People v. Jones

• Decision Date: 05 November 1987
• Docket Number: No. 4-87-0164,4-87-0164
• Citation: 113 Ill.Dec. 662,515 N.E.2d 471,162 Ill.App.3d 487
• Parties: , 113 Ill.Dec. 662 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gary L. JONES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 471

515 N.E.2d 471

162 Ill.App.3d 487, 113 Ill.Dec. 662

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gary L. JONES, Defendant-Appellant.

No. 4-87-0164.

Appellate Court of Illinois Fourth District.

Nov. 5, 1987.

Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Karen Munoz, Asst. Defender, Springfield, for defendant-appellant.

Donald M. Cadagin, State's Atty., Kenneth R. Boyle, Director, State's Attys. Appellate Prosecutor, Robert J. Biderman, Deputy Director, Springfield, for plaintiff-appellee.

Justice GREEN delivered the opinion of the court:

On August 19, 1986, the circuit court of Sangamon County entered judgment on jury verdicts finding defendant guilty of four counts of murder and one count of armed robbery. On January 20, 1987, the court sentenced defendant to a single term of life imprisonment. Defendant has appealed, contending that the court erred: (1) in permitting the State to amend the armed robbery count prior to trial; (2) in allowing the State, over defense objection, to present evidence of defendant's conduct at the time of arrest as being flight or concealment indicating consciousness of guilt on defendant's part; and (3) in denying defendant's motion to excuse a juror for cause. We affirm.

The count of the indictment alleging armed robbery states that the defendant had committed that offense by taking currency and cocaine from the presence of another while armed with a dangerous weapon. It made no statement that the taking was committed by the use of force or threat of imminent force, which is a necessary element of the robbery aspect of the offense of armed robbery (Ill.Rev.Stat.1985, ch. 38, pars. 18-1, 18-2). Upon motion by the State and without objection by the defendant, the court permitted the State to amend the count by adding that defendant had acted "by the use of force."

The type of defects in a criminal charge which may be corrected by amendment are set forth in section 111-5 of the Code of Criminal Procedure of 1963 which states:

"Formal Defects in a Charge. An indictment, information or complaint which charges the commission of an offense in accordance with Section 111-3 of this Code shall not be dismissed and may be amended on motion by the State's Attorney or defendant at any time because of formal defects, including:

(a) Any miswriting, misspelling or grammatical error;

(b) Any misjoinder of the parties defendant;

(c) Any misjoinder of the offense charged;

(d) The presence of any unnecessary allegation;

(e) The failure to negative any exception, any excuse or proviso contained in the statute defining the offense; or

(f) The use of alternative or disjunctive allegations as to the acts, means, intents or results charged." Ill.Rev.Stat.1985, ch. 38, par. 111-5.

In People v. Betts (1979), 78 Ill.App.3d 200, 33 Ill.Dec. 773, 397 N.E.2d 106, the appellate court held the circuit court had erred in permitting amendment to an indictment, over defense objection, to change the offense charged from illegal delivery of a controlled substance--narcotic drug (Ill.Rev.Stat.1973, ch. 56 1/2, par. 1401(b)) to illegal delivery of a controlled substance--nonnarcotic drug (Ill.Rev.Stat.1973, ch. 56 1/2, par. 1401(c)). On the other hand, in People v. Kincaid (1981), 87 Ill.2d 107, 57 Ill.Dec. 610, 429 N.E.2d 508, the supreme court held that no error occurred when the circuit court permitted the State, over defense objection, to amend an information purporting to charge the offense of indecent liberties with a child (Ill.Rev.Stat.1977, ch. 38, par. 11-4). The amendment added the element of the offense concerning the age of the victim.

The Kincaid court pointed out that greater liberality was permitted in making amendments to informations than to indictments. That court also noted that the standard of review as to the sufficiency of a criminal charge set forth in People v. Pujoue (1975), 61 Ill.2d 335, 335 N.E.2d 437, was not applicable because there the defendant "[raised] the error for the first time on review." (87 Ill.2d 107, 122, 57 Ill.Dec. 610, 616, 429 N.E.2d 508, 514.) The Kincaid court implied their ruling might have been different had the defendant raised an objection at the trial level. Here, defendant raised no objection at the trial level as to the amendment or as to the sufficiency of the charge without amendment.

In Pujoue, the court set forth the following rule: "[w]hen attacked for the first time on appeal a complaint is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct." (61 Ill.2d 335, 339, 335 N.E.2d 437, 440.) There, the State filed a complaint stating that it charged the defendant with commission of the offense of unlawful use of weapons. The complaint contained a detailed description of the firearm and the date and place the crime occurred. In addition to an accurate statutory citation, the complaint also included most elements of that crime. However, it failed to include an element that the gun defendant carried was loaded. Even so, the court found the omission had not prejudiced defendant's defense. Also, the complaint was sufficient to bar later prosecution for the same crime.

Here, as in Pujoue, the charge failed to include a necessary element of the offense. However, the count did state it was charging armed robbery. As in Pujoue, it set forth all of the necessary elements of the offense except the omitted one and was clearly sufficient to establish a double jeopardy defense to another charge for the same offense. Thus, as no objection was made by defendant in the circuit court as to the sufficiency of the underlying charge, under precedent of Pujoue, the charge here would have been sufficient to support the armed robbery conviction even without amendment. Accordingly, we find no reversible error to have resulted when the court permitted amendment without objection, even if the allowance of the amendment, as being one of substance rather than form, would have been error if objection was made in the circuit court.

Defendant asserts that, if any error in permitting the amendment was waived by his trial counsel's failure to object to the amendment, he was denied his constitutional right to effective assistance of counsel. (Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.) However, from a practical standpoint, defendant was not prejudiced by any insufficiency in the indictment. As we have previously stated, the indictment was adequate to advise defendant of the charges against him and was a sufficient basis for a subsequent plea of double jeopardy. Had defendant's trial counsel objected to the amendment, the State may well have reindicted defendant. The failure to object may have been a trial tactic of the defense, done for the purpose of permitting a substantial legal question to be raised. A reasonable trial tactic which fails does not constitute incompetence of counsel. People v. Greer (1980), 79 Ill.2d 103, 37 Ill.Dec. 313, 402 N.E.2d 203; People v. Skorusa (1973), 55 Ill.2d 577, 304 N.E.2d 630.

Determination of whether the circuit court erred in admitting evidence of defendant's conduct at the time of his arrest requires a brief summary of the evidence. Michelle Lawson testified she was present at the home of the father of Lonnie Davis in Springfield on the evening of June 12, 1985, purchasing some marijuana. She further testified that she heard a doorbell ring and heard a voice, which she recognized as that of defendant, demanding to be let in the house. She stated she then heard gunshots, ran to the basement to hide and heard more gunshots. According to Lawson, she then heard defendant...