever. Many such people, including the defendant in this case, make the decision to arm themselves long before the onset of the passion or misconception which transforms their intentions from peaceful to homicidal; those that arm themselves later do so after the passion or the misconception takes hold of them, after which deterrence is no longer possible. It is not clear that the legislature intended by means of the armed-violence section to deter in all instances the carrying of weapons, even deadly ones, for whatever purposes people wish to carry them. This is particularly so in view of the limited nature of the restraints the legislature has placed on the possession of weapons in other parts of the criminal code.

Additionally it is not readily apparent, for purposes of the punitive or retributive...