                                       2018 IL 121371



                                          IN THE

                                 SUPREME COURT

                                              OF

                           THE STATE OF ILLINOIS




                                     (Docket No. 121371)

                THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                           ROBERT CAREY, Appellee.


                               Opinion filed January 19, 2018.



        JUSTICE FREEMAN delivered the judgment of the court, with opinion.

        Chief Justice Karmeier and Justices Thomas, Kilbride, Garman, Burke, and
     Theis concurred in the judgment and opinion.



                                          OPINION

¶1       Following a jury trial in the circuit court of Cook County, defendant, Robert
     Carey, was convicted of first degree felony murder predicated on attempted armed
     robbery while armed with a firearm (720 ILCS 5/9-1(a)(3) (West 2010)). The
     appellate court reversed defendant’s conviction, holding that the indictment failed
     to specify the predicate offense to the prejudice of defendant. 2016 IL App (1st)
     131944. This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315
     (eff. Mar. 15, 2016). We now reverse the judgment of the appellate court and
     remand the cause to that court for further proceedings.


¶2                                  I. BACKGROUND

¶3        On January 28, 2011, defendant and his brother, Jimmy Townsend, ambushed
     two armored truck guards employed by Garda Cash Logistics (Garda). Defendant
     was shot twice in the head during the attack, and Townsend died as a result of
     multiple gunshot wounds to his chest. Defendant was charged by indictment with
     first degree felony murder based on attempted armed robbery (count I) (720 ILCS
     5/9-1(a)(3) (West 2010)). He was also charged with attempted armed robbery while
     armed with a firearm (count II) (id. §§ 8-4, 18-2(a)(2)) and with unlawful use or
     possession of a weapon by a felon based on his possession of a firearm (counts III
     and IV) (id. § 24-1.1(a)). On March 18, 2011, defendant was arraigned on all four
     counts.

¶4       Prior to trial, defendant underwent multiple examinations to determine his
     fitness to stand trial in light of his head injuries. Based on the results of those
     examinations, the circuit court found defendant fit to stand trial even though his
     ability to recollect and relate the events surrounding the shooting incident was
     impaired.

¶5       The State filed a motion in limine requesting that defendant be precluded from
     arguing that the handgun found in defendant’s possession at the scene must be in
     “operable” condition in order to qualify as a “firearm” under the Firearm Owners
     Identification Card Act (FOID Act) (430 ILCS 65/1.1 (West 2010)). During the
     hearing on the motion, the prosecutor advised the court and defense counsel that
     possession of a firearm was an element of the predicate offense charged in count I,
     which was attempted armed robbery under section 18-2(a)(2) of the Criminal Code
     of 1961 (Criminal Code) (720 ILCS 5/18-2(a)(2) (West 2010)). The prosecutor
     further indicated that the State intended to prove that defendant was armed with an
     automatic handgun that qualified as a “firearm” under the FOID Act despite
     defendant’s contention that the gun was inoperable. The court granted the State’s
     motion but also indicated that defendant could argue that the handgun fell within an
     exception to the statutory definition of a “firearm” if the evidence supported such
     an argument.



                                            -2­
¶6       On January 29, 2013, immediately before jury selection, the State moved for
     entry of a nolle prosequi on the charges of attempted armed robbery and unlawful
     use or possession of a weapon by a felon alleged in counts II, III, and IV. The trial
     court granted the State’s motion, and defendant was tried before a jury on the
     charge of felony murder alleged in count I.

¶7       At trial, which commenced the following day, the State presented eyewitness
     testimony from the two armored truck guards, Julio Rodriguez and Derrick
     Beckwith, and from three other witnesses who were in the vicinity and either saw or
     heard the attack. The State also introduced testimony from the responding police
     officer, a medical examiner who reviewed Townsend’s autopsy report, a forensic
     investigator, a firearm identification expert, and the detective assigned to
     investigate the incident.

¶8       The State’s evidence reflected the following relevant facts. On the morning of
     January 28, 2011, the two armored truck guards, Rodriguez and Beckwith, were
     assigned to collect cash receipts from a Family Dollar store located at the corner of
     Chicago and Homan Avenues in Chicago. Rodriguez went into the store while
     Beckwith remained in the truck. When Rodriguez came outside, he was holding a
     deposit bag containing the store’s cash receipts. Defendant and Townsend
     simultaneously approached him from separate positions. As Townsend advanced
     toward Rodriguez, he was aiming an object that appeared to be a sawed-off
     shotgun. Defendant, who had a handgun in his possession, approached Rodriguez
     from a different direction. After Townsend yelled for defendant to shoot,
     Rodriguez shot Townsend four times with his service revolver. Townsend
     collapsed on the pavement and threw the object he was holding to defendant, who
     put Rodriguez in a choke hold. Townsend ultimately died from the gunshot wounds
     to his chest.

¶9       During the struggle, Rodriguez dropped the money bag, broke free from
     defendant, and ran toward the truck. Beckwith then fired four shots at defendant
     through the open passenger-side door of the truck. Two bullets struck defendant in
     the head, one of which hit him directly in his right eye. Defendant fell to the ground
     and remained there until the police and paramedics arrived. As a result of the head
     injuries he suffered from the shooting, defendant was in a coma for a period of time.




                                             -3­
       When he regained consciousness, defendant stated that he had no memory of the
       shooting or of anything that had happened during the week preceding the incident.

¶ 10       Upon examination, the item that Townsend had aimed at Rodriguez was found
       to be a homemade object fashioned to resemble a sawed-off shotgun. The object
       consisted of two metal pipes fastened to a piece of wood with duct tape, with a
       brown rag wrapped across one of the ends to serve as a handle.

¶ 11       The handgun found with defendant was subjected to forensic testing, which
       revealed that it was an unloaded double-barreled .22-caliber derringer designed to
       fire live ammunition. An obstruction in the upper barrel prevented placement of a
       round in that chamber, but the lower barrel was not obstructed. Multiple attempts to
       test-fire the derringer demonstrated that its firing pin did not strike with enough
       force to cause a cartridge in the lower barrel to discharge. The State’s expert in
       firearm identification concluded that the handgun was inoperable in its current
       state.

¶ 12       In defense, defendant testified that he had no memory of the incident, but he
       could recall some of the circumstances that preceded it. Defendant recalled that,
       sometime in November or December 2010, Townsend said that he wanted to “end
       his life” and desired to “go out in a hail of bullets.” Defendant also recalled that the
       topic of suicide often came up during conversations with his brother. In addition,
       defendant admitted that he had seen and held the derringer handgun multiple times
       prior to the incident, and he remembered seeing the makeshift “shotgun” because it
       was usually kept in the van that he and Townsend often drove. Finally, defendant
       acknowledged that it was possible that he and Townsend were trying to rob the
       armored truck on the day of the shooting. However, because he had no memory of
       the incident, defendant could not say with certainty whether that was the case.

¶ 13       During the jury instruction conference, the prosecutor advised that the State
       was seeking imposition of the firearm sentencing enhancement and tendered a
       corresponding instruction. Defense counsel objected, arguing that the State had not
       provided notice of its intent to seek an enhanced sentence. The circuit court issued
       the instruction and sentence-enhancement verdict form over defendant’s objection.

¶ 14      The jury found defendant guilty of first degree murder. The jury separately
       found that defendant committed the offense while armed with a firearm. The trial




                                                -4­
       court denied defendant’s motion for a new trial, sentenced him to 25 years’
       imprisonment, and also imposed an additional 15-year term based on his
       possession of a firearm.

¶ 15       On appeal, defendant asserted that he was not proven guilty beyond a
       reasonable doubt because the evidence of the predicate offense of attempted armed
       robbery with a firearm was insufficient. In particular, he claimed that the State
       failed to prove his intent to rob the armored truck guards and also failed to prove
       that the inoperable derringer qualified as a “firearm.” Defendant further argued that
       the trial court erred in ruling that he was fit to stand trial and in ruling that the State
       was entitled to seek the 15-year firearm sentencing enhancement. In addition,
       defendant contended that he was prejudiced in the preparation of his defense where
       the indictment failed to specify the offense that formed the predicate offense for the
       charge of felony murder. 1

¶ 16       The appellate court reversed defendant’s conviction for felony murder on the
       ground that the indictment failed to specify the predicate offense to the prejudice of
       defendant. 2016 IL App (1st) 131944, ¶¶ 22-37. The appellate court reasoned that
       count I of the indictment was defective because it did not identify which of the two
       attempted armed robbery offenses served as the predicate for the felony murder
       charge. Id. ¶ 22. Based on that defect, the appellate court concluded that the
       indictment failed to adequately inform defendant of the charges against him with
       sufficient detail to allow preparation of an adequate defense. Id. ¶¶ 22, 24, 28,
       33-34. In addition, the appellate court held that the defect in count I was not cured
       by reference to the other charges alleged in counts II, III, and IV or to the assertions
       in the State’s motion in limine. Id. ¶¶ 30-31. Because the appellate court found the
       insufficiency of the indictment issue to be dispositive, it did not address
       defendant’s remaining arguments. Id. ¶¶ 18, 37.

¶ 17       The State appeals to this court. Additional pertinent background will be
       discussed in the context of our analysis of the issues.




           1
           This argument was presented in a petition for rehearing after the appellate court issued an
       unpublished decision affirming defendant’s conviction, which was later withdrawn.




                                                    -5­
¶ 18                                      II. ANALYSIS

¶ 19       The State assigns error to the appellate court’s reversal of defendant’s
       conviction of first degree felony murder. The State disagrees with the appellate
       court’s holding that the indictment failed to specify the predicate offense of
       attempted armed robbery to the prejudice of defendant. The State contends that the
       indictment sufficiently informed defendant of the charges brought against him. The
       sufficiency of a charging instrument is a question of law subject to de novo review.
       See People v. Rowell, 229 Ill. 2d 82, 92 (2008).

¶ 20       A criminal defendant has a fundamental right to be informed of the nature and
       cause of criminal accusations made against him. People v. Nash, 173 Ill. 2d 423,
       428 (1996) (citing U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8); People v.
       Meyers, 158 Ill. 2d 46, 51 (1994) (same). In Illinois, this constitutional right is
       implemented by section 111-3 of the Code of Criminal Procedure of 1963 (725
       ILCS 5/111-3 (West 2010)). Section 111-3(a) imposes specific pleading
       requirements for criminal charges. Nash, 173 Ill. 2d at 428-29; Meyers, 158 Ill. 2d
       at 51. These principles also apply to the predicate or underlying offense of a
       charged crime. This rule “protects the defendant against being forced to speculate
       as to the nature or elements of the underlying offense, thus spreading his resources
       thin, attempting to rebut all of the possibilities, while the prosecutor merely focuses
       on the most promising alternative and builds his case around that.” People v. Hall,
       96 Ill. 2d 315, 320 (1982).

¶ 21       The timing of a challenge to a charging instrument is significant in determining
       whether a defendant is entitled to reversal of his or her conviction based on
       charging instrument error. Rowell, 229 Ill. 2d at 93; People v. Benitez, 169 Ill. 2d
       245, 257 (1996). If an indictment or information is challenged before trial in a
       pretrial motion, the charging instrument must strictly comply with the requirements
       in section 111-3(a). Rowell, 229 Ill. 2d at 93 (and cases cited therein); People v.
       Thingvold, 145 Ill. 2d 441, 448 (1991).

¶ 22       In contrast, while we do not approve of any failure to strictly comply with the
       clear requirements of section 111-3(a), the sufficiency of a charging instrument
       attacked for the first time on appeal is not determined by strict compliance with the
       statute but rather “by a different standard.” People v. Pujoue, 61 Ill. 2d 335, 339
       (1975); see People v. Gilmore, 63 Ill. 2d 23, 29 (1976). When attacked for the first



                                                -6­
       time on appeal, a charging instrument is sufficient if it notified the defendant of the
       precise offense charged with enough specificity to allow the defendant to
       (1) prepare his or her defense and (2) plead a resulting conviction as a bar to future
       prosecution arising out of the same conduct. People v. DiLorenzo, 169 Ill. 2d 318,
       322 (1996) (collecting cases). “In other words, the appellate court should consider
       whether the defect in the information or indictment prejudiced the defendant in
       preparing his defense.” Thingvold, 145 Ill. 2d at 448; accord Rowell, 229 Ill. 2d at
       93; People v. Phillips, 215 Ill. 2d 554, 562 (2005). In making this determination,
       the reviewing court may resort to the record. DiLorenzo, 169 Ill. 2d at 324. “Thus,
       the question is whether, in light of the facts of record, the indictment was so
       imprecise as to prejudice defendant’s ability to prepare a defense.” Phillips, 215 Ill.
       2d at 562. If the reviewing court cannot say that the charging instrument error
       inhibited the defendant in the preparation of his or her defense, then the court
       cannot conclude that the defendant suffered any prejudice. See People v.
       Cuadrado, 214 Ill. 2d 79, 88 (2005).

¶ 23       The State contests the appellate court’s conclusion that the indictment did not
       sufficiently inform defendant of the felony murder charge “for two independent
       reasons: (1) Count I fully informed defendant of the murder charge; and (2) even if
       Count I were deficient, read as a whole the indictment fully informed defendant of
       the murder charge.” We initially consider the State’s second argument.

¶ 24       Count I alleged that on or about January 28, 2011, within Cook County,
       defendant “committed the offense of first degree murder in that he, without lawful
       justification, committed the offense of attempt armed robbery, and during the
       commission of the offense, he set in motion a chain of events that caused the death
       of Jimmy Townsend” in violation of section 9-1(a)(3) of the Criminal Code. As the
       appellate court noted, armed robbery can refer to either of two crimes: armed
       robbery “with a dangerous weapon other than a firearm” (720 ILCS 5/18-2(a)(1)
       (West 2010)) or armed robbery “with a firearm” (id. § 18-2(a)(2)). These two types
       of armed robbery are “substantively distinct offenses” (People v. Washington, 2012
       IL 107993, ¶ 6) and “are mutually exclusive of each other” (People v. Barnett, 2011
       IL App (3d) 090721, ¶ 38). The appellate court observed that count I did not
       provide either a statutory citation or factual allegations to indicate which type of
       armed robbery the State sought to prove at trial. Focusing exclusively on count I,




                                                -7­
       the appellate court concluded that this deficiency rendered the indictment fatally
       insufficient. 2016 IL App (1st) 131944, ¶ 22.

¶ 25       “It is a well-established rule in Illinois that all counts of a multiple-count
       indictment should be read as a whole and that elements missing from one count of
       an indictment may be supplied by another count.” People v. Morris, 135 Ill. 2d 540,
       544 (1990). Accordingly, when one count of a multiple-count indictment states the
       alleged predicate offense for another count with specificity, the latter count should
       not be held void unless the indictment itself, or the prosecutor, affirmatively
       indicates that some other offense is the predicate or there remains a realistic
       possibility of prejudicial uncertainty as to the predicate offense in light of the facts.
       Hall, 96 Ill. 2d at 321.

¶ 26       In the case at bar, count II charged defendant with attempted armed robbery,
       specifically alleging that defendant used “a firearm” and citing section 18-2(a)(2)
       of the Criminal Code. 720 ILCS 5/18-2(a)(2) (West 2010). Counts III and IV each
       charged defendant with unlawful use or possession of a weapon by a felon (id.
       § 24-1.1(a)), specifically alleging that defendant possessed “a firearm.” Therefore,
       the indictment, read as a whole, clearly informed defendant that the State intended
       to prove that he possessed a firearm at the time of the shooting.

¶ 27       However, without citation to authority, the appellate court refused to read the
       indictment as a whole. The court observed that the prosecutor entered a nolle
       prosequi on counts II, III, and IV and proceeded to trial only on count I. The court
       reasoned that the State’s abandonment of those counts prior to trial effectively
       informed defendant that it was not willing to prosecute defendant for the charges
       pled therein. Thus, the court concluded that the State cannot refer to their contents
       to supplement the allegations in count I. 2016 IL App (1st) 131944, ¶ 30.

¶ 28       We disagree. The ultimate question remains whether, in light of the facts of
       record, the charging instrument was so imprecise as to prejudice defendant’s ability
       to prepare a defense, which, if successful, would bar further prosecution arising out
       of the same conduct. See Phillips, 215 Ill. 2d at 562 (and cases cited therein). Here,
       the entry of the nolle prosequi on counts II, III, and IV did not occur until just prior
       to jury selection and one day before the trial commenced. Consequently, all four
       counts of the indictment, read as a whole (Morris, 135 Ill. 2d at 544), were available
       to inform defendant of the charges against him while he prepared for trial from the



                                                 -8­
       date of his arraignment in March 2011 until the commencement of trial in January
       2013. See, e.g., People v. McDavid, 3 Ill. App. 3d 169, 171-72 (1971) (quoting
       People v. Kamsler, 67 Ill. App. 2d 33, 41 (1966)).

¶ 29       In addition, the fact that defendant possessed a “firearm” at the time of the
       attack was addressed on multiple occasions prior to and during trial. At two pretrial
       status hearings, the prosecutor and defense counsel advised the court that “the
       firearm” recovered from defendant at the scene was being tested to determine its
       capability of being fired. At the hearing on the motion in limine, the prosecutor
       specifically stated that “we will be proving that the [d]efendant was armed with a
       firearm from a legal sense. *** The attempt armed robbery section that is the
       predicate for the felony murder is [section] 18-2(a)(2), which requires proof of a
       firearm ***. It requires us to prove [a] firearm.” During trial, defense counsel
       conducted extensive cross-examination of the occurrence witnesses, including
       questioning as to whether defendant was seen holding the gun. Defense counsel
       also cross-examined the State’s firearm expert regarding the conclusion that the
       derringer was inoperable. In her closing argument, defense counsel emphasized the
       fact that the derringer could not be fired and highlighted the conflicting testimony
       on whether defendant was holding the gun at the time of the attack on the armored
       truck guards.

¶ 30        Therefore, the record before us affirmatively demonstrates that defendant was
       aware that the charge of felony murder was predicated on attempted armed robbery
       with a firearm and his attorney presented a defense to that charge. Also, given the
       jury’s specific finding that defendant had possessed a firearm, the record
       establishes that defendant was convicted of committing the offense charged in
       count I while armed with a firearm. Neither defendant nor the appellate court has
       identified what other actions he could have taken if the allegations in count I had
       particularly referenced the use or possession of a firearm. See People v. Davis, 217
       Ill. 2d 472, 479 (2005). In light of these circumstances, we cannot say that the lack
       of specificity in the felony murder charge prejudiced defendant in preparing a
       defense, nor do we believe the lack of specificity would hamper defendant’s ability
       to plead his murder conviction as a bar to future prosecution arising out of the same
       conduct.




                                               -9­
¶ 31       As a final matter, we note defendant argues that he was not proven guilty
       beyond a reasonable doubt because the evidence as to the predicate offense of
       attempted armed robbery with a firearm was insufficient. In support, defendant
       contends that the State failed to prove that the inoperable and unloaded .22-caliber
       derringer qualified as a “firearm.” We observe, however, that the appellate court
       did not rule on the sufficiency of the evidence, or on either of the other two issues
       argued below, because it determined that the indictment issue was dispositive. 2016
       IL App (1st) 131944, ¶¶ 18, 37. In light of our holding that defendant was not
       prejudiced by the lack of specificity in the indictment, we remand the cause to the
       appellate court for consideration of defendant’s arguments challenging the
       sufficiency of the evidence against him, the ruling that he was fit to stand trial, and
       the determination that the State was entitled to seek the 15-year firearm sentencing
       enhancement. See, e.g., People v. Givens, 237 Ill. 2d 311, 339 (2010). 2


¶ 32                                        III. CONCLUSION

¶ 33       For the foregoing reasons, the judgment of the appellate court is reversed, and
       the cause is remanded to the appellate court for further proceedings.

¶ 34       Reversed and remanded.




           2
            Based on our disposition, we need not address the State’s alternative argument that the
       appellate court erred in failing to affirm defendant’s conviction by reducing the degree of the
       predicate felony to the lesser-included offense of attempted robbery. See, e.g., In re M.M., 2016 IL
       119932, ¶ 31.




                                                     - 10 ­
