                                      2015 IL App (1st) 120654

                                           No. 1-12-0654


                                      Filed September 24, 2015


                                                                             FOURTH DIVISION



                                 IN THE APPELLATE COURT
                                           OF ILLINOIS
                                  FIRST JUDICIAL DISTRICT



 THE PEOPLE OF THE STATE OF ILLINOIS,                                 )   Appeal from the
                                                                      )   Circuit Court
                Plaintiff-Appellee,                                   )   of Cook County
                                                                      )
 v.                                                                   )   No. 07 CR 8683
                                                                      )
 WILLIS REESE,                                                        )   Honorable
                                                                      )   Kenneth J. Wadas,
                Defendant-Appellant.                                  )   Judge Presiding.



       PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion.
       Justice Gordon concurred in the judgment and opinion.
       Justice Palmer specially concurred in part and dissented in part, with opinion.

                                            OPINION


¶1     Following trial, a jury found defendant, Willis Reese, guilty of aggravated vehicular

hijacking, vehicular invasion, attempted armed robbery, and escape. The trial court subsequently

sentenced him to concurrent extended-term sentences of, respectively, 50, 30, 30, and 14 years in

prison, to be served consecutively to the natural life sentence defendant was serving on a prior

murder conviction. Defendant appeals, arguing (1) the State failed to prove him guilty of
No. 1-12-0654


aggravated vehicular hijacking, as it failed to show that he dispossessed the victim of the bus, (2)

the State failed to prove him guilty of vehicular invasion, as it failed to show he used force to

enter the bus, (3) a fatal variance existed between his attempted armed robbery indictment and

conviction, (4) he was deprived of due process when he was shackled during jury selection

without the trial court articulating the reasons for his shackling, (5) the State introduced

excessive and irrelevant details regarding his prior murder conviction, (6) the trial court failed to

comply with Illinois Supreme Court Rule 401(a) (eff. July 1, 1984), thereby rendering his waiver

of counsel invalid, (7) the court erroneously imposed extended-term sentences on offenses that

were not among the most serious class of felony, and (8) his convictions for both aggravated

vehicular hijacking and vehicular invasion violate the one-act, one-crime doctrine.

¶2     For the following reasons, we reverse defendant's conviction and sentence for aggravated

vehicular hijacking, and affirm his convictions for vehicular invasion, attempted armed robbery,

and escape. We affirm defendant's 30-year sentences for vehicular invasion and attempted armed

robbery, and reduce his sentence for escape to 7 years.

¶3                                     I. BACKGROUND

¶4     On March 19, 2007, a jury found defendant guilty of first-degree murder. Three days

later, before he was sentenced for that offense, defendant was taken to an appointment at Stroger

Hospital (Stroger). Following his appointment, defendant went into a restroom, removed a shank

he had hidden in his shoe, and fled the building, injuring several people during his escape. Based

on the events that transpired that day, the grand jury returned an indictment charging defendant

with, among other offenses, aggravated vehicular hijacking, vehicular invasion, attempted armed

robbery, escape, disarming a peace officer, and aggravated kidnapping. The indictment also




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No. 1-12-0654


charged him with multiple counts of attempted first-degree murder, which the State later nol-

prossed.

¶5                                     A. Pretrial Proceedings

¶6     The public defender was appointed to represent defendant, and, in October 2008,

defendant told the trial court that he wished to "exercise [his] constitutional right" to proceed pro

se. He expressed dissatisfaction with the public defender's office and stated he was making his

"decision knowingly and intelligently." The court advised defendant that two of his attempted

first-degree murder counts alone carried 20- to 80-year prison sentences and possible extended-

term sentences of 40 to 160 years' imprisonment. The court stated, "Basically, you are looking at

massive time if you are convicted." Defendant indicated that he understood. The court then

advised defendant of the normal and extended-term sentences that Class 1, Class 2, Class 3, and

Class X felonies carried. When asked whether he understood the penalties and sentencing ranges,

defendant responded, "Perfectly, Your Honor, perfectly." The court did not admonish defendant

that any possible sentence in his case would run consecutively to the sentence he was serving on

his murder conviction. After completing its admonishments, the court permitted the public

defender to withdraw.

¶7                             B. Jury Selection and The State's Motions In Limine

¶8     In November 2011, the parties appeared before the trial court for jury selection.

Defendant indicated he was "ready to change into [his] clothes and get out of [his] shackles" so

he could "prepare [his] paper work." The court started to explain the voir dire procedure, and

defendant stated, "I mean I would like to write this stuff down. This is just not good right now. I

want to write what you're saying down. So if you would say it again later on that would be fine,

too." The court told defendant that "[l]ater on," his hands would be free and both tables would be



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No. 1-12-0654


covered with drapery so that the jurors would not be able to see defendant's leg shackles. The

following exchange then occurred.

                "THE DEFENDANT: But won't they be able to hear?

                THE COURT: I guess if you move your legs around a lot.

                THE DEFENDANT: Yeah. And I am a human being so that's a big

       possibility that would happen. Also—I mean the shackles why do they need to

       stay on at this particular portion of trial?

                THE COURT: I will leave it at their discretion. I am not going to order

       them to take—

                THE DEFENDANT: They take them off with other people. I've shown

       you approximately a year and a half ago that I can handle myself without being

       shackled when I argued the motion between [the assistant State's Attorneys]. I

       didn't have shackles then.

                THE COURT: You are preaching to the choir. All you have to do is talk to

       the men in charge. If you can convince those three men that you don't need leg

       shackles, you don’t have to have them on.

                THE DEFENDANT: My point is I didn't have to convince them the first

       time you did it. But it's fine. We can do it that way this time."

¶9     After the trial court further explained voir dire to defendant and a recess took place,

defendant again brought up his shackles. The following exchange took place.

                "THE DEFENDANT: Judge, one thing before we get started, and I don't

       mean to bring this back up and be difficult. But it's a very big problem. Will this




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         be the case these shackles. When the jury come[s] in here, when trial officially

         starts, will I still be confined to this?

                 THE COURT: That's up to the Illinois Department of Corrections.

                 THE DEFENDANT: Judge, the Illinois Department of Corrections is not

         on trial. You see what I am saying. They're not on trial. Their constitutional rights

         are not being violated. And so they could care less. They have a system that they

         run down there. The only way they are going to come off is by court order."

Defendant told the court, "I will give you my word if I so much as step in the wrong

direction, I will willingly put these back on. But I am here to do a thorough job, and I can

not work under these conditions." The court indicated it would take the matter under

consideration and make a decision the next day.

¶ 10     Later, jury selection commenced. The first panel of six potential jurors consisted of

Tiffany Fourkas, Danielle Quinn, Alvin Hunt, Aaron Perry, Quinn McSorley, and Melissa

Myles. 1 When asked whether he accepted the panel of Fourkas, Quinn, Perry, and McSorley,

defendant stated, "No, I don't accept three individuals." The court asked defendant who he would

not accept, and he indicated Fourkas. He then asked if the trial court could "possibly have him

dismissed for a moment" because an "issue" was "going on" and he did not think the court

"would want" the jurors to hear about it. The court asked whether defendant was only dismissing

Fourkas, and defendant stated "Here's the thing, sir. Our reason for having these drapes here,

what was our reason for having these drapes?" After the court dismissed the prospective jurors,

defendant explained that Fourkas, McSorley, and Myles were "all sitting on this side here. And if

1
    The State excused Hunt, who said he had just gotten off of probation and was "kind of on the

fence" about his ability to be fair.


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No. 1-12-0654


you notice this little area right here is completely open. And it basically defeats the purpose of

you having this drape up on the table. They saw me with the shackles on. If they saw me with the

shackles on, then we might as well not have the drapes up." The court asked defendant which

people saw the shackles, and defendant stated Fourkas and McSorley.

¶ 11   The trial court asked that Fourkas and McSorley be brought back into the courtroom

separately. Upon questioning, Forukas said she could not see behind the drapes. Nonetheless,

defendant exercised a peremptory challenge to remove Fourkas.

¶ 12   The trial court then questioned McSorley, who indicated he could see behind the drapery

and saw "a little belt on [defendant]'s strap between his feet." He denied that what he saw would

affect his ability to be fair. Defendant then asked the following questions, and McSorley

provided the following responses.

           "Q. Does this [the shackles] mean anything of significance to you?

           A. No.

           Q. Not at all. Does it give you the impression that I can not control myself?

           A. No, not at all.

           Q. Are you sure about that?

           A. Yes.

           Q. So when you see a man with shackles on his feet, what do you think. Tell

       me the first thing that came to your mind.

           A. What?

           Q. Tell me the first thing that came to your mind when you saw these shackles

       on my ankles?

           A. I knew you were being supervised by these two patrol men.

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           Q. That's a problem in itself. Okay. I won't strike."

The other members of the panel returned to the courtroom, and the court asked whether

anything about defendant's appearance would affect their ability to be fair. The court

explained that it was referring to "[h]is appearance with this drapery in front of him."

Quinn stated, "No I guess" and asked whether there was "something we should know that

we don't know because now I am confused." The court said there was nothing the jury

should know. The record does not contain a response from any of the other potential

jurors. The parties accepted the panel of Myles, Perry, Quinn, and McSorley.

¶ 13   At the conclusion of voir dire, the trial court addressed the State's motions to introduce

defendant's prior murder conviction. The State sought to use the conviction as evidence of

defendant's motive to escape as well as for impeachment purposes. The State also filed a motion

in limine to present a certified copy of the charging instrument from defendant's prior murder

conviction. The State explained that it wanted to "prove up that defendant was convicted three

days before the incident and to introduce evidence of the potential sentence he was facing in so

far as it relates to motive." The trial court ruled that the State could not present that information

in its case-in-chief but could use defendant's prior conviction for impeachment if defendant

testified. The court instructed defendant as follows. "[S]hould you testify and testify in a way

that that could be used to impeach you, then of course I will allow the State to introduce that

certified copy of conviction, cross examine you on the fact that you were convicted of murder.

You knew you were facing a heavy sentence, et cetera, as a motive to escape." The court also

ruled that, with respect to the escape count, the State could say only that defendant "was in

custody on felony charges." Before the proceedings ended, defendant asked the court if it would

"please remember to consider the shackle situation" for trial. The court asked the Department of


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No. 1-12-0654


Corrections (DOC) officer about the shackles, who responded, "We keep them on unless you

order them off." The court then stated as follows. "I am inclined to let him have—to be taken off

when he—people usually like to stand when they give their argument and move around a little

bit. So I'll sign that order tomorrow and you can take the shackles off. And he will have a little

more freedom."

¶ 14                                  C. Trial

¶ 15   On the first day of trial, the trial court ordered that defendant's shackles be removed

during trial. Thereafter, the parties presented the following evidence.

¶ 16   Cook County sheriff's officer Vito Zaccaro testified that he was working in the external

operations unit at Stroger at around 1 p.m. on March 22, 2007. Zaccaro met and received

defendant at the front of the hospital. Defendant was an inmate at the Cook County jail and was

wearing a DOC uniform, handcuffs, and leg shackles. Zaccaro transported defendant to the

dermatology clinic on the second floor of the hospital.

¶ 17   During his 10- or 15-minute appointment, defendant repeatedly asked to use the

restroom. When his appointment finished, Zaccaro took defendant to a single-occupancy

restroom in a hallway, removing his handcuffs but not his shackles. Zaccaro then waited outside

the restroom, leaving the door "open about a crack" so that he could see defendant. After about

10 minutes, Zaccaro heard a toilet flush. When defendant came out of the restroom, Zaccaro told

him to put his hands out so that he could place him back in handcuffs. Defendant jumped to the

side with a silver metal weapon, held the weapon to Zaccaro's neck, and said, "Move or I'll cut

you." Zaccaro then felt defendant's "hand going down the right side" of Zaccaro's body as though

he was reaching for Zaccaro's gun. Zaccaro threw his arms up to prevent defendant from taking




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the gun, and defendant stabbed him in the neck. Zaccaro tripped over defendant's shackles, and

they both fell to the ground.

¶ 18   Defendant got up and started to run away. Zaccaro hit the "panic button" on his radio to

signal an emergency and started to pursue defendant through the "maze" of hallways. As

defendant ran, he continued to swing the weapon in his hand. Eventually, he ran through an

emergency stairwell and exited the hospital. Zaccaro followed and observed defendant run onto a

shuttle bus. When Zaccaro attempted to enter the bus, "the door slammed" on him. The bus

proceeded around the circular driveway, made an "unusual maneuver, and "just kind of stopped

and went into a wall." A door opened and defendant exited the bus, at which point Zaccaro

believed that hospital police officers tackled him to the ground.

¶ 19   On cross-examination, defendant asked Zaccaro if he had handcuff keys on his belt, and

Zaccaro responded that he did. Zaccaro also acknowledged that defendant never made a verbal

demand for Zaccaro's weapon.

¶ 20   Victoria Hill, a nurse at Stroger, testified that she was treating a patient named James

Holman at around 1:45 p.m. on March 22. As she was treating Holman, Hill heard "bumping"

outside of the examination room. She opened the door and saw defendant and a sheriff in the

restroom across the hallway, struggling with each other. The sheriff had a gun in his holster and

appeared to be trying to hold defendant from "getting his gun or something or getting away." Hill

started screaming and ran to the nursing station down the hall. After calling the police, Hill

waited at the nursing station and saw defendant run past her out the door. Hill started running

behind the sheriff who was chasing defendant, yelling "Stop him, stop him." Hill's coworker,

Nestor Francia, tried to stop defendant. Hill proceeded down the stairwell and observed

defendant exit the building and run to a shuttle bus.



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¶ 21   Nestor Francia testified that while he was assisting a patient in the dermatology clinic, he

heard Victoria Hill saying, "don't let him get away." Francia then observed a man in a "scrub"

uniform and shackles running toward the door. Francia chased the man and attempted to grab

him by his pants. The man then turned around to face Francia, swung his hand, and stabbed

Francia in the left arm near his wrist bone. Afterward, the man continued running away and

Francia returned to the clinic area. Francia was unable to identify defendant at trial, but he agreed

that he had identified a photograph of defendant on March 26, 2007.

¶ 22   James Holman testified that he was receiving treatment from Hill at the Stroger

dermatology clinic when he heard "some knocking and banging" outside the room. Afterward, he

heard a male's voice yelling for help. Hill opened the door and said, "oh, my God, help, help,

help." Holman looked out the door and saw defendant and a police officer fighting near the

bathroom across the hall. The inmate was trying to grab whatever the police officer was

protecting on his right side. Holman ran into defendant and the officer to break up their fight,

knocking defendant toward the bathroom sink and knocking the officer into the hallway wall.

Defendant hit Holman in the face and eye, and Holman felt "metal." Holman continued

approaching defendant, but eventually defendant "took off," running down the hallway in the

opposite direction of the officer, who was getting up from the ground. The officer followed

defendant, and Holman lost sight of him. Holman sustained three stab wounds and underwent

surgery for an injury involving his eye.

¶ 23   On cross-examination, Holman acknowledged that he did not see defendant going for the

officer's weapon. Defendant asked whether it was possible that he "was going for something to

take off the shackles?" Holman responded, "No," explaining it looked as if defendant were

"forcefully taking something."



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¶ 24   James Rimmer was driving a shuttle bus between Stroger and a nearby parking lot. He

was waiting in the driver's seat of the bus, with the doors open, outside one of the main hospital

entrances at around 1:45 p.m. on March 22. An inmate in a jail uniform, whose face Rimmer was

not able to clearly see, entered the bus, held his right hand in front of Rimmer, and said, "Drive.

If you stop, I'm gonna stab you in the neck." Rimmer could see an object in the inmate's hand.

Rimmer closed the door, put the bus in drive, and attempted to drive out of the lot.

¶ 25   However, a car was blocking the parking lot entrance. Rimmer got the idea to reach over

to a lever which opened the bus door, because he knew that doing so would cause the brakes to

"lock up." He testified that "if you're standing up and I throw my door open, you automatically

go forward, so it [gave] me a chance to get out of the situation I was in." Rimmer opened the

door, the inmate "went forward," and Rimmer grabbed the inmate's right arm. The two started

wrestling, and the inmate stabbed Rimmer twice on the left side of his face and once in the chest.

Rimmer acknowledged that the inmate's did not touch him until Rimmer grabbed him, and that

the inmate never got behind the wheel of the bus. Rimmer testified that the "whole struggle"

lasted about 10 or 15 seconds, and then the inmate broke free and ran out the bus door. He ran

about five or six feet away before a security guard tackled him.

¶ 26   Sharon Jambrosek testified that she was sitting on the shuttle bus in the seat behind the

shuttle bus driver when an inmate entered and told the bus driver to "drive, mother f***, drive."

The bus driver started to drive before stopping quickly behind a parked car. The inmate made a

forward motion with his fist and appeared to be stabbing the driver. Jambrosek went toward the

back of the bus for her safety, and did not remember much from that point on. She did not see the

bus driver and the inmate "rassling" or the inmate exiting the bus. Jambrosek also acknowledged

that she never saw the inmate's face.



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¶ 27      Sergeant Gregory Hardin, an investigator at the Cook County Hospital, testified that he

was working on the first floor of Stroger when he received a call over his radio that an escaped

prisoner was running down the stairwell from the second floor. Hardin and two or three other

officers ran outside, where people directed him toward the shuttle bus, which was driving around

the cul-de-sac area. Hardin and the other officers ran toward the bus. After the bus stopped,

Hardin saw defendant raising his hand in a fist, striking the bus driver. Hardin ran to the front

door of the bus but could not open it, so he ran to the back door and eventually was able to enter.

Defendant turned around and came toward him, making a forward thrusting motion with his right

hand. Hardin ordered him to stop and get down, and defendant started walking toward the front

of the bus. Additional officers entered the bus, removed defendant, put him on the ground, and

placed him in handcuffs.

¶ 28      Sergeant William Villasana of the John Stroger Hospital Police Department testified that

he learned via his police radio of a "scuffle" involving a corrections officer. Villasana ran to the

second floor, where people directed him to the stairs. He proceeded outside the main entrance

and saw a police officer lying on the ground. When he reached the bus, he entered through the

back door and saw the bus driver, who was bleeding from the neck. He then exited the bus. By

the time he reached the inmate, other officers had already apprehended him. Villasana could not

identify defendant in court but knew the person that was apprehended was wearing a DOC

uniform. After bringing the inmate inside, Villasana went back outside near the bus and found a

shank or piece of steel wrapped with cloth. 2

2
    Forensic testing of the metal item that was recovered, as well as Zaccaro's firearm, revealed no

fingerprints suitable for comparison. Deoxyribonucleic acid (DNA) testing indicated defendant

could not be excluded as the source of the mixture of DNA profiles found on the shank's cloth.


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¶ 29   Joe Dugandzic, an investigator with the Cook County sheriff's police department,

testified that on March 22, he was assigned to investigate an attempted escape at Stroger

Hospital. He later met defendant at the jail. He initially testified that he did not speak to

defendant. However, Dugandzic later testified that before the grand jury, upon being asked

whether defendant voluntarily told him anything, Dugandzic responded, "At first, no, and then a

couple of minutes later he stated I had to do what I had to do. If somebody got hurt, oh well. He

said I wanted out and if anything got in my way, I would have done whatever it took." Defendant

did not make his statements during a formal interview.

¶ 30   Following the conclusion of the State's case-in-chief, defendant made a motion for

directed finding in which he admitted he "was trying to escape" but asserted the State had failed

to prove the charges of vehicular hijacking, vehicular invasion, attempted armed robbery, or

disarming a peace officer. The court denied defendant's motion.

¶ 31   Before defendant testified, the trial court admonished him outside of the presence of the

jury that if he chose to testify, he would be cross-examined by the State, who could use his 2007

murder conviction against him to impeach his credibility. The court further explained that the

State in rebuttal would be able to introduce the certified copy of defendant's conviction.

Defendant asked, "how far does that play out?" The court responded that the State would not be

able to talk about the facts of the conviction and would only be able to "read in [defendant] on or

about, so and so was convicted of the offense of first degree murder." The State indicated that

depending on the justification or defense that defendant set forth while testifying, it might ask the

court to revisit its earlier motion seeking to introduce the potential sentence defendant faced,

insofar as it related to his motive to escape. The court stated that if defendant testified regarding




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a "necessity" defense, the State would be able to cross-examine him and rebut his motive with

his murder case.

¶ 32   Defendant chose to testify on his own behalf. During his testimony, he stated as follows.

                "Now, when it comes to, because I know you guys want to know, you

       know, have I been convicted? Yes. What was I convicted for? Murder, 4 years

       ago. Did I do it? Honestly not from the bottom of my heart with everything in me

       no, I did not. Am I in jail for it? Yes, I am. And as you guys know, there's many

       people down in prison that says this, you know, but all I have is my word up here.

       I've sworn to be honest with you guys. That's all I have. I done [sic] have anything

       else. And I did not take the life of anyone, including the person that I'm in prison

       for right now. And I'm still in the process of clearing my name.

                Now when it comes to how I ended up being in prison, it's a long story

       but, I'll modify it by saying I was very young, extremely young. I was a kid 17

       years old. I was manipulated by officers and through that manipulation put me in

       a position to be further taken down the line of going to prison.

                When it comes to what I learned out of this situation, I learned you should

       never be so naïve as to trust a person because they wear a badge. It's that simple.

       And another thing I learned from that situation that's why I was trying to stress so

       hard earlier that I would never speak to anyone without an attorney present from

       that very experience. I'm traumatized. You can't get too close to me and try to ask

       me too many questions without me saying, I plead the 5th or I need an attorney

       from that very experience.




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                Now when it comes to whether or not I was an inmate in the Cook County

       Jail at the time of the escape, yes that's true I was. Had I spent a great deal of time

       in the Cook County Jail awaiting trial; yes, I had, 4 and a half years to be exact."

¶ 33   Defendant then went on to detail the "appalling" and "terrible" conditions in jail,

explaining that he did not "trust anybody in the system." He chose to remain in prison to wait for

his trial, believing "they would see [his] innocence." In 2005, a correctional officer kicked and

punched him. When defendant retaliated, other officers responded, jumping on defendant and

badly injuring his eye and causing bruises to his face and cuts where his handcuffs were.

Defendant remained in the hospital for three days. Although he knew he was likely to be beaten

again, he nonetheless returned to jail. Upon his return, he did not immediately attempt to escape.

However, after "going to trial and being found guilty," defendant realized he was "going to be

one of these guys who sits in prison for 30 years, you know, on something that he didn't do."

¶ 34   On March 22, defendant went to the hospital to have a mole checked on his leg. He

carried a knife in his shoe and pretended he had to use the restroom as "a ploy." When defendant

went into the restroom, Officer Zaccaro closed the door and sat down to read a newspaper.

Defendant then tried to remove his shackles with the knife but failed. At that point, defendant

decided he would have to take Zaccaro's keys to undo his shackles.

¶ 35   Defendant exited the restroom and when Zaccaro started to put defendant's handcuffs

back on, defendant "grabbed him" and told Zaccaro to give him his keys. Zaccaro refused, so

defendant tried to take them from their location on Zaccaro's belt. Defendant explained that he

only wanted Zaccaro's keys and not his gun. Defendant wanted to escape because he felt his life

was in danger and if he escaped, he could alert the authorities and help others who were "falling

victim to mistreatment in the Cook County Jail for years."


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¶ 36   As defendant ran through the hallways, Nestor approached him. Defendant held out his

knife because he wanted Nestor "to stay at bay." Nestor then walked toward defendant and "side

swipe[d]" defendant's hand, causing his own injury. When defendant reached the outside of the

hospital, he entered the bus through the open door and told the driver something to the effect of,

"[P]lease driver I'm in trouble I'll explain everything to you later." Rimmer agreed and started to

drive. When the bus pulled up behind the stopped car, defendant saw all of the officers

approaching and "knew the gig [sic] was up." He asked Rimmer to open the door and turned to

exit the bus. Rimmer then jumped up and grabbed him. During their fight, defendant

"accidentally hit" Rimmer with the knife. After his encounter with Rimmer, defendant

surrendered peacefully to the police. Defendant reiterated that he did not belong in prison and

that he feared if he stayed any longer, he would "come up dead" like the people he knew who

had been beaten by officers or other inmates. He wanted to escape so that he could contact the

appropriate authorities and encourage them to investigate the corruption in the jail.

¶ 37   On cross-examination, defendant acknowledged that he tried to escape but did so because

he was attacked and was warned he would be attacked again. The State asked defendant whether

the purported beating by the officers took place on December 14, 2005, while defendant was in

jail "[o]n the charges, among other things of first degree murder." Defendant responded

affirmatively. The State entered photographs of defendant's injuries into evidence, and they were

shown to the jury.

¶ 38   Defendant acknowledged that a jury found him guilty of first-degree murder on March

19, 2007. The State asked whether the jury made an additional finding that, in committing the

murder, defendant personally discharged a firearm that proximally caused the victim to die.

Defendant responded, "Oh, yeah. And when they did that, when they did that, sir." The State



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No. 1-12-0654


asked, "Is that what they found?" and defendant responded, "Not that I know of" and that he

"thought it was something different than that." The State continued by asking, "Oh, well as a

result of those findings, [defendant], after being found guilty of first degree murder three days

before your escape and with the additional finding that you shot your victim to death, you were

looking at a potential sentence of 45 years to the rest of natural life in prison?" Defendant

objected, and the trial court overruled his objection. Defendant then agreed that he was found

guilty of a crime, which he "did not commit."

¶ 39   The State said, "Okay. You were found guilty of a crime of first degree murder and the

jury found that you committed that murder by shooting and killing your victim?" Defendant

responded, "Well, the jury found that—found at that time that I was found guilty, yes or no,

[defendant], is that what—I'm not sure I know they found me guilty on a murder, sir. I don't

remember all of that." The State then asked, "And after your findings, after the conviction, you

understood that your potential sentence was 45 years to the rest of your life, somewhere in that

range?" Defendant acknowledged that he knew the sentence he was facing; however, it "didn't

mean anything" to him because he "thought [he] wasn't going to stay in there." Defendant

maintained that his motive for escaping was his fear that he would be beaten again, not the

prospect of spending 45 years in prison. Later, the State again asked defendant whether, on the

date of his escape, he was in prison for being "charged with a felony murder among other

things?" Defendant responded, "I was charged with murder." The State then asked, "In fact, as of

March 22, 2007, you had been convicted and were awaiting sentencing on the murder charges?"

to which defendant responded, "Yes, I was in there."

¶ 40   According to defendant, Rimmer attacked him on the bus because the bus was

surrounded by police and Rimmer realized his act of driving defendant may have looked like he



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No. 1-12-0654


was aiding and abetting an escaped prisoner. He denied that when he stood next to Rimmer with

the knife in his hand he was attempting to force Rimmer to drive the bus. He explained he was

holding the knife "in the first place" because he wanted to use it to remove his shackles.

¶ 41     In rebuttal, the State offered into evidence a certified statement of conviction and

disposition, stating "that the defendant was found guilty by a verdict of guilty on the charge of

first degree murder on March 19, 2007." The trial court admitted the document into evidence,

indicating it would give the jury "a limiting instruction at the end of the argument with respect to

that."

¶ 42     The case proceeded to closing arguments. During his closing, defendant argued that he

was reaching for the officer's keys, not his gun. He further argued that he chose to escape for

many reasons, but the "main" reason was that he was "beaten, savagely beaten and hospitalized."

He chose to remain in prison following the beating because he wanted to "do it the right way"

and wait for his trial. He asserted that, "[t]hose are the facts, not that I just woke up one day and

said you know what, the hell with this place, I'm out of here."

¶ 43     In rebuttal, the State challenged defendant's argument that he wanted to escape so that he

could expose the purported inhumane treatment of jail inmates. The State asserted as follows.

                "It's not a coincidence that the escape attempt of March 22nd, 2007, comes

         3 days on the heels of the guilty verdicts on a charge of first degree murder. On

         the verdict, the additional verdict that the murder was committed by personally

         discharging a firearm that resulted in death of the victim.

                It's not a coincidence that based upon those findings, that he's realizing

         he's looking at somewhere between 45 years and the rest of his life in prison.




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No. 1-12-0654


                You want to know where why he's looking to escape? Nothing to do with

       the guards in the jail, nothing to do with the way people are treated, got nothing to

       do with the food or the noises in the middle of the night. It's about not going to

       prison for at least 45 years. It's about establishing his freedom."

¶ 44   Following instructions, the jury retired to deliberate. In discussing which evidence to give

to the jury, the State commented as follows. "I believe we were going to send back all our

exhibits except for the Grand Jury transcript and the certified copy." The trial court responded,

"Right. The Grand Jury transcript doesn't go back, everything else does."

¶ 45   During deliberations, the jury sent the trial court multiple notes, including one that asked

"Is it attempted robbery on one specific item or anything at all? Example: Pen, badge, socks,

shoes… Anything or one item?" Defendant suggested that the jury be informed the language in

the indictment controlled. He pointed out that the indictment specified he committed attempt

armed robbery by trying to reach for Zaccaro's gun. Thus, defendant said he thought "that's all

they should be worried about." The court responded that the armed robbery instruction correctly

stated the jury could find he reached for any property. The court explained to defendant that an

indictment was not meant to be taken literally and was only meant to inform a defendant of the

charges he faced. The court further explained that an indictment could always be conformed to

the proof at trial if the proof turned out to be "slightly different" than what was alleged.

Defendant responded that he "had a misconception about how this goes" but the judge had

cleared up his misconception. The court responded to the jury, "Your instructions contain the

definition of armed robbery. Reread the instruction. This instruction does not make reference to a

specific piece of property and includes any property of the victim."




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No. 1-12-0654


¶ 46   The jury found defendant guilty of aggravated vehicular hijacking, unlawful vehicular

invasion, escape, and attempt armed robbery. It found him not guilty of disarming a peace

officer, and it could not reach a verdict as to aggravated kidnapping. The court declared a

mistrial on the aggravated kidnapping count

¶ 47                           D. Posttrial Proceedings and Sentencing

¶ 48   Defendant accepted the appointment of the public defender for posttrial matters. Counsel

filed a motion for new trial on defendant's behalf. At a hearing on the motion, counsel argued,

among other things, that defendant was severely prejudiced at the beginning of voir dire by being

shackled. In denying defendant's motion, the trial court noted that defendant drew attention to his

shackles, the table was protected with drapery, and the juror who saw the shackles already

believed defendant was a security risk based on the guards around him. At a later hearing, the

trial court imposed concurrent extended-term prison sentences of 14 years for aggravated escape,

30 years for attempted armed robbery, 30 years for vehicular invasion, and 50 years for

aggravated vehicular hijacking. The court ordered the sentences to run consecutive to the natural

life sentence defendant was serving for murder. This appeal followed.

¶ 49                                   II. ANALYSIS

¶ 50   On appeal, defendant argues (1) the State failed to prove him guilty of aggravated

vehicular hijacking, because it failed to show he dispossessed the victim of the bus, (2) the State

failed to prove him guilty of vehicular invasion, because it failed to show he used force to enter

the bus, (3) a fatal variance existed between his attempted armed robbery indictment and

conviction, (4) he was deprived of due process when he was shackled during jury selection

without the trial court articulating the reasons for his shackling, (5) the State introduced

excessive and irrelevant details regarding his prior murder conviction, (6) the trial court failed to



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No. 1-12-0654


comply with Illinois Supreme Court Rule 401(a) (eff. July 1, 1984), thereby rendering his waiver

of counsel invalid, (7) the court erroneously imposed extended-term sentences on offenses that

were not among the most serious class of felony, and (8) his convictions for both aggravated

vehicular hijacking and vehicular invasion violate the one-act, one-crime doctrine. We address

defendant's arguments in turn.

¶ 51                   A. Defendant's Aggravated Vehicular Hijacking Conviction

¶ 52   Defendant first asserts that his aggravated vehicular hijacking conviction must be

reversed. Relying on People v. McCarter, 2011 IL App (1st) 092864, he argues that to prove he

committed vehicular hijacking, the State was required to show he actually dispossessed Rimmer

of the shuttle bus rather than merely forcing Rimmer to drive it. Although the State

acknowledges the holding in McCarter, it contends that it was wrongly decided because it relied

on People v. Strickland, 154 Ill. 2d 489, 525 (1992), an armed robbery case that predated the

creation of the vehicular hijacking statute. See Pub. Act 88-351, § 5 (eff. Aug. 13, 1993) (adding

720 ILCS 5/18-3, 18-4) (creating the offenses of vehicular hijacking and aggravated vehicular

hijacking). It contends that the offense of vehicular hijacking should be "analyzed on its own

terms," and that it should include "commandeering" a vehicle by forcing the victim to drive it.

¶ 53   In arguing that the undisputed facts of his case did not amount to vehicular hijacking,

defendant has presented a matter of statutory construction; accordingly, our review is de novo.

People v. Brown, 2013 IL 114196, ¶ 35. The primary aim of statutory construction is to ascertain

and give effect to the intent of the legislature. People v. Whitney, 188 Ill. 2d 91, 97 (1999). The

plain language of a statute is the best means of determining legislative intent, and, where the

statutory language is clear and not ambiguous, it should be given its plain and ordinary meaning.

Id. However, if the statutory language is ambiguous, a court may consider other extrinsic aids for



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No. 1-12-0654


construction, including legislative history, to resolve the ambiguity and determine legislative

intent. Id. at 97-98. Where the statute we are analyzing is penal in nature, the rule of lenity

requires that any ambiguity be strictly construed and resolved in favor of the defendant (id. at

98), with nothing taken by intendment or implication beyond the obvious or literal meaning of

the statute (People v. Laubscher, 183 Ill. 2d 330, 337 (1998)).

¶ 54     To sustain defendant's aggravated vehicular hijacking conviction, the State was required

to show that he committed vehicular hijacking while armed with a dangerous weapon other than

a firearm. 720 ILCS 5/18-4(a)(3) (West 2006). A person commits vehicular hijacking when he

takes a motor vehicle from the person or immediate presence of another by the use of force or by

threatening the imminent use of force. 720 ILCS 5/18-3(a) (West 2006).

¶ 55     In McCarter, the defendant was charged and convicted of murder, aggravated

kidnapping, armed robbery, concealment of a homicidal death and aggravated vehicular

hijacking, based on evidence which established that he and his brother had entered the victim's

car, forced him to drive it to another location, shot him, and lit his car on fire. McCarter, 2011 IL

App (1st) 092864, ¶ 3. The defendant challenged all five of his convictions, and this court

affirmed the convictions for murder, aggravated kidnapping, and concealment of a homicidal

death. 3 In analyzing his aggravated vehicular hijacking conviction, however, this court

considered whether there was sufficient evidence to support a finding that defendant "took" the

motor vehicle from the victim, when there was no evidence showing that the victim had been

3
    We reversed defendant's conviction for armed robbery where the only evidence showing that he

and his brother had taken money from the victim was inadmissible hearsay, and where the victim

was discovered with a "wad of burnt up money," which tended to show that money had not been

taken from him.


                                                - 22 -
No. 1-12-0654


actually dispossessed of his vehicle. Id. ¶¶ 71-74. In rejecting the State's argument that the taking

element could be satisfied by the defendant " 'taking control over the victim's car in his presence,'

" this court noted that there had been no published decision issued as to whether a defendant

could "take" a vehicle, within the meaning of the vehicular hijacking statute, by merely forcing

the victim to drive his car to another location. Id. ¶ 74. Accordingly, we looked to the supreme

court's decision in Strickland, 154 Ill. 2d at 525, in which it considered whether the "taking"

element of the robbery statute (720 ILCS 5/18-1(a) (West 1992)) had been satisfied in similar

factual circumstances. McCarter, 2011 IL App (1st) 092864, ¶¶ 75-76.

¶ 56   In Strickland, the defendant was charged and convicted of a number of offenses relating

to the murder of a police officer. The evidence there showed that after shooting the officer, the

defendant and his brother abandoned their car, got into the backseat of the victim's car in Buffalo

Grove, and ordered him at gunpoint to drive them to California. The group drove to downtown

Chicago, where the victim saw a marked police car and stopped to alert the officer. At that point,

the defendant and his brother fled from the car, and were apprehended thereafter. Strickland, 154

Ill. 2d at 499-500. Defendant was convicted of armed robbery based on the "taking" of the

victim's vehicle, and, on appeal, the defendant argued that there was no evidence to support that

element where the victim remained in operation of the car throughout the time he and his brother

were present. Id. at 525. In response, the State argued that the defendant and his brother

effectively controlled the use of the victim's vehicle such that they were in constructive

possession of the vehicle. Id.

¶ 57   The supreme court agreed with the defendant that the evidence was insufficient to sustain

his armed robbery conviction, noting that the offense of robbery is " 'complete when force or

threat of force causes the victim to part with possession or custody of property against his will.' "



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No. 1-12-0654


Id. at 526 (quoting People v. Smith, 78 Ill. 2d 298, 303 (1980)). Although the supreme court

observed that defendant and his brother's actions "certainly denied [the victim] a large measure

of control over his vehicle," it reversed the defendant's armed robbery conviction, finding no

evidence to show that the victim's car was removed from his actual possession. Id.

¶ 58   In so holding, the supreme court "implicitly rejected" the State's argument that " 'taking

control over the victim's car in his presence' " was sufficient to effectuate a "taking," as the

supreme court gave no weight to the defendant's actions that denied the victim a large amount of

control over his car. McCarter, 2011 IL App (1st) 092864, ¶ 78 (citing Strickland, 154 Ill. 2d at

526). After reviewing the Strickland decision, this court similarly found no evidence in

McCarter to show that the victim had been dispossessed of his car, and concluded that the State

had failed to establish the taking element. Id. ¶ 79. Based on this precedent, we conclude that the

taking element of the aggravated vehicular hijacking statute requires that the defendant " 'cause[]

the victim to part with possession or custody of [the vehicle] against his will.' " Strickland, 154

Ill. 2d at 526 (quoting People v. Smith, 78 Ill. 2d 298, 303 (1980)).

¶ 59   After reviewing the evidence presented at defendant's trial, as summarized below, we

conclude that the State failed to prove the taking element beyond a reasonable doubt. The facts

established that defendant boarded the bus, threatened Rimmer with a shank, and told him to

drive. Rimmer began to move the bus, and moments later, reached over and opened the bus door,

which caused the brakes to lock up and throw defendant forward. Rimmer grabbed defendant's

arm and began wrestling with defendant, and shortly thereafter, defendant fled the bus and was

apprehended almost immediately. While defendant's actions may have denied Rimmer a

"measure of control" (id.) over his vehicle, there was no evidence that defendant actually took

possession of the bus, or removed it from Rimmer's custody or possession. In the absence of



                                                - 24 -
No. 1-12-0654


such evidence, we must conclude, like in Strickland and McCarter, that defendant's conviction

must be reversed.

¶ 60   Given the clear instruction of McCarter and Strickland as discussed above, we do not

find the language of the vehicular hijacking statute to be ambiguous. However, even if we were

to so find, our conclusion would remain the same because it is supported by the legislative

history of the Illinois vehicular hijacking statute. As we recognized in McCarter, the language of

the vehicular hijacking statute was written to closely track the language of the robbery statute.

Compare 720 ILCS 5/18-3(a) (West 2006) ("[a] person commits vehicular hijacking when he or

she takes a motor vehicle from the person or the immediate presence of another by the use of

force or by threatening the imminent use of force") and 720 ILCS 5/18-1(a) (West 2006) ("A

person commits robbery when he or she takes property, except a motor vehicle *** from the

person or presence of another by the use of force or threatening the imminent use of force.").

¶ 61   Other than the nature of the property which is taken, one of the key differences between

the vehicular hijacking statute and the robbery statute is the applicable felony classes and

available punishments. While robbery is a Class 2 probationable felony, the legislature created

the offense of vehicular hijacking as a Class 1 nonprobationable felony. 720 ILCS 5/18-1(b), 18-

3(c) (West 2006); 730 ILCS 5/5-5-3(c)(2)(K) (West 2006). If a person commits robbery or

vehicular hijacking while armed with a dangerous weapon other than a firearm, both offenses are

increased to Class X felonies, but aggravated vehicular hijacking is additionally subject to an

increased minimum sentence of seven years' imprisonment. 720 ILCS 5/18-2(b), 18-4(b) (West

2006) ("Aggravated vehicular hijacking in violation of subsection (a)(3) [while armed with a

dangerous weapon other than a firearm] is a Class X felony for which a term of imprisonment of

not less than 7 years shall be imposed.").



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No. 1-12-0654


¶ 62   Based on this comparison, we conclude that the intent of the legislature in enacting the

vehicular hijacking statute was to recognize the seriousness of taking a motor vehicle, versus

taking another type of property, and increase the penalty for that offense accordingly. See Ill.

Const. 1970, art. I, § 11 (“[a]ll penalties shall be determined both according to the seriousness of

the offense and with the objective of restoring the offender to useful citizenship” (emphasis

added)).

¶ 63   In explaining Senate Bill 902, which created the offenses of vehicular hijacking and

aggravated vehicular hijacking, its sponsor, Senator Hawkinson, made the following comments:

       "Unfortunately, in our society from time to time a new—new genre of crime

       comes along. We're all too familiar with the tragedies around the country of—of

       car hijacking where someone armed or unarmed attacks a car, and either snatches

       the driver out; sometimes the driver, as we read yesterday about one story, is

       dragged, because they're caught in the rush, and—and caught by a seat belt or

       something and dragged and seriously injured or killed; sometimes these

       carjackings occur where a young child is a passenger in the car and is taken for a

       ride after a mother or father is—is yanked from the car. *** What it does, if the

       aggravating factors of being armed with a weapon or you have a youngster or a

       senior citizen passenger, it is a Class X felony with a minimum seven years, and if

       there is not an aggravating factor present, it is still a mandatory minimum

       sentence that is imposed, so there will be imprisonment in the penitentiary." 88th

       Ill. Gen. Assem., Senate Proceedings, April 15, 1993, at 281 (statements of

       Senator Hawkinson).




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No. 1-12-0654


¶ 64   Senator LaPaille, a chief cosponsor of the bill, added that it was "about time" that the

legislature "put the thugs and the criminals who carjack cars, take children away with them from

their parents when they're in shopping centers, and create havoc on the roads and—and—and

commit crimes and rape, et cetera, behind bars where they belong." Id. at 283 (statements of

Senator LaPaille). In the House, Representative Homer, the House sponsor of the bill, explained

that the bill was meant "to address that situation that an assailant takes a car away from an

individual, from their presence, and it's a growing problem in this state as it is in the nation. We

need to make it a tough crime and send a strong signal to the perpetrators of this offense." 88th

Ill. Gen. Assem., House Proceedings, May 19, 1993, at 39 (statements of Representative Homer).

¶ 65   Around the same time that the legislature was considering Senate Bill 902, it was also

debating a similar piece of legislation, House Bill 35. In discussing House Bill 35,

Representative Novak set out the offense and available penalties, and stated:

       "This Bill… is very similar to the one that passed out of the Senate that is now in

       the House. And it is also is stronger than the one that we have on the federal level

       because the federal carjacking Bill only applies if the defendant was armed with a

       firearm. We are all aware of the…this particular category of crime that is

       occurring around the country. *** I think it's about time that we put a carjacking

       Bill on the books in Illinois to send a very strong message to the gang-bangers

       and to those who use this device to perpetrate crimes on innocent people that

       it…will not be tolerated, and their particular *** behavior will be punished in a

       very definitive manner." 88th Ill. Gen. Assem., House Proceedings, April 20,

       1993, at 164 (statements of Representative Novak).




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No. 1-12-0654


¶ 66   As these comments make abundantly clear, the legislature's intent in creating the offense

of vehicular hijacking, was to "make it a tough crime" (88th Ill. Gen. Assem., House

Proceedings, May 19, 1993, at 39 (statements of Representative Homer)), and to "send a very

strong message *** [that it would] be punished in a very definitive manner" (88th Ill. Gen.

Assem., House Proceedings, April 20, 1993, at 164 (statements of Representative Novak)).

Accordingly, the vehicular hijacking statute increased the penalties available to those who

commit vehicular hijacking and aggravated vehicular hijacking, beyond that which was

authorized for the analog crimes of robbery and armed robbery.

¶ 67   Concomitantly, we observe that both the vehicular hijacking and robbery statutes require

that the defendant take, respectively, a motor vehicle, or property other than a motor vehicle,

from the victim. Although the taking element of the robbery statute had been previously

interpreted by our supreme court in Strickland to require the defendant to actually dispossess, or

take custody from, the victim, not merely exercise of control over the property, the legislature

chose to track that same language in creating the vehicular hijacking statute in 1993, defining the

offense as occurring when a defendant "takes a motor vehicle from the person or the immediate

presence of another by the use of force or by threatening the imminent use of force." (Emphasis

added.) 720 ILCS 5/18-3(a) (West 2006). The rules of statutory construction recognize that we

are to presume the legislature was aware of how this language has been construed in the courts,

and where the legislature did not modify that language, we presume that it intended to maintain

the previously-settled meaning of the term "takes." See, e.g., People v. Young, 2011 IL 111886, ¶

17 (where a term has a settled legal meaning, we will normally infer the legislature intended to

incorporate the established meaning); People v. Hickman, 163 Ill. 2d 250, 262 (1994) (where

statutes are enacted after judicial opinions, we presume the legislature acted with knowledge of



                                               - 28 -
No. 1-12-0654


the prevailing case law). As a result, we do not believe that the legislature's intent in creating the

vehicular hijacking statute was to change the meaning of a word which had been previously

defined by our supreme court. We therefore adhere to our prior holding in McCarter, and

conclude that the taking element of the aggravated vehicle hijacking statute requires more than

the facts demonstrated here.

¶ 68    The State, however, argues that interpreting McCarter to require evidence of actual

dispossession would lead to "absurd" results and would "negate any 'carjacking' that involve[s]

the victim still inside or on the car itself." Instead, it asks this court to interpret the Illinois statute

in line with decisions interpreting the federal carjacking statute which, it claims, "rightly

recognize that the offense can be committed without having to 'take away' or 'dispossess' the

victim of the vehicle." The State also cites a number of out-of-state cases, which it asks this court

to look to as "persuasive authority for a logical construction of Illinois' own carjacking statute to

include the scenario where an offender commandeers a vehicle by forcing the victim to drive the

vehicle, while the victim is under the defendant's control by force or threat of force." The dissent

agrees, and similarly relies on a number of federal and out-of-state cases for the proposition that

"a defendant need not remove the victim from the car" to be guilty of carjacking.

¶ 69    Initially, we must clarify that we did not conclude in McCarter, nor do we conclude in

this case, that our vehicular hijacking statute requires a defendant to actually remove the victim

from his vehicle. While removing a victim from his vehicle would be one way to dispossess him

of that vehicle, as defendant acknowledges, there are undoubtedly circumstances in which a

defendant can "take" a vehicle from a victim while the victim still remains inside. However, the

determination of whether a victim has been dispossessed of his vehicle is a fact-specific inquiry,

which turns on the particular circumstances of each case. As we noted in McCarter, our decision



                                                   - 29 -
No. 1-12-0654


was limited to the facts of that case, and under those circumstances we were "compelled to

conclude that the State failed to establish the taking element." Similarly here, after a review of

the record, we conclude that the evidence was insufficient to show that defendant dispossessed

Rimmer of his vehicle.

¶ 70    We also note that this court is not bound by federal or out-of-state decisions, particularly

where, as here, we are interpreting an Illinois statute. Sundance Homes, Inc. v. County of Du

Page, 195 Ill. 2d 257, 276 (2001); People v. Fern, 240 Ill. App. 3d 1031, 1039-40 (1993) ("In

construing our own State laws, we are not bound by Federal court decisions other than, in

appropriate cases, those of the United States Supreme Court ***."). The dissent cites Andrews v.

Gonzalez, 2014 IL App (1st) 140342, ¶ 23, for the proposition that “comparable court decisions

of other jurisdictions are persuasive authority and entitled to respect,” (internal quotation marks

omitted). In Andrews, however, this court was considering a matter of first impression in

Illinois, and "[g]iven the lack of Illinois case law on point, we [chose] to examine" the foreign

cases. Id. In this case, the State's and dissent's reliance on federal and out-of-state cases is

particularly problematic, because courts in our own jurisdiction have already spoken on this

issue. Where we have clear precedent from Illinois courts interpreting an Illinois statute, we do

not believe it is necessary or appropriate to look to foreign authority to second-guess our own

interpretation.

¶ 71    We acknowledge that some foreign jurisdictions have found the taking element of their

own statutes to be satisfied in situations where a defendant has forced a victim to drive his own

vehicle to a different location (See United States v. DeLaCorte, 113 F.3d 154 (9th Cir. 1997);

Williams v. State, 990 So. 2d 1122 (Fla. Dist. Ct. App. 2008); People v. Duran, 106 Cal. Rptr. 2d

812, 814, 816 (Cal. Ct. App. 2001)), however, we find that this interpretation is clearly contrary



                                                 - 30 -
No. 1-12-0654


to the approach instructed by our supreme court. The foreign cases relied on by the dissent have

generally utilized a "control" based analysis to the taking element of their respective statutes—an

approach which our supreme court has explicitly rejected. Compare DeLaCorte, 113 F.3d at 156

(noting that the federal carjacking statute, and other robbery offenses, require " 'simply the

acquisition by the robber of possession, dominion or control of the property for some period of

time' " (emphasis added) (quoting United States v. Moore, 73 F.3d 666, 669 (6th Cir. 1996), cert.

denied, 517 U.S. 1228 (1996) and Williams, 990 So. 2d at 1123 ("It is enough that the defendant

obtains control over the driver of the vehicle through force or violence, threats of force or

violence, or by putting the driver in fear") with Strickland, 154 Ill. 2d at 526 ("Although the

[defendants'] actions certainly denied [the victim] a large measure of control over his vehicle ***

the automobile was never removed from [the victim's] actual possession." As this comparison

makes clear, our supreme court has indicated that merely denying the victim "a large measure of

control over his vehicle" is not enough to find that defendant "took" that vehicle, while such a

showing would be enough to establish the taking element of various federal and out-of-state

carjacking statutes. Instead, in Illinois the taking element of the vehicular hijacking statute is

only established when defendant "causes the victim to part with possession or custody of [the

vehicle] against his will.” (Internal quotation marks omitted.) Id.

¶ 72   Although the dissent contends that the carjacking statutes from foreign jurisdictions have

"almost identical" language to our own, our review of those statutes shows that they are not

particularly similar to the Illinois statute. As noted above, the Illinois vehicular hijacking statute

applies when a defendant knowingly "takes a motor vehicle from the person or the immediate

presence of another by the use of force or by threatening the imminent use of force." 720 ILCS

5/18-3(a) (West 2006). By contrast, a person violates the federal carjacking statute when he or



                                                - 31 -
No. 1-12-0654


she "with the intent to cause death or serious bodily harm takes a motor vehicle that has been

transported, shipped, or received in interstate or foreign commerce from the person or presence

of another by force and violence or by intimidation, or attempts to do so." (Emphasis added.) 18

U.S.C. § 2119 (2006). This statute is different, and in some ways much broader, than the Illinois

vehicular hijacking offense: most glaringly, it applies in situations in which a defendant merely

attempts to take a motor vehicle. Also, the taking requirement of the federal statute has also been

interpreted to require " 'simply the acquisition *** of possession, dominion or control of the

[vehicle] for some period of time.' " (Emphasis added.) DeLaCorte, 113 F.3d at 156 (quoting

United States v. Moore, 73 F. 3d 666, 669 (6th Cir. 1996), cert. denied, 517 U.S. 1228 (1996).

Our statute has never been interpreted to apply in such broad temporal contexts.

¶ 73   The out-of-state statutes relied on by the dissent are equally broad, dissimilar, and

ultimately unhelpful to an analysis of our vehicular hijacking statute. In Williams v. State, 990

So. 2d 1122 (Fla. Dist. Ct. App. 2008), the Florida appellate court considered the Florida

carjacking statute, which provides that " '[c]arjacking' means the taking of a motor vehicle which

may be the subject of larceny from the person or custody of another, with intent to either

permanently or temporarily deprive the owner of the motor vehicle, when in the course of the

taking there is the use of force, violence, assault, or putting in fear." (Emphases added and

omitted). Id. (quoting Fla. Stat. § 812.133(1) (2006). This statute interjects the concept of

"larceny" and prohibits mere temporary deprivations—notions which are notably absent in our

own statute. See also People v. Duran, 106 Cal. Rptr. 2d 812, 815 (Cal. Ct. App. 2001)

(considering the California carjacking statute, which states that " ' "carjacking" ' is the felonious

taking of a motor vehicle in the possession of another, from his or her person or in the immediate

presence *** against his or her will and with the intent to either permanently or temporarily



                                                - 32 -
No. 1-12-0654


deprive the person in possession of the motor vehicle of his or her possession, accomplished by

force or fear." (Emphases added and omitted.) (quoting Cal. Penal Code § 215 (West 2000))).

¶ 74   In Bruce v. State, 555 S.E. 2d 819 (Ga. Ct. App. 2001), the Georgia appellate court

reflected on the Georgia offense of hijacking a motor vehicle, which is complete when a "person

while in possession of a firearm or weapon obtains a motor vehicle from the person or presence

of another by force and violence or intimidation or attempts or conspires to do so." (Emphases

added). Ga. Code Ann. § 16-5-44.1(b) (2000).The Georgia statute includes both attempts and

conspiracy, and couches its language in terms of "obtaining" a motor vehicle, which the court

explained, "encompasses the notion of acquiring control thereof, regardless of whether the victim

remains with the vehicle." Bruce, 555 S.E. 2d at 823. By contrast, our statute contains no

references to conspiracy, attempt, or obtaining, and, as stated, our supreme court has specifically

rejected a control-based application of our statute. See also People v. Green, 580 N.W. 2d 444,

449-50 (Mich. Ct. App. 1998) (Under the pre-2004 version of the Michigan carjacking statute,

"A person who by force or violence, or by threat of force or violence, or by putting in fear robs,

steals, or takes a motor vehicle *** from another person, in the presence of that person or the

presence of a passenger or in the presence of any other person in lawful possession of the motor

vehicle, is guilty of carjacking ***." (Emphasis added.) (Citing Mich. Comp. Laws Ann. §

750.529a(1) (West 1994); Winstead v. United States, 809 A.2d 607, 610 n.3 (D.C. 2002) (In

D.C., " 'A person commits the offense of carjacking if, by any means, that person knowingly or

recklessly by force or violence, whether against resistance or by sudden or stealthy seizure or

snatching, or by putting in fear, or attempts to do so, shall take from another person immediate

actual possession of a person's motor vehicle.' " (Emphases added.) (quoting D.C. Code § 22-

2803 (2001)). As the foregoing analysis shows, the carjacking statutes used in the federal system



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No. 1-12-0654


and in other states, are far from "almost identical" to our own statute, and for this reason, we do

not find their analyses compelling to an interpretation of the Illinois statute.

¶ 75   In addition, none of the federal cases the State cites involve an analysis of the taking

element of the statute, or whether it can be established without proof that the defendant

dispossessed the victim of his vehicle. See United States v. Figueroa-Cartagena, 612 F.3d 69, 75

(1st Cir. 2010) (analyzing whether there was sufficient evidence to sustain the defendant's

various carjacking convictions where her involvement in the offense began after the other

perpetrators had seized the vehicle); United States v. Lebrón-Cepeda, 324 F.3d 52 (1st Cir.

2003) (considering whether the mens rea element of the carjacking statute had been proven over

the defendants' claim that their intent to seriously harm or kill the victim was formed after taking

control of his vehicle); Chatman v. Arnold, No. 2:2014CV05896 (C.D. Cal. Apr. 29, 2015)

(unpublished federal magistrate order dismissing the defendant's habeas corpus petition, which

alleged he was denied effective assistance of counsel where counsel failed to obtain phone

records which he claimed would have shown that he did not carjack the victim, but instead, that

he was trying to purchase drugs from the victim and that the "drug deal [had] gone wrong.");

People v. Johnson, 60 Cal. 4th 966, 343 P.3d 808 (Cal. 2015), (analyzing whether there was

sufficient evidence to prove that defendant intended to take the victim's car at the time he killed

her, and whether he took the victim's vehicle from her “person or immediate presence”). Because

these cases did not consider the taking element of a state or federal carjacking statute—let alone

the taking element of our own state statute—we find the State's reliance on them unconvincing.

¶ 76   Furthermore, the factual scenarios underlying these cases are decidedly different than the

facts of this case, and show that those defendants did far more than "force[] the victim[s] to drive

on [their] command." In Figueroa-Cartagena, the evidence showed that one of the perpetrators



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No. 1-12-0654


bragged about taking the victim's vehicle "policeman style," which was understood to mean “that

they stopped the car . . . with the weapon, and they said, this is the police.” The perpetrators then

drove the vehicle to defendant's brother's house with the victim in the backseat, and the victim's

dead body was later discovered in the backseat of the vehicle. United States v. Figueroa-

Cartagena, 612 F.3d 69, 72 (1st Cir. 2010) (referring to the codefendant's companion opinion,

United States v. Castro-Davis, 612 F.3d 53 (1st Cir. 2009), for the evidence adduced at trial). In

United States v. Lebrón-Cepeda, 324 F.3d 52, 55 (1st Cir. 2003), the three offenders "pulled

open the car doors and ordered [the victims] *** to move into the car's backseat." The victims

complied, and the defendant "took the wheel" and "drove away."

¶ 77     In Chatman v. Arnold, No. 2:2014CV05896 (C.D. Cal. Apr. 29, 2015), the petitioner

entered the passenger side of the victim's truck, and "tried to position himself between [the

victim] and the steering wheel." The petitioner "fought [with the victim] to control the steering

wheel," "stepped on the gas" and "eventually was able to commandeer the truck down the street a

short way ***, veering onto the sidewalk, hitting three parked cars and eventually crashing to a

stop."

¶ 78     Finally, in Johnson, 343 P.3d 808, the defendant found and murdered the victim in her

kitchen, stole her car keys, and used those keys to steal her car from the garage. In determining

whether there was evidence to show that the vehicle had been taken from her "immediate

presence," the California Supreme Court looked to the state's robbery statute, observing that the

legislature enacted the carjacking statute after it had "definitively interpreted the phrase

'immediate presence' " in the robbery statute. Id. at 827. Accordingly, the court "presume[d] that

when the Legislature employs words that have been judicially construed (and especially so

recently), it intends the words to have the meaning the courts have given them." Id. Rather than



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No. 1-12-0654


provide support for the State's suggested interpretation of the Illinois vehicular hijacking statute,

we find that the cases cited by the State draw attention to the deficiency of evidence of a taking

in this case, and confirm our conclusion that defendant's conviction must be reversed.

¶ 79   The dissent also relies on a dictionary definition of the word "hijacking" from the

statutory title to conclude that a defendant need not dispossess the victim of his vehicle. We do

not believe that the consideration of the statutory title is appropriate in this case. Our supreme

court has repeatedly indicated that “[w]hen the legislature enacts an official title or heading to

accompany a statutory provision, that title or heading is considered only as a ‘short-hand

reference to the general subject matter involved’ in that statutory section, and ‘cannot limit the

plain meaning of the text.’ ” Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493,

505-06 (2000) (quoting Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S.

519, 528-29 (1947)). Official headings or titles are of use “ ‘only when they shed light on some

ambiguous word or phrase’ ” within the text; they “ ‘cannot undo or limit that which the text

makes plain.’ ” Id. at 506 (quoting Brotherhood of R.R. Trainmen, 331 U.S. at 529). Because we

do not find the statute's meaning to be ambiguous, we need not, and indeed should not, look to

the statutory heading for an alternative interpretation.

¶ 80   Before ending our discussion, we reiterate that the determination of whether a taking has

occurred must be a fact based inquiry, and our decision here is limited to the facts of this case.

Although the dissent contends that our decision leads to an "absurd legislative result" by posing a

specific scenario, we will not speculate on whether another set of facts would constitute a

dispossession, because our decision is limited to the facts presented here.

¶ 81   Finally, we address the State's contention that even if the evidence is insufficient to

support defendant's aggravated vehicular hijacking conviction, "outright reversal is not



                                                - 36 -
No. 1-12-0654


warranted" and we should "enter judgment on an attempt." It maintains that "[b]y defendant's

own reasoning, the offense is not completed until defendant is successful in 'taking' the bus away

from the victim. Since that did not happen because the driver quickly responded to defendant's

threat and police were able to capture defendant before he was able to complete the crime, the

offense was attempt[ed] vehicular hijacking."

¶ 82   However, the State points to no evidence, and we find none, which would suggest that

defendant intended to remove the bus from Rimmer's possession as would be required to support

an attempt conviction. See 720 ILCS 5/8-4(a) (West 2006) (an attempt crime is proven if a

defendant does any act that constitutes a substantial step toward commission of a specific

offense, with the intent to commit that offense). We therefore decline the State's invitation to

enter judgment for an attempt crime, and reverse defendant's conviction for aggravated vehicular

hijacking.

¶ 83                           B. Defendant's Vehicular Invasion Conviction

¶ 84   Defendant next argues that his vehicular invasion conviction must be reversed, because

there was insufficient evidence to prove that he used force to enter the shuttle bus. The State

responds that defendant was properly convicted of that offense, where he used and threatened

force immediately after entering the bus, and where his actions were "connected, related, and

together comprised the offense of vehicular invasion."

¶ 85   To sustain defendant's vehicular invasion conviction in this case, the State was required

to prove that defendant knowingly, by force and without lawful justification, entered the interior

of the occupied bus, with the intent to commit the felony of escape therein. 720 ILCS 5/12-11.1

(West 2006). Defendant challenges only the evidence to prove that he entered the bus "by force,"

maintaining that his entry was not forceful, as he entered through the open door. Because



                                                - 37 -
No. 1-12-0654


defendant argues that the undisputed facts of his case did not amount to vehicular invasion,

defendant has, again, presented a matter of statutory construction, for which our review is de

novo. Brown, 2013 IL 114196, ¶ 35.

¶ 86   In arguing that his entry was not forceful, defendant acknowledges that the Second

District Appellate Court "rejected a similar argument" in People v. Isunza, 396 Ill. App. 3d 127

(2009), but he maintains that the facts of that case are distinguishable from the case at bar. In

Isunza, the defendant similarly argued that he did not use force to enter the victim's vehicle when

he reached in through the open window and punched her. Id. at 131. The court, however,

determined that the open window was not dispositive of whether defendant used force to reach

into the vehicle, and that defendant’s act of punching the victim while he stood outside her

vehicle as she was sitting inside her car satisfied the element of using force to reach into the car.

Id. We reach the same conclusion here where the evidence showed that defendant rushed onto

the bus, threatened to stab Rimmer in the neck with a knife, and then engaged in a struggle with

Rimmer during which he repeatedly stabbed him in the face and chest.

¶ 87   Defendant, however, distinguishes his entry from that in Isunza, and contends that his

"entry into the bus and subsequent acts inside were distinct physical acts" whereas in Isunza, the

"acts of force and entry *** were one and the same." Relatedly, he maintains that he did not use

actual force but merely "threatened the use of force" (emphasis in original) upon entering the

bus. See 720 ILCS 5/12-11.1(a) (West 2006) (requiring entry "by force"). He acknowledges that

he subsequently "used force" when Rimmer "engaged him in a struggle" but contends that this

use of force was insufficient to sustain his conviction because it "only occurred after he

completed his entry."




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No. 1-12-0654


¶ 88   In considering defendant's claims, we are instructed by cases interpreting the force

element in the robbery context, which have concluded that the force need not occur at the actual

moment of taking, but it is sufficient if the force and the taking are part of a series of events

constituting a single incident. People v. Lewis, 165 Ill. 2d 305, 339 (1995) ("As long as there is

some concurrence between the defendant's threat of force and the taking of the victim's property,

a conviction for armed robbery is proper."); People v. Brooks, 202 Ill. App. 3d 164, 170 (1990),

abrogated on other grounds by People v. Williams, 149 Ill. 2d 467 (1992).

¶ 89   In Brooks, (id. at 167-68), the defendant challenged his robbery conviction, claiming that

the evidence was insufficient to prove that he took the victim's property by force or threat of

force. At trial, the victim testified that she was seated on a CTA bus in Chicago, when she

discovered that her wallet was missing from her purse. The victim turned around and saw

defendant, who was seated behind her, with her wallet in his hands. The victim demanded the

return of her wallet, but defendant pushed her left shoulder and ran away from the bus. On

appeal, the defendant argued that his conviction should be reversed because no force was used in

the actual taking of the wallet. The court disagreed, noting that the force or threatened force

"need not transpire before or during the time the property is taken" but that it could be "used as

part of a series of events constituting a single incident." Id. at 170. The court further stated that

an offense can "constitute robbery where the perpetrator defends against a challenge immediately

upon the taking or where the perpetrator's departure is accomplished by the use of force.

[Citations.]" Id. The court then concluded that the defendant's push, "used in a series of events

involving a single incident and in response to the victim's challenge immediately upon the taking

and before defendant's departure, is sufficient to sustain the robbery conviction." Id.




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No. 1-12-0654


¶ 90   Similarly here, the evidence established at trial shows that defendant struggled with

Rimmer, and repeatedly stabbed him in the face and chest, when he attempted to resist

defendant's demands. This use of force was part of a series of closely connected events, and

occurred "in response to the victim's challenge" and "before defendant's departure." Id. In these

circumstances, we conclude that defendant's actions were sufficient to sustain his vehicular

invasion conviction.

¶ 91   In so holding, we also note that we need not reach defendant's alternative challenge to his

vehicular invasion conviction—that it must be reversed because the imposition of convictions for

both aggravated vehicular hijacking and vehicular invasion violate the one-act, one-crime rule.

Because we previously found that his conviction for aggravated vehicular hijacking must be

reversed, there can be no one-act, one-crime rule violation.

¶ 92        C. The Variance In Defendant's Attempted Armed Robbery Charge and Conviction

¶ 93   Defendant next contends that a fatal variance existed between his attempted armed

robbery indictment and the proof and jury instructions as to that charge. The State responds that

defendant caused any variance between the indictment and the proof and conviction and thus

cannot claim that he was misled by it. Furthermore, the State argues, no fatal variance occurred,

as the indictment contained all of the essential elements of attempted armed robbery and

defendant is not subject to double jeopardy.

¶ 94   To be fatal, "a variance between the allegations in a criminal complaint and the proof at

trial must be material and be of such character as may mislead the defendant in making his or her

defense, or expose the defendant to double jeopardy." People v. Maggette, 195 Ill. 2d 336, 351

(2001). Where an indictment charges all of the essential elements of a crime, matters that are

unnecessarily added may be regarded as surplusage. People v. Collins, 214 Ill. 2d 206, 219



                                               - 40 -
No. 1-12-0654


(2005). A complaint must state the name of the accused; set forth the name, date and place of the

offense; cite the statutory provision the defendant allegedly violated; and set forth in the statutory

language the nature and elements of the charged offense. Id.

¶ 95   Defendant's attempted armed robbery indictment alleged that on or about March 22,

2007, he, with the intent to commit armed robbery, "did any act, to wit: reached for Vito

Zaccaro's gun, which constituted a substantial step towards the commission of the offense of

armed robbery." At trial, defendant testified that he was not reaching for Zaccaro's gun, but

rather, his keys. During deliberations, the jury sent a note asking, "Is it attempted robbery on one

specific item or anything at all? Example: Pen, badge, socks, shoes… Anything or one item?"

The trial court responded to the jury, "Your instructions contain the definition of armed robbery.

Reread the instruction. This instruction does not make reference to a specific piece of property

and includes any property of the victim." The jury ultimately found defendant guilty of attempted

armed robbery but not guilty of disarming a peace officer. Based on the jury's findings,

defendant argues that it found him guilty of attempted armed robbery for attempting to take

Zaccaro's keys. Accordingly, he argues a fatal variance existed between the crime he was

charged with and the crime for which he was convicted.

¶ 96   Contrary to defendant's assertions, we find no fatal variance occurred. First, the allegation

that defendant reached for Zaccaro's gun was not a material element of the attempted armed

robbery charge. See People v. Lewis, 165 Ill. 2d 305, 340 (1995) (the essential elements of

robbery are "taking property by force or threat of force. Nothing more is required to sustain the

conviction."); see also People v. Santiago, 279 Ill. App. 3d 749, 754 (1996) (affirming the

defendant's armed robbery conviction even though the information named the wrong victim).

The indictment alleged that defendant, with the intent to commit armed robbery, by use of force



                                                - 41 -
No. 1-12-0654


and while armed with a dangerous weapon other than a firearm, did any act which constituted a

substantial step towards the commission of the offense of armed robbery. Thus, the indictment

set forth all of the essential elements of attempted armed robbery, and the naming of the item that

defendant attempted to take from Zaccaro was surplusage.

¶ 97   Defendant's reliance on People v. Daniels, 75 Ill. App. 3d 35 (1979), does not convince

us otherwise. In Daniels, the defendants were charged with armed robbery for taking United

States currency from the victim. Id. at 40. At trial, however, the only evidence presented in

connection with the robbery related to the taking of a watch. Id. Furthermore, the State failed to

prove defendant took the watch. Id. at 41. Thus, the Daniels court reversed the defendants' armed

robbery convictions. Id. Unlike in Daniels, the evidence in this case was sufficient to establish

that defendant tried to take Zaccaro's keys. Defendant admitted as much at trial. Defendant notes

the Daniels court prefaced its discussion regarding the insufficiency of the evidence with the

phrase, "We note additionally ***." Id. Thus, defendant argues the insufficiency of the evidence

in Daniels had little bearing on the court's decision to reverse. However, our reading of Daniels

shows both the variance and the insufficiency of the evidence factored into the court's

determination that reversal was warranted.

¶ 98   In addition, the variance in defendant's case was not fatal because defendant is not

exposed to the possibility of double jeopardy. "If any future prosecution were attempted, prior

prosecution on the same facts could be proved by resort to the record." (Internal quotation marks

omitted.) People v. Lattimore, 2011 IL App (1st) 093238, ¶ 71. Furthermore, we disagree with

defendant that the variance in this case materially misled him. Notably, it was defendant and not

the State who caused the variance in this case. While defendant argues that he was misled in the

preparation of his defense, it is clear that any prejudice defendant suffered stemmed from his



                                               - 42 -
No. 1-12-0654


own misapprehension of the law regarding the nature of indictments. Indeed, defendant

acknowledged after receiving the jury's note that he "had a misconception" about indictments.

Yet, the determination of whether a defendant is "materially misled" in the context of fatal

variance cases focuses on whether the State's introduction of evidence that was not alleged in the

indictment hampered the defendant's ability to prepare a defense. See, e.g., People v. Winford,

383 Ill. App. 3d 1, 5-6 (2008) (the record contained no indication that the indictment's reference

to cocaine misled defendant in making his defense or that the State's evidence surprised him, as

the record showed the defendant believed he was on trial for heroin and his sole defense was that

the State failed to prove his intent to deliver beyond a reasonable doubt); People v. Jones, 245 Ill.

App. 3d 674, 676-77 (1993) (the defendant was not misled in preparing her defense where the

indictment alleged the defendant exchanged a comforter for currency and the State's evidence

established she conveyed a comforter in exchange for a refund slip, as her defense had nothing to

do with whether she received a refund slip or currency in exchange for the comforter); People v.

Montgomery, 96 Ill. App. 3d 994, 996, 998 (1981) (the defendant could not have been misled in

preparing his defense where he was charged with the aggravated assault of one officer and the

officers' testimony at trial established the defendant pointed a gun at another officer, since "the

only issue [defendant] contested was whether he had a gun in his hand"). Where defendant

caused the variance in his case, he cannot claim he was misled in the preparation of his defense.

¶ 99   In so concluding, we find unpersuasive defendant's reliance on People v. Durdin, 312 Ill.

App. 3d 4 (2000), which he cites as providing an example of a situation like his wherein a

defendant conceded a criminal act other than the one specified in the charging instrument. In

Durdin, the defendant was charged with both delivery of cocaine within 1,000 feet of a public

school and delivery of heroin. Id. He conceded that he bought heroin for an undercover officer



                                                - 43 -
No. 1-12-0654


but claimed entrapment. Id. Thus, the Durdin defendant's confession that he bought heroin was

not made in an attempt to defeat the language charging him with delivery of cocaine, but rather,

to refute his delivery of heroin charge. Furthermore, unlike defendant, the defendant in Durdin

was convicted of the wrong crime. Id. at 8. Here, defendant was convicted of the correct crime,

and "[i]t would be an exercise in pointless formalism for us to reverse" defendant's conviction.

Santiago, 279 Ill. App. 3d at 754.

¶ 100                           D. Shackles During Jury Selection

¶ 101 Defendant next asserts that he was deprived of due process where the trial court allowed

him to remain shackled during jury selection without articulating the reasons establishing a

manifest need for his restraints. He contends the shackles inhibited his ability to represent

himself and prejudiced him in the eyes of the jurors, at least one of whom saw his restraints

despite the curtain placed around his table.

¶ 102 The shackling of a defendant is generally disfavored because (1) it tends to prejudice the

jury against the defendant, (2) it restricts the defendant's ability to assist his counsel during trial,

and (3) it offends the dignity of the judicial process. People v. Boose, 66 Ill. 2d 261, 265 (1977).

Nonetheless, a defendant may be shackled when the court has reason to believe the defendant

may try to escape, he may pose a threat to the safety of people in the courtroom, or shackling is

necessary to maintain order during trial. Id. at 266. Factors the court should consider in making

its determination regarding shackling may include "[t]he seriousness of the present charge

against the defendant; defendant's temperament and character; his age and physical attributes; his

past record; past escapes or attempted escapes, and evidence of a present plan to escape; threats

to harm others or cause a disturbance; self-destructive tendencies; the risk of mob violence or of

attempted revenge by others; the possibility of rescue by other offenders still at large; the size



                                                 - 44 -
No. 1-12-0654


and mood of the audience; the nature and physical security of the courtroom; and the adequacy

and availability of alternative remedies." (Internal quotation marks omitted.) Id. at 266-67. The

court should place its reasons for shackling on the record and provide defense counsel with an

opportunity to present reasons why the defendant should not be shackled. People v. Allen, 222

Ill. 2d 340, 353 (2006). We review a trial court's decision that shackling is necessary for an abuse

of discretion. People v. Urdiales, 225 Ill. 2d 354, 416 (2007). 4

¶ 103 We agree with defendant that the trial court violated his right to due process by failing to

undertake a Boose analysis and state the reasons for shackling on the record before requiring him

to remain shackled. We are guided by the supreme court's decision in Allen. There, the court did

not undertake a Boose analysis before requiring a defendant to wear a stun belt, instead deferring

to the sheriff's judgment. Allen, 222 Ill. 2d at 348. The supreme court held that the court's actions

violated the defendant's due process rights. Id. at 349. As in Allen, here, the trial court conducted

no Boose analysis and instead deferred to the DOC officers. When defendant asked prior to jury

selection whether his shackles could be removed, the court responded it would "leave it at

[DOC's] discretion." After defendant reminded the court that he had behaved appropriately at a

prior hearing without shackles, the court stated, "You are preaching to the choir. All you have to

do is talk to the men in charge. If you can convince those three men that you don't need leg

4
    Defendant contends our standard of review is de novo, arguing the trial court's failure to make a

Boose analysis was undisputed and that the issue is therefore "the legal significance" of the

court's failure to comply with Boose. However, defendant has cited no authority applying a de

novo standard of review where a Boose analysis has not been conducted. To the contrary, Illinois

courts have continued to cite the abuse of discretion standard even where no Boose analysis is

made. See, e.g., Allen, 222 Ill. 2d at 354.


                                                 - 45 -
No. 1-12-0654


shackles, you don't have to have them on." Later, defendant asked the court whether his shackles

could be removed when trial "officially" commenced, and the court stated, "That's up to the

Illinois Department of Corrections." After defendant persisted in his argument, the court stated it

would take the matter under consideration and make a decision the following day. At the end of

jury selection, the court asked a DOC officer about defendant's shackles, and the officer

responded, "We keep them on unless you order them off." The court then entered an order that

defendant's shackles be removed for the remainder of trial. Thus, rather than conduct a Boose

analysis, the court initially deferred to the judgment of DOC but then subsequent to jury

selection, after consulting with DOC officers, ordered the shackles removed for the trial.

¶ 104 The State suggests that rather than initially defer to the DOC officers, the trial court in

fact agreed with them that defendant was a flight risk. Actually, the record shows that although

initially deferring to the DOC on this issue, the trial court to its credit maintained a continuous

dialogue with the defendant on the issue. At the same time, the trial court limited any prejudice

incurred by the defendant by utilizing curtains during jury selection and also questioning the

prospective jurors who noticed the shackles as to any effect that may have had on them.

Ultimately, through this ongoing discussion, the defendant was able to convince the trial court

that his shackles should be removed during trial based on his promises to comport himself

appropriately as well as the limitations the shackles would impose on him during the trial

process. In this regard, the trial court stated, at the end of jury selection, that it would sign an

order allowing defendant's shackles to be removed the following day, as "people usually like to

stand when they give their argument and move around a little bit." It is for these reasons, as well

as others discussed below, that we ultimately find the error here to be very limited and in fact

harmless.



                                                 - 46 -
No. 1-12-0654


¶ 105 Furthermore, because it is distinguishable, we find unpersuasive the State's reliance on

People v. Buss, 187 Ill. 2d 144, 217 (1999), abrogated on other grounds by In re G.O., 191 Ill.

2d 37, 46-50 (2000). In that case, the trial court did not state its reasons for requiring shackles

prior to trial but later explained at a posttrial hearing that the basis for its decision was courtroom

security, the serious nature of the offense with which the defendant was charged, and the large

courtroom audience. Id. Unlike in Buss, at defendant's posttrial motion in this case, the court did

not articulate why the shackles were necessary. In sum, we conclude the court violated

defendant's right to due process by failing to conduct a Boose hearing with regard to the shackles

during jury selection.

¶ 106 As defendant objected to his shackles at trial and in his posttrial motion, the State bears

the burden of establishing " 'beyond a reasonable doubt that the [shackling] error complained of

did not contribute to the verdict obtained.' " Deck v. Missouri, 544 U.S. 622, 635 (2005) (quoting

Chapman v. California, 386 U.S. 18, 24 (1967)); see also People v. Robinson, 375 Ill. App. 3d

320, 333 (2007) ("The improper shackling of a defendant may be harmless error."). Three

approaches exist for determining whether an error in a criminal trial is harmless under Chapman:

(1) focusing on the error to determine whether it might have contributed to the conviction, (2)

examining the other evidence in the case to see if overwhelming evidence supports the

defendant's conviction, and (3) determining whether the evidence is cumulative or merely

duplicates properly admitted evidence. In re A.H., 359 Ill. App. 3d 173, 183-84 (2005).

¶ 107 In this case, the evidence overwhelmingly supported defendant's convictions for

vehicular invasion, attempted armed robbery, and escape. At trial, defendant admitted that he

attempted to take Zaccaro's keys. He also admitted that he escaped, and the State strongly refuted

his necessity defense with evidence that he had been convicted of murder just three days before



                                                - 47 -
No. 1-12-0654


his escape, for which he faced a lengthy prison sentence. Further, although defendant claimed

that his motive for escaping was an innocent one, his self-protection, his conduct as shown by the

evidence was less than innocent, as it was extremely violent. During this chaotic escape, he

inflicted injuries by stabbing or cutting no less than four people. Rimmer testified defendant

entered the bus and threatened Rimmer to drive while holding an object in his hand.

Furthermore, the record demonstrates that only one juror, McSorley, saw defendant's shackles,

and upon questioning, McSorley said the shackles would not impede his ability to be fair and

that he already knew defendant was being supervised based on the officers who were with

defendant. Even assuming any of the other jurors saw or heard defendant's shackles, those jurors

were already aware that defendant had been convicted of murder and was in custody for that

offense. Furthermore, defendant was also released from his shackles and able to move freely

about the courtroom for all portions of the trial except jury selection. Lastly, we are compelled to

note that the policy considerations underlying the Boose decision and its progeny do not apply

with equal force here. Based on the foregoing, we conclude the court's failure to conduct a Boose

analysis was harmless error.

¶ 108 Contrary to defendant's assertions, the jury's notes and the length of time it spent

deliberating does not show the evidence was close. While the jury sent notes during deliberation,

those notes merely sought clarification on different terms and expressed that it was deadlocked

on the kidnapping charge. However, the jury never stated that it was deadlocked on any of the

charges for which defendant was convicted. See People v. Wilmington, 2013 IL 112938, ¶ 35

(concluding the evidence was not closely balanced under the first plain-error prong where the

jury sent notes during deliberation but the record contained no indication "that the jury at any

time had reached an impasse or that the jurors themselves considered this a close case").



                                               - 48 -
No. 1-12-0654


Likewise, "the length of time a jury deliberates is not always an accurate indicator of whether the

evidence was closely balanced." People v. Walker, 211 Ill. 2d 317, 342 (2004). The record does

not disclose when the jury's deliberations commenced or finished; however, it shows the jury

sent its first note at 2:15 p.m. and the court responded to the last note at 7:12 p.m. Given the

number of charges and all of the evidence in this case, nothing about the length of the juror's

deliberations leads us to conclude the evidence was close.

¶ 109 In sum, although the trial court erred when it failed to conduct a Boose analysis, we

conclude that the error was harmless.

¶ 110                          E. Details About Defendant's Prior Murder Conviction

¶ 111 Defendant next contends that the State injected excessive and irrelevant details regarding

his prior murder conviction. Specifically, he contends the jury received a certified copy of

conviction, which revealed, among other things, that he faced charges in addition to murder, that

he was ordered to complete fitness examinations, that he was found guilty of seven counts of

murder, that he was sentenced to life in prison, that he lost his appeal, and that he filed a

postconviction petition that was denied. Defendant also notes that during cross-examination, the

State elicited that he faced charges in addition to murder and asked him whether he personally

discharged a firearm that caused death. Defendant was acquitted of aggravated kidnapping and

convicted of only one count of first degree murder. People v. Reese, No. 1-07-1681 (2009)

(unpublished order under Supreme Court Rule 23). Finally, defendant observes that although he

testified he could not recall the jury finding he personally discharged a firearm that killed the

victim, the State nonetheless argued that fact during closing argument. Based on all of the

foregoing, defendant argues we should reverse and remand for a new trial.




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¶ 112 Initially, we agree with the State that defendant invited the introduction of any evidence

concerning his prior murder conviction. See People v. Carter, 208 Ill. 2d 309, 319 (2003) (under

the doctrine of invited error, a defendant may not request to proceed in one manner and then

claim on appeal that the course of action was erroneous). During a hearing on the State's motions

in limine, the trial court ruled that the State could indicate only that defendant "was in custody on

felony charges" and could not introduce defendant's murder conviction in its case-in-chief for

purposes of proving motive. The court further ruled that if defendant testified, the State could

introduce the murder conviction as impeachment and could introduce a certified copy of

conviction and cross-examine defendant on the fact that he was convicted of murder in order to

establish his motive. Before defendant testified at trial, the court reminded him that he would be

cross-examined by the State, which could use his murder conviction as impeachment. The court

told defendant that the State would be able to read in that he was convicted of first degree murder

but would not be able to discuss the facts of the conviction. The court further explained that if

defendant testified regarding a "necessity" defense, the State would be able to cross-examine him

and rebut his motive with his murder case.

¶ 113 Despite the trial court's admonishments, defendant elected to testify on his own behalf.

During his testimony, he maintained that he wanted to escape because he was attacked by guards

and he wanted to expose the inhumane conditions in jail. Thus, consistent with the trial court's

ruling, the State then introduced defendant's prior murder conviction and the sentence he faced in

that case to both impeach his credibility and to rebut his "necessity" defense on the escape

charge.

¶ 114 Moreover, even applying the plain-error doctrine, we find no cause for reversal. Under

the plain-error doctrine, we may consider an unpreserved claim of error where a clear or obvious



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error occurred and either (1) the evidence is so closely balanced that the error alone threatened to

tip the scales of justice against defendant, regardless of the seriousness of the error, or (2) the

error is so serious that it affected the fairness of the defendant's trial and challenged the integrity

of the judicial process, regardless of the closeness of the evidence. People v. Belknap, 2014 IL

117094, ¶ 48. Our first step in plain-error review is determining whether error occurred. People

v. Thompson, 238 Ill. 2d 598, 613 (2010).

¶ 115 Evidence of other crimes is generally inadmissible to demonstrate a defendant's

propensity to commit crimes. People v. Donoho, 204 Ill. 2d 159, 170 (2003). However, a

defendant's prior conviction may be admitted for impeachment purposes. Ill. R. Evid. 609(a) (eff.

Jan. 1, 2011); People v. Mullins, 242 Ill. 2d 1, 14 (2011) (citing People v. Montgomery, 47 Ill. 2d

510, 516 (1971)). In addition, other-crimes evidence may be admissible to demonstrate motive.

Donoho, 204 Ill. 2d at 170.

¶ 116 First, the record does not support defendant's claim that the jury was given a copy of the

unredacted certified copy of conviction. When the State offered defendant's prior conviction into

evidence during rebuttal, it read to the jury only that "defendant was found guilty by a verdict of

guilty on the charge of first degree murder on March 19th, 2007." The court admitted the

statement of conviction and disposition into evidence but indicated it would give a limiting

instruction. Later, outside the presence of the jury, the State expressed that it was "going to send

back all of [its] exhibits" to the jury "except for the Grand Jury transcript and the certified copy."

The court responded, "Right. The Grand Jury transcript doesn't go back, everything else does."

Thus, although the court stated only that the grand jury transcript would not be given to the jury,

reading the court's response in conjunction with the State's comment makes clear that the State

did not give the jury the certified copy of conviction. Absent any evidence that the certified copy



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was actually brought to the jury room, we will not accept defendant's invitation to speculate that

it was.

¶ 117 Turning to the State's cross-examination of defendant, we find no impropriety in the

State's questioning of defendant as to whether the jury found he personally discharged a weapon.

During his testimony, defendant maintained that he wanted to escape out of necessity after being

beaten by prison officials. He also testified that he was convicted of a murder he did not commit.

Thus, the State properly sought to refute defendant's testimony by establishing that he faced a

life sentence. It was not just defendant's murder conviction but also the jury's finding that he

personally discharged a weapon that exposed defendant to such a lengthy sentence. Defendant

points out that the jury was never told the firearm finding exposed him to a life sentence;

however, it was through its questioning of defendant that the State sought to explain that the

finding did, in fact, expose defendant to a potential life sentence. In sum, where defendant

testified that he tried to escape out of necessity, the State was entitled to present evidence of the

jury's finding to establish defendant faced a potential life sentence and sought to escape for that

reason and not, as he claimed, to avoid another beating and to expose the inhumane conditions of

the jail.

¶ 118 Additionally, we find defendant's argument that it was improper for the State to include

in its closing argument the fact that the murder conviction was accompanied by a finding that

defendant personally discharged a firearm that caused death to be wholly without merit.

Defendant contends that this fact was not admitted by defendant on cross-examination and was

not proved up by the State. This argument ignores, however, that this factual assertion was

correct and that the certified copy of conviction, which included all the matters defendant was

convicted of, was admitted into evidence even though it was not given to the jury. Further,



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defendant's argument that the prosecutor's passing remark on cross-examination that defendant

was charged with murder, "among other things," was improper is also without merit. First, this

was a brief, passing remark, and second, this remark may be interpreted to be a reference to the

additional allegation concerning the discharge of the firearm.

¶ 119 In sum, we find no error in that regard.

¶ 120                          F. Defendant's Waiver of Counsel

¶ 121 Defendant next contends that the trial court failed to substantially comply with Rule

401(a), thereby rendering his waiver of counsel invalid. Acknowledging that he has forfeited

review of his claim by failing to object at trial, defendant urges us to consider the matter under

the plain-error doctrine. Our first step in plain-error review is to determine whether error

occurred. Thompson, 238 Ill. 2d at 613.

¶ 122 The sixth amendment guarantees a defendant in a criminal proceeding "both the right to

the assistance of counsel and the correlative right to proceed without counsel." People v. Haynes,

174 Ill. 2d 204, 235 (1996) (citing Faretta v. California, 422 U.S. 806, 833-34 (1975)). A

defendant may waive his right to counsel if his waiver is voluntary, knowing, and intelligent. Id.

To that end, Rule 401(a) sets forth certain admonishments that the trial court must provide before

a defendant may be found to have knowingly and intelligently waived counsel. Id. at 235-36.

Specifically, the court must inform the defendant and determine that he understands (1) the

nature of the charge, (2) "the minimum and maximum sentence prescribed by law, including,

when applicable, the penalty to which the defendant may be subjected because of prior

convictions or consecutive sentences," and (3) that he has a right to counsel and to have counsel

appointed if he is indigent. Ill. S. Ct. R. 401(a) (eff. July 1, 1984). Strict compliance with Rule

401(a) is not always required. Haynes, 174 Ill. 2d at 236. Instead, substantial compliance is



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sufficient to effectuate a valid waiver of counsel if the record shows the defendant made his

waiver knowingly and voluntarily and the admonishment he received did not prejudice his rights.

Id. We review the trial court's compliance with Rule 401 de novo. People v. Wright, 2015 IL App

(1st) 123496, ¶ 46.

¶ 123 Here we find that the trial court substantially complied with Rule 401(a). Defendant's

sole argument as to the insufficiency of the court's admonishments is that it failed to inform him

that any potential prison sentence would run consecutive to the sentence imposed for his murder

conviction. However, even assuming that Rule 401(a)(2) required the court to provide such an

admonishment, the record clearly reflects that defendant's waiver of counsel was knowing and

voluntary despite the absence of that admonishment. The court informed defendant that he faced

a sentence of up to 160 years on two of the attempted murder charges alone. The court also told

defendant he was "looking at massive time" if he was convicted. Defendant indicated that he

understood. The court then continued by explaining the extended-term sentences that could apply

to defendant's other charges. When the court asked defendant whether he understood, defendant

responded, "Perfectly, Your Honor, perfectly."

¶ 124 Thus, defendant clearly understood that he faced up to 160 years in prison on just two of

the charges alone. He also knew that he was already serving a natural life sentence for his murder

conviction. Based on the foregoing, defendant cannot claim that his waiver was not knowingly or

intelligently made simply because the court did not inform him that his sentences would run

consecutive to his murder sentence. See People v. Campbell, 224 Ill. 2d 80, 84 (2006) (the

purpose of Rule 401(a) "is 'to ensure that a waiver of counsel is knowingly and intelligently

made' " (quoting Haynes, 174 Ill. 2d at 241)). Whether defendant believed he would serve the

possible 160-year sentence concurrent with or consecutive to the natural life sentence he was



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No. 1-12-0654


already serving, defendant knew that he faced a possible 160-year sentence, which meant that he

would spend the rest of his life in prison even if his prior murder conviction was overturned. For

this reason, People v. Koch, 232 Ill. App. 3d 923 (1992), is distinguishable. There, the trial court

admonished the defendant that he could receive a one- to three-year prison sentence but later

imposed a five-year extended-term sentence. Id. at 925-26. By contrast, the court in this case told

defendant he could serve 160 years in prison on just two charges, thereby admonishing defendant

that he could spend the rest of his life in prison. Based on the foregoing, we conclude the court

substantially complied with Rule 401(a).

¶ 125                          G. Extended-Term Sentences

¶ 126 Defendant next argues that the trial court's imposition of extended term sentences on all

of his convictions was improper. The State concedes this error, and agrees that an extended term

sentence was only authorized for those convictions within the most serious class of offenses.

¶ 127 When a defendant has been convicted of multiple offenses of differing classes, the trial

court may impose an extended-term sentence only for the conviction or convictions that fall

within the most serious class of offenses. People v. Jordan, 103 Ill. 2d 192, 206 (1984).

However, extended-term sentences may be imposed "on separately charged, differing class

offenses that arise from unrelated courses of conduct." People v. Coleman, 166 Ill. 2d 247, 257

(1995). To determine whether multiple convictions arise from unrelated courses of conduct, we

must consider "whether there was a substantial change in the nature of the defendant's criminal

objective." People v. Bell, 196 Ill. 2d 343, 354 (2001). Although defendant failed to challenge his

extended-term sentences in the trial court, a sentence or portion thereof that is unauthorized by

statute is void and may be attacked at any time or in any court. People v. Thompson, 209 Ill. 2d

19, 23, 27 (2004).



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¶ 128 As the parties concede, the record in this case reflects that defendant's criminal objective

throughout the commission of his crimes was to escape. During sentencing, the trial court

expressly rejected the idea that defendant's escape was completed prior to the later offenses.

Based on the foregoing, we agree with the parties that defendant's convictions did not arise from

unrelated courses of conduct. Therefore, the court could only impose an extended term sentence

on the offenses within the most serious class of felony.

¶ 129 As we have reversed defendant's conviction for Class X vehicular hijacking, the

remaining offenses within the most serious class are defendant's Class 1 convictions for

vehicular invasion (720 ILCS 5/12-11.1(b) (West 2006)) and attempted armed robbery (720

ILCS 5/8-4(c)(2), 18-2(a)(1), (b) (West 2006)). We therefore affirm the 30-year extended term

sentences imposed on those two offenses, which were made consecutive to the life sentence

defendant is serving on his prior murder conviction.

¶ 130 As to defendant's remaining Class 2 felony escape conviction, we conclude that it must

be reduced to a nonextended term. Where, as here, "it is clear from the record the trial court

intended to impose the maximum available sentence, we may use our power under Illinois

Supreme Court Rule 615(b)(4), to reduce the sentence to the maximum nonextended term

sentence." People v. Ware, 2014 IL App (1st) 120485, ¶ 32. Accordingly, we reduce defendant's

sentence for escape to seven years, which is the maximum nonextended term for committing a

Class 2 felony. 720 ILCS 5/31-6 (West 2006); 730 ILCS 5/5-8-1(a)(5) (West 2006) (now

codified as 730 ILCS 5/5-4.5-35(a)).

¶ 131                         III. CONCLUSION

¶ 132 For the reasons stated, we reverse defendant's conviction for aggravated vehicular

hijacking, and affirm his convictions for vehicular invasion, attempted armed robbery, and



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escape. We affirm defendant's 30-year extended term sentences for vehicular invasion and

attempted armed robbery, and reduce his sentence for escape to 7 years.

¶ 133 Reversed in part, affirmed in part, and modified in part.

¶ 134 JUSTICE PALMER, specially concurring in part and dissenting in part:

¶ 135              A. Shackling During Jury Selection – Special Concurrence

¶ 136 I agree with the majority that the trial court should have conducted a Boose analysis, but

that any error in that regard was harmless. I write separately on this issue to additionally point

out that the policy considerations underlying the Boose decision and its progeny do not apply

with equal force here. At the core of these cases is the recognition that unnecessary restraint runs

afoul of the presumption of innocence and demeans both the defendant and the proceedings. See

Allen, 222 Ill. 2d at 368 (quoting In re Staley, 67 Ill. 2d 33, 37 (1977)). This case however is

unique, as the defendant here did not enjoy the presumption of innocence with regard to the

charge of first degree murder. He had already been convicted of that charge and the jury in this

case was so informed. It cannot be said therefore that the limited period of shackling he endured

deprived him of a presumption of innocence, as he no longer enjoyed that presumption. Nor can

it reasonably be argued that it demeaned the defendant or the proceedings, as he was a convicted

murderer who also admitted that he attempted to escape from custody. Based on these policy

considerations as well as all the other reasons set forth in the majority opinion, I agree that the

court's failure to conduct a Boose analysis was harmless error.

¶ 137                     B. Aggravated Vehicular Hijacking – Dissent

¶ 138 The majority concludes that the defendant’s conduct did not constitute aggravated

vehicular hijacking because even though the defendant commandeered the bus at knifepoint, he

did not literally “take” the vehicle away from the bus driver by dispossessing him of the vehicle.



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In other words, as the defendant did not throw the driver off the bus but rather forced the driver

to drive him some distance at knifepoint, this was not a hijacking. In coming to this conclusion

the majority relies on a prior precedent from this district, McCarter, which in turn relied on our

supreme court’s decision in Strickland, interpreting the word “takes” in our robbery statute, as

well as several time-honored rules of statutory construction. Most respectfully, I cannot concur

in this result, as I do not believe that it is mandated by Strickland, the legislative history, or rules

of statutory construction. The majority’s narrow interpretation of the word “takes” here is in

sharp contrast to the much broader meaning found in every federal circuit case and every state

court case, save Indiana’s, that my research has disclosed in which the courts considered almost

identical language. I cannot accept the conclusion that the legislature meant Illinois to be an

outlier on this issue. The majority’s decision to reject the most often accepted interpretation of

the word “takes” in this context, as meaning to deprive one of control, violates the rule of

statutory construction that we must presume the legislature did not intend an absurd result. I do

not believe this to be the true intent of our legislature.

¶ 139 To sustain defendant's aggravated vehicular hijacking conviction, the State was required

to show that he committed vehicular hijacking while armed with a dangerous weapon other than

a firearm. 720 ILCS 5/18-4(a)(3) (West 2006). A person commits vehicular hijacking when he

takes a motor vehicle from the person or immediate presence of another by the use of force or by

threatening the imminent use of force. 720 ILCS 5/18-3(a) (West 2006). In arguing that the

undisputed facts of his case did not amount to vehicular hijacking, defendant has presented a

matter of statutory construction; accordingly, our review is de novo. People v. Brown, 2013 IL

114196, ¶ 35.




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¶ 140 In interpreting a statute, our primary objective is to ascertain and give effect to the

legislature's intent. People v. Baskerville, 2012 IL 111056, ¶ 18. The best indication of the

legislature's intent is the language of the statute, given its plain and ordinary meaning. People v.

Gaytan, 2015 IL 116223, ¶ 23. In addition, we "may consider the purpose and necessity for the

law as well as the consequences that would result from construing the statute one way or the

other." Id. In construing statutory language, we presume the legislature "did not intend absurdity,

inconvenience, or injustice." Brown, 2013 IL 114196, ¶ 36. We also give the language the fullest,

rather than the narrowest, meaning possible. People v. Simpson, 2015 IL 116512, ¶ 30.

¶ 141 In McCarter, the defendant was convicted of aggravated vehicular hijacking based on

evidence that he and his brother kidnapped a victim from the victim's driveway by entering the

victim's car, armed, while the victim sat in the driver's seat. McCarter, 2011 IL App (1st)

092864, ¶ 78. Later, the victim was discovered in his burned out car, still behind the wheel. Id.

On appeal, the defendant argued the State failed to establish he "took" the victim's car within the

meaning of the vehicular hijacking statute. Id. ¶ 71. Specifically, he asserted that to "take" a

vehicle, he had to physically remove or dispossess the owner from the owner's car. Id. ¶ 72. In

considering the defendant's argument, our court noted that no published decision had been issued

as to whether a defendant could "take" a vehicle, within the meaning of the vehicular hijacking

statute, by forcing the victim to drive his car to another location. Id. ¶ 74. Accordingly, we

looked to the supreme court's decision in Strickland, 154 Ill. 2d at 525, in which it considered the

"taking" element of the robbery statute (citing Ill. Rev. Stat. 1985, ch. 38, ¶ 18-1). McCarter,

2011 IL App (1st) 092864, ¶¶ 75-76.

¶ 142 In Strickland, the defendant and his brother ordered a man at gunpoint to drive them to

California. Strickland, 154 Ill. 2d at 499. The defendant and his brother then got into the backseat



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No. 1-12-0654


of the victim's car, and the victim drove them to the downtown area of Chicago. Id. Eventually,

the defendant and his brother exited the car and ran away. Id. at 500. On appeal, the defendant

argued no evidence was presented that he took the vehicle from the victim because the victim

remained in operation of the car throughout the time the defendant and his brother were present.

Id. at 525. In response, the State argued the defendant and his brother effectively controlled the

use of the victim's vehicle such that they were in constructive possession of the vehicle. Id.

¶ 143 The supreme court agreed with the defendant that the evidence was insufficient to sustain

his armed robbery conviction, noting that the offense of robbery was " 'complete when force or

threat of force causes the victim to part with possession or custody of property against his will.' "

Id. at 526 (quoting People v. Smith, 78 Ill. 2d 298, 303 (1980)). The Strickland court reasoned

that no evidence was presented that the victim's car was ever taken from him. Id. It noted that

although the defendant and his brother's actions "certainly denied [the victim] a large measure of

control over his vehicle," the defendant and his brother never removed the vehicle from the

victim's actual possession. Id. Thus, the supreme court reversed the defendant's armed robbery

conviction. Id.

¶ 144 In reviewing the Strickland decision, the McCarter court noted that the supreme court

had implicitly rejected the State's argument that "taking control over the victim's car in his

presence" was sufficient to effectuate a "taking," as the supreme court gave no weight to the

defendant's actions that denied the victim a large amount of control over his car. McCarter, 2011

IL App (1st) 092864, ¶ 78. Because, as in Strickland, no evidence was presented that the victim

was ever dispossessed of his car, the McCarter court stated that it was "compelled to conclude

that the State failed to establish the taking element." Id. ¶ 79. Justice Gordon dissented due to the




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majority's failure to consider whether burning out the vehicle deprived the owner or his

successor in interest of possession or custody of the vehicle. Id. ¶ 120 (Gordon, J., dissenting).

¶ 145 The State contends that the McCarter court should not have relied exclusively on

Strickland, which dealt only with the armed robbery statute. The State posits that the decision in

Strickland was driven in large part by the historical and common law roots of the offense of

armed robbery, which included the understanding that the completion of armed robbery required

the removal of an item from the victim. According to the State, the vehicular hijacking statute is

not beholden to such historical reasoning, given that it was created in 1993. See Pub. Act 88-351,

§ 5 (eff. Aug. 13, 1993) (creating the offenses of vehicular hijacking and aggravated vehicular

hijacking). The State contends the legislature's decision to carve the taking of cars out of the

robbery statute and create the vehicular hijacking statute shows it intended vehicular hijacking to

be analyzed on its own terms, particularly in light of the fact that vehicles are different than other

objects "taken." In sum, the State argues a "hijacking" should not require the physical

dispossession of a victim from his vehicle.

¶ 146 In interpreting the federal carjacking statute, The Ninth Circuit recognized that

interpreting the "taking" element as requiring the physical relinquishment of a vehicle would be

unduly restrictive. See United States v. DeLaCorte, 113 F.3d 154, 156 (9th Cir. 1997). Similar to

Illinois' hijacking statute, the federal carjacking statute applies when a defendant "takes a motor

vehicle *** from the person or presence of another by force and violence or by intimidation, or

attempts to do so." 18 U.S.C. § 2119 (2006). In DeLaCorte, the defendant pointed a gun at the

victim, entered the passenger side of the victim's truck with his companion, and ordered the

victim to drive to a specific location. DeLaCorte, 113 F.3d at 155. The Ninth Circuit concluded

the defendant "took" the victim's truck even though the victim was never forced to leave it. Id. at



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156. The court reasoned that interpreting a "taking" as requiring the physical relinquishment of a

vehicle ignored that a defendant could take control of a vehicle from its owner even though the

victim remained in the car and continued to drive it. Id. The court further reasoned that the

crucial elements of the carjacking statute were "force and violence" and "intimidation," and a

victim forced to remain in the car with his assailant, subject to continuing threats and possible

violence, often faced greater intimidation and threat of violence than a victim who was

immediately released. (Internal quotation marks omitted.) Id. Thus, the court concluded the

carjacking statute did not require a showing that the victim was forced out of his vehicle. Id.; see

also United States v. Gurule, 461 F.3d 1238, 1243-44 (10th Cir. 2006) (the evidence was

sufficient to satisfy the "taking" element of the carjacking statute, despite the defendant's

contention that his motive in acquiring possession or control of the vehicle was to receive a

"ride," as the defendant's subjective motive was irrelevant and the evidence showed he entered

the victim's home and forced the victim at knife point and repeated threats to drive him to a

particular location). In addressing defendants' arguments relating to other components of the

federal carjacking statute, other circuit courts have likewise affirmed the defendants' convictions

where the victims were not in the driver's seat but remained somewhere in the car. See, e.g.,

United States v. Castro-Davis, 612 F.3d 53, 57, 61-62 (1st Cir. 2010) (the victim was transported

in the backseat of his car); United States v. Moore, 73 F.3d 666, 669 (6th Cir. 1996) (a cab driver

was forced out of the cab and into the trunk at gunpoint). The majority acknowledges the

holdings of these cases but contrasts them with Strickland. However, again, as the State points

out, there is substantial federal precedent on carjacking, and Strickland is an armed robbery case.

The Illinois Supreme Court has not spoken on this issue in this context while these cases have

specifically done so.



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¶ 147 Several state courts have also recognized that to "take" or "obtain" a vehicle under similar

state statutes, a defendant need not remove the victim from the car. See Williams v. State, 990

So. 2d 1122, 1123 (Fla. Dist. Ct. App. 2008) (affirming the defendant's conviction for carjacking,

which prohibits the taking of a motor vehicle from the person or custody of another, where he

jumped into two victims' vehicles and ordered them to drive; a defendant "need not be in

physical control of the vehicle" but instead must merely obtain control over the driver through

force or violence, threats, or placing the driver in fear); People v. Duran, 106 Cal. Rptr. 2d 812,

816 (Cal. Ct. App. 2001) (a "taking" occurred, even though the victims remained in the car, when

the defendant imposed his dominion and control over the car by ordering one victim to drive at

gunpoint); Bruce v. State, 555 S.E.2d 819, 822-23 (Ga. Ct. App. 2001) (affirming the defendant's

conviction for hijacking a motor vehicle where he ordered a cab driver to drive him at knifepoint;

the concept of "obtaining" a motor vehicle encompassed acquiring control of the vehicle

regardless of whether the victim remained inside the vehicle); People v. Green, 580 N.W.2d 444,

450 (Mich. Ct. App. 1998) (a victim need not be physically separated from a vehicle for a

defendant to "take" the victim's car). In Winstead v. United States, 809 A.2d 607, 609, 611 (D.C.

2002), the District of Columbia Court of Appeals affirmed the defendant's conviction for

carjacking, concluding the defendant took "immediate actual possession" of the victim's car

when, after ordering the victim to get into her car, the defendant ordered her to drive at gunpoint.

Id. at 611. The Winstead court recognized that, "[w]hile [the victim] remained at the wheel, it

was [the defendant] who directed her movements and usurped actual physical control of the

vehicle. It was no less a carjacking because [the defendant] took his victim along with the car."

Id.; but see Burton v. State, 706 N.E.2d 568, 569 (Ind. Ct. App. 1999) (Concluding that

carjacking and kidnapping were distinct offenses, as the carjacking statute "specifically



                                               - 63 -
No. 1-12-0654


contemplates that the person who takes the vehicle leaves the person from whom the vehicle is

taken at the scene. If the occupant remains in the vehicle being taken, there is no crime of

carjacking."). 5

¶ 148 While not binding on our court, "comparable court decisions of other jurisdictions are

persuasive authority and entitled to respect." (Internal quotation marks omitted.) Andrews v.

Gonzalez, 2014 IL App (1st) 140342, ¶ 23. Here, I find the cases holding that a defendant need

not remove his victim from the car to be more persuasive than our decision in McCarter. As the

McCarter court recognized, the vehicular hijacking statute is written in the same way that the

armed robbery statute is written. However, the physical characteristics of a car make it different

than other objects that are taken in a robbery in that a defendant can use a car for his own

purposes by merely taking control of the car from the victim rather than taking the actual car

away. Furthermore, as the DeLaCorte court recognized, in some instances, a victim forced to

drive a defendant around at gunpoint will suffer more prolonged fear and danger than a victim

removed from his car after only a brief interaction with a defendant. However, if vehicular

hijacking required the dispossession of a victim from his car, then a defendant who removed his

victim from the car before driving away would be guilty of vehicular hijacking but a defendant

who forced his victim to remain in the driver's seat would not. Viewed another way, if vehicular

hijacking applied only when a victim was forced out of the driver's seat, a defendant would have

5
    I note that Michigan's hijacking statute has been modified since the decision in Green and

Indiana's hijacking statute has been repealed since the decision in Burton. See Ind. Code Ann. §

35-42-5-2 (West 2014); Mich. Comp. Laws Ann. § 750.529a (West 2014). However, to the

extent that Green and Burton considered language similar to our statutory language, I find they

continue to provide guidance regarding the meaning we should ascribe to our statute.


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the incentive to force his victim to remain in the driver's seat rather than remove the victim from

the car. This cannot have been the legislature's intent. See Brown, 2013 IL 114196, ¶ 36 (when

interpreting statutory language, we presume the legislature did not intend absurdity or injustice).

Moreover, a defendant who forces his victim to drive his vehicle, under the threat or use of force,

can cause just as much danger to others on the road as a defendant who actually drives the car

himself.

¶ 149 In addition, I find it significant that in removing the taking of vehicles from the robbery

statute, the legislature elected to call the offense "vehicular hijacking" instead of, for example,

“robbery of a vehicle.” See Alvarez v. Pappas, 229 Ill. 2d 217, 230-31 (2008) (a statute's title

may provide guidance as to a statutory term's meaning if the term is ambiguous). "Hijack" is

defined, in relevant part, as "[t]o commandeer (a vehicle or airplane), esp. at gunpoint." Black's

Law Dictionary 735 (7th ed. 1999); see also Merriam-Webster's Collegiate Dictionary 548 (10th

ed. 1995) (defining "hijack" as, among other things, "to steal by stopping a vehicle on the

highway" and "to commandeer (a flying airplane) esp. by coercing the pilot at gunpoint"). Thus,

the plain and ordinary meaning of the word "hijack" does not include a requirement that a

vehicle be taken away from the victim. Rather, the ordinary meaning of "hijack" includes an

understanding that a defendant can "hijack" a vehicle by simply obtaining control of it. It states

the obvious that one who commandeers an airplane in midflight is guilty of hijacking even

though he has not forced the occupants to leave the plane in midair.

¶ 150 In support of their respective positions, both defendant and the State rely on portions of

the General Assembly debates concerning the vehicular hijacking statute. See Simpson, 2015 IL

116512, ¶ 30 (if a statute is ambiguous, i.e., subject to two or more reasonable interpretations, we

may consider other sources, such as the legislative history, to determine the legislature's intent).



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It must be noted that the word "taking" in this context is obviously ambiguous as there are

several opinions throughout the country and the federal system that ascribe different meanings to

the word in this context. The legislative history makes abundantly clear that the legislature

intended the vehicular hijacking statute to apply when a victim is removed from his car. Yet, the

debates do not warrant the conclusion that removing a victim from a car is the only way in which

a defendant can commit vehicular hijacking. To construe the statute as requiring the defendant to

dispossess the victim of his car would have the effect of weakening and narrowing the scope of

the statute, despite the legislature's clear concern with the danger and havoc that vehicular

hijacking causes and its desire to send a strong message to would-be hijackers.

¶ 151 It is clear from the debates that our legislature was responding to a serious violent threat

that had appeared as “a new genre of crime” and was on the rise. The legislature clearly

intended this legislation to be a strong response to this dangerous trend. It does not follow

therefore, that we should take so narrow an interpretation of the statute when it is clear that the

legislature intended to enact a strong response to this danger. In fact, I find it most notable that in

discussing House Bill 35, Representative Novak described the proposal as being, “stronger than

the one that we have on the federal level because the federal carjacking Bill only applies if the

defendant was armed with a firearm.” 88th Ill. Gen. Assem., House Proceedings, April 20, 1993,

at 164 (statements of Representative Novak).While Representative Novak was referring to the

firearm component, I find it disconcerting that the legislator was claiming that Illinois’

legislation was stronger than the federal response and yet today the majority is making it weaker

than its federal counterpart by way of interpreting the very same language, “takes.”

¶ 152 The majority attempts to distinguish the federal hijacking statute from ours by noting that

it includes language applying to situations “in which a defendant merely attempts to take a motor



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vehicle.” Supra ¶ 72. The majority characterizes this as a glaring difference. I find that this

attempt to distinguish these statutes fails for at least two reasons. First, our legislative scheme

separately provides for criminal responsibility for the inchoate crime of attempt (720 ILCS 5/8-

4(a) (West 2006)) ("A person commits the offense of attempt when, with intent to commit a

specific offense, he or she does any act that constitutes a substantial step toward the commission

of that offense.") As a result, in Illinois, choate crimes, such as vehicular hijacking, can also be

attempted. The only difference is that the federal scheme provides for this in the same paragraph.

As a result, I find the contention that the federal statute is broader because of this attempt

language to be without basis. Second, and most importantly, the fact that the federal statute

includes attempt language is irrelevant for this discussion. None of the federal circuit cases cited

above relied on attempt language in their rulings, rather they interpreted the word “takes,” which

appears in both statutes, in its broadest sense to include the deprivation of control. These cases

are in direct conflict to McCarter, this conflict cannot be distinguished away, and we should

meet the conflict head-on. Tellingly, at oral argument, when asked about the attempt language in

the federal statute and whether that is a distinguishing factor, both defendant’s own attorney, the

assistant State Appellate Defender, and the assistant State’s Attorney agreed that it was irrelevant

for this discussion. Specifically, defendant’s attorney rejected the notion that this crime could be

characterized as an attempt and agreed that the federal attempt language did not enter into this

calculation. Similarly, the prosecutor stated the attempt language in the federal statute is “a

distinction without a relevant difference in this case” and that this language, as well as other

additional language therein, were “not really relevant distinctions for the questions before this

court.” I completely agree with both attorneys. This case has nothing to do with the crime of

attempt. The cases I have cited do not refer to any attempt language and neither does McCarter.



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Their holdings only concern the actual taking of a motor vehicle, not the attempt to do so. They

are in conflict with our McCarter decision. We should resolve the conflict and not be led down

the blind alley of attempt.

¶ 153 One last point on the rule of lenity. The majority briefly refers to the rule of lenity and

argues that it constrains us to interpret the word “takes” here in such a way as to favor the

defendant. However, our supreme court has repeatedly stated "that the rule of lenity must not be

stretched so far or applied so rigidly as to defeat the legislature’s intent." People v. Gutman, 2011

IL 110338, ¶ 43. In Gutman, our supreme court cited to the United States Supreme Court’s

explanation of how the rule of lenity is to be applied as follows.

           “ 'Finally, petitioners and the dissent invoke the "rule of lenity." The simple

       existence of some statutory ambiguity, however, is not sufficient to warrant

       application of that rule, for most statutes are ambiguous to some degree. Cf.

       Smith, 508 U.S., at 239 ("The mere possibility of articulating a narrower

       construction ... does not by itself make the rule of lenity applicable"). " 'The rule

       of lenity applies only if, "after seizing everything from which aid can be derived,"

       ... we can make "no more than a guess as to what Congress intended." ' " United

       States v. Wells, 519 U.S. 482, 499 (1997) (quoting Reno v. Koray, 515 U.S. 50, 65

       (1995), in turn quoting Smith, supra, at 239, and Ladner v. United States, 358

       U.S. 169, 178 (1958)). To invoke the rule, we must conclude that there is a " '

       "grievous ambiguity or uncertainty" ' in the statute." Staples v. United States, 511

       U.S. 600, 619, n.17 (1994) (quoting Chapman v. United States, 500 U.S. 453, 463

       (1991)). Certainly, our decision today is based on much more than a "guess as to

       what Congress intended," and there is no "grievous ambiguity" here. The problem



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       of statutory interpretation in these cases is indeed no different from that in many

       of the criminal cases that confront us. Yet, this Court has never held that the rule

       of lenity automatically permits a defendant to win.' Muscarello v. United States,

       524 U.S. 125, 138-39 (1998).

       See also Santos, 553 U.S. at 548, 128 S.Ct. 2020 (Alito, J., dissenting, joined by

       Roberts, C.J., Kennedy and Breyer, JJ.) ('the rule of lenity does not require us to

       put aside the usual tools of statutory interpretation or to adopt the narrowest

       possible dictionary definition of the terms in a criminal statute')."Id.

¶ 154 In applying these lessons from the United States Supreme Court as well as our own

supreme court, I cannot find that our statute contains a “grievous ambiguity or uncertainty,”

especially in light of the fact that so many courts have had no trouble giving similar statutes a

broad interpretation. Further, in applying the rule of lenity, we should not put aside the rule of

statutory construction that warns us of achieving an absurd result. We are also not required to

adopt the narrowest possible dictionary definition of the terms in a criminal statute, especially

where as here, the word hijacking is ordinarily defined as the commandeering of a vehicle.

¶ 155 In coming to the conclusion that the majority’s decision leads to an absurd legislative

result, I have noted that it makes Illinois an outlier on this issue. Additionally, as noted above, it

is appropriate to consider the consequences that would result from construing the statute one way

or the other. See Gaytan, 2015 IL 116223, ¶ 23. Interpreting the statute broadly would put

Illinois in line with most jurisdictions, would effectuate the legislature’s desire to enact a strong

response to a growing problem, and accept the common dictionary definition of hijacking. On

the other hand, interpreting the statute as narrowly as defendant and the majority suggests could

lead to many absurd scenarios. Suppose a similarly escaping felon suddenly commandeers a


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shuttle bus at knifepoint and forces the driver to head north to Wisconsin. Throughout the long

drive north the driver’s life is in constant danger. However, just before the Wisconsin border, say

at Russell Road, the offender tells the driver to stop and he jumps off the bus. At this point, under

the majority’s strict interpretation of the word “takes,” the offender has not committed

aggravated vehicular hijacking. This is so even though the offender was in complete control of

the bus from the moment he entered it. If however, the offender allowed the bus to cross the state

line into Wisconsin, then he would have committed federal carjacking. Lastly, if the offender had

put the driver off the bus at the outset, and driven it away himself, he would have committed the

more serious offense of aggravated vehicular hijacking, even though the bus driver was subjected

to far less danger. I cannot agree that this can be interpreted to be our legislature’s intent.

¶ 156 In sum, although vehicular hijacking is defined in the same manner that robbery is

defined, I agree with the State that the legislature intended vehicular hijacking to be interpreted

on its own terms, particularly given that vehicles are different than objects normally taken during

a robbery. For the reasons stated, I would thus respectfully depart from our holding in McCarter

and conclude that a defendant can "take" a vehicle even if he does not dispossess the victim of

the vehicle. As to our supreme court's decision in Strickland, I acknowledge that the legislature

utilized the same "taking" language as was in issue there. I further acknowledge the rule of

statutory construction that we are to presume the legislature was aware of how that language has

been construed in the courts. See supra ¶ 67. However, I first note that Strickland was

interpreting the language of our robbery statute and that the vehicular hijacking statute did not

yet exist. Further, I find the State's argument persuasive that the legislature saw fit to

subsequently enact a separate and distinct offense, entitled vehicular hijacking, dealing only with

vehicles and that it should be interpreted on its own terms. In that regard, I also find persuasive



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the abundant federal precedent that recognizes that a vehicle is uniquely different than other

forms of property that could be taken in a robbery. Lastly, I find that the narrow interpretation of

the statute utilized by the majority produces an absurd legislative result.

¶ 157 In this case, Rimmer testified that defendant held an object in front of his face and

threatened to stab him in the neck if he did not drive, causing him to drive the bus some distance.

Under these circumstances, defendant obtained control over Rimmer's vehicle; thus, I would find

the evidence was sufficient to establish defendant "took" Rimmer's vehicle. Accordingly, I would

affirm defendant's conviction for aggravated vehicular hijacking.

¶ 158 I concur with the remainder of the majority’s decision that I have not commented on,

except that in light of my position on the hijacking charge, I would find that the vehicular

invasion count should be merged.




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