Opinion
No. 1-11-3669
12-06-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISHMEL JACKSON, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 08 CR 21598
Honorable
Joseph M. Claps,
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Hall and Lampkin concurred in the judgment.
ORDER
¶ 1 HELD: On appeal from defendant's conviction for armed robbery and aggravated vehicular hijacking with a firearm, we find: (1) the trial court properly denied defendant's motion to quash arrest and suppress evidence; (2) the State's closing arguments were not prejudicial; and (3) defendant's sentence for armed robbery and his conviction and sentence for aggravated vehicular hijacking with a firearm were not unconstitutionally void. ¶ 2 After a jury trial, defendant-appellant, Ishmel Jackson, was convicted of armed robbery and aggravated vehicular hijacking with a firearm and was sentenced to concurrent terms of 22 years' imprisonment. On appeal, defendant contends that: (1) the trial court improperly denied his motion to quash arrest and suppress evidence; (2) the State made improper and prejudicial remarks during closing arguments; (3) his sentence for armed robbery was unconstitutional; and (4) his conviction and sentence for aggravated vehicular hijacking with a firearm was similarly unconstitutional. For the following reasons, we affirm defendant's convictions and sentences.
¶ 3 I. BACKGROUND
¶ 4 Defendant and codefendant, Larry Hunley (Mr. Hunley), were charged by indictment with, inter alia, one count each of armed robbery and aggravated vehicular hijacking with a firearm. Each count generally alleged that, on or about October 28, 2008, defendant and Mr. Hunley took a vehicle and other personal property from Michael Wells (Mr. Wells) while armed with a firearm. ¶ 5 Both defendants filed motions to quash their arrests and suppress evidence, and the trial court conducted a combined hearing on both motions. At the hearing, Officer Emmett McClendon (Officer McClendon) testified that he was a Chicago police officer assigned to work on organized crime and gang intelligence. On October 28, 2008, he was on routine patrol with Officers Martin Teresi (Officer Teresi) and Mark Reno (Officer Reno) near 25 West 105th Street. The three police officers were in an unmarked police vehicle and were dressed in plain clothes. As they drove along 105th Street sometime between 10:30 p.m. and 11 p.m., Officer McClendon observed Mr. Hunley looking into a parked, unoccupied vehicle. Mr. Hunley was wearing an illuminated light on his head, which Officer McClendon further described as "a band with a light in the front [that] looked like a miner's light." Officer McClendon testified that, in his 15 years as a Chicago police officer, he had never seen someone wearing such a headlamp on the street or while looking into a parked vehicle. Their curiosity piqued by this observation, the three officers decided to approach Mr. Hunley. ¶ 6 Officer McClendon identified himself as a police officer and asked Mr. Hunley what he was doing. Mr. Hunley responded by saying he was doing "nothing" and then gave a surprised look. Officer McClendon then asked if the vehicle belonged to Mr. Hunley, and Mr. Hunley indicated that it did not. While the exact sequence is not clear from the record, Officer McClendon testified that he also: (1) conducted a pat-down search of Mr. Hunley, recovering nothing but the headlamp; (2) asked Mr. Hunley for identification, and determined that Mr. Hunley did not have any form of identification; and (3) brought Mr. Hunley over to the parked, unmarked police vehicle. Officer McClendon further testified that Mr. Hunley was "detained" for further investigation into his activity, and that he was not free to leave. ¶ 7 In addition, and sometime "while speaking with Mr. Hunley," Officer McClendon observed defendant walking down an alley toward Mr. Hunley. Both Mr. Hunley and defendant were speaking and were looking at each other, though Officer McClendon did not testify regarding the content of what they said. Officer McClendon further testified that Officer Teresi thereafter either called defendant over to the police vehicle or approached defendant for a field interview. In either case, defendant-who was first observed within 20 feet of Mr. Hunley and the police vehicle-was almost at the police vehicle when he was "detained." Officer McClendon indicated that defendant was next subjected to a "protective pat-down" search for weapons and asked for identification by Officer Teresi. In response, defendant produced an identification card and a wallet from his pocket and placed the wallet on the hood of the police vehicle. ¶ 8 Officer McClendon testified that defendant's identification card was "commingled" with the wallet, which was described as "a bifold wallet with a lot of, a big oversized wallet with a lot of stuff inside of it" that was "so big it couldn't close." When defendant placed this wallet on the police vehicle, it fell open and revealed an identification card and a number of credit cards for an individual named Michael Wells. Defendant indicated that he had recently found the wallet, and when asked if he "had anything else on him" by Officer Teresi, defendant said that he had some other items that he had also recently found. Defendant then retrieved a number of other items from his pocket, which included a cell phone, a "recorder," and a "micro disc CD card." At that point, defendant was placed into custody for theft of mislaid property. Officer McClendon testified that Mr. Hunley was still detained, and both defendant and Mr. Hunley were then handcuffed and placed into the police vehicle. ¶ 9 Mr. Hunley and defendant then accompanied the police officers as they drove approximately one half-mile to the address of Mr. Wells, as listed on the identification card retrieved from the wallet. While Mr. Hunley and defendant sat in the police vehicle, Officer McClendon and Mr. Wells had a conversation in which Mr. Wells stated that he had only recently reported to the police that his vehicle had been hijacked from him by force. Mr. Wells also identified the items the police had retrieved from defendant as being items that were taken during the hijacking. He also gave a description of the two men that hijacked his car, a description that Officer McClendon believed matched defendant and Mr. Hunley. ¶ 10 Officer McClendon testified that defendant was ultimately transported to a police station and placed in a lineup. Additionally, based upon information contained in a subsequent statement provided by Mr. Hunley in which he indicated that he and defendant had gone to the home of Walter Riely Palmer (Mr. Palmer), Officer McClendon went to Mr. Palmer's home. There, additional items were recovered, and a statement regarding defendant was subsequently obtained from Mr. Palmer. Following Officer McClendon's testimony, the State, defendant, and Mr. Hunley entered into a stipulation regarding the evidence that defendant and Mr. Hunley were seeking to suppress, which included: (1) the items retrieved from defendant and Mr. Hunley at the time they were originally detained; (2) the items recovered from Mr. Palmer's home; (3) the results of the lineup; and (4) the statements provided by Mr. Hunley and Mr. Palmer. ¶ 11 The State thereafter made a motion for directed finding on the motions to suppress. With respect to defendant, the State argued in part that he lacked standing to complain about any possible illegal detention of Mr. Hunley and, thus, lacked a basis to suppress Mr. Hunley's statement or the evidence subsequently obtained on the basis of the information contained in Mr. Hunley's statement. Defendant argued that the two arrests were so intertwined that they could not be separated, and that any information obtained through Mr. Hunley was fruit from the same poisonous tree. The trial court ultimately granted the State's motion for directed finding with respect to Mr. Hunley's statement and the evidence subsequently obtained as a result of Mr. Hunley's statement. Thereafter, Mr. Hunley entered into a negotiated plea bargain on a reduced charge, and the suppression hearing continued with respect only to defendant's motion. ¶ 12 Officer Reno then testified in a manner largely consistent with the testimony of Officer McClendon. Officer Reno added that he believed that defendant and Mr. Hunley were having a conversation as defendant was walking toward Mr. Hunley and as the police officers initially approached them. Officer Reno also testified that defendant was initially detained on suspicion of a "car burglary." Specifically, Officer Reno indicated that prior to defendant's detention, "Mr. Hunley was looking into the vehicle with his flashlight, and I believed the defendant could have been possibly assisting him and burglarizing the vehicle" or "doing a lookout for them." ¶ 13 The trial court denied defendant's motion to quash and suppress, concluding that the police officers' detention of defendant was not unreasonable and that the officers' "[o]bserving the identification of someone else's name gave rise to the further actions." The matter then proceeded to a jury trial. ¶ 14 At trial, Mr. Wells testified that around 10:30 p.m. on October 28, 2008, he was sitting inside of his work vehicle as it was parked near his home. Mr. Wells was a field service technician and was working on his computer to complete his day's work when a man-later identified as Mr. Hunley-approached him with a firearm and told him to get out of the vehicle. After Mr. Wells opened the door, a second man that Mr. Wells identified as defendant grabbed him and pulled him out of the vehicle. Defendant then forced Mr. Wells to the ground and riffled through Mr. Wells' pockets, taking Mr. Wells' wallet, personal and work phones, and keys. The two men then got into Mr. Wells' vehicle and drove away. ¶ 15 Mr. Wells called the police to report the incident, and two uniformed police officers arrived at his home approximately 10 minutes later. Mr. Wells gave these officers a description of the two offenders, and the two officers drove Mr. Wells around in an unsuccessful effort to locate his vehicle. Some 20 to 30 minutes later, two other, plain-clothed police officers arrived at Mr. Wells' home. They showed him a wallet and a cell phone, and Mr. Wells identified them as items that were recently stolen from him. Mr. Wells testified that the officers stopped him from looking into their police vehicle to identify any suspects, and told him that he would have to go to the police station to view a lineup. ¶ 16 Mr. Wells later went to the police station, where he identified a handgun as the one used during the robbery and also identified several items taken from him. These included his wallet, a "scan disk card," a phone, a "blue tooth," a personal entertainment system, and a headlamp. Mr. Wells also viewed a lineup and identified Mr. Hunley as the man holding the firearm during the robbery and defendant as the man who pulled him out of the vehicle. Mr. Wells testified that he asked defendant to step forward during the line up, and that thereafter he told the police that he was "a hundred percent sure" or "more than certain" regarding his identification of defendant as one of the offenders. ¶ 17 Officer Teresi testified that, after speaking further with Mr. Hunley, he and a number of other police officers went to the home of Mr. Palmer. There, they recovered a handgun, a set of keys, and a bag containing a laptop computer. ¶ 18 Officer Reno testified at trial in a manner generally consistent with his testimony at the suppression hearing, and specifically indicated that he heard defendant and Mr. Hunley engaged in a conversation before the officers exited their vehicle. Officer Reno also testified regarding the recovery of items at Mr. Palmer's house, stating that there the police recovered a number of items including a handgun, a set of keys, and a bag and laptop computer. Mr. Wells' vehicle was ultimately recovered at a location between Mr. Wells' home and where Mr. Hunley and defendant were originally detained. ¶ 19 Mr. Palmer testified that he was defendant's friend. He also testified that he had been convicted of armed robbery and aggravated robbery and was incarcerated at the time of his testimony. Mr. Palmer was on juvenile probation for possession of a stolen motor vehicle on October 29, 2008, when the police arrived at his home, handcuffed him, and took him to a police station. Mr. Palmer denied that the police retrieved any items from his home, and denied providing a written statement at the police station to an assistant state's attorney. ¶ 20 Assistant State's Attorney [ASA] Angel Essig testified that Mr. Palmer did in fact provide a statement to her early on the morning of October 29, 2008, one that was memorialized in writing and signed by Mr. Palmer. In his statement, Mr. Palmer indicated that Mr. Hunley and defendant came to his house that night with various items, including a laptop computer, a set of keys, and a handgun. The two soon left, leaving the items at Mr. Palmer's house. The police arrived at Mr. Palmer's home shortly thereafter. While Mr. Palmer initially lied to the police about the gun, he ultimately directed them to the location where he had hidden it after Mr. Hunley and defendant left. ¶ 21 ASA Essig testified that one of her job responsibilities was to approve criminal charges. She acknowledged that Mr. Palmer was 17 years old at the time she interviewed him and had admitted to being in possession of a handgun. She further acknowledged that she did not charge him with being unlawfully in possession of that handgun, explaining that Mr. Palmer was being treated as a witness and not a suspect. She further testified that she did not believe that she knew Mr. Palmer was on juvenile probation at the time of his statement, and did not report a potential probation violation at that time. ¶ 22 Detective Paul Alfini testified that he was present when Mr. Wells viewed the lineup, and that the lineup included Mr. Hunley, Mr. Palmer, defendant, and three other individuals. Mr. Wells identified Mr. Hunley and defendant as the offenders. Detective Alfini's report indicated that Mr. Well's identification of defendant was "tentative," but he did not ask Mr. Wells to provide a percentage rating as to his identification. He also could not recall whether Mr. Wells asked to see any of the members of the lineup "in particular." Finally, it was stipulated that Detective Patrick Hackett would testify that all the lineup participates were shown to Mr. Wells at the same time. ¶ 23 After the State rested its case, defendant renewed his motion to suppress and quash his arrest. The trial court denied that motion, and also denied defendant's motion for a directed verdict. Defendant then called Officer Reggie Smith, who testified that he and another officer responded to Mr. Wells' report of the robbery shortly after it occurred. Officer Smith denied driving Mr. Wells around in his police vehicle. ¶ 24 After closing arguments, the jury found defendant guilty of armed robbery and aggravated vehicular hijacking with a firearm. The trial court thereafter denied defendant's motion for a new trial, which included an argument that the trial court had erred in denying the motion to suppress and quash arrest. Defendant was then sentenced to two concurrent terms of 22 years' imprisonment, each of which included a 15-year enhancement for carrying a firearm.
The jury had been instructed on the law of accountability, so as to allow him to be held accountable for the actions of Mr. Hunley in carrying the gun.
¶ 25 II. ANALYSIS
¶ 26 As noted above, defendant raises a number of arguments on appeal. We address each argument in turn.
¶ 27 A. Motion to Suppress
¶ 28 We first address defendant's contention that the trial court improperly denied his motion to quash his arrest and suppress evidence. ¶ 29 The ruling of a trial court on a motion to suppress evidence frequently presents mixed questions of law and fact. While we review de novo the ultimate legal ruling as to whether suppression of evidence is warranted, we accord great deference to the trial court's factual findings and will reverse such findings only if they are manifestly erroneous. People v. Sorenson, 196 Ill. 2d 425, 431 (2001). Because defendant renewed his motion to suppress at trial and included the issue in his posttrial motion, we are free to look to both the evidence presented at the original hearing on the motion to suppress and the trial testimony in our review of this issue. People v. Causey, 341 Ill. App. 3d 759, 766 (2003); People v. Brooks, 187 Ill. 2d 91, 128 (1999). ¶ 30 The United States and Illinois constitutions prohibit the government from subjecting citizens to unreasonable searches and seizures. U.S. Const., Amends. IV, XIV; Ill. Const. 1970, art. I, § 6. For purposes of the fourth amendment, an individual is "seized" when an officer " 'by means of physical force or show of authority, has in some way restrained the liberty of a citizen.' " People v. Luedemann, 222 Ill. 2d 530, 550 (2006) (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)). "However, not every encounter between the police and a private citizen results in a seizure." People v. McDonough, 239 Ill. 2d 260, 268 (2010). As our supreme court has recognized:
"Courts have recognized three theoretical tiers of police-citizen encounters. The first tier involves an arrest of a citizen, which must be supported by probable cause. [Citations.] The second tier involves a temporary investigative seizure conducted pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968). In a 'Terry stop,' an officer may conduct a brief, investigatory stop of a citizen when the officer has a reasonable, articulable suspicion of criminal activity and such suspicion amounts to more than a mere 'hunch.' [Citations.]¶ 31 Here, defendant and the State first dispute whether, at the time defendant produced the wallet containing the identification card and credit cards of Mr. Wells, defendant's interaction with the police officers was a consensual encounter or was a temporary detention and seizure; i.e., a Terry stop. The State's argument that the encounter was consensual relies significantly upon its contention that defendant produced the wallet before he was subjected to a protective pat-down search. However, the record reveals that the pat-down actually occurred first. ¶ 32 It is true that Officer McClendon was first asked if "[a]fter you had stopped and spoke to Mr. Jackson, did you search Mr. Jackson, you or one of your partners?" Officer McClendon responded, "Yes, ma'am. A protective pat-down was done of Mr. Jackson." Officer McClendon was also asked if "[p]rior to this protective pat-down did you or your partner retrieve a wallet from Mr. Jackson?" Officer McClendon responded by saying, "Mr. Jackson pulled out a wallet." ¶ 33 However, while the officers had stopped defendant and spoken with him to some extent prior to the pat-down, the first question and answer says nothing about whether the pat-down occurred before or after the wallet was produced. Moreover, while the second question asked Officer McClendon if he or his partner retrieved a wallet from defendant prior to the pat-down, Officer McClendon did not directly respond to that question with respect to the sequence of those events. Rather, he appears to have responded by clarifying that it was defendant himself that "pulled out a wallet," and not one of the officers that did so. ¶ 34 Indeed, our reading of these exchanges is supported by additional testimony offered by Officers McClendon and Reno. Specifically, Officer McClendon testified that the wallet did not feel like a weapon during the protective pat-down and that defendant produced the wallet only in response to the request for identification. This testimony clearly indicates that the wallet was still in defendant's pocket at the time of the pat-down, and that defendant did not retrieve the wallet from his pocket until he was subsequently asked for identification. Moreover, when Officer McClendon was specifically asked if the pat-down had occurred before or after defendant placed the wallet on the police vehicle, Officer McClendon responded "[b]efore." ¶ 35 Finally, Officer Reno testified that he "observed Officer Teresi walk up to [defendant] and pat him down." Officer Reno also testified that Officer Teresi conducted the pat-down of defendant near the "mouth" of the alley where it intersected with 105th Street. This obviously occurred before defendant was brought to the police vehicle and, thus, obviously occurred before defendant had an opportunity to retrieve the wallet from his pocket and place it onto that vehicle. ¶ 36 Thus, from all the testimony presented below, it is clear that the protective pat-down search of defendant occurred before he was asked for identification and produced the wallet. The question now is, what is the significance of this fact? ¶ 37 As noted above, a consensual encounter "involves no coercion or detention and, therefore, does not implicate any fourth amendment interests." Id. Thus, it is "well settled that a seizure does not occur simply because a law enforcement officer approaches an individual and puts questions to that person if he or she is willing to listen." Luedemann, 222 Ill. 2d at 551. In such a consensual encounter, a police officer may also ask to examine the individual's identification and request consent to conduct a search, " 'as long as the police do not convey a message that compliance with their requests is required.' " Id. (quoting Bostick, 501 U.S. at 434). ¶ 38 In contrast, an individual is "seized" for purposes of the fourth amendment when an officer " 'by means of physical force or show of authority, has in some way restrained the liberty of a citizen.' " Id. Put another way, "[a] person is seized when, in view of all the facts and circumstances, he would not feel free to leave." People v. Roa, 398 Ill. App. 3d 158, 164 (2010). In making this determination, a court may consider the following non-exhaustive list of factors: "(1) whether there was a threatening presence by several officers; (2) whether the officer displayed a weapon; (3) whether there was some physical touching by the officer; and (4) whether the language or tone of voice used by the officer indicated that compliance with the officer's request was compelled." Id. ¶ 39 Here, by the time defendant was asked for identification and produced the wallet, the police officers had already announced their office and defendant had been either called over or approached by Officer Teresi for an interview. Defendant had also been subjected to a pat-down search and brought back to the police vehicle where Mr. Hunley had already been "detained." There, defendant was in the presence of three police officers. Officer McClendon also testified that he believed that defendant was standing with his hands on the police car when he was asked for identification. Under these circumstances, we find that defendant would not have felt free to leave, and he was, therefore, seized when he was asked for identification. Indeed, both Officer McClendon and Officer Reno indicated that defendant had in fact been "detained" prior to the time he was asked for identification. ¶ 40 While defendant was, therefore, temporarily detained and seized at the time he was asked to provide identification, it is undisputed that he had not yet been arrested and placed into full custody. As such, we must next determine whether defendant was properly seized pursuant to a valid Terry stop. If he was not, then any evidence obtained as a result of the invalid seizure would be subject to suppression pursuant to the exclusionary rule. See generally, People v. Lampitok, 207 Ill. 2d 231, 241 (2003). ¶ 41 "Under Terry, a police officer may conduct a brief, investigatory stop of a person where the officer reasonably believes that the person has committed, or is about to, commit a crime." People v. Close, 238 Ill. 2d 497, 505 (2010) (citing Terry, 392 U.S. at 22). The Terry standard has been codified in section 107-14 of the Code of Criminal Procedure of 1963, which provides that a "peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense *** and may demand the name and address of the person and an explanation of his actions." 725 ILCS 5/107-14 (West 2008). As our supreme court has further clarified:
The third tier of police-citizen encounters involves those encounters that are consensual. An encounter in this tier involves no coercion or detention and, therefore, does not implicate any fourth amendment interests. [Citations.]" Id.
"The investigatory stop must be justified at its inception. [Citation.] '[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' [Citation.] The officer's suspicion must amount to more than an inarticulate hunch [citations], but need not rise to the level of suspicion required for probable cause [citation]. In judging the police¶ 42 In this case, the police officers testified they first observed Mr. Hunley looking into a parked, unoccupied vehicle with an illuminated headlamp. Officer McClendon testified that he had never made such an observation in his 15 years of experience as a Chicago police officer, and that he was, therefore, "curious" as to what Mr. Hunley was doing. Officer Reno testified that he thought Mr. Hunley might have been attempting a "car burglary." Defendant himself acknowledges on appeal that the observations of Mr. Hunley were "potentially incriminating," and he does not dispute that the police officers were justified in conducting a Terry stop of Mr. Hunley to investigate the matter further. ¶ 43 However, defendant contends that the officers identified nothing potentially suspicious with respect to him other than the fact that he was walking toward, and had exchanged words with, Mr. Hunley. Defendant, thus, asserts that the police officers were not justified in subjecting him to a Terry stop. Specifically, defendant contends that any suspicion that the officers had with respect to him was based upon his mere proximity to Mr. Hunley and, therefore, amounted to nothing more than a "hunch." We disagree. ¶ 44 First, we note that defendant cites to a number of cases in support of his contention that he was improperly subjected to a Terry stop due to his mere proximity to Mr. Hunley. See People v. Elliot, 314 Ill. App. 3d 187, 191-92 (2000); People v. Lee, 214 Ill. 2d 476, 486 (2005); Ybarra v. Illinois, 444 U.S. 85, 93 (1979). However, the passages in the Lee and Ybarra decisions cited by defendant specifically rejected only the notion that mere proximity to another person suspected of criminal activity amounted to probable cause for an arrest. See Lee, 214 Ill. 2d at 486 (" 'Probable cause to arrest a particular individual does not arise merely from the existence of probable cause to arrest another person in the company of that individual.' ") (quoting People v. Creach, 79 Ill. 2d 96, 102-03 (1980)), and Ybarra, 444 U.S. at 93 ("[A] person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person."). As discussed above, our analysis here involves whether there was sufficient reasonable suspicion to justify a Terry stop, and not whether there was sufficient probable cause to justify an arrest. The suspicion required for a Terry stop "need not rise to the level of suspicion required for probable cause." Close, 238 Ill. 2d at 505. ¶ 45 It is true that in Elliot, the court did recognize that a defendant's location in or near an area of expected criminal activity is not enough, on its own, to justify a Terry stop. Elliot, 314 Ill. App. 3d at 191-92. However, that decision also recognized that an "individual's location is 'among the relevant contextual considerations in a Terry analysis[.]' " Id. at 92 (quoting Illinois v. Wardlow, 528 U.S. 119, 124 (2000)). ¶ 46 Indeed, each of these cases involve situations in which there was no assertion of a connection between the defendant and the other suspected individual, or the area of suspected criminal activity, other than defendant's mere proximity. However, here defendant was walking toward Mr. Hunley when he was first observed by police. He was also involved in a conversation with Mr. Hunley. While Officer McClendon testified that he first observed defendant and heard defendant and Mr. Hunley converse during his interview with Mr. Hunley, Officer Reno specifically testified that he actually first heard defendant and Mr. Hunley engage in conversation before the officers exited their unmarked vehicle. Thus, the State presented evidence that defendant and Mr. Hunley were engaged in a conversation at the time that Mr. Hunley was observed peering into a parked, unoccupied vehicle with a headlamp. Therefore, there was more than mere proximity to connect defendant to Mr. Hunley and his suspicious activity involving the parked vehicle. ¶ 47 In addition, "[c]ourts must 'be mindful that the decision to make an investigatory stop is a practical one based on the totality of the circumstances.' " People v. Harris, 2011 IL App (1st) 103382, ¶ 11 (quoting In re S.V., 326 Ill. App. 3d 678, 683 (2001)). Furthermore, "the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior." Wardlow, 528 U.S. at 125. The fourth amendment requires only a "minimal level of objective justification" for a Terry stop. Id. at 123. Thus, police officers are " 'not required to rule out all possibility of innocent behavior' before initiating a Terry stop," (Close, 238 Ill. 2d at 511-12 (quoting 4 W. LaFave, Search & Seizure § 9.5(b), at 481 (4th ed. 2004)), as in "allowing such detentions, Terry accepts the risk that officers may stop innocent people" (Wardlow, 528 U.S. at 126). ¶ 48 In light of all the circumstances, we conclude that the officers' observations of the activities of both Mr. Hunley and defendant sufficiently justified Officer Reno's reasonable inference and suspicion that "Mr. Hunley was looking into the vehicle with his flashlight, and I believed the defendant could have been possibly assisting him and burglarizing the vehicle" or "doing a lookout for them." The officers' suspicions, therefore, justified subjecting both Mr. Hunley and defendant to a Terry stop, which would allow them to " 'investigate the circumstances that provoke suspicion and either confirm or dispel [those] suspicions.' " Close, 238 Ill. 2d at 512 (quoting People v. Ross, 317 Ill. App. 3d 26, 31 (2000)). It was during this lawful Terry stop that the police observed the wallet containing Mr. Wells' identification card and credit cards, which resulted in the further investigation into the offenses for which defendant was ultimately charged. Thus, the trial court did not err in denying defendant's motion to quash arrest and suppress evidence.
officer's conduct, we apply an objective standard: 'would the facts available to the officer at the moment of the seizure * * * "warrant a man of reasonable caution in the belief" that the action taken was appropriate?' [Citations.]" Close, 238 Ill. 2d at 505.
We do note that it is not entirely clear how Officer McClendon's testimony that the wallet did not feel like a weapon during the pat-down can be completely reconciled with the testimony of both Officers McClendon and Reno that it was in fact Officer Teresi who conducted the search. In any case, the point is that the evidence indicates that the pat-down search occurred before the request for identification and the production of the wallet.
¶ 49 B. Closing Arguments
¶ 50 Next, we consider defendant's assertion that he was denied a fair trial due to improper comments and arguments made by the State in its closing arguments. ¶ 51 A defendant "faces a substantial burden in attempting to achieve reversal of his conviction based upon improper remarks made during closing argument." People v. Moore, 358 Ill. App. 3d 683, 693 (2005). As this court has recognized:
"A prosecutor is allowed wide latitude during closing arguments. [Citation.] A prosecutor may comment on the evidence presented at trial, as well as any fair, reasonable inferences therefrom, even if such inferences reflect negatively on the defendant. [Citation.] Remarks made during closing arguments must be examined in the context of those made by both the defense and the prosecution ***." People v. Willis, 409 Ill. App. 3d 804, 813 (2011)."A reviewing court will not reverse a jury's verdict based on improper remarks made during closing arguments unless the comments resulted in substantial prejudice to the defendant and constituted a material factor in his conviction." People v. Cox, 377 Ill. App. 3d 690, 706 (2007). ¶ 52 We also note that in People v. Wheeler, 226 Ill. 2d 92 (2007), our supreme court reviewed the issue of allegedly improper prosecutorial statements during closing arguments de novo. Id. at 121. In People v. Blue, 189 Ill. 2d 99 (2000), which was cited by Wheeler, our supreme court applied an abuse of discretion standard to this issue. Id. at 128. We need not resolve this conflict, as we find no reversible error in this case under either standard.
¶ 53 1. Implication of Intimidation
¶ 54 Defendant first contends that the State's closing argument was improper because it implied, without any evidence to support such an implication, that Mr. Palmer disavowed his written statement because he was intimidated by defendant. ¶ 55 Specifically, defendant notes that while the trial court sustained his objection to the State's brief reference to a so-called "[n]o snitch rule" during opening statements, the following exchange occurred during the State's closing arguments:
"[PROSECUTOR]: Now I am not going to insult your intelligence and say that Walter Riley Palmer is a saint because he is not. He is an armed robber. And talk about the no snitch rule. I am not going to insult your intelligence and say that Walter Riley Palmer is in prison, is going to come here and admit that he made a handwritten statement, and that he signed that handwritten statement, and that he told on his friend. He is not going to come tell you that. You know why? Because when he goes back to prison —¶ 56 Defendant is quite correct that " '[p]rosecutorial comments which suggest that witnesses were afraid to testify because defendant had threatened or intimidated them, when not based upon any evidence in the record *** are highly prejudicial and inflammatory.' " People v. Mullen, 141 Ill. 2d 394, 405 (1990) (quoting People v. Ray, 126 Ill. App. 3d 656, 662 (1984)). However, courts have also recognized that closing arguments which include general implications of witness intimidation, unsupported by evidence in the record, do not amount to substantial prejudice where: (1) any purported intimidation is not specifically attributed to the defendant; and (2) such arguments are not highlighted, repeated, or otherwise emphasized. See People v. Johnson, 385 Ill. App. 3d 585, 605-06 (2008); Cox, 377 Ill. App. 3d at 707-08; People v. Walker, 230 Ill. App. 3d 377, 400-02 (1992). ¶ 57 Here, none of the State's comments intimated that defendant himself had threatened or intimidated Mr. Palmer. Rather, the State merely generally asserted that if Mr. Palmer had "told on his friend," he "may not be so popular in prison." In Johnson, we concluded that similar statements did not specifically refer to the defendant and, therefore, did not support the defendant's claim of prosecutorial misconduct. Johnson, 385 Ill. App. 3d at 605-06; see also, Cox, 377 Ill. App. 3d at 708 ("any prejudicial impact [is] minimized by the fact that the witness's fright was not specifically attributed to the defendant"). Nor was this argument highlighted, repeated, or otherwise emphasized in the rest of the State's closing argument. As such, even assuming arguendo that the State's arguments on this issue were improper, we conclude that they did not result in substantial prejudice to defendant or constitute a material factor in his conviction. ¶ 58 In so ruling, we reject defendant's reliance upon our supreme court's decision in Mullen, in which a defendant's conviction was reversed due, in part, to the State's improper argument regarding witness intimidation. Mullen, 141 Ill. 2d at 404. Contrary to defendant's argument, however, the State's arguments in that case specifically referred to intimidation by the defendant. Id. at 405 ("here the improper comment included the suggestion that witnesses were reluctant to testify because they were afraid that the defendant would shoot them in the back if they did so." (Emphasis added.)); see also Johnson, 385 Ill. App. 3d at 606 (concluding that the State's remark in Mullen about a gun in the back of witness "was a clear reference to defendant because the victim had been fatally shot in the back."). In addition, the court's decision in Mullen, was also based upon the fact that the State had inappropriately commented on evidence specifically excluded by the trial court. Mullen, 141 Ill. 2d at 404. No such improper conduct occurred in this case.
[DEFENSE COUNSEL]: Objection.
THE COURT: Objection is overruled.
[PROSECUTOR]: — he may not be so popular in prison. Use your common sense. He does not want to tell you that."
¶ 59 2. "Conspiracy Theory" Comments
¶ 60 We next consider defendant's contention that the State improperly argued in rebuttal that "[d]efendant wants you to believe some conspiracy theory" and sarcastically added that "[e]verybody is against the defendant." Defendant contends that these statements were improper because they: (1) inaccurately described the defense's theory; and (2) diminished the State's burden of proof by indicating to the jury that they had to disbelieve all of the State's witnesses to acquit defendant. We disagree. ¶ 61 First, we reject defendant's contention that the State's reference to a conspiracy theory mischaracterized his defense theory. Defendant asserts that his defense was that that Mr. Wells "was mistaken, not that anyone conspired against him." It is true that, in her closing argument, defense counsel repeatedly indicated that she was not asserting that Mr. Wells was lying. However, she also specifically asked the jury to "look at the way [Mr. Wells] answered" when he was asked if he had actually seen defendant and Mr. Hunley in the police vehicle outside his home prior to the lineup at the police station. Defense counsel essentially intimated that, despite the contrary testimony of Mr. Wells and the police officers, Mr. Wells might actually have seen the defendant and Mr. Hunley prior to the lineup and this observation might have influenced his subsequent identification. ¶ 62 Moreover, defense counsel also argued that Mr. Palmer had a motive to lie and attacked the credibility of Detective Alfini and ASA Essig as "professional witnesses" who were evasive in their answers. Specifically, defense counsel noted purportedly evasive answers ASA Essig gave in response to questioning about why Mr. Palmer was not charged with being illegally in possession of the gun found in his home when he was both a minor and on probation. Defense counsel questioned the ASA's explanation that Mr. Palmer was viewed as a witness and not a suspect, and defense counsel also noted that the potential probation violation was not reported. Essentially, defense counsel suggested that Mr. Palmer had lied to the police in the written statement and that his fabrication was welcomed, not questioned, and rewarded by ASA Essig's decision not to charge Mr. Palmer with a gun crime or report a possible probation violation. ¶ 63 The State "may comment upon defense characterizations of the evidence or case." People v. Evans, 209 Ill. 2d 194, 225 (2004). More specifically, "[d]efense counsel invites rebuttal by the State when the defense counsel suggests the existence of a police conspiracy." People v. Robinson, 254 Ill. App. 3d 906, 919 (1993). Here, we find that the challenged comments made by the State in rebuttal were invited by defense counsel's characterization of the evidence, and defendant cannot, therefore, be heard to complain about those comments. ¶ 64 Second, we also reject defendant's assertion that the State's comments diminished its burden of proof by indicating to the jury that they had to disbelieve all of the State's witnesses in order to acquit defendant. Our supreme court has drawn a "distinction between situations where a prosecutor permissibly argues that a jury would have to believe the State's witnesses were lying in order to believe the defendant's version of events and where a prosecutor improperly argues that a jury would have to believe the State's witnesses were lying in order to acquit defendant." (Emphasis in original.) People v. Banks, 237 Ill. 2d 154, 185 (2010) (citing People v. Coleman, 158 Ill. 2d 319, 346 (1994)). Where the State's argument was "a direct response to a defense attack on the credibility of the State's witnesses, the argument [is] not a misstatement of the law or an attempt to distort the burden of proof." Id. at 154. Here, the State's comments were made in direct response to defense counsel's attacks on the credibility of the State's witnesses, and did not in any way indicate that the jury had to believe those witnesses were lying in order to acquit defendant.
¶ 65 3. Shifting Burden of Proof
¶ 66 We next consider the related argument that the State improperly shifted the burden of proof in the following exchanges that occurred immediately following the comments discussed above:
"[PROSECUTOR]: Everybody is against the defendant.¶ 67 Defendant is certainly correct that the " 'prosecution has the burden of proving beyond a reasonable doubt all the material and essential facts constituting the crime. [Citations.] The burden of such proof never shifts to the accused, but remains the responsibility of the prosecution throughout the trial.' " People v. Giraud, 2011 IL App (1st) 091261, ¶ 42 (quoting People v. Weinstein, 35 Ill. 2d 467, 470 (1966)). The defendant also correctly notes that "it is impermissible for the prosecution to attempt to shift the burden of proof to the defendant." People v. Yonker, 256 Ill. App. 3d 795, 799 (1993). Finally, it also appears from the record that the State's arguments about defendant's inability to explain the fact that Mr. Wells' wallet was found in his pocket may have improperly attempted to shift the burden of proof onto the defendant. ¶ 68 However, "a ruling sustaining a defense objection generally is sufficient to cure any prejudice that may have occurred." People v. Desantiago, 365 Ill. App. 3d 855, 866 (2006) (quoting People v. Edwards, 195 Ill. 2d 142, 168 (2001)). Furthermore, "improper arguments can be corrected by proper jury instructions, which carry more weight than the arguments of counsel. [Citations.] Moreover, any possible prejudicial impact is greatly diminished by the court's instructions that closing arguments are not evidence." Willis, 409 Ill. App. 3d at 814. ¶ 69 Here, the trial court essentially sustained defendant's objection after the first of the State's arguments noted above and immediately instructed the jury that defendant did not have the burden of proof. Following the second argument noted above, the State immediately moved to strike its own comment. Finally, the record reflects that the jury was properly instructed on the burden of proof following closing arguments, and was instructed both before and after trial that arguments were not evidence. On this record, any possible error in the State's closing argument was cured by the admonishments and other jury instructions given by the trial court. Id. (any possible shift in the burden of proof cured by proper jury instructions).
[DEFENSE COUNSEL]: Objection.
[PROSECUTOR]: But [defendant] can't explain the fact that a wallet -
THE COURT: Objection is overruled.
[PROSECUTOR]: - has been found his pocket. He can't explain the fact that
Michael Wells -
[DEFENSE COUNSEL]: Objection, your Honor, shifting the burden of proof.
THE COURT: Okay. Restrict your closing arguments to the evidence and reasonable inferences from that evidence.
Ladies and gentlemen, I have told you more than once. I will actually tell you again in the written instructions. The defense has no obligation to prove anything. Once they present evidence, you have the option, you have the responsibility to evaluate the evidence.
They have no responsibility to do anything.
* * *
[PROSECUTOR]: *** And we have the wallet that was taken from Mr. Wells, recovered. This wallet was on the defendant. How does he explain that?
[DEFENSE COUNSEL]: Objection.
[PROSECUTOR]: I'll strike that, Judge."
While this ruling interrupts the prosecutor's argument on this point in the report of proceedings, it is apparent this ruling was made in reference to defense counsel's objection to the prosecutor's prior comment that "[e]verybody is against the defendant."
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4. Definition of Reasonable Doubt
¶ 70 Defendant next argues that the State improperly attempted to define the reasonable doubt standard for the jury when the prosecutor stated:
"[PROSECUTOR]: ***¶ 71 As an initial matter, defendant never objected to these comments at trial, nor did he challenge them in his posttrial motion. Therefore, defendant has not preserved this issue for appeal. People v. Enoch, 122 Ill. 2d 176, 186 (1988) (to preserve a claim for review, a defendant must both object at trial and include the alleged error in a written posttrial motion). Defendant acknowledges his forfeiture of this issue, and asks this court to review it for plain error. See People v. Turman, 2011 IL App (1st) 091019, ¶¶ 19-20 (reviewing forfeited issue regarding jury instruction defining reasonable doubt for plain error). ¶ 72 However, "plain-error review is forfeited when the defendant invites the error." People v. Harding, 2012 IL App (2d) 101011, ¶ 17. Thus, "[c]ourts have held that when the original party opens the door, through making his own improper argument, he is precluded from objecting to the response he invited either through waiver or estoppel." People v. Gorosteata, 374 Ill. App. 3d 203, 222 (2007); see also, People v. Ruiz, 132 Ill. 2d 1, 17 (1989) ("The prosecutor's comment was invited by defense counsel's own argument and thus was not error, much less plain error"). ¶ 73 As defendant himself acknowledges on appeal, the State's comments noted above were preceded by the following improper comments by defense counsel during her closing argument: "Reasonable doubt. You are not going to get a definition of reasonable doubt. It is not going to be part of the jury instruction because you, you decide what is reasonable doubt." See People v. Franklin, 2012 IL App (3d) 100618, ¶ 28 (finding trial court's jury instruction constitutionally deficient because, "by telling jurors that it was for them to collectively determine what reasonable doubt meant, there is a reasonable likelihood that the jurors understood the instruction to allow a conviction based on proof less than a reasonable doubt."). Thus, it was defense counsel that first offered an argument improperly defining reasonable doubt. While the State's rebuttal argument thereafter provided another definition of the reasonable doubt standard, the "invited response doctrine allows a party who is provoked by his opponent's improper argument to right the scale by fighting fire with fire." Gorosteata, 374 Ill. App. 3d at 221. We, therefore, conclude that defendant may not be permitted to argue that the State's arguments amounted to plain error. ¶ 74 Even if we were to review this issue for plain error, we would not find any reason to disturb defendant's convictions. The plain error doctrine "bypasses normal forfeiture principles and allows a reviewing court to consider unpreserved error ***." People v. Herron, 215 Ill. 2d 167, 186 (2005). The plain-error doctrine is applied where "(1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that 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. Piatkowski, 225 Ill. 2d 551, 565 (2007). In either circumstance, the burden of persuasion remains with the defendant. Herron, 215 Ill. 2d at 182. ¶ 75 Here, defendant's argument that the first prong of the plain error doctrine is applicable to this issue relies in significant part on his assertion that the evidence was closely balanced because what defendant describes as "the bulk of the evidence used against Jackson at trial" should have been suppressed. In light of our rejection of defendant's challenge to the denial of his motion to suppress, this argument is no longer tenable. To the extent that defendant also relies upon purported inconsistences and discrepancies in the testimony presented at trial, we note that "[t]he weight to be given the witnesses' testimony, the credibility of the witnesses, resolution of inconsistencies and conflicts in the evidence, and reasonable inferences to be drawn from the testimony are the responsibility of the trier of fact." People v. Sutherland, 223 Ill. 2d 187, 242 (2006). Whatever inconsistence there may be, the overall record clearly reflects that the evidence of defendant's guilt-including the physical evidence recovered from defendant's person and from Mr. Palmer's home, Mr. Palmer's written statement, and the testimony of the police officers and Mr. Wells-was overwhelming. ¶ 76 As to the second prong, we note that "[e]rror under the second prong of plain error analysis has been equated with structural error." People v. Cosmano, 2011 IL App (1st) 101196, ¶ 78. "Structural errors have been recognized in only a limited class of cases including: a complete denial of counsel; trial before a biased judge; racial discrimination in the selection of a grand jury; denial of self-representation at trial; denial of a public trial; and a defective reasonable doubt instruction." Id. ¶ 77 Defendant's attempt to established plain error relies upon the decision in Turman, where this court found that that trial court's improper jury instruction defining reasonable doubt was plain error under the second prong. Turman, 2011 IL App (1st) 091019, ¶¶ 19, 27. However, that case involved an improper reasonable doubt jury instruction provided by the trial court. As noted above, defective reasonable doubt instructions are among the limited class of errors considered structural error. Here, we are presented with a challenge to the State's closing argument, which purportedly included an improper illustrations of the reasonable doubt standard. However, "[e]rror in closing argument does not fall into the type of error recognized as structural." Cosmano, 2011 IL App (1st) 101196, ¶ 78. Thus, we conclude that defendant has not demonstrated plain error with respect to this issue.
* * *
Reasonable doubt. If a person tells you the earth is flat, it is not reasonable.
Reasonable person knows the earth is round. If a person tells you that man or humans are unable to fly in the sky with airplanes, that's not reasonable. Human race has the ability to - to fly airplanes. Reasonable doubt. What a reasonable person would believe."
¶ 78 5. Misstatement of the Law of Accountability
¶ 79 Defendant's next challenge to the State's closing arguments posits that the State improperly misstated the law of accountability when it offered an analogy during the following exchange during its closing argument:
"[PROSECUTOR]: ***¶ 80 Initially, we note that defendant has forfeited review of this issue. While defendant did object to the State's accountability analogy at trial, defendant did not include the issue in his posttrial motion. Enoch, 122 Ill. 2d at 186. Defendant, thus, asks us to review this issue for plain error. ¶ 81 However, even assuming the State misstated the law on accountability in the above cited passage, this court has previously recognized such a misstatement of law "to be harmless in light of the fact that the trial judge admonished the jury that he would 'instruct the jury as to the law,' and later did in fact properly instruct the jury on the law of accountability." People v. Moreno, 238 Ill. App. 3d 626, 636 (1992); People v. Wilson, 257 Ill. App. 3d 670, 688 (1993) (same); see also, People v. Averett, 381 Ill. App. 3d 1001, 1010 (2008) (finding that any improper statement by the State regarding the law applicable to the case "was cured by the circuit court's prompt admonition and instructions to the jury."). Moreover, "if an error was harmless, it most certainly cannot rise to the level of plain error." People v. Leach, 2012 IL 111534, ¶ 141. ¶ 82 Here, the State's purportedly improper comments on the law of accountability were almost immediately followed by the trial court's admonishment that it would provide the jury with the law and that the jury should follow the law contained in the instructions the trial court provided. The record reflects that the jury was in fact provided with an instruction that properly set out the law of accountability, and was further instructed that it was to follow the trial court's instructions. In light of this record, we conclude that any possible misstatement of law made by the State was harmless error, and as such did not amount to plain error either.
* * *
Another way to think about this concept of legally responsible is [to] think about a sports team, okay. When a sports team wins a championship, you have got one guy who may be, for example, in baseball, maybe one of the players hits 400, the other guy is on the bench, okay, the other guy doesn't play all season, but at the end of the year when they win that championship, the person who hit 400 gets the same championship ring as the guy on the bench. They are in this together. One is responsible for the other.
[DEFENSE COUNSEL]: Objection, you honor. That misstates the law of accountability.
THE COURT: Overruled.
[PROSECUTOR]: So every time you think, when you are reading these instructions, think of Larry Hunley and what he did, and it applies to Ishmel Jackson.
THE COURT: Hold on one second. Just so you remember, ladies and gentlemen, my job is to instruct you on the law, which I will do. And you are to follow the law that's contained in the instructions that I will read to you and you will have a written copy of. It will be clear. Okay."
¶ 83 6. Cumulative Effect
¶ 84 Defendant finally asserts that the cumulative effect of the errors he has claimed with respect to the State's closing arguments requires reversal. We disagree. ¶ 85 We have already rejected some of defendant's assertions of error, found others to have been invited by defendant, and concluded that the remainder do not amount to reversible error. "Where the alleged errors do not amount to reversible error on any individual issue, there generally is no cumulative error. People v. Moore, 358 Ill. App. 3d 683, 695 (2005). We, therefore, find no reversible error based on the State's closing arguments.
¶ 86 C. Defendant's Sentence for Armed Robbery
¶ 87 Defendant next contends that the statutorily mandated 15-year firearm enhancement to his sentence for armed robbery was improperly imposed, because the relevant statutory provision (720 ILCS 5/18-2 (West 2008)) violated the proportionate penalties clause of the Illinois constitution and was, therefore, void. The State counters by asserting that defendant's argument has been vitiated by our supreme court's recent opinion in People v. Blair, 2013 IL 114122, which was decided after defendant filed his opening brief on appeal. Defendant did not concede this issue in his reply brief. Rather, he simply acknowledged the Blair decision and elected to stand on the arguments presented in his opening brief. ¶ 88 We agree with the State that the Blair decision has resolved this issue against defendant. As the analysis supporting this conclusion was only recently, fully and succinctly set out in People v. Wright, 2013 IL App (3d) 100522, we merely restate that analysis here:
"Defendant argues that the trial court erred in imposing a 15-year enhancement to his armed robbery sentence pursuant to section 18-2(b) of the Code. 720 ILCS 5/18-2(b) (West 2008). Defendant requests that this case be remanded for resentencing because the sentencing enhancement was invalidated by our supreme court in People v. Hauschild, 226 Ill.2d 63, 312 Ill. Dec. 601, 871 N.E.2d 1 (2007), superseded by statute as stated in People v. Clemons, 2012 IL 107821, 360 Ill. Dec. 293, 968 N.E.2d 1046 (providing that Hauschild remains law as to the meaning of the armed violence statute prior to its amendment by Public Act 95-688 (eff. Oct. 23, 2007)).¶ 89 As the issues and arguments presented in this case are the same as those in Wright, we come to the same conclusion. Defendant's sentence for armed robbery is, therefore, affirmed. ¶ 90 D. Defendant's Conviction and Sentence for Aggravated Vehicular Hijacking ¶ 91 Defendant finally contends that both his conviction and sentence for aggravated vehicular hijacking while armed with a firearm were similarly void as violative of the proportionate penalties clause of the Illinois constitution, pursuant to the decision of the Second District of the Appellate Court in People v. Andrews, 364 Ill. App. 3d 253 (2006). The State responds that defendant's arguments with respect to this issue were specifically considered and rejected by this court in People v. Williams, 2012 IL App (1st) 100126, and were effectively rejected by a logical extension of our supreme court's decision in Blair. Once again, defendant did not concede this issue in his reply brief, but simply acknowledged the Blair decision and stood on the arguments presented in his opening brief. We review the constitutionality of a statute as a matter of law, subject to de novo review. People v. Sharpe, 216 Ill. 2d 481, 486-87 (2005). ¶ 92 We agree with the State that defendant's arguments on this issue have been rejected, first by this court in Williams and then by our supreme court in Blair. In Andrews, the court concluded that a conviction for aggravated vehicular hijacking while carrying a firearm (720 ILCS 5/18-4(a)(4) (West 2008)) imposed disproportionate penalties on persons found guilty of that offense rather than the offense of armed violence predicated on vehicular hijacking, although the two crimes had identical elements. Andrews, 364 Ill. App. 3d at 275. The Andrews court went on to find that this unconstitutional disproportionality rendered the aggravated vehicular hijacking while armed with a firearm statute void ab initio. Id. at 282. ¶ 93 As noted above, however, following Andrews the legislature amended the armed violence statute by enacting Public Act 95-688, § 4 (eff. Oct. 23, 2007) (amending 720 ILCS 5/33A-2, 33A-3) in order to cure any such proportionate penalties issues. In addition to amending the armed violence statute so that robbery could not be a predicate offense for armed violence, Public Act 95-688 also specifically eliminated vehicular hijacking as a predicate offense. The amendment, thus, eliminated the proportionate penalties violation at issue in Andrews. As we concluded in Williams, 2012 IL App (1st) 100126, those legislative amendments also "revived" the aggravated vehicular hijacking statute. Williams, 2012 IL App (1st) 100126, ¶¶ 55-56. And, as our discussion above makes clear, this analysis was effectively confirmed and accepted by our supreme court in Blair. Blair, 2013 IL 114122, ¶¶ 27-38. We, therefore, conclude that defendant was not convicted and sentenced for aggravated vehicular hijacking while armed with a firearm under an unconstitutionally void statute, and his conviction and sentence for that offense are, therefore, affirmed.
In Hauschild, our supreme court held that the 15-year sentencing enhancement under the armed robbery statute violated the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). Hauschild, 226 Ill.2d 63, 312 Ill. Dec. 601, 871 N.E.2d 1. At that time, the armed robbery statute (720 ILCS 5/18-2(a)(2) (West 2000)) imposed a more severe sentence than did the armed violence statute (720 ILCS 5/33A-2(a) (West 2000)) for the same conduct. Hauschild, 226 Ill.2d 63, 312 Ill. Dec. 601, 871 N.E.2d 1. The proportionate penalties clause prohibits imposing different penalties for offenses involving identical elements. People v. Sharpe, 216 Ill.2d 481, 298 Ill. Dec. 169, 839 N.E.2d 492 (2005). A proportionate penalties violation, under the identical elements test, occurs when two offenses have identical elements but disparate sentences. Hauschild, 226 Ill.2d 63, 312 Ill. Dec. 601, 871 N.E.2d 1. Only the statute with the greater penalty will be found to violate the proportionate penalties clause. Sharpe, 216 Ill.2d 481, 298 Ill. Dec. 169, 839
N.E.2d 492.
Subsequent to Hauschild, the legislature amended the armed violence statute by enacting Public Act 95-688 (eff. Oct. 23, 2007) in order to cure the proportionate penalties problem. Public Act 95-688 did not amend the armed robbery sentencing enhancements held unconstitutional in Hauschild, but instead amended the armed violence statute so that robbery could not be a predicate offense for armed violence. Hauschild, 226 Ill.2d 63, 312 Ill. Dec. 601, 871 N.E.2d 1. The result of the amendment was that the offenses of armed violence and armed robbery no longer had identical elements, thereby remedying the disproportionate penalty problem between the two statutes. Id.
Here, defendant argues that Public Act 95-688 did not revive the sentencing enhancement that had been declared unconstitutional in Hauschild because once it was declared unconstitutional, the statute was void ab initio, and should have been treated as if it never existed. The State argues that Public Act 95-688 revived the sentencing enhancement in the armed robbery statute by remedying the proportionate penalties problem. Our supreme court recently resolved this issue, holding that Public Act 95-688 revived the sentencing enhancement for armed robbery. See People v. Blair, 2013 IL 114122, 369 Ill. Dec. 126, 986 N.E.2d 75 (when a statute violates the proportionate penalties clause under the identical elements test, that violation is entirely dependent upon the existence of the comparison statute; the legislature may remedy the violation by amending the unconstitutional statute, the comparison statute, or both statutes). Therefore, the trial court did not err in imposing a 15-year enhancement on defendant's armed robbery conviction, as
mandated by section 18-2(b) of the Code." Wright, 2013 IL App (3d) 100522, ¶¶ 27-30.
¶ 94 III. CONCLUSION
¶ 95 For the foregoing reasons, we affirm the judgment of the circuit court. ¶ 96 Affirmed.