{ "id": 3071293, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARNELL PAYNE et al., Defendants-Appellants", "name_abbreviation": "People v. Payne", "decision_date": "1981-12-22", "docket_number": "No. 80-973", "first_page": "950", "last_page": "965", "citations": [ { "type": "official", "cite": "102 Ill. App. 3d 950" } ], "court": { "name_abbreviation": "Ill. 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DARNELL PAYNE et al., Defendants-Appellants." ], "opinions": [ { "text": "PRESIDING JUSTICE HARTMAN\ndelivered the opinion of the court:\nA jury found defendants Darnell Payne and Larry Bailey guilty of armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18 \u2014 2), armed violence (Ill. Rev. Stat. 1977, ch. 38, par. 33A \u2014 2) and burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19 \u2014 1). Payne was sentenced to concurrent terms of 24 years, respectively, for the offenses of armed robbery and armed violence and 7 years for burglary. Bailey was sentenced to concurrent terms of 18 years, respectively, for the offenses of armed robbery and armed violence and 7 years for burglary.\nThe issues raised on appeal include whether: (1) defendants\u2019 arrests were illegal; (2) the lineup and in-court identifications of defendants were tainted by defendants\u2019 illegal arrests; (3) a handgun previously ruled inadmissible on defendants\u2019 motion to suppress should have been received in evidence; (4) defendants were proven guilty of the charges beyond a reasonable doubt; (5) defendants\u2019 convictions for armed violence should be reversed; and (6) burglary is a lesser included offense of armed violence. For the reasons which follow, we affirm in part and reverse in part.\nAt the pretrial hearing on defendants\u2019 motion to suppress, Chicago Police Officer J. Benigno testified that at about 9:30 a.m. on November 8, 1978, he was assigned to investigate the armed robbery that had just occurred at the victim\u2019s apartment on North Lamon Avenue in Chicago. There he interviewed, among others, the victim, the building janitor, Claud Pearce, and his son, with respect to the robbery in general and the physical characteristics of the offenders in particular. Officer Benigno spoke briefly with the victim\u2019s husband, who had to return to work, but stated that he would return later.\nThe victim\u2019s husband later returned with a companion who told Benigno that he knew who had \u201cshoved [the victim\u2019s] door in and brandished the weapons [and] where they were likely to be.\u201d The informant gave Benigno his name but requested that he remain anonymous because he knew the offenders and feared for his life. He told Benigno that defendants committed the burglary; that they were in the company of a black female named Brenda who had knocked on the victim\u2019s door; and that the offenders would likely be found at an address either on West Quincy or Monroe Streets. The informant gave a physical description of defendants which matched the ones Benigno had received earlier from the witnesses and victim. The informant never stated where he received the information concerning the identity of the burglars. Benigno \u201cgot the distinct impression that he knew them [sic] almost as if he heard it from them.\u201d He did not check the informant\u2019s address, whether he had a record for violations, whether the informant had spoken with the victim\u2019s husband about the incident, and never saw the man before or since the day of the burglary.\nAfter his conversation with the informant, Officer Benigno and his partner proceeded to the West Monroe Street address where they found one Brenda Johnson. She told them that defendants Bailey and Payne had asked her to buy some drugs at the victim\u2019s apartment. All she had to do was knock on the door and announce her name, which she did. Defendants then pushed her aside and wielded weapons at which time she became frightened and fled. She was not charged with an offense. Benigno was not present when defendants were arrested.\nAlso during defendants\u2019 motion to suppress, Chicago Police Officer B. Munkvold testified that he met with Officer Benigno at approximately 4 p.m. on November 8,1978. Benigno had information as to the identity of the offenders in the armed robbery and their addresses. Pursuant to this conversation, Officer Munkvold and three other officers, without a warrant, went to the West Quincy Street address where they knocked on defendants\u2019 door with their guns drawn. Defendants were placed under arrest and advised of their rights. The officers frisked defendants but found nothing. A search of the house, however, revealed a .32-caliber nickel plated revolver and a .25-caliber blue steel automatic in the vegetable bin inside the refrigerator. No sawed-off shotgun or money was located or recovered there. Defendants were standing in the living room approximately 10 or 12 feet away from the refrigerator in the kitchen where the weapons were found. An open doorway separated the living room from the kitchen.\nAt the end of the suppression hearing, the trial court found \u201cample evidence for probable cause to arrest.\u201d The court stated that \u201cthere was a citizen-witness who gave a knowledgeable version of the crime,\u201d corroborated by the victim. \u201cHe gave descriptions, gave the name Brenda.\u201d The trial court held, however, that the subsequent search of the refrigerator in the kitchen exceeded the area within defendants\u2019 immediate control and therefore was illegal and granted defendants\u2019 motion to suppress the two weapons.\nAt trial, the State presented essentially the following evidence. The victim testified that shortly after 9 a.m. on November 8,1978, she heard a knock on the door. A woman identified herself as \u201cBrenda.\u201d The victim unlocked her chain, opened the door a little, and saw an unknown woman and man outside the door. She immediately slammed and locked her door, but two men smashed the door and burst through the panel. The short offender, Bailey, pinned her hands against her back and held a pistol to her temple. The tall offender, Payne, ordered Bailey to \u201cshoot her, man, shoot her,\u201d and then asked if she wanted her children to go to her funeral. Bailey forced her into a chair and put \u201csomething\u201d over her eyes, either his hand or a blindfold. She was blindfolded for 3 or 4 minutes of the 20 minutes that the offenders were present in her house. Because the black handgun was pointing at her, she could not see much of Payne walking around to different parts of the living room. The offenders stole $75 in cash which was lying on the dresser and $2,000 in insurance proceeds. She got a good look at both offenders. Later the same day, at a police lineup of six men, she identified defendants.\nOn cross-examination, the victim testified that she first discovered that the $2,000 in insurance proceeds was stolen when her husband arrived home between 11 a.m. and 12 noon and he so advised her. She denied informing police that the tall offender had placed a shotgun to her head. She could clearly see the black revolver held at her head by Bailey, but this contradicted her earlier testimony at the preliminary hearing where she stated she \u201cwasn\u2019t looking that well.\u201d She was extremely upset over the incident but not at the time of the lineup.\nClaud Pearce testified that he was a janitor who lived one floor directly below the victim\u2019s apartment. At about 9 a.m. on November 8, 1978, he heard a loud racket like somebody breaking in. Upon investigation he observed that the door to the victim\u2019s apartment was \u201cbusted\u201d open. Standing just across the hall from that apartment, he saw a tall offender exit and shout to his accomplice, \u201cHurry up, man let\u2019s go.\u201d He next observed a short offender emerge, lock the burglary gates closed and \u201ctake off\u201d down the hallway. Later that same day he viewed a lineup at the police station at which time he identified defendants as the culprits.\nOn cross-examination, he testified that 5 to 7 minutes elapsed from the time he heard the noise until the first man emerged from the apartment; it was difficult to gauge the time as he did not have a watch. One offender was 5'6\" or \u201csomething\u201d and the other was 6'4\" or \u201csomething.\u201d He saw no weapons. Defendants changed their clothes and hair styles between the time he viewed the lineup and the time the lineup was photographed. On redirect examination, Pearce testified that he identified defendants at the lineup by their faces rather than their clothing.\nOfficer Munkvold\u2019s testimony at trial supported his earlier testimony at defendants\u2019 suppression motion. The trial court held that the cross-examination of Officer Munkvold by defense counsel implied that no weapons were found in defendants\u2019 apartment at the time of their arrest and \u201copened the door\u201d to the suppressed handguns, which were then admitted into evidence. Munkvold was then permitted to testify on redirect examination that the search of defendants\u2019 apartment revealed a blue steel revolver loaded with a clip of .25-caliber bullets. On re-cross-examination, Officer Munkvold testified that neither $2,000 nor a sawed-off shotgun was recovered pursuant to the search.\nThe victim was recalled and testified that the .25-caliber blue steel revolver was the same weapon that was held at her head by defendant Bailey, based upon its size and color. She \u201cgot a good look\u201d at the weapon at the time of the incident. On cross-examination her testimony at the preliminary hearing the day after the incident was read to her where she stated, \u201cI don\u2019t know whether it was a .32 or a .45. I wasn\u2019t looking that well.\u201d She stated that she could have made the first statement, but not the second one.\nOther evidence adduced by the State was either cumulative or otherwise of little aid to the decision and need not be set forth.\nDefendant Bailey took the stand and denied having robbed the victim. On the morning in question he slept in an apartment on Quincy Street until 11 or 11:30 a.m. Sometime after 12, he purchased some wine and for the first time that day he saw defendant Payne, either in a pool hall or outside. Payne was not carrying a weapon. Bailey described himself as 5'10\" tall and weighing 158-160 pounds. He was not aware of a gun located in the refrigerator before the police seized it that afternoon.\nThe parties stipulated that if Chicago Police Officer R. Ugorek were to testify, he would state that he spoke with the victim at her apartment shortly after the incident, and that she told him a tall man put a shotgun to her head.\nThe jury found both defendants guilty of armed robbery, armed violence and burglary. Defendants\u2019 post-trial motions were denied and defendants were thereafter sentenced as first noted in the opinion.\nI\nDefendants argue that their arrests were made without probable cause and therefore were illegal because they were based on hearsay information. Hearsay from an anonymous informer can be sufficient by itself to support a finding of probable cause (People v. Williams (1963), 27 Ill. 2d 542, 190 N.E.2d 303), provided there exists a \u201csubstantial basis\u201d to support the credibility of the hearsay declarant (People v. Lindner (1975), 24 Ill. App. 3d 995, 997-98, 322 N.E.2d 229). The \u201csubstantial basis\u201d standard is bottomed upon a two-pronged test. In the first prong, the State must show the underlying circumstances establishing the reliability or credibility of the anonymous informer and, in the second, the underlying circumstances which establish the reliability of the informer\u2019s conclusions that the defendants were engaged in criminal activity (Aguilar v. Texas (1964), 378 U.S. 108, 114, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514; People v. Garcia (1981), 94 Ill. App. 3d 940, 945, 419 N.E.2d 542) in order to demonstrate the existence of probable cause for a warrantless arrest. People v. Saiken (1971), 49 Ill. 2d 504, 511, 275 N.E.2d 381, cert. denied (1972), 405 U.S. 1066, 31 L. Ed. 2d 796, 92 S. Ct. 1499.\nDefendants maintain that the State failed to establish either the reliability of the anonymous informant or any underlying circumstances upon which his conclusions were based. The State responds that the informant in the instant case was a citizen-informant, although the record is barren of any facts supporting this conclusion. Officer Benigno did not check to see whether the informant had a criminal record; whether he lived in the neighborhood of the crime or how he happened to be there. Benigno had never talked with him before or after November 8, 1978. There is thus no basis in the record upon which to invoke the citizen-informant exception recognized as credible or reliable under People v. Hester (1968), 39 Ill. 2d 489, 513-14, 237 N.E.2d 466.\nAssuming, arguendo, that the veracity of the informant prong of Aguilar had been satisfied, the basis of the knowledge prong had not. Officer Benigno was unable to provide the source of the informant\u2019s knowledge. There was no testimony whatsoever as to the few facts upon which the informant based his conclusion; or how those facts were obtained; or, if the knowledge came through some other person, who that person was and what his relationship, if any, to the crime had been. Benigno could only state the informant was not an eyewitness and that he \u201cassumed\u201d or got the \u201cdistinct impression\u201d that the informant received his information from defendants themselves. Although the State argues that this branch of the test was satisfied because of the information regarding defendants\u2019 physical characteristics and the details of the crime, which were corroborated by other witnesses, Benigno never testified to any details of those characteristics. (See People v. Talley (1975), 34 Ill. App. 3d 506, 509-10, 340 N.E.2d 167.) In the absence of evidence indicating the method by which the information was secured, it is particularly important that the informant describe the accuseds\u2019 criminal activities in sufficient detail so that the tribunal knows it is relying on something more substantial than a casual, circulating rumor or an accusation based merely on their general reputation. (Spinelli v. United States (1969), 393 U.S. 410, 416, 21 L. Ed. 2d 637, 644, 89 S. Ct. 584, 588.) The description of the armed robbery which the informant revealed here lacked sufficient detail upon which to satisfy the \u201cbasis of knowledge\u201d Aguilar requirement. The arrests were thus made without probable cause.\nDefendants argue that the warrantless arrests of defendants in Bailey\u2019s home were illegal also because no justifiable exigent circumstances existed, relying upon Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371. Payton held that the fourth amendment prohibited police from nonconsensual and warrantless entries into a suspect\u2019s home for purposes of effectuating an arrest absent any exigent bases. Since we hold that the arrests were illegal as having been effectuated without probable cause, no application of Payton principles need be made to the instant circumstances.\nII\nIt is next maintained by the defense that all testimony concerning the identifications of defendants at the lineup and in court should be excluded as the tainted fruit of the illegal arrests. Citing Mapp v. Ohio (1961), 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, and Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407, they assert that the lineup and in-court identifications were obtained by exploiting the primary illegality, the unlawful arrests, rather than through any independent means purged of the primary taint. Because we find the presence of independent bases for the in-court identifications of defendants, there is no necessity to consider the effect of the illegal arrests upon the lineup identifications. In United States v. Crews (1980), 445 U.S. 463, 63 L. Ed. 2d 537, 100 S. Ct. 1244, the Supreme Court held that in-court identification need not be suppressed as the fruit of an unlawful arrest when the victim\u2019s independent recollections of an offender preceded the unlawful arrest and were thus untainted by a constitutional violation (445 U.S. 463, 473, 63 L. Ed. 2d 537, 547, 100 S. Ct. 1244, 1251; see also People v. Dangerfield (1979), 78 Ill. App. 3d 1046, 1050, 398 N.E.2d 57). Several factors must be considered in ascertaining whether there is an independent origin for an identification which Crews, 445 U.S. 463, 473 n.18, 63 L. Ed. 2d 537, 547 n.18, 100 S. Ct. 1244, 1251 n.18, citing Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243, described as including: (1) the opportunity of the witness to view the offender at the time of the crime; (2) the witness\u2019 degree of attention at that time; (3) the existence of any discrepancy between any pretrial description and the defendant\u2019s actual appearance; (4) the lapse of time between the crime and the confrontations; (5) any identification of another person prior to the lineup; and (6) the failure to identify the defendant on a prior occasion.\nApplying these factors to the evidence in the record, it is apparent that the in-court identification of defendants by the victim and Claud Pearce were properly admitted into evidence. First, the victim and witness each had a clear opportunity to view the offenders at close range during and after the incident. Defendants were in the victim\u2019s apartment for approximately 20 minutes. Her vision was unobstructed for about 75% of that time. Both defendants were seen by Pearce outside the apartment as he stood across from the hallway door. Second, the victim was an interested witness. She had reason to scrutinize the faces of the offenders with some amount of care and attention. Pearce was drawn to the scene by the noise of the breakin of an apartment in a building which he served as janitor. Third, the descriptions that the victim and Pearce provided the police, as described by Officer Benigno, sufficiently conformed to the actual physical appearances of defendants Payne and Bailey. They described one intruder as male Negro, 6' tall, light skinned, 130 pounds, and 21 to 25 years of age. The arrest report indicates that on the day of the home invasion that offender was a male Negro 29 years old, 6'1\", weighed 150 pounds and was of medium complexion. The other assailant was described by the victim and witness as a male Negro, 5'5\" to 5'7\", 125 pounds, dark complexioned, and of stocky build. The arrest report indicates that on the date of the crime he was shown as a male Negro, 5'9\", 170 pounds and medium complexioned. Although the descriptions did not fit defendants\u2019 actual appearance with utter precision, discrepancies of this nature to not compel the conclusion that they lacked an independent basis for the in-court identification. Fourth, only nine or 10 hours had elapsed between the armed robbery and the victim\u2019s and witness\u2019 lineup identifications of defendants. Fifth, neither the victim nor the witness identified any other persons as the assailants at any prior time. Finally, neither failed to identify defendants on any prior occasions. From the foregoing, it must be concluded that the in-court identifications were based upon their opportunities to observe the offenders during and after the home invasion and were not the result of exploiting the illegal arrests. The identifications were based upon circumstances sufficiently distinguishable from the arrests so as to be purged of any taint resulting therefrom.\nIII\nDefendants assign error in the admission in evidence of the gun, which had been previously suppressed. Defendants maintain that their cross-examination of Officer Munkvold could not have formed the basis for the admission in evidence of the blue steel revolver, as held by the trial court, and they were prejudiced both by the redirect testimony of Munkvold pertaining to the fruits of the search and by the admission of the gun itself into evidence. The cross-examination held to have \u201copened the door\u201d to the suppressed evidence consists of the following colloquy:\n\u201c[DEFENSE COUNSEL]: Officer Munkvold, at the time of the arrest of Mr. Bailey and Mr. Payne, they were searched, were they not?\n[ASSISTANT STATE\u2019S ATTORNEY]: Objection.\n[THE COURT]: Sustained\n[DEFENSE COUNSEL]: Basis?\n[ASSISTANT STATE\u2019S ATTORNEY]: In fact, I\u2019ll withdraw the objection.\n[THE WITNESS]: Yes, they were.\n[DEFENSE COUNSEL]: Was the apartment searched?\n[THE WITNESS]: Yes, it was.\n[DEFENSE COUNSEL]: Thank you. That\u2019s all.\u201d\nDefendants\u2019 trial counsel argued that the purpose of that particular question on cross-examination was to leave the inference that the proceeds of the burglary were not found on defendants\u2019 premises: \u201cI have a perfect right to indicate to the jury, or make an inference that none of those proceeds were found 000 [and] that those items weren\u2019t found.\u201d\nA defendant cannot object if he \u201cprocures, invites or acquiesces in the admission of evidence, even though it be improper.\u201d (People v. Burage (1961), 23 Ill. 2d 280, 283, 178 N.E.2d 389, cert. denied (1962), 369 U.S. 808, 7 L. Ed. 2d 555, 82 S. Ct. 651.) When a defendant implies to a jury the absence of suppressed evidence in furtherance of his defense, the State may properly introduce that evidence in contradiction of such an inference. (See, e.g., United States v. Havens (1980), 446 U.S. 620, 626-28, 64 L. Ed. 2d 559, 565-67, 100 S. Ct. 1912, 1916-17.) The trial court was correct in holding that defendants\u2019 cross-examination implanted improper inferences in the minds of the jurors. The jurors, upon hearing Officer Munkvold testify that a search was conducted at defendants\u2019 apartment without ascertaining the results of that search, could well have been left with the inference that no evidence was found, just as defense counsel intended.\nThe defense maintains, arguendo, that if the cross-examination of Munkvold indeed opened the door, nevertheless the problem could have been adequately resolved by utilizing less drastic means such as striking the questions and admonishing the jury to disregard them, or striking the two general questions and allowing defendants\u2019 counsel to ask the other specific questions concerning whether a shotgun or $2,000 was found. Both of defendants\u2019 \u201csolutions,\u201d of course, would also have served to heighten the inaccurate implications of the defendants\u2019 cross-examination. We find no error in the trial court\u2019s ruling in this regard.\nIV\nIt is urged by defendants that they were not proven guilty beyond a reasonable doubt because the testimony of the eyewitnesses was unclear and contradictory. Defendants\u2019 contention that the victim\u2019s in-court identification is highly unreliable is not borne out by the record. The victim\u2019s testimony, recounted previously, identifying defendants as the offenders who broke into her apartment was consistent throughout the trial, although at times her collateral testimony was contradictory and confusing. Such discrepancies in her testimony as may have appeared were insufficient to destroy her credibility.\nDefense counsel also would impeach the in-court identification of the revolver by the victim\u2019s remarks at the preliminary hearing to the effect that she was uncertain of the caliber of the gun because she \u201cwasn\u2019t looking that well.\u201d Those remarks did not destroy her testimony at trial, that \u201c[t]o my knowledge this is the gun, or one just like it.\u201d Defendants\u2019 attack on the credibility of Pearce, claiming that he lacked an adequate opportunity to observe the intruders and that the descriptions he gave the police differ markedly from the actual physical appearances of defendants, were also previously considered and rejected above.\nThere was sufficient evidence in the record to support the jury\u2019s verdict of guilty. A reviewing court cannot substitute its judgment of credibility for that of the trier of fact. People v. McLaren (1979), 77 Ill. App. 3d 368, 372, 395 N.E.2d 1219.\nV\nDefendant Bailey next contends that his conviction for armed violence should be reversed because he was never charged with that offense. We concur. Count 3 names only Payne and makes no mention of Bailey within its allegations. Further examination of count 3 reveals that the word \u201che\u201d was originally typed and that some unknown person at some undisclosed time added the letters \u201ct\u201d and \u201cy\u201d in handwriting to form the word \u201cthey.\u201d For all practical purposes, the word \u201cthey\u201d contained in count 3 must be ignored. Contrary to the State\u2019s argument, the caption of the information naming both Bailey and Payne, coupled with the word \u201cthey\u201d in count 3, fails to imply that Bailey was also charged with that particular offense. Standing alone, the caption of the information naming both Payne and Bailey cannot reasonably be construed to mean that both defendants are charged in every count regardless of whether their names actually appear in the count.\nThe State maintains that defendant waived his right to raise this issue on appeal by failing to draw the trial court\u2019s attention to the information and by failing to raise the issue in his written motion for a new trial. A criminal defendant may appeal the sufficiency of the information for the first time on appeal, however. (People v. Greene (1968), 92 Ill. App. 2d 201, 235 N.E.2d 295. See also People v. Pujoue (1975), 61 Ill. 2d 335, 335 N.E.2d 437.) Bailey\u2019s conviction for armed violence must therefore be reversed.\nVI\nError is next identified in that the third count of the information charging Payne with armed violence is defective because it fails to set forth the elements of the underlying felony, burglary. Conceding that count 3 refers to the felony of burglary as defined by Illinois Revised Statutes 1977, the defense insists that the reference is inadequate because the statute defines \u201cburglary\u201d in two different ways \u2014 unlawful entry or the act of unlawfully remaining within \u2014 either of which could constitute the offense. (Ill. Rev. Stat. 1977, ch. 38, par. 19 \u2014 1(a).) Thus, it is argued, defendant Payne allegedly was forced to speculate upon which particular act, an unlawful entry or an unlawful remaining within, formed the basis of the charge.\nThe State responds that defendants were properly charged in count 3 because any ambiguity created in that count was remedied by a reading of the information as a whole. Count 2 alleged that defendants committed burglary in that they \u201cwithout authority, knowingly entered into a building.\u201d Thus the elements of the burglary charged were articulated in the count which directly preceded the count charging armed violence based on burglary. In determining the sufficiency of a charging document, the entire complaint may be examined. (People v. Williams (1967), 37 Ill. 2d 521, 524-25, 229 N.E.2d 495.) The charge here was sufficient. Strict compliance with the express requirements of section 111 \u2014 3(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1977, ch. 38, par. 111 \u2014 3(a)) is not required when the adequacy of the information is for the first time argued on appeal. The failure to allege an element of the offense does not render it per se void when attacked at such time. The armed violence charge, when read in this context, sufficiently informed defendant Payne of the precise offense alleged and permitted him to prepare an adequate defense. People v. Pujoue (1975), 61 Ill. 2d 335, 339.\nVII\nDefendants contend that the burglary conviction should be reversed, since it is the lesser included offense of armed violence based on the underlying felony of burglary, citing People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, for the following general proposition: \u201cPrejudice results to the defendant only in those instances where more than one offense is carved from the same physical act.\u201d Defendants first argue that the evidence at trial established only one physical act of burglary. The King mandate was violated because more than one offense, i.e., burglary and armed violence, were \u201ccarved from the same physical act.\u201d Defendants rely upon People v. Welte (1979), 77 Ill. App. 3d 663, 396 N.E.2d 315. No discussion of this issue is set forth in Welte. Analytically, defendants\u2019 position cannot be sustained. As the language of section 33A \u2014 2 makes abundantly clear, two acts rather than just one are involved in the offense of armed violence: one being the commission of a felony, i.e., burglary, and the second being armed with a dangerous weapon while committing the act. See People v. Haron (1981), 85 Ill. 2d 261, 278, 422 N.E.2d 627; People v. Lynom (1981), 97 Ill. App. 3d 1113, 423 N.E.2d 1281; People v. Best (1981), 97 Ill. App. 3d 1083, 424 N.E.2d 29; People v. Feierabend (1981), 98 Ill. App. 3d 731, 424 N.E.2d 765; People v. Perez (1981), 101 Ill. App. 3d 64, 427 N.E.2d 820. Contra, People v. Simmons (1981), 99 Ill. App. 3d 519, 425 N.E.2d 1168; People v. Mormon (1981), 97 Ill. App. 3d 556, 422 N.E.2d 1065, appeal allowed (1981), 85 Ill. 2d 562.\nIn the alternative, defendants contend that even if the convictions for burglary and armed violence derive from several acts, the rule enunciated in People v. King concerning multiple acts supports their contention that burglary is a lesser included offense of armed violence. A similar issue was raised in People v. Lynom, wherein the defendant there sought to have the charge of voluntary manslaughter considered a lesser included offense of the charge of armed violence. In Lynom (97 Ill. App. 3d 1083, 1120-21), this court considered the recently decided cases of People v. Myers (1981), 85 Ill. 2d 281, 422 N.E.2d 620, and People v. Haron, in which we noted the supreme court\u2019s conclusion that the rule it had promulgated in King did not preclude multiple convictions upon multiple acts and the imposition of concurrent sentences based upon them (People v. Myers (1981), 85 Ill. 2d 281, 288), and that if the predicate offense is a felony by statutory definition when committed without possession or use of a dangerous weapon, such an offense may support a second charge, armed violence, when committed with possession of such a weapon. People v. Haron (1981), 85 Ill. 2d 261, 278.\nThe charge of burglary in the instant case is a felony. (Ill. Rev. Stat. 1977, ch. 38, par. 19 \u2014 1(b).) It may be committed without possession or use of a dangerous weapon. When defendants utilized a handgun and sawed-off shotgun in the commission of this crime, their acts became amenable to the provisions of the armed violence statute. (Ill. Rev. Stat. 1979, ch. 38, pars. 33A \u2014 1, 33A \u2014 2.) Under these circumstances, burglary cannot be deemed a lesser included offense of armed violence since the offense of burglary requires proof of elements that are not required for the offense of armed violence. (See People v. Myers (1981), 85 Ill. 2d 281, 286-88; People v. Smith (1980), 78 Ill. 2d 298, 306, 399 N.E.2d 1289; People v. Vriner (1978), 74 Ill. 2d 329, 346-47, 385 N.E.2d 671, cert. denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858.) See also Blockburger v. United States (1932), 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180; Gore v. United States (1958), 357 U.S. 386, 2 L. Ed. 2d 1405, 78 S. Ct. 1280; Illinois v. Vitale (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260.\nFor the foregoing reasons, we must affirm defendants\u2019 burglary and armed robbery convictions; affirm the armed violence conviction as to defendant Payne; and reverse the armed violence conviction as to defendant Bailey.\nAffirmed in part, reversed in part.\nPERLIN, J., concurs.", "type": "majority", "author": "PRESIDING JUSTICE HARTMAN" }, { "text": "JUSTICE DOWNING,\nconcurring and dissenting in part:\nI agree with the disposition of this case made by the majority opinion except as to part VIL I dissent from the conclusion reached therein, which holds that defendant Payne was properly convicted of both burglary and armed violence based upon the underlying felony of burglary.\nA.\nDefendant Payne\u2019s first argument on this issue is that his convictions for both of these offenses violate the \u201cone act-one crime\u201d rule of People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273. He bases this argument on his claim that he committed only one physical act which could serve as the basis for the armed violence charge. The majority opinion rejects this contention on the theory that \u201cthe language of section 33A \u2014 2 makes abundantly clear [that] two acts rather than just one are involved in the offense of armed violence: one being the commission of a felony e 0 * and the second being armed with a dangerous weapon while committing the act.\u201d (First emphasis theirs, second emphasis added.)\nI have carefully examined the language of section 33A \u2014 2 (Ill. Rev. Stat. 1977, ch. 38, par. 33A \u2014 2), and cannot agree with the majority\u2019s reasoning. In my opinion, the crime of armed violence consists of only a single criminal \u201cact\u201d (that act being the commission of the underlying felony), which is aggravated by the presence of a \u201cdangerous weapon.\u201d In enacting the armed violence statute, the General Assembly\u2019s intent (as I interpret it) was simply to provide a greater penalty against those defendants who chose to possess a dangerous weapon during the commission of a felonious criminal act of some type. The legislature did not, in my opinion, determine that possession of such a weapon in and of itself was a distinct criminal act to be dealt with under the armed violence provision. Rather, it determined that the degree of criminality inherent in the underlying, prerequisite act (being another felony defined at law) was greater when that act was accompanied by the mere presence of a dangerous weapon.\nTo me, the element of the dangerous weapon contained in the armed violence provision can be analogized to the aggravated battery statute (Ill. Rev. Stat. 1977, ch. 38, par. 12 \u2014 4). When a person commits a battery as defined by law (Ill. Rev. Stat. 1977, ch. 38, par. 12 \u2014 3) while using a deadly weapon, he has committed aggravated battery (par. 12 \u2014 4(b)(1)), an enhanced penalty crime. Yet, it cannot logically be said that that person has committed two distinct physical King \u201cacts,\u201d each of which could support a different conviction without violating King. Instead, that person has committed a single criminal act, battery, which is aggravated by the use of a deadly weapon and becomes the crime of aggravated battery. Nevertheless, under the reasoning of the majority opinion, such a person would have committed two such acts: battery (i.e., intentionally causing great bodily harm, let us say) and use of a deadly weapon, each of which could, under the majority\u2019s theory, support a separate and concurrent conviction. I believe that King would be violated in such circumstances, and similarly is violated under the majority\u2019s analysis of defendant Payne\u2019s situation.\nFor these reasons, I must strongly disagree with the majority\u2019s conclusion that the King \u201cone act-one crime\u201d rule was not violated here with regard to defendant Payne.\nB.\nAdditionally, I am convinced that the majority wrongly decided defendant Payne\u2019s alternative contention that in this case, burglary is a lesser included offense of armed violence. A corollary, in a sense, of the King \u201cone act-one crime\u201d rule is that a defendant is prejudiced where he is convicted of two offenses, one of which is by definition a lesser included offense of the other. (People v. King (1977), 66 Ill. 2d 551, 566.) A lesser included offense is one of which all the elements are included in the greater offense (People v. Smith (1980), 78 Ill. 2d 298, 306, 399 N.E.2d 1289); one which is established by proof of the same or less than all of the elements of the greater offense (Ill. Rev. Stat. 1977, ch. 38, par. 2\u20149).\nThe majority concludes that burglary, as charged in the instant case, is not a lesser included offense of armed violence. I note again that the armed violence charge against defendant Payne was based upon the underlying felony of burglary, that burglary having been committed while Payne was armed with a dangerous weapon. It is obvious to me that the elements of burglary (knowingly and without authority entering and remaining in, inter alia, a building with the intent to commit therein a felony or theft) (Ill. Rev. Stat. 1979, ch. 38, par. 19 \u2014 1), must all be proved here before Payne could be convicted of the crime of armed violence based upon that burglary. I fail to see those \u201celements [of burglary] that are not required for the offense of armed violence [based upon burglary]\u201d which the majority relies upon in determining that the multiple convictions can stand. The Illinois cases cited by the majority do not, in my opinion, give any support to the majority\u2019s conclusion. In People v. Myers (1981), 85 Ill. 2d 281, 426 N.E.2d 535, the defendant was properly convicted of armed violence based upon aggravated battery and of attempted murder. As the supreme court noted, the elements of these two crimes are different. In People v. Smith (1980), 78 Ill. 2d 298, the defendant was properly convicted of robbery and intimidation. As the supreme court noted, these crimes have different elements, and thus intimidation could not be a lesser included offense of robbery. In People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671, cert. denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858, the defendant was properly convicted of armed violence based upon intimidation and of unlawful use of weapons. As the supreme court noted, the elements of these two crimes are not the same. In contrast, here the State must prove all the elements of burglary plus the fact that that crime was committed while armed with a dangerous weapon in order to convict defendant Payne of armed violence. Thus, burglary is a lesser included offense of armed violence here. Consequently, Payne\u2019s conviction for burglary should be reversed. I believe the majority erred in finding to the contrary.\n\u201cAct\u201d is defined in King as \u201cany overt or outward manifestation which will support a different offense.\u201d 66 Ill. 2d 551, 566.\nThe General Assembly had already provided that certain modes of possessing certain types of weapons were illegal. See Ill. Rev. Stat. 1977, ch. 38, par. 24 \u2014 1.", "type": "concurrence", "author": "JUSTICE DOWNING," } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Karen A. Popek and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellants.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Marcia B. Orr, Richard F. Burke, and Barry A. Gross, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARNELL PAYNE et al., Defendants-Appellants.\nFirst District (2nd Division)\nNo. 80-973\nOpinion filed December 22, 1981.\nDOWNING, J., concurring in part and dissenting in part.\nJames J. Doherty, Public Defender, of Chicago (Karen A. Popek and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellants.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Marcia B. Orr, Richard F. Burke, and Barry A. Gross, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0950-01", "first_page_order": 972, "last_page_order": 987 }