People v. Smith

JUSTICE McMORROW, also concurring in part and dissenting in part:

I join in Justice Miller’s partial concurrence and partial dissent. I write separately to emphasize my disagreement with the majority’s decision to overrule, sub silentio, People v. Harre, 155 Ill. 2d 392 (1993). In Harre, police officers were positioned in a rural house situated at the end of a long, gated driveway, waiting for the defendant to arrive. Two officers saw a car approach and turn into the driveway. The car stopped at the closed gate, and the officers heard a car door open and close and the sound of the gate being opened. The car then proceeded up the lane slowly the rest of the way to the house. As the car approached the house, the officers observed the defendant riding on the passenger-side hood of the car. The defendant jumped down off the hood and took two steps towards the rear of the car until he was next to the half-opened window of the passenger-side door. An officer, with weapon drawn, then identified himself and instructed defendant to return to the hood of the car and place his hands there. At the same time another officer, also with weapon drawn, directed the driver to step out of the car. A .22-caliber pistol and .22-caliber rifle were recovered from the front seat of the car. A key recovered from the defendant’s pants pocket opened the trunk, from which two garbage bags of cannabis were seized. Harre, 155 Ill. 2d at 394-95 .

This court in Harre determined that the defendant was guilty of armed violence. This result was based on two conclusions. First, the evidence showed that the defendant was “armed,” for purposes of the armed violence statute, based on the police officers’ lay opinion testimony that the weapons on the front seat of the car were within the defendant’s immediate reach as the defendant stood next to the car door and partially opened car window. Second, and more important for the purposes of this case, the court determined that the defendant was guilty of armed violence because “the determination of whether a defendant is armed is not made at the moment of arrest.” (Emphasis added.) Harre, 155 Ill. 2d at 401 . As the court in Harre explained:

“Nor was there evidence in Condon that the defendant had displayed or used a gun during any drug delivery. (Con-don, 148 Ill. 2d at 110.) However, the evidence here, although circumstantial, clearly supported the inference that defendant had moments before his apprehension been riding in the car on his way to a drug delivery with a weapon inches from his grasp. Such circumstantial evidence was not so clearly unreasonable, improbable, or unsatisfactory that no rational trier of fact could have found beyond a reasonable doubt that defendant had immediate access to or timely control over such weapons while riding in the car enroute to the delivery of the cannabis. (See Collins, 106 Ill. 2d 237 .) Thus again in contrast to Condon, the evidence supported the jury’s finding that defendant had immediate access to and control over the weapons during the course of the underlying felony.” (Emphasis added.) Harre, 155 Ill. 2d at 400 .

The majority errs, in the instant case, when it emphasizes the fact that the defendant was not armed at the time of his arrest. As Harre, which postdates Con-don, makes absolutely clear, the only question that must be answered under the armed violence statute is whether the defendant was armed at the time of the commission of the felony. In the case at bar, the police officer’s testimony that he saw the defendant throwing the gun out of the window clearly established that the defendant was armed during the commission of the possession offense. As in Harre, the defendant in this case had, “moments before his apprehension,” been armed with a handgun and in possession of a controlled substance. The majority’s decision is thus at odds with, and indeed overrules, Harre.

Although Harre clearly resolves the present case, one might still maintain, as the majority does, that on policy grounds a conviction for armed violence should not stand where the defendant has thrown the weapon away before the police make the arrest. I do not find this argument persuasive. The purpose of the armed violence statute is to reduce the risk of violence during the commission of felony offenses. The statute’s purpose is not limited to deterring violence during an offender’s arrest. Indeed, by focusing exclusively on the time of arrest, as the majority does, the majority concludes that it was acceptable, under the law, that defendant was armed and in felony possession of a controlled substance prior to his arrest. That result is obviously counter to the armed violence statute’s purpose. For these reasons, I respectfully dissent.

JUSTICES MILLER and FREEMAN join in this partial concurrence and partial dissent.