People v. Young

• Decision Date: 29 July 1983
• Docket Number: No. 81-2526,81-2526
• Citation: 452 N.E.2d 718,72 Ill.Dec. 465,116 Ill.App.3d 984
• Court: United States Appellate Court of Illinois
• Parties: , 72 Ill.Dec. 465 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terry YOUNG, Defendant-Appellant.

Page 718

452 N.E.2d 718

116 Ill.App.3d 984, 72 Ill.Dec. 465

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terry YOUNG, Defendant-Appellant.

No. 81-2526.

Appellate Court of Illinois First District, Fifth Division.

July 29, 1983.

[72 Ill.Dec. 467] James J. Doherty, Public Defender of Cook County (Gerald T. Winiecki, Asst. Public Defender, of counsel), for defendant-appellant.

Richard M. Daley, State's Atty. of Cook County (Michael E. Shabat, David A. Shapiro and Edward Barron, Asst. State's Attys., of counsel), for plaintiff-appellee.

MEJDA, Justice:

Defendant was charged with armed violence, unlawful use of weapons, and the murder of Michael Jackson. Following a bench trial, the trial court entered a finding of guilty as to armed violence and unlawful use of weapons and continued the case for sentencing. On the next date the court entered a finding of guilty of murder and imposed sentence of ten years only for armed violence. Thereafter, pursuant to a supervisory order of the Illinois Supreme Court, the trial court entered judgment on the murder conviction, imposed a sentence of 20 years thereon, and vacated the armed violence conviction. Defendant appeals.

The issues presented are whether: (1) the finding of guilty entered on April 15, 1981, constituted an acquittal of the charge of murder; (2) defendant's right against double jeopardy was violated; and (3) the State failed to prove guilt beyond a reasonable doubt.

Michael Jennings, witness for the State, testified that just prior to the shooting he was on his front porch with Michael Jackson and several other persons. A car drove up and Edward Clerk and defendant got out. Clerk walked up to Jackson and said, "Hey, man, I heard you been looking for me," then slapped Jackson with the .25 caliber handgun he was holding. As Jackson stepped back, Clerk fired the gun at him. Jackson then pulled out a .38 caliber handgun and fired at Clerk. As Clerk fell to the ground, Jackson began running. Until the shots were exchanged, defendant stood 12 to 14 feet from Clerk and 10 to 12 feet from Jackson, while holding a sawed-off shotgun. After Jackson shot Clerk, defendant fired the shotgun in the general direction of Jackson, then picked up the .25 caliber handgun and fired it toward Jackson, who by then was running away from where defendant stood. The evidence showed that Clerk died from a gunshot wound in the head inflicted by a .38 caliber handgun. Jackson's body was found approximately one block from the scene of the shootings. He died as a result of a bullet from a .25 caliber gun entering his chest and traveling to his heart.

In a written statement made at the police station after the shooting and read in court defendant stated that Jackson had first tried to hit Clerk, that Jackson first pulled a gun and shot Clerk, and that when defendant picked up Clerk's gun Jackson shot at him and only then did defendant fire at Jackson.

A defense witness testified to substantially the same chain of occurrences as the State's witness. He said that Clerk approached Jackson, hit him in the face, and then shot him. Jackson then shot Clerk.

On April 15, 1981, after closing arguments, the court stated that "under the evidence and facts as elicited here, while the defendant did not fire any fatal shot the defendant has been proven to be legally accountable for the actions of Edward Clerk. Were Clerk here and alive Clerk would definitely be guilty of murder." The court then entered a finding of guilty as to armed violence and unlawful use of weapons, ordered a presentence investigation, and continued the case to May 20, 1981, for sentencing.

On May 20 the court stated:

"There was a finding of guilty of Armed Violence and Unlawful Use of Weapons.

"Since the finding, and since the completion of the trial, an Advanced Sheet Opinion has come down which causes me to think that, perhaps, improvidently I did not complete the record.

"The advance opinion in question is People versus Donald Ellis in 93 Illinois Appellate Third, a First District case. ¹

"So, just to complete the record and, in fact, correct any inadvertent omissions, the Court does enter a finding of guilty of murder without going to a judgment of conviction."

The court then conducted a sentencing hearing only as to armed violence and then stated "The cause of death testified to as to Jackson was the bullet fired by Clerk, so actually there is one death here that the Defendant is accountable for and that is the death of Jackson." After finding that the offense of unlawful use of weapons was included and merged in the offense of armed violence, defendant was then sentenced only as to armed violence to a ten-year term.

On September 24, 1981, the Illinois Supreme Court entered a supervisory order which vacated the May 20, 1981 sentence and directed the trial judge "to enter a judgment of conviction pursuant to his finding of guilty of the offense of murder and to enter sentence thereon" and further "to reconsider the sentence entered on May 20, 1981, in light of People v. King (1977), 66 Ill.2d 551 [6 Ill.Dec. 891, 363 N.E.2d 838]." (People ex rel. Daley v. Samuels, Case No. 55464.) On October 14, 1981, the trial court pursuant to the order entered judgment and sentenced defendant to a term of 20 years for murder and vacated the conviction and sentence of May 20, 1981, imposed for armed violence. Defendant appeals.

OPINION

Defendant first contends that the court's April 15, 1981 finding of guilty of armed violence and unlawful use of weapons operated as an acquittal of the charge of murder and, therefore, the conviction for murder violated his constitutional right against double jeopardy. The State responds that on April 15, 1981, the court found defendant guilty of murder and on May 20, 1981, merely clarified this finding prior to final judgment.

The principle of double jeopardy prohibits subjecting an individual to trial and possible conviction more than once for an alleged offense. (Green v. United States (1957), 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199; see Illinois v. Vitale (1980), 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228; Ill.Rev.Stat.1981, ch. 38, par. 3-4.) The constitutional prohibition protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. (North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656; People v. Gray (1977), 69 Ill.2d 44, 50-51, 12 Ill.Dec. 886, 888, 370 N.E.2d 797, 799, cert. denied 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed.2d 395.) We are here concerned with the first of these prohibitions.

Defendant bases his double jeopardy argument on the principle that a conviction on one of several counts in an information or indictment without reference to the other counts is an acquittal as to all other counts. (People v. Bybee (1956), 9 Ill.2d 214, 137 N.E.2d 251; People v. Smithka (1934), 356 Ill. 624, 191 N.E. 211; People v. Weil (1910), 243 Ill. 208, 90 N.E. 731; see also People v. Gray.) Central to defendant's argument is his conclusion that the entry on April 15 in the written memorandum of orders finding defendant guilty of armed violence and unlawful use of weapons operated as a conviction and, without reference to the murder charge, implicitly operated as an acquittal of murder. We disagree with defendant's premise and with his conclusion.

Defendant construes the findings of the court entered on April 15 to operate as convictions and, implicitly, as an acquittal. "Acquittal" means a verdict or finding of not guilty of an offense, rendered by a legally constituted jury or by a court without a jury. (Ill.Rev.Stat.1981, ch. 38, par. 2-1.) "Conviction" means a judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense, rendered by a legally constituted jury or by a court without a jury. (Ill.Rev.Stat.1981, ch. 38, pars. 2-5 and 1005-1-5.) "Judgment" means an adjudication by the court that the defendant is guilty or not guilty and if the adjudication is that the defendant is guilty it includes the sentence pronounced by the court. (Ill.Rev.Stat.1981, ch. 38, pars. 102-14 and 1005-1-12.) The final judgment in a criminal case is the imposition of sentence. (People v. Dixon (1982), 91 Ill.2d 346, 63 Ill.Dec. 442, 438 N.E.2d 180.) The pronouncement of the sentence is the act which embodies the judgment of the court. (People v. Allen (1978), 71 Ill.2d 378, 16 Ill.Dec. 941, 375 N.E.2d 1283.) The sentence is a necessary part of a complete judgment of guilt. (People v. Vaughn (1981), 92 Ill.App.3d 913, 48 Ill.Dec. 408, 416 N.E.2d 681.) In the absence of a sentence a judgment of conviction is not final. In re J.N. (1982), 91 Ill.2d 122, 61 Ill.Dec. 776, 435 N.E.2d 473; People v. Warship (1974), 59 Ill.2d 125, 319 N.E.2d 507; People v. Surges (1981), 101 Ill.App.3d 962, 57 Ill.Dec. 332, 428 N.E.2d 1012.

The rules that specify when jeopardy attaches and that prohibit retrial of an acquitted defendant "should not be applied mechanically when the interests they protect are not endangered and when their mechanical application would frustrate society's interest in enforcing its criminal laws. Illinois v. Somerville (1973), 410 U.S. 458, 463 [93 S.Ct. 1066, 1070, 35 L.Ed.2d 425] * * *." (People v. Deems (1980), 81 Ill.2d 384, 388, 43 Ill.Dec. 8, 10, 410 N.E.2d 8, 10, cert. denied 450 U.S. 925, 101 S.Ct. 1378, 67 L.Ed.2d 355.) In Deems the court affirmed the appellate court judgment reversing a dismissal of a subsequent indictment on double jeopardy grounds and vacated a prior "acquittal" judgment stating that "the word 'acquittal' 'has no talismanic quality for purposes of the Double Jeopardy Clause' (Serfass v. United States (1975), 420 U.S. 377, 392, 43 L.Ed.2d 265, 276, 95 S.Ct. 1055, 1064), and what constitutes an acquittal for purposes of the double...