People v. Nash
State: Illinois
Docket No: 79451
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the
filing of the opinion to request a rehearing. Also, opinions are
subject to modification, correction or withdrawal at anytime prior
to issuance of the mandate by the Clerk of the Court. Therefore,
because the following slip opinion is being made available prior to
the Court's final action in this matter, it cannot be considered
the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets following final
action by the Court.
Docket No. 79451--Agenda 6--May 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. SHANDRA NASH
et al., Appellees.
Opinion filed October 18, 1996.
JUSTICE HARRISON delivered the opinion of the court:
Shandra Nash, Richard Fuller, and Michael Johnson were
arrested by Chicago police and charged by complaint with violating
section 25--1(a)(2) of the Criminal Code of 1961, a subsection of
the mob action statute prohibiting "[t]he assembly of 2 or more
persons to do an unlawful act." 720 ILCS 5/25--1(a)(2) (West 1992).
Following a hearing, the circuit court of Cook County dismissed the
complaints, holding that the statute violated the first and
fourteenth amendments of the United States Constitution (U.S.
Const., amends. I, XIV). The State appealed the dismissal pursuant
to Rule 604(a)(1) (145 Ill. 2d R. 604(a)(1)), and because a statute
was declared unconstitutional, the appeal was brought directly to
our court (134 Ill. 2d R. 603). We now affirm.
The facts pertinent to this appeal are undisputed. The
statutory provision at issue here is the same one declared
unconstitutional in 1968 by a three-judge federal district court in
Landry v. Daley, 280 F. Supp. 938, 955 (N.D. Ill. 1968), a decision
which also struck down section 12--6(a)(3) of the Criminal Code of
1961 (Ill. Rev. Stat. 1965, ch. 38, par. 12--6(a)(3)) which
prohibits the intimidation of a person by threats to "[c]ommit any
criminal offense" (Landry, 280 F. Supp. at 964). In ruling as it
did, the Landry court found that subsection (a)(2) of the mob
action statute is facially invalid under the first amendment to the
United States Constitution (U.S. Const., amend. I) because it is
impermissibly vague and overbroad. Landry, 280 F. Supp. at 955. The
court likewise held that subsection (a)(3) of the intimidation
statute was invalid as an overbroad restriction on the first
amendment freedom of speech, although it rejected a vagueness
challenge to the law.
Based on this judgment, the federal court entered a decree
which "perpetually enjoined and restrained" the State and the City
of Chicago from enforcing or bringing prosecutions under subsection
(a)(2) of the mob action statute and subsection (a)(3) of the
intimidation statute. Although the United States Supreme Court
subsequently reversed the lower court's rulings with respect to
subsection (a)(3) of the intimidation statute, the court's
declaration and injunction invalidating subsection (a)(2) of the
mob action statute were not appealed and remained in effect. Boyle
v. Landry, 401 U.S. 77, 80, 27 L. Ed. 2d 696, 699, 91 S. Ct. 758,
759-60 (1971). Accordingly, when the case was remanded to the
federal district court, that court entered an order vacating the
injunction "insofar as it relates to the intimidation statute," but
specifying that "the said injunction order, in all other respects
[is] to stand."
In the 25 years that have followed, the General Assembly has
not amended subsection (a)(2) of the mob action statute (now
codified as 720 ILCS 5/25--1(a)(2) (West 1992)), nor has the State
of Illinois or the City of Chicago attempted to have the federal
court's permanent injunction modified, dissolved or set aside on
review. Chicago police have nevertheless continued to make arrests
and the Cook County State's Attorney has persisted in bringing
prosecutions for violation of the law. So it is that Shandra Nash,
Michael Johnson and Richard Fuller came to be named as criminal
defendants in the case before us today.
The record shows that on April 19, 1995, a group of Chicago
police officers went to 1630 West Albion after allegedly receiving
"numerous complaints of gang and narcotic activity at [that]
address, as well as intimidation of the area citizens." Police
reports indicate that the officers found Nash, Johnson and Fuller
at the West Albion address and arrested them there because "with
other admitted members of the Black P Stone Nation street gang,"
they blocked "the sidewalk impeding the normal flow of pedestrian
traffic causing area citizens to be alarmed."
Nash, Johnson and Fuller were subsequently charged in
separate, but identically worded, complaints with having violated
subsection (a)(2) of the mob action statute (720 ILCS 5/25--1(a)(2)
(West 1992)). Although that statute prohibits "[t]he assembly of 2
or more persons to do an unlawful act," the complaints alleged that
defendants were actually guilty of having "knowingly by the use of
intimidation, disturbed the public peace." The factual predicate
for this charge, according to the complaints, was "that while
acting with others and without the authority of law, [defendants]
blocked the sidewalk in an apparant [sic] attempt to sell drugs and
promote gang activity."
Following their arrests, defendants were released on bond and
ordered to appear in court on June 14, 1995, to answer these
charges. At the June 14 hearing, the circuit court appointed the
public defender to represent the defendants. The State advised the
court that it considered the charges viable as written, that it did
not intend to amend the complaints, and that it was ready to
proceed. On the defendants' motion, the circuit court then
dismissed the charges against each defendant. The basis for its
decision was that subsection (a)(2) of the mob action statute was
vague and overbroad in violation of the first and fourteenth
amendments to the United States Constitution (U.S. Const., amends.
I, XIV).
Because the statute was declared invalid, the State appealed
directly to our court pursuant to Supreme Court Rule 603 (134 Ill.
2d R. 603). Defendants moved to dismiss the appeal on the grounds
that it was barred by the federal injunction entered in Landry
permanently enjoining the State and the City from enforcing the
law. The State responded by arguing that Landry should not prevent
this court from reviewing the constitutionality of the statute
because that decision is based on principles that are no longer
good law; these defendants have no right to invoke the Landry
injunction; and even if they do have the right to invoke it, the
appropriate remedy is for them to seek relief from the federal
courts rather than the courts of Illinois.
While the motion to dismiss was pending, we granted the City
of Chicago leave to intervene in support of the State. We
subsequently denied the motion to dismiss because we were reluctant
to dispose of the case before it had been fully briefed and argued.
Those steps have now been completed, and the case is now ready for
review.
In support of their claim that we are not obliged to follow
Landry, the city and the State have cited various authorities, none
of which is dispositive. We have concluded, however, that the issue
of whether we are bound to honor the federal court's injunction is
not necessary to the disposition of this appeal, for there is
another, more fundamental obstacle to the State's prosecution of
the defendants in this case: the sufficiency of the charging
instruments. Even if the injunction was not in effect and did not
have to be obeyed, the charges against the defendants would still
have to be dismissed because the complaints filed against them by
the State are fatally defective under Illinois law.
Our court has held that "[a] defendant has the fundamental
right, under both the Federal (U.S. Const., amend. VI) and State
constitutions (Ill. Const. 1970, art. I, sec. 8), to be informed of
`the nature and cause' of criminal accusations made against him. In
Illinois this general right is given substance by section 111--3 of
the Code of Criminal Procedure of 1963 [725 ILCS 5/111--3 (West
1992)] ***." People v. Smith, 99 Ill. 2d 467, 470 (1984). That
statute imposes specific pleading requirements for criminal
charges, and where the sufficiency of a charging instrument is
attacked before trial, as in this case, the charging instrument
must strictly comply with those requirements. People v. Thingvold,
145 Ill. 2d 441, 448 (1991).
Under section 111--3, the charging instrument must set forth
the nature and elements of the offense charged. 725 ILCS 5/111--
3(a)(3) (West 1992). Where the statute defining the offense
specifies the type of conduct prohibited, this requirement is
satisfied if the charging instrument states the offense in the
language of the statute. Where, however, the statute does not
define or describe the act or acts constituting the offense, a
charge couched in the language of the statute is insufficient. The
facts which constitute the crime must be specifically set forth.
See People v. Hughes, 229 Ill. App. 3d 469, 473 (1992).
The State correctly understood that subsection (a)(2) of the
mob action statute presents one of those situations were the facts
constituting the crime must be specifically set forth. Although the
complaining police officer attempted to meet this requirement when
he filled out the complaint forms, what he produced is a confusing
jumble of allegations insufficient to sustain a prosecution for any
offense.
As previously indicated, subsection (a)(2) of the mob action
statute prohibits "[t]he assembly of 2 or more persons to do an
unlawful act." 720 ILCS 5/25--1(a)(2) (West 1992). The complaints
here, however, allege something totally different. They charge that
defendants "knowingly by the use of intimidation, disturbed the
public peace."
A threshold problem with these allegations is that
intimidation and peace disturbance are not the same as unlawful
assembly. Under our criminal code, there is a separate crime of
intimidation (720 ILCS 5/12--6 (West 1992)), and to allege that
someone knowingly, by use of intimidation, disturbed the public
peace suggests the offense of disorderly conduct, which the General
Assembly has defined to include situations where a person
"knowingly *** [d]oes any act in such unreasonable manner as to
alarm or disturb another and to provoke a breach of the peace." 720
ILCS 5/26--1(a)(1) (West 1992).
To the extent that the complaints invoke the language of the
intimidation and disorderly conduct laws, defendants might well
have imagined that they were actually being charged with one of
those offenses and that the mob action statute was cited by
mistake. There is no dispute, however, that the State had no
intention of basing its prosecution on either the intimidation or
the disorderly conduct laws, nor did it claim that defendants had
conspired (720 ILCS 5/8--2 (West 1992)) or attempted (720 ILCS 5/8-
-4 (West 1992)) to break those laws. In the trial court, the State
was steadfast in its position that it was charging defendants only
with violating subsection (a)(2) of the mob action statute and that
these complaints were sufficient, as written, to charge that crime.
Aside from this confusion, the allegations that defendants
"knowingly by the use of intimidation, disturbed the public peace"
are too general. They fail to meet the requirement that the facts
constituting the crime must be specifically set forth. Based on
those allegations without more, there would be no way to ascertain
what defendants did that was supposed to be against the law.
In an effort to identify what it was that defendants had done
wrong, the complaining officer did include some additional
language. As noted earlier, the basis for the accusation that
defendants "knowingly by the use of intimidation, disturbed the
public peace" was "that while acting with others and without the
authority of law, [defendants] blocked the sidewalk in an apparant
[sic] attempt to sell drugs and promote gang activity."
Although this language may appear to add specificity, it
merely creates an additional layer of difficulty for the State's
case. By its terms, subsection (a)(2) of the mob action statute is
only violated where two or more persons assemble to do an "unlawful
act." 720 ILCS 5/25--1(a)(2) (West 1992). The State and city have
taken the position that the term "unlawful act" as used in this
statute means an act that would violate the Criminal Code of 1961
(720 ILCS 5/1--1 et seq. (West 1992)). Assuming this construction
is correct, the State can prevail only if blocking the sidewalk "in
an apparant [sic] attempt to sell drugs and promote gang activity"
violates some provision of the Criminal Code of 1961 (720 ILCS 5/1-
-1 et seq. (West 1992)). It does not. The State has not cited and
we have not found any section of the Code that would make blocking
a public sidewalk a crime under any set of circumstances.
We note, moreover, that while drugs are mentioned, the
complaints do not allege that defendants violated any section of
the Illinois Controlled Substances Act (720 ILCS 570/100 et seq.
(West 1992)). Similarly, despite the reference to gang activity,
there is no claim that defendants violated the statute prohibiting
use of criminally unlawful means to solicit or cause a person to
join a gang (720 ILCS 5/12--6.1 (West 1992)). Indeed, the
complaints do not claim that defendants even attempted to engage in
conduct involving drugs or gangs. All it mentions is an "apparant
[sic] attempt to sell drugs and promote gang activity." Apparent
attempts cannot be the basis for criminal liability. Otherwise,
probable cause to arrest would be all that was necessary to support
a conviction. In addition, with respect to the gang activity, the
State cannot punish mere advocacy or forbid, on pain of criminal
punishment, assembly with others merely to advocate activity, even
if that activity is criminal in nature. Brandenburg v. Ohio, 395
U.S. 444, 448-49, 23 L. Ed. 2d 430, 434-35, 89 S. Ct. 1827, 1830
(1969).
Because the complaints thus fail to properly charge a crime,
we conclude that they were properly dismissed. Although the circuit
court did not rely on this reasoning in entering judgment for the
defendants, that is of no consequence. The question before us on
review is the correctness of the trial court's result, not the
correctness of the reasoning upon which that result was based.
People v. Thompkins, 121 Ill. 2d 401, 428 (1988). Accordingly, we
may affirm for any reason warranted by the record, regardless of
the reasons relied on by the trial judge. See People v. McNair, 138
Ill. App. 3d 920, 923 (1985).
In light of this disposition, it is unnecessary for us to
reach the issue of whether subsection (a)(2) of the mob action
statute is constitutional. Although this is a direct appeal under
Rule 603 (134 Ill. 2d R. 603), the court will not consider
constitutional issues where, as here, the case can be determined on
other grounds (People v. Mitchell, 155 Ill. 2d 344, 356 (1993)),
even though the case initially came before us because a
constitutional question was involved (see People ex rel. Sklodowski
v. State of Illinois, 162 Ill. 2d 117, 131 (1994); Stigler v. City
of Chicago, 48 Ill. 2d 20, 22 (1971)).
For the foregoing reasons, the judgment of the circuit court
is affirmed.
Affirmed.
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