People v. King, 3-86-0444

• Citation: 507 N.E.2d 1285,155 Ill.App.3d 363
• Decision Date: 28 April 1987
• Docket Number: No. 3-86-0444,3-86-0444
• Parties: , 107 Ill.Dec. 916 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jacqueline KING, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1285

507 N.E.2d 1285

155 Ill.App.3d 363, 107 Ill.Dec. 916

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jacqueline KING, Defendant-Appellant.

No. 3-86-0444.

Appellate Court of Illinois,

Third District.

April 28, 1987.

Rehearing Denied June 11, 1987.

Peter A. Carusona, argued, Office of the State Appellate Defender, Ottawa, for Jacqueline King.

William L. Browers, Deputy Director, State's Attorneys Appellate Service Com'n, Elgin, Edward Petka, State's Atty., Joliet, Rita Kennedy Mertel, argued, for the People.

Justice STOUDER delivered the Opinion of the court:

The defendant, Jacqueline King, appeals from the judgment of the Circuit Court of Will County which resulted in her imprisonment for the offenses of armed violence, unlawful possession of a controlled substance, production of a cannabis sativa plant, unlawful possession of a hypodermic syringe, and unlawful possession of a firearm. On appeal, King contends that: (1) the offense of armed violence, (Ill.Rev.Stat.1985, ch. 38, par. 33A-2.), can not be predicated on the felony offense of unlawful possession of a controlled substance; (2) the State failed to prove that she was armed with a dangerous weapon for the purposes of the armed violence statute because the gun was not "on or about her person" nor was she "otherwise armed"; (3) the jury was improperly instructed through the use of a non-I.P.I. jury instruction as to the meaning of "armed with a dangerous weapon"; (4) she should not have been sentenced for both armed violence and the underlying felony of possession of a controlled substance; and (5) despite trial counsel's failure to file a post trial motion, this court should consider the issues raised on this appeal.

On June 24, 1983, nine officers of the Metropolitan Area Narcotics Squad (MANS) executed a valid search warrant at King's apartment. The officers identified themselves and they were admitted to the apartment without incident. King met the officers at the door wearing only a blanket wrapped around her and stated that she was about to take a bath. King's co-defendant, Willie Green, was found sleeping in the south bedroom and a third person, Jason King, an eight or nine-year-old boy was found sleeping in a walk-in closet which had been converted into a bedroom. The officers seized a marijuana plant, which King admitted growing, from the kitchen window sill. Upon entering the bedroom, the officers discovered a gun, a pink pill bottle containing two foil packets of heroin, and a syringe on a coffee table three feet from the bed. The gun was not loaded and the officers' search did not uncover any cartridges for which the weapon was chambered. King admitted that the heroin was hers, but both King and Green denied any knowledge of the gun. Neither King nor Green possessed a valid firearm owner's identification card.

At the instructions conference, the State tendered a non-I.P.I. jury instruction which was eventually given over King's objection. The instruction, defining "armed with a dangerous weapon" for the purposes of King's trial, was as follows:

The mere presence of a pistol during the commission of the offense of unlawful possession of a controlled substance is sufficient for a person to be considered armed with a dangerous weapon. The person need not actually use the weapon in the commission of the offense of unlawful possession of a controlled substance.

The state's attorney referred to the instruction and the concept of constructive possession during closing arguments and commented that actual possession was not required to substantiate the charge.

After jury deliberation, King was convicted on all counts. A sentencing hearing was conducted and the court sentenced King to seven years for the armed violence, three years for the unlawful possession of heroin, 364 days for the production of the cannabis sativa plant, 364 days for the possession of the hypodermic syringe, and 364 days for the unlawful possession of the firearm.

Initially, King urges this Court to consider the issues raised on this appeal notwithstanding defense counsel's failure to file a post-trial motion. King contends that this Court should hear this appeal on the following bases: first, that substantial error existed at trial and these errors may be noticed in accord with Supreme Court Rule 615(a), (Ill.Rev.Stat.1985, ch. 110A, par. 615(a).); second, that the interests of justice require a review of this case because substantial defects existed in the jury instructions procedure in contravention of Supreme Court Rule 451(c), (Ill.Rev.Stat.1985, ch. 110A, par. 451(c).); and third, that the failure to file the post-trial motion demonstrated ineffective assistance of counsel. In view of the issues involved in this case, we invoke jurisdiction under the "plain error" rule of Rule 615(a) and will not address King's alternative arguments concerning the instructions conference or ineffective assistance of counsel.

King asserts that the armed violence statute is not intended to apply the offense of unlawful possession of a controlled substance where guilt is based upon constructive possession of the contraband. We find no merit in this argument because both the plain language of the statute and prior decisions of the Illinois Courts are indicative of the opposite conclusion. The armed violence statute states that:

A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law. (Ill.Rev.Stat.1985, ch. 38, par. 33A-2.) (emphasis added)

Section 33A-1, the definitions used for purposes of the armed violence statute, specifically lists a pistol as a Category I weapon which would bring the person committing the felony under the purview of the armed violence statute. Ill.Rev.Stat.1985, ch. 38, par. 33A-1.

Additionally, P.A.80-1099 which substantively changed the application of the armed violence statute made a substantial change in the language of the statute. The amendment changed which felonies would be considered predicate offenses. It substituted the phrase "commits any felony defined by Illinois Law" for a list of specific sections which previously supplied the only basis for an armed violence charge. The legislature's express language can not be overlooked as a definitive statement of intent to include any felonies as predicate offenses for the purposes of armed violence.

Despite this language, King cites two Illinois Supreme Court cases decided since the amendment of the statute for the proposition that the term "any felony" has been narrowed in its application. In People v. Wisslead (1983), 94 Ill.2d 190, 68 Ill.Dec. 606, 446 N.E.2d 512, the Court stated that armed violence could not be predicated on the offense of unlawful restraint. However, the decision in that case was based on the determination that constitutional assurances of proportionate penalties and due process precluded the use of unlawful restraint as a predicate offense. In Wisslead, the Court noted that unlawful restraint, by legislative determination, is a less serious offense than kidnapping. Unlawful restraint is a Class 4 felony while the legislature deemed kidnapping to be a more serious Class 2 felony. However, the introduction of a weapon into the facts of each offense yields disproportionate results. Unlawful restraint while armed with a revolver, i.e. armed violence, is a Class X felony; yet kidnapping while armed with a revolver, i.e. aggravated kidnapping, is only a Class 1 felony. The Court held that the policy underlying constitutional provisions for proportionate penalties and due process would be violated if the penalty prescribed for an offense is not as great or greater than the penalty prescribed for a less serious offense. While this is sound reasoning, these constitutional concerns are not at issue in this case and; therefore, Wisslead is inapplicable.

King also cites People v. Alejos (1983), 97 Ill.2d 502, 74 Ill.Dec. 18, 455 N.E.2d 48, to support her position. In Alejos, the Court declined to apply the armed violence statute literally to voluntary manslaughter. The court noted that there was an improbability that the armed violence provision would deter those who commit voluntary manslaughter and that it would be difficult to understand what deterrent purpose the statute would serve in the situation where a person uses a weapon only in response to external provocation so strong that he does not properly deliberate or channel his response. Although this case, as Wisslead, provides a logical restriction on the application of the armed violence statute, we find that the facts necessary to implicate this exception are also nonexistent in this case.

The case which supports the application of the armed violence statute in this case, which was only summarily mentioned by King in a footnote, is People v. Lenoir (1...