People v. Frias

• Decision Date: 16 December 1983
• Docket Number: No. 57585,57585
• Citation: 99 Ill.2d 193,457 N.E.2d 1233,75 Ill.Dec. 674
• Parties: , 75 Ill.Dec. 674 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Ruben FRIAS, Defendant-Appellee.
• Court: Illinois Supreme Court

Page 1233

457 N.E.2d 1233

99 Ill.2d 193, 75 Ill.Dec. 674

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Ruben FRIAS, Defendant-Appellee.

No. 57585.

Supreme Court of Illinois.

Dec. 16, 1983.

Neil F. Hartigan, Atty. Gen., Chicago, for plaintiff-appellant; Richard M. Daley, State's Atty., Chicago, Michael E. Shabat, Sara Dillery Hynes, Asst. State's Attys., of counsel.

James J. Doherty, Public Defender of Cook County, Chicago, for defendant-appellee; Andrea D. Lyon, Asst. Public Defender, Chicago, of counsel.

RYAN, Chief Justice:

Two armed men shot and killed Alfredo Torres on a street in Chicago on the evening of November 8, 1979, as he left his home to move his automobile which had been parked on the street. As a result of this killing, the defendant, Ruben Frias, was charged by information filed by the State's Attorney of Cook County with two counts of murder. One count was based on a violation of section 9-1(a)(1) of the Criminal Code of 1961, and the other count was based on section 9-1(a)(2) of the Criminal Code of 1961 (Ill.Rev.Stat.1979, ch. 38, pars. 9-1(a)(1), 9-1(a)(2)). Frias was also charged with one count of armed violence based on the felony of murder. (Ill.Rev.Stat.1979, ch. 38, par. 33A-2.) He was tried separately from a co-offender, Fernando Fernandez.

The jury found Frias not guilty of murder, however, it found him guilty of armed violence based on having committed murder while armed. He was sentenced to 15 years' imprisonment. The appellate court reversed, holding that the armed-violence conviction was improper because the predicate felony, murder, was an essential element of the armed-violence charge, which was required to be proved by the State in order to sustain the conviction of armed violence. (109 Ill.App.3d 888, 65 Ill.Dec. 374, 441 N.E.2d 166.) We granted the State's petition for leave to appeal.

This court has held that an essential element of a conviction for armed violence is the commission of an underlying felony while armed. In People v. Haron (1981), 85 Ill.2d 261, 278, 52 Ill.Dec. 625, 422 N.E.2d 627, we said that "the requirement of section 33A-2 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony." Subsequently, in People v. Tiller (1982), 94 Ill.2d 303, 68 Ill.Dec. 916, 447 N.E.2d 174, the defendant had been convicted of armed robbery and armed violence based on armed robbery. On appeal, we reversed the defendant's armed-robbery conviction. Having done that, we then reversed the defendant's armed-violence conviction because, without the armed-robbery conviction, "there is no underlying felony to sustain the conviction for armed violence." 94 Ill.2d 303, 323, 68 Ill.Dec. 916, 447 N.E.2d 174.

The armed-violence statute (Ill.Rev.Stat.1979, ch. 38, par. 33A-2) provides:

"Sec. 33A-2. Armed violence--Elements of the offense. A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law." (Emphasis added.)

Clearly, as this court held in Haron and Tiller, the statute requires that, before one can be convicted of armed violence, he must have committed the predicate felony. Illinois Pattern Jury Instruction, Criminal, No. 11.20 (2d ed. 1981), defines the issue of armed violence. As given in the case now before us, the proposition that the jury was told the State must prove was "that the defendant committed the offense of murder."

Our decision in Haron and Tiller would appear to control the decision in this case. However, the State has raised questions on this appeal that have not heretofore been considered in connection with the armed-violence statute.

The State argues that in People v. Myers (1981), 85 Ill.2d 281, 55 Ill.Dec. 389 426 N.E.2d 535, this court approved a conviction of armed violence based on a felony which was not charged, that is, aggravated battery. In Myers, although the defendant was not convicted of aggravated battery, he was, nonetheless, charged with armed violence based upon the felony of aggravated battery. We have not held that the defendant must be convicted of the predicate felony. However, before he may be convicted of armed violence based upon the predicate felony, the elements of that felony must be established and it must be proved that the felony was committed while armed.

The State now contends that the appellate court erred when it held that the not guilty verdict as to the murder charge, which the State contends was legally inconsistent with the verdict of guilty of armed violence based on murder, required the reversal of the armed-violence conviction.

The appellate court opinion and the briefs filed by both the State and the defendant demonstrate that the term "inconsistent verdicts" does not carry a clear and precise meaning. This court, in People v. Hairston (1970), 46 Ill.2d 348, 362, 263 N.E.2d 840, distinguished between logically and legally inconsistent verdicts and held that logically inconsistent verdicts can stand and implied that legally inconsistent verdicts cannot.

The State contends that the implication in Hairston concerning legally inconsistent verdicts is no longer valid. It is the State's position that this court, in People v. Dawson (1975), 60 Ill.2d 278, 326 N.E.2d 755, effectively overruled Hairston as to the invalidity of legally inconsistent verdicts. Several decisions of the appellate court have viewed the holding in Dawson in this same light. (See People v. O'Malley (1982), 108 Ill.App.3d 823, 64 Ill.Dec. 333, 439 N.E.2d 998; People v. Harris (1982), 104 Ill.App.3d 833, 60 Ill.Dec. 546, 433 N.E.2d 343; People v. Jimerson (1979), 69 Ill.App.3d 403, 26 Ill.Dec. 386, 388 N.E.2d 10.) In People v. Johnson (1980), 87 Ill.App.3d 306, 309, 42 Ill.Dec. 553, 409 N.E.2d 48, although the appellate court stated it agreed with other decisions that held that Dawson impliedly overruled Hairston on the question of legally inconsistent verdicts, the court nonetheless found that, in the case it was considering, there was no legal inconsistency.

Part of the difficulty in resolving the question of whether or not inconsistent verdicts may stand stems from a lack of agreement as to what constitutes legal inconsistency. The appellate court, in the case now before us, while stating that Illinois no longer requires consistency, either legally or logically, in jury verdicts, nonetheless held that where the crime of which the defendant was acquitted was an essential element of the crime for which he was convicted, the conviction cannot stand. 109 Ill.App.3d 888, 893, 65 Ill.Dec. 374, 441 N.E.2d 166.

The State points out that the "essential element" test used by the appellate court falls squarely within the definition of "legal inconsistency," citing People v. O'Malley (1982), 108 Ill.App.3d 823, 829, 64 Ill.Dec. 333, 439 N.E.2d 998, which states:

"A legally inconsistent verdict has been defined as follows:

'Verdicts of guilty of crime A but not guilty of crime B, where both crimes arise out of the same set of facts, are legally inconsistent when they necessarily involve the conclusion that the same essential element or elements of each crime were found both to exist and not to exist.' People v. Murray (1975), 34 Ill.App.3d 521, 531, 340 N.E.2d 186."

Further uncertainty is caused by the failure of cases, which are cited as holding that legally inconsistent verdicts can stand, to specify whether the holding is as to all inconsistent verdicts or only as to those that are logically inconsistent. In Dunn v. United States (1932), 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356, which is heavily relied upon in support of this proposition, the court simply stated, "Consistency in the verdict is not necessary." 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356, 358. In People v. Dawson (1975), 60 Ill.2d 278, 326 N.E.2d 755, this court did not distinguish between legal and logical inconsistencies. Although there is language in the opinion from which it may appear that the court was holding contrary to Hairston, the court finally stated: "The 'inconsistency' upon which the appellate court reversed the defendant's conviction of armed robbery was therefore nonexistent, and for that reason the judgment of the appellate court is reversed." (60 Ill.2d 278, 282, 326 N.E.2d 755.) Thus the court found no inconsistency, logical or legal, in the verdicts in that case.

We hold that Dawson did not overrule Hairston. In support of the language of Dawson that seems contrary to Hairston, the Dawson court quotes at length from United States v. Carbone (2d Cir.1967), 378 F.2d 420, following which the opinion cites after a "see also" signal, Dunn v. United States and People v. Hairston. Thus Dawson cites Hairston in support of the language which it is now contended overrules that part of Hairston which implies that legally inconsistent verdicts cannot stand. It is thus apparent that it was not the intention of this court to overrule Hairston insofar as the holding of that case related to legally inconsistent verdicts.

It is appropriate to point out that we are here dealing with verdicts which we deem to be legally inconsistent. We do not find the appellate court's distinction between legally inconsistent verdicts and a verdict which acquits the defendant of an essential element of an offense of which he is convicted by another verdict to be necessary.

In Hairston, the court considered the effect on the facts of that case of the then-recent holding of the United States Supreme Court in Ashe v. Swenson (1970), 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469. The court noted that the rationale of Ashe is that " 'collateral estoppel' is embodied in the fifth amendment guarantee against double jeopardy" and that collateral estoppel, as defined in Ashe, means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the...