People v. Massey

• Decision Date: 08 October 1991
• Docket Number: No. 5-89-0594,5-89-0594
• Citation: 579 N.E.2d 1259,219 Ill.App.3d 909,162 Ill.Dec. 445
• Parties: , 162 Ill.Dec. 445 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Rodney MASSEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1259

579 N.E.2d 1259

219 Ill.App.3d 909, 162 Ill.Dec. 445

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Rodney MASSEY, Defendant-Appellant.

No. 5-89-0594.

Appellate Court of Illinois Fifth District.

Oct. 8, 1991.

Daniel M. Kirwan, Deputy Defender, Larry R. Wells, Asst. Defender, Office of the State Appellate Defender, by Barbara Brundage, Second Year Law Student, Mt. Vernon, for defendant-appellant.

Scott Mansfield, State's Atty., Belleville, Kenneth R. Boyle, Director, Stephen E. Norris, Deputy Director, Raymond F. Buckley, Jr., Staff Atty., Office of the State's Attys. Appellate Prosecutor, Mt. Vernon, for plaintiff-appellee.

Justice HARRISON delivered the opinion of the court:

Defendant, Rodney Massey, was convicted of first-degree murder, attempted first-degree murder, armed violence, and aggravated battery. (Ill.Rev.Stat.1989, ch. 38, pars. 9-1, 8-4, 33A-2, 12-4.) He was sentenced to concurrent prison terms of 15 years for attempted first-degree murder, 15 years for armed violence, and five years for aggravated battery. The sentence for attempted first-degree murder was to be served consecutively to a 35-year prison sentence imposed on the first-degree murder conviction. On appeal, defendant contends that: (1) the armed violence and aggravated battery convictions must be vacated because they are based on the same physical act which is the basis for the attempted first-degree murder conviction; (2) the cause should be remanded for resentencing because the court considered the offenses which should be vacated when it imposed sentence for attempted murder; and (3) the court improperly denied his motion for release of property.

At trial, Anthony Manning testified that he and his brother, Robert Manning, came to Illinois from their home in New York with defendant in April 1989. The three had been staying at a house in Washington Park, Illinois. On the morning of April 7, 1989, at approximately 11 a.m., defendant came out of the bathroom and shot Anthony Manning in the head. Defendant then shot Robert Manning and kept firing the gun. After defendant ran out of the house, Anthony Manning ran to get help. Anthony Manning denied that he or his brother ever threatened defendant, denied that he or Robert Manning had a gun, and denied that defendant had any reason to shoot them because they all had been friends.

Frank Franklin, police officer for the City of Washington Park, testified that at approximately 9:30 a.m. on April 7, 1989, a mail carrier advised him that she thought that a man had been shot in the front yard of the 5200 block of East Gate. Franklin proceeded to that address and observed Anthony Manning sitting on the porch. Anthony Manning stated that he had been shot. Other police officers arrived, and the body of Robert Manning was found in the house. Anthony Manning furnished the officers with the name of the suspect. The suspect was described as wearing a black jogging-type suit and having a goatee and some facial hair, possibly a mustache. Franklin and another police officer, Paul Apostol, started to search for the suspect. After patrolling on different streets, Franklin observed the suspect, who had a pistol in his hand, running. Franklin and Apostol then started foot pursuit of the suspect, who Franklin identified in court as the defendant. Herbert Woodall, another officer, joined in the pursuit. Woodall was the officer who captured defendant, who was wearing a black jogging suit and had a goatee and mustache.

Paul Apostol testified that after arriving at the scene of the shooting, Anthony Manning advised him that defendant, who was wearing an all-black outfit, had shot him and then ran off. Defendant had short hair, a goatee, and a mustache. Apostol corroborated much of Franklin's testimony concerning the pursuit of defendant. After defendant was captured, Eddie Thomas handed Apostol a blue steel .32-caliber revolver.

Herbert Woodall, a newspaper carrier and deputy marshall with the Washington Park police force, testified that he heard the police radio traffic concerning the pursuit of the defendant and joined the hunt. Woodall observed defendant run down a driveway from between two garages. When Woodall told him to "Stop! police," defendant, who had his hand in his right pocket, turned toward Woodall, and Woodall fired three shots at him. Defendant was shot in the leg.

John Matt, another Washington Park police officer, testified that he went to the place where defendant was captured and searched him. Matt found two sealed baggies which contained money and one open baggie which contained money. He found no weapons on defendant.

Eddie Thomas testified that he saw a man, who was wearing all black and was being chased by the police, in his backyard. About 10 minutes later, he saw the chase continue across a parking lot. Thomas found a .32-caliber Smith & Wesson gun in his backyard and gave the gun to the police. Defendant resembled the man Thomas had seen in his backyard.

Frederick Cason, a surgeon, testified that on April 7, 1989, he observed Anthony Manning, who had suffered four gunshots, in the emergency room of St. Mary's Hospital in East St. Louis, Illinois. One gunshot wound traveled from behind the ear to the front of the ear, passing through the ear canal, but not fracturing any bone. A second wound was to the upper right thigh. A third wound was below the right knee. The last wound was at the base of the right buttock.

Dr. Cason examined Robert Manning and ordered him transferred to a neurosurgeon at St. Louis University Hospital. Robert Manning suffered from one gunshot wound which passed from one hemisphere of the brain to the second hemisphere, with coma.

Philip Burch, a physician and medical examiner, testified that an autopsy report of Dr. Michael Graham of the Medical Examiner's Office listed the cause of death of Robert Manning as a gunshot wound to the head. The bullet which penetrated the brain was recovered.

The presentence report reveals that defendant, age 21, has approximately three months' verifiable employment. Defendant stated that he earned approximately $2,000 per month as a self-employed furniture refinisher. Defendant was sentenced to three years' confinement in 1986 after a general court martial by the United States Army and was given a bad-conduct discharge. He has no other convictions or history of juvenile delinquency.

Defendant initially contends that his convictions for armed violence and aggravated battery should be vacated because those convictions are based on the same act as the attempted first-degree murder conviction. Count II of the indictment alleged attempted first-degree murder in that defendant, intending to kill Anthony Manning, "shot Anthony Manning in the head with a gun." Count III of the indictment alleged armed violence in that defendant, while armed with a dangerous weapon, a gun, committed aggravated battery where he "intentionally and without legal justification shot Anthony Manning in the head with a gun, thereby causing great bodily harm to Anthony Manning." Count IV alleged aggravated battery in that defendant, "without legal justification, intentionally caused great bodily harm to Anthony Manning in that he shot Anthony Manning in the head with a gun."

In Illinois, it is well established that multiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis for both charges. (People v. Donaldson (1982), 91 Ill.2d 164, 61 Ill.Dec. 780, 435 N.E.2d 477; People v. Johnson (1990), 200 Ill.App.3d 1018, 146 Ill.Dec. 644, 558 N.E.2d 607.) The elements of the offense of armed violence are simply stated: "A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law." (Ill.Rev.Stat.1989, ch. 38, par. 33A-2.) Therefore, "[o]ne cannot violate the armed violence statute without first committing a felony. The alleging of that felony in the armed violence charge has the effect, upon conviction, of making it a necessarily included offense." Donaldson, 91 Ill.2d at 170, 61 Ill.Dec. at 782, 435 N.E.2d at 479.

Here, there was only one alleged act, a single shot to Anthony Manning's head. Therefore, defendant's convictions for both armed violence and its underlying felony, aggravated battery, were improper and the aggravated battery conviction must be vacated. People v. Kujawa (1985), 132 Ill.App.3d 828, 829, 87 Ill.Dec. 633, 634, 477 N.E.2d 759, 760; Donaldson, 91 Ill.2d at 170, 61 Ill.Dec. at 782, 435 N.E.2d at 479; Johnson, 200 Ill.App.3d at 1021, 146 Ill.Dec. at 646, 558 N.E.2d at 609.

Further, when more than one offense arises from the same physical act, convictions for both attempted first-degree murder and armed violence cannot stand. (People v. Edwards (1988), 167 Ill.App.3d 324, 337, 118 Ill.Dec. 117, 126, 521 N.E.2d 185, 194.) In the case at bar, both offenses charged the same act: the shooting of Anthony Manning in the head with a gun. Judgment should be entered and sentence imposed only on the more serious offense. Both armed violence and attempted first-degree murder constitute serious offenses and both are Class X felonies, carrying a prison sentence of from 6 to 30 years. Nevertheless, attempted first-degree murder is a specific intent crime whereas armed violence is a general intent crime. Because attempted first-degree murder constitutes the more specific offense, it is the offense of the two in question upon which the court should have entered judgment and imposed sentence. (Edwards, 167 Ill.App.3d at 337, 118 Ill.Dec. at 126, 521 N.E.2d at 194.) Therefore, where armed violence, aggravated battery, and attempted first-degree murder are based on the same act, armed violence and aggravated battery must be vacated so that only the attempted first-degree murder conviction remains. People v. Wilkerson (1984), 123 Ill.App.3d 527, 537, 79 Ill.Dec. 1, 9, 463 N.E.2d 139, 147.

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