People v. Drakeford

564 N.E.2d 792, 139 Ill. 2d 206, 151 Ill. Dec. 337
Illinois Supreme Court·Decided November 21, 1990·No. 69617·Published·Cited by 39 cases

Opinion

564 N.E.2d 792 (1990)
139 Ill.2d 206
151 Ill.Dec. 337

The PEOPLE of the State of Illinois, Appellant,
v.
Diann DRAKEFORD, Appellee.

No. 69617.

Supreme Court of Illinois.

November 21, 1990.

*793 Neil F. Hartigan, Atty. Gen., Springfield, and Charles Grace, State's Atty., Murphysboro (Robert J. Ruiz, Sol. Gen., and Terence M. Madsen and Jack Donatelli, Asst. Attys. Gen., Chicago, and Kenneth R. Boyle, Stephen E. Norris and Raymond F. Buckley, of the Office of the State's Attys. Appellate Prosecutor, Mount Vernon, of counsel), for the People.

Daniel M. Kirwan, Deputy Defender, and E. Joyce Randolph, Asst. Defender, of the Office of the State Appellate Defender, Mount Vernon, for appellee.

Justice CLARK delivered the opinion of the court:

The issue before this court is whether, in light of our decision in People v. Alejos (1983), 97 Ill.2d 502, 74 Ill.Dec. 18, 455 N.E.2d 48, a defendant can be sentenced for armed violence predicated on aggravated battery causing great bodily harm if a simultaneous conviction for second degree murder has been returned against a defendant for the same act. We hold that a defendant may not be sentenced for armed violence predicated on aggravated battery when a simultaneous conviction for second degree murder is returned for the same act.

Defendant, Diann Drakeford, and the victim, Ellouise Burton, were sisters. On the evening of September 12, 1987, defendant and the victim were involved in an altercation wherein defendant fatally stabbed the victim. As a result, defendant was charged by information with first degree murder and armed violence predicated on aggravated battery causing great bodily harm.

At trial in the circuit court of Jackson County, defendant testified that, during the altercation, defendant saw the victim reach into her purse. Based on previous altercations with the victim, defendant believed that she was reaching for a knife in her purse. Consequently, at defendant's request, the jury was instructed on second degree murder based on the mitigating factor of unreasonable belief of self-defense. Defendant was found guilty of second degree murder (Ill.Rev.Stat.1987, ch. 38, par. 9-2) and armed violence (Ill.Rev. Stat.1987, ch. 38, par. 33A-2) predicated on aggravated battery causing great bodily harm. The trial court sentenced defendant only on the charge of armed violence.

The appellate court vacated the conviction for armed violence, affirmed the conviction for second degree murder and remanded for sentencing on the offense of second degree murder. (190 Ill.App.3d 767, 138 Ill.Dec. 69, 546 N.E.2d 1124.) The court held that when convictions are returned for second degree murder and armed violence predicated on aggravated battery *794 arising out of the same act, the armed violence conviction must be vacated and judgment entered only on the second degree murder conviction. (190 Ill.App.3d at 771, 138 Ill.Dec. 69, 546 N.E.2d 1124.) We granted the State's petition for leave to appeal (107 Ill.2d R. 315).

The Illinois armed violence statute reads: "A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law." (Ill.Rev.Stat.1987, ch. 38, par. 33A-2.) The statute divides dangerous weapons into two categories: Category I weapons, which include guns and knives (Ill.Rev.Stat.1987, ch. 38, par. 33A-1(b)), and Category II weapons, which include, inter alia, "bludgeon," "blackjack," or "metal knuckles" (Ill.Rev.Stat. 1987, ch. 38, par. 33A-1(c)). Violation of the armed violence statute with a Category I weapon is a Class X felony; whereas violation of the armed violence statute with a Category II weapon is "a Class 2 felony or the felony classification provided for the same act while unarmed, whichever permits the greater penalty." (Ill.Rev.Stat.1987, ch. 38, par. 33A-3.) To violate the statute, a person need not actually use a dangerous weapon in the commission of a felony; rather, a person need only carry a dangerous weapon while committing a felony. Alejos, 97 Ill.2d at 508, 74 Ill.Dec. 18, 455 N.E.2d 48; People v. Haron (1981), 85 Ill.2d 261, 268, 52 Ill.Dec. 625, 422 N.E.2d 627.

The armed violence statute has been the subject of much judicial interpretation. (See People v. Wade (1989), 131 Ill.2d 370, 137 Ill.Dec. 608, 546 N.E.2d 553; People v. Fernetti (1984), 104 Ill.2d 19, 83 Ill.Dec. 375, 470 N.E.2d 501; People v. Wisslead (1983), 94 Ill.2d 190, 68 Ill.Dec. 606, 446 N.E.2d 512; Haron, 85 Ill.2d 261, 52 Ill. Dec. 625, 422 N.E.2d 627; Alejos, 97 Ill.2d 502, 74 Ill.Dec. 18, 455 N.E.2d 48; People v. Donaldson (1982), 91 Ill.2d 164, 61 Ill. Dec. 780, 435 N.E.2d 477; People v. Van Winkle (1981), 88 Ill.2d 220, 58 Ill.Dec. 736, 430 N.E.2d 987.) Of particular importance to this case is Alejos, where the court held that voluntary manslaughter cannot be a predicate felony for the armed violence statute. Since Alejos, Illinois has replaced the statutory offense of voluntary manslaughter with second degree murder.[1] Second degree murder is an unpremeditated crime induced by sudden fear or duress and committed without proper time for reflection. (Alejos, 97 Ill.2d at 507, 74 Ill. Dec. 18, 455 N.E.2d 48; see People v. Sudduth (1958), 14 Ill.2d 605, 153 N.E.2d 557; People v. Brown (1946), 392 Ill. 519, 521, 64 N.E.2d 739; Moore v. People (1893), 146 Ill. 600, 602, 35 N.E. 166; see generally Clark & Marshall, Law of Crimes § 10.11 (Wingersky 6th ed. 1958); Ill.Ann.Stat., ch. 38, par. 9-2, Committee Comments, at 392 (Smith-Hurd 1979).) To be convicted of second degree murder, a person's actions must have been motivated by either a sudden and intense passion resulting from serious provocation or an actual but unreasonable belief that the circumstances required the use of deadly force as a means of self-defense. Ill.Rev.Stat.1987, ch. 38, pars. 9-2(a)(1), (a)(2).

The court in Alejos did not believe that applying the armed violence statute to second degree murder would promote the deterrent purpose of the statute. (Alejos, 97 Ill.2d at 509, 74 Ill.Dec. 18, 455 N.E.2d 48.) The court reasoned that the "general application" of the armed violence statute is to "discourage those who contemplate a felonious act beforehand from carrying a weapon when they set forth to perform the act." (Alejos, 97 Ill.2d at 509, 74 Ill.Dec. 18, 455 N.E.2d 48.) Yet, as the court stated:

Free access — add to your briefcase to read the full text and ask questions with AI

People v. Drakeford, 564 N.E.2d 792, 139 Ill. 2d 206, 151 Ill. Dec. 337 (Ill. 1990).

564 N.E.2d 792 (People v. Drakeford) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

People v. McCoy
2026 IL App (1st) 231052 (Appellate Court of Illinois, 2026)
People v. Cherry
2014 IL App (5th) 130085 (Appellate Court of Illinois, 2014)
Franklin v. Industrial Commission
811 N.E.2d 684 (Illinois Supreme Court, 2004)
Franklin v. Industrial Comm'n
Illinois Supreme Court, 2004
People v. Davis
Illinois Supreme Court, 2002
People v. Young
738 N.E.2d 134 (Appellate Court of Illinois, 2000)
People v. Becker
Appellate Court of Illinois, 2000
Carrera v. Smith
Appellate Court of Illinois, 1999
People v. Cosby
Appellate Court of Illinois, 1999
People v. Kippa
Illinois Supreme Court, 1998
People v. Koppa
703 N.E.2d 91 (Illinois Supreme Court, 1998)
People v. Tellez
Appellate Court of Illinois, 1998
Harinek v. 161 North Clark Street Ltd. Partnership
692 N.E.2d 1177 (Illinois Supreme Court, 1998)
Harinak v. City of Chicago
Illinois Supreme Court, 1998
Advincula v. United Blood Services
678 N.E.2d 1009 (Illinois Supreme Court, 1996)
People v. Miller
671 N.E.2d 376 (Appellate Court of Illinois, 1996)
People v. Hicks
647 N.E.2d 257 (Illinois Supreme Court, 1995)
People v. Floyd
634 N.E.2d 328 (Appellate Court of Illinois, 1994)
People v. Bennett
629 N.E.2d 116 (Appellate Court of Illinois, 1993)
People v. Hines
629 N.E.2d 540 (Appellate Court of Illinois, 1993)