2016 IL App (1st) 131944
Ill. App. Ct.2016Background
- On Jan. 28, 2011, Robert Carey and his brother ambushed an armored-guard (Rodriguez); a struggle ensued, shots were fired, Carey was shot in the head, and his brother Jimmy Townsend died. Carey awoke with amnesia for the incident.
- Carey was indicted on four counts: felony murder (count I, alleging murder while committing attempted armed robbery), attempted armed robbery (count II — with firearm), and two felon-in-possession counts (counts III–IV). Counts II–IV were nolle prosequied immediately before trial; the State proceeded only on count I (felony murder).
- Forensics showed Townsend’s weapon was a crude makeshift object; Carey held a double-barreled .22 Derringer that experts testified was inoperable at the time of testing. The State sought to prove attempted armed robbery while armed with a firearm at trial.
- Carey was found fit for trial after multiple evaluations despite his amnesia. The jury convicted him of first‑degree felony murder predicated on attempted armed robbery while armed with a firearm; the court imposed 25 years plus a 15‑year firearm enhancement. Carey appealed.
- The appellate court, after granting rehearing, reversed and remanded because the felony‑murder count failed to specify which of two mutually exclusive statutory variants of attempted armed robbery (armed with a firearm v. armed with another dangerous weapon) was the predicate offense, prejudicing Carey’s ability to prepare his defense.
Issues
| Issue | State's Argument | Carey's Argument | Held |
|---|---|---|---|
| Whether the felony‑murder indictment adequately identified which attempted armed robbery statute was the predicate felony | The murder indictment need not set out particulars of the predicate felony; it was sufficient to allege murder during a felony | Indictment was ambiguous because it did not specify which of the two mutually exclusive armed‑robbery subsections (firearm v. other dangerous weapon) was alleged | Indictment was defective: failure to identify the specific predicate offense deprived Carey of adequate notice and prejudiced his defense; conviction reversed and case remanded |
| Whether the State could rely on a nolle‑prosequi count to supply missing elements of the charge | The indictment read as a whole (including count II before it was dropped) supplied the necessary specificity | Once the State nolle prosequied count II, it could not rely on it to cure defects in count I; dropping the count created ambiguity | The court rejected reliance on the nolle‑prosequi count; a dropped count cannot cure defects in the remaining indictment |
| Whether Carey was fit to stand trial given his amnesia | The State relied on multiple psychiatric/psychological evaluations finding Carey competent | Carey argued his amnesia prevented active assistance in his defense and rendered him unfit | Court did not reach this issue on rehearing (it was reserved after reversal); original trial court had found Carey fit based on totality of evidence |
| Whether the 15‑year firearm sentencing enhancement should be vacated for lack of pretrial notice | State argued Carey was not prejudiced by any notice defect and enhancement could stand | Carey argued he lacked proper statutory notice of the State’s intent to seek the enhancement | The appellate court did not decide this issue after reversing on the indictment defect; it left the issue for further proceedings on remand |
Key Cases Cited
- People v. DiLorenzo, 169 Ill. 2d 318 (discusses when a charging instrument may be attacked at any time and Pujoue/Thingvold test for post‑trial attacks)
- People v. Hall, 96 Ill. 2d 315 (elements missing from one count may be supplied by another count in a multi‑count indictment only if no prejudicial uncertainty remains)
- People v. Jeffrey, 94 Ill. App. 3d 455 (holding an indictment for felony murder need not recite elements of the predicate felony where no ambiguity existed)
- People v. Simmons, 93 Ill. 2d 94 (predicate‑offense need not be cited by statute if the indictment otherwise apprises defendant of which predicate is claimed)
- People v. Gilmore, 63 Ill. 2d 23 (articulating due‑process standard that indictment must apprise defendant with sufficient specificity to prepare a defense)