People v. Brown

JUSTICE McCULLOUGH, dissenting:

I respectfully dissent, as I would reverse on the second issue raised by the defendant, the effect of the trial court’s entering a directed verdict in his favor on the charge of calculated criminal drug conspiracy. Further, I would not reverse the trial court upon the issue treated by the majority.

The defendant maintains that the trial court’s entry of a directed verdict on the charge of calculated criminal drug conspiracy constituted an acquittal of all offenses not specifically named in the indictment, and urges that the trial court thereby lost subject matter jurisdiction to proceed on what the court regarded as included offenses of that charged by the indictment. As argued by the defendant, section 3 — 3(b) of the Criminal Code of 1961 requires the State to join all offenses known at the time of the commencement of prosecution (Ill. Rev. Stat. 1983, ch. 38, par. 3 — 3(b)). Section 3 — 4(b)(1) of the Code provides that a prosecution is barred if the defendant was formerly prosecuted for a different offense, if such former prosecution resulted in an acquittal, and the subsequent prosecution is for an offense with which the defendant should have been charged on the former prosecution, as provided in section 3 — 3 (Ill. Rev. Stat. 1983, ch. 38, par. 3— 4(b)(1)). An acquittal of the greater offense is a bar to prosecution for any included offenses under section 3 — 4, as was -stated in People v. Harrison (1946), 395 Ill. 463, 466 , 70 N.E.2d 596 , 598:

“The defense of former acquittal or former conviction is a substantial defense which is as old as the law itself. It is elementary that the acquittal of a defendant on an indictment for an offense which includes lesser offenses, operates also as an acquittal, and as a bar to any subsequent prosecution, of all included lesser offenses of which he might have been convicted on the indictment charging the higher offense.”

(See also this court’s decisions on compulsory joinder in People v. Baker (1979), 77 Ill. App. 3d 943 , 397 N.E.2d 164 , and People v. Murray (1982), 106 Ill. App. 3d 50 , 435 N.E.2d 772 .) The authority for a trial court to grant a “conditional” or “partial” directed verdict so as to leave an included offense of that charged before the court is not apparent. Although the defendant argues that the trial court’s action in entering a directed verdict on the charged offense left the court without jurisdiction to proceed, I conclude that the crux of the problem is the absence of any charge left pending, by the operation of the law, after the entry of a directed verdict on the only charged offense.

The State maintains that it is not necessary that included offenses be named in the indictment in order for the defendant to be convicted of them (People v. Herbert (1972), 6 Ill. App. 3d 938 , 287 N.E.2d 33 ; People v. Evans (1980), 87 Ill. App. 3d 714 , 409 N.E.2d 562 ); and that, as a general rule, the trier of fact may discharge the accused of the greater offense charged and convict him of an included offense if the evidence justifies it (People v. Lyons (1974), 26 Ill. App. 3d 193, 198 , 324 N.E.2d 677, 680 ; People v. Dugas (1923), 310 Ill. 291, 300 , 141 N.E. 769, 772 ). With these basic precepts, I agree. However, I would differentiate between the defendant’s being convicted of an included offense of that charged in the indictment, as compared to proceeding against the defendant on “included offenses” under the indictment after entry of a directed verdict on the only charged offense.

Herbert does not hold to the contrary. In that case the defendant was indicted for the offense of unlawful sale of narcotic drugs. After a bench trial, the defendant was found not guilty on that charge, but was found guilty of the included offense of unlawful possession of narcotics. In Evans the defendant was charged with the offenses of robbery and theft. In the course of his bench trial, he moved for a directed verdict of acquittal on all charges. That motion was granted as to the theft charge; and he was later acquitted of the robbery charge, but found guilty of assault as an included offense thereof. The reviewing court held that assault was not an included offense of robbery and reversed the judgment of the circuit court. I conclude that Evans is not dispositive of the issue raised by the defendant, as the trial court therein granted a directed verdict only as to the theft charge; the case proceeded on the robbery charge on which the defendant was subsequently acquitted. A charge made out by the indictment had survived the motion for a directed verdict.

The State next argues the trial court did not acquit the defendant of the included offense(s) by acquitting him of the greater offense, because the judge specifically stated he was allowing the motion for a directed verdict as to the charged offense but not as to the two offenses he regarded as included offenses. The State bases this argument on People v. Jenkins (1976), 41 Ill. App. 3d 392 , 354 N.E.2d 139 , and People v. Kettler (1983), 112 Ill. App. 3d 1061 , 446 N.E.2d 550 . Both cases involved review of trial court rulings where the State sought to retry the defendant, after a mistrial was declared, of charged offenses on which the jury was unable to reach a verdict.

The State relies on a passage in Jenkins interpreting section 3— 4(b), prohibiting a subsequent prosecution, as applicable when the “defendant is charged with only the greater offense and the trier of fact acquits him of that offense, remaining silent as to all lesser included offenses” (emphasis added) (People v. Jenkins (1976), 41 Ill. App. 3d 392, 393 , 354 N.E.2d 139, 140 ), i.e., in circumstances when the doctrine of implicit acquittal would apply.

Jenkins and Kettler hold that the trial court may declare a mistrial as to charged offenses on which the jury is unable to reach a verdict; and that double jeopardy does not bar subsequent prosecution for those offenses. When a mistrial is declared because the jury is unable to reach a verdict on a charged offense, there is no acquittal (Ill. Rev. Stat. 1983, ch. 38, par. 2 — 1). That circumstance is not comparable to the éntry of a directed verdict on the only charged offense.

According to the State’s position, a trial judge may enter a directed verdict in favor of a defendant on the only charged offense, but reserve uncharged included offenses just by so stating. I disagree. Section 115 — 4(k) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 115 — 4(k)) provides:

“When, at the close of the State’s evidence or at the close of all of the evidence, the evidence is insufficient to support a finding or verdict of guilty the court may and on motion of the defendant shall make a finding or direct the jury to return a verdict of not guilty, enter a judgment of acquittal and discharge the defendant.”

I would hold that the language of this statute is plain, and it does not authorize the entry of a directed verdict which amounts to an acquittal of two out of three elements of the charged offense, a Class X felony, so as to leave pending before the court an element which is itself an included offense — possession with intent to deliver more than 10 grams of cocaine (Ill. Rev. Stat. 1983, ch. 56½, par. 1401(b)(2)) — a Class 1 felony; or its included offense — possession of cocaine under 10 grams with intent to deliver, see, e.g., “any other amount” (Ill. Rev. Stat. 1983, ch. 56½, par. 1401(c)) — a Class 2 felony. I would note parenthetically that the indictment herein charged the defendant with possession of “more than 10 grams of cocaine,” rather than charging him in terms of a quantity of “any substance containing cocaine” as used in the statute.

In this regard, I disagree with the decision in People v. Helms (1971), 133 Ill. App. 2d 727, 734 , 272 N.E.2d 228, 233 , wherein the appellate court for the third district rejected the defendant’s argument that when the trial court directed a verdict in his favor on the charge of murder at the close of the State’s case, that action disposed of all issues framed by the one-count indictment, so that the included charge of voluntary manslaughter was not preserved. The Helms court rejected this argument in one paragraph, stating that the defendant was not surprised in his preparation of a defense, the jury was adequately instructed, and the defendant was not prejudiced by the procedure. I would find the prejudice inherent in this procedure to be clear. (People v. Helms (1971), 133 Ill. App. 2d 727 , 272 N.E.2d 228 .) The court observed that convictions of manslaughter under murder indictments are common, citing People v. Turner (1944), 385 Ill. 344 , 52 N.E.2d 712 , and People v. Johnson (1964), 54 Ill. App. 2d 27 , 203 N.E.2d 283 . Again, I emphasize the distinction between entering a conviction on an included offense of the offense charged by the indictment, or on instructing on included offenses shown by the evidence upon request by the defendant — as compared to going forward on uncharged included offenses after directing a verdict in a defendant’s favor on the only charged offense. The same rule ought not apply in the latter case.

The granting of a motion to direct a verdict is an acquittal and constitutes a final adjudication on the merits of those charges affected by the motion. (See People v. Young (1983), 116 Ill. App. 3d 984, 993 , 452 N.E.2d 718, 724 ; In re L.R. (1982), 106 Ill. App. 3d 244, 247-48 , 435 N.E.2d 908, 911 ; People v. Stout (1982), 108 Ill. App. 3d 96, 99 , 438 N.E.2d 952, 954-55 ; People v. Gallas (1966), 77 Ill. App. 2d 132, 140 , 221 N.E.2d 782, 787 (trial court directing a verdict as to one count).) An acquittal occurs when the ruling of the judge, whatever its label, actually represents a resolution in the defendant’s favor, correct or not, of some or all of the factual elements of the offense charged. (People v. Wallerstedt (1979), 77 Ill. App. 3d 677, 680 , 396 N.E.2d 568, 570 .) The legal effect of a directed verdict is to bar, under double jeopardy principles, its vacation or reversal. People v. Stout (1982), 108 Ill. App. 3d 96 , 438 N.E.2d 952 ; In re L.R. (1982), 106 Ill. App. 3d 244 , 435 N.E.2d 908 ; In re R.K.K. (1983), 112 Ill. App. 3d 982 , 446 N.E.2d 307 ; People v. Poe (1984), 121 Ill. App. 3d 457, 462 , 459 N.E.2d 667, 671 ; People v. Hutchinson (1975), 26 Ill. App. 3d 368, 370 , 325 N.E.2d 115, 117 ; People v. Gallas (1966), 77 Ill. App. 2d 132 , 221 N.E.2d 782 .

These rules adhere upon consideration of a charge of calculated criminal drug conspiracy, despite the fact that the legislature has seen fit to specify an included offense, violation of “any of the provisions of subsections (a) or (b) of Section 401 or subsection (a) of Section 402,” as an element of the offense. (Ill. Rev. Stat. 1983, ch. 56½, par. 1405(b)(1).) Simply put, no element of the charged offense survives the entry of a directed verdict on the charged offense. Section 102 — 8 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 102 — 8) provides:

“ ‘Charge’ means a written statement presented to a court accusing a person of the commission of an offense and includes complaint, information and indictment.” (Emphasis added.)

The term “charge,” as well as the latter terms (see Ill. Rev. Stat. 1983, ch. 38, pars. 102 — 9, 102 — 11, 102 — 12), presuppose action by an authority apart from the court and presentment thereof to the court. As no such other written charges were presented, after entering the directed verdict there existed no charge on which the court could permit the State to proceed against the defendant, and no charge upon which he could enter a plea, or which could sustain a conviction.

Subsequent to Helms, the third district in People v. Wallerstedt (1979), 77 Ill. App. 3d 677, 681 , 396 N.E.2d 568, 571 , interpreted its decision in People v. Trump (1978), 62 Ill. App. 3d 747, 748 , 379 N.E.2d 370, 371 , as finding that under section 115 — 4(k), permitting the trial court to direct a verdict in favor of the defendant either at the close of the State’s case or at the close of all the evidence, the trial court may reserve ruling on the motion made at the close of all of the evidence until after the jury has returned its verdict. (See also People v. Easter (1981), 102 Ill. App. 3d 974 , 430 N.E.2d 612 ; People v. Faulkner (1978), 64 Ill. App. 3d 453, 457 , 381 N.E.2d 321, 324 .) That procedure was not followed here.

For the reasons stated, I would treat the directed verdict issue as dispositive, and I would reverse. The law requires that the defendant’s conviction be reversed. No uncharged included offense survived the entry of a directed verdict upon the pending charge. The trial court erred in suggesting otherwise.

On the issue discussed in the majority opinion, I agree that the charge of possession with intent to deliver less than 10 grams of cocaine (Ill. Rev. Stat. 1983, ch. 56½, par. 1401(c)) does not come within the definition of a calculated criminal drug conspiracy per se. I do not find this holding, however, to require vacating the judgment entered on defendant’s plea of guilty to that offense.

The offense of calculated criminal drug conspiracy incorporates as an element a threshold quantity requirement. Nevertheless, if, in fact, an uncharged included offense could survive the entry of a directed verdict on the charged offense — so as to permit the court to entertain a plea of guilty — it was the offense of possession with intent to deliver more than 10 grams of cocaine. If, as the trial court believed, the defendant could have gone forward in front of the jury on that offense, or could have pleaded guilty thereto, I conclude that he could also negotiate with the State and enter a plea of guilty on the included offense of that charge, i.e., possession with intent to deliver less than 10 grams of cocaine. This is what defense counsel, defendant, the State, and the trial court went on to do, under an open plea agreement.

It appears to me that the majority opinion, as it declines to consider the directed verdict issue, reaches a result which elevates semantics over substance in reversing the trial court. Further, by not discussing the directed verdict problem, the majority appears to sanction proceedings against a defendant in the absence of pending charges. This is an unprecedented result in which I cannot concur.