People v. Carter

• Decision Date: 31 March 1992
• Docket Number: No. 1-89-1015,1-89-1015
• Citation: 592 N.E.2d 491,228 Ill.App.3d 526,170 Ill.Dec. 55
• Parties: , 170 Ill.Dec. 55 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth CARTER, Defendant-Appellant. First District, Second Division
• Court: United States Appellate Court of Illinois

Page 491

592 N.E.2d 491

228 Ill.App.3d 526, 170 Ill.Dec. 55

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth CARTER, Defendant-Appellant.

No. 1-89-1015.

Appellate Court of Illinois,

First District, Second Division.

March 31, 1992.

Jack O'Malley, State's Atty., County of Cook, Chicago (Renee Goldfarb, Howard D. Weisman and Christine Cook, of counsel), for plaintiff-appellee.

Randolph N. Stone, Public Defender of Cook County, Chicago (Donald S. Honchell, of counsel), for defendant-appellant.

Justice DiVITO delivered the opinion of the court:

Defendant Kenneth Carter, charged with aggravated battery and armed robbery, was convicted by a jury of aggravated battery and robbery and was sentenced to concurrent terms of 5 and 20 years, respectively. In this appeal, defendant contends that (1) the verdict for aggravated battery, premised upon use of a deadly weapon, was inconsistent with the jury's implicit rejection of the use of a dangerous weapon in the commission of the robbery, as evidenced by the verdict on the armed robbery charge; (2) the statute that permits the sentencing court to impose a more severe sentence upon a defendant who commits an offense in a place of worship violates the Establishment Clause of the first amendment to the United States Constitution; (3) the State failed to prove beyond a reasonable doubt that defendant was subject to Class X sentencing; and (4) the court erred in permitting the State to present certain rebuttal evidence. We affirm.

At defendant's jury trial, the State presented the following evidence. Just after 7 a.m. on March 15, 1988, Donald Valentini was walking west on Schiller at Leland, saying his rosary while en route to early morning mass at Immaculate Conception Church in the 1400 block of North Northpark on Chicago's North Side. At that time, defendant passed Valentini on the left. Valentini turned north on Leland, heading for the church, and defendant continued west on Schiller. Just as Valentini reached the mouth of an alley, defendant jumped out, holding a beer bottle over his head. Valentini looked at him while the two men had a short conversation, and he then started walking toward the church. Defendant walked with him on the left. The two men talked as they continued walking toward the church, and defendant lowered the bottle.

When Valentini opened the rear door to the church and entered the vestibule, defendant broke the bottle over his head. Valentini cried out for help, knowing that a priest would be in the church six steps below. Defendant continued to hit him about the head, but he paused when the priest appeared at the bottom of the stairs nearby. Valentini fell to the floor; defendant continued hitting him and yelled, "I'm going to kill you, you motherfucker." Although the priest could see what was occurring, he did not get a good look at Valentini's assailant, who then took Valentini's wallet from his pants pocket and ran off. The priest helped Valentini to his feet and walked him to the rectory, where the police were called. Valentini was taken by police to Lutheran General Hospital; he was treated and released. Approximately one month later, Valentini went to the police station to view mug books, from which he identified defendant as the man who had accosted him. Two months later, Valentini attended a lineup, at which he identified defendant.

At the close of the State's case, defendant moved for a directed verdict, which the court denied. Defendant presented as his only witness Dorothy Jackson, the mother of his girl friend. According to Ms. Jackson, defendant lived with her and her family at 6844 South Oakley, on Chicago's South Side, from December 1987 until "the present time when he left." On the morning of the attack, she testified, defendant was with her in the living room, drinking coffee and watching video tapes.

Over defense objection and after much dispute about proper impeachment and rebuttal, the circuit court permitted the State to present, in its rebuttal case, testimony that when defendant was arrested in June 1988 for this incident, he gave as his address 1408 North Northpark, which is in the block where the offenses occurred. In addition, although defendant had supplied the Northpark address in May 1987 when arrested for a misdemeanor, he had given 6001 South Oakley as his address when arrested on an unrelated charge in March 1988, a few days after the instant offenses. Defendant had been in jail continuously from the day of his March 1988 arrest to and after his June 1988 arrest.

The circuit court gave jury instructions and verdict forms for robbery and battery as well as for the charged offenses of armed robbery and aggravated battery. As previously indicated, the jury returned guilty verdicts for robbery and aggravated battery.

At defendant's sentencing hearing, his counsel agreed with the prosecutor that defendant was Class X eligible, and the State recounted defendant's prior convictions. The court then commented separately on the applicability of each of the mitigation and aggravation factors listed in sections 5-5-3.1 and 5-5-3.2, respectively, of the Unified Code of Corrections (Ill.Rev.Stat.1989, ch. 38, pars. 1005-5-3.1, 1005-5-3.2). After doing so, the court expressly rejected an extended term sentence because, it acknowledged, defendant had to be sentenced as a Class X offender under section 5-5-3(c)(8) of the Unified Code of Corrections (Ill.Rev.Stat.1989, ch. 38, par. 1005-5-3(c)(8)). The court then sentenced defendant to 20 years for the robbery and 5 years for the aggravated battery, to run concurrently with each other and with another sentence of 7 1/2 years imposed for an unrelated October 1988 conviction for residential burglary.

I.

Defendant first contends that the aggravated battery verdict, i.e., guilty of battery with a deadly weapon, must be set aside because it is legally inconsistent with the jury's implicit verdict on the armed robbery charge, i.e., not guilty of robbery with a dangerous weapon. Both crimes have as an essential element the existence of a weapon, he argues, and a weapon logically cannot have been both there and not there. To cure the inconsistency, he urges this court to exercise its discretion by reducing the aggravated battery verdict to a conviction for simple battery, pursuant to Illinois Supreme Court Rule 615(b)(3) (134 Ill.2d R. 615(b)(3)), and then to remand for resentencing on the battery.

The State counters that defendant waived consideration of this issue by not objecting to the verdict at trial or in his post-trial motion. Even if this court disagrees as to waiver, the State contends, the inconsistency is not plain error, so revising the verdict is inappropriate. In addition, the State argues that although the bottle/weapon existed during the battery, it no longer existed when defendant took Valentini's wallet, having shattered on impact. Even if the verdicts were inconsistent, the State offers alternatively, such inconsistency is permissible. Defendant replies that because the issue is one of insufficient proof of guilt of aggravated battery, he was under no obligation to raise it at the trial level in order to retain the right to appeal the issue. Even if he should have raised it below, he adds, the court may consider it now under the plain error doctrine.

As a preliminary matter, we must reject the State's assertion that defendant's failure to raise this issue at trial or in his post-trial motion necessarily results in loss of the right to appeal the issue. To be sure, this is the general rule, but an exception exists for a defendant's challenge to the sufficiency of evidence. People v. Kennard (1990), 204 Ill.App.3d 641, 657, 149 Ill.Dec. 492, 503, 561 N.E.2d 1188, 1197.

Legal inconsistency occurs "when a verdict of guilty is premised on the existence of an element of the offense and a verdict of not guilty [for a simultaneous act] is premised on the non-existence of that same element." (People v. Scherzer (1989), 179 Ill.App.3d 624, 648, 128 Ill.Dec. 598, 615, 534 N.E.2d 1043, 1060.) Although certain inconsistencies between verdicts are permissible (People v. Solis (1991), 216 Ill.App.3d 11, 20, 159 Ill.Dec. 451, 456, 576 N.E.2d 120, 125), legal inconsistency will render a criminal verdict invalid, warranting reversal. People v. Frias (1983), 99 Ill.2d 193, 197-204, 75 Ill.Dec. 674, 676-79, 457 N.E.2d 1233, 1235-38.

The crimes at issue here are robbery, armed robbery, battery, and aggravated battery. The latter, as alleged in this case, is defined as intentionally or knowingly causing bodily harm, without legal justification, while using a deadly weapon. (Ill.Rev.Stat.1987, ch. 38, par. 12-4(b)(1).) Armed robbery, similarly, is the taking of another's property from his person or presence while carrying or otherwise armed with a dangerous weapon; without the weapon, the crime is robbery. (Ill.Rev.Stat.1987, ch. 38, pars. 18-2, 18-1.) Defendant's apparent belief that the jury had no choice but to consider the two charged crimes here as a single event is the keystone of his theory: if the weapon was found not to exist during the robbery, it could not exist during the battery.

Defendant's premise is faulty, so his logic fails. Although the jury could have viewed this related series of acts to be an armed robbery despite the timing of the shattering of the bottle (People v. Blake (1991), 144 Ill.2d 314, 322, 162 Ill.Dec. 47, 51, 579 N.E.2d 861, 865), it was not obliged to do so. On the contrary, the jury could have decided that the State had not demonstrated the "necessary concurrence of events" to justify an armed robbery conviction (Blake, 144 Ill.2d at 322, 162 Ill.Dec. at 51, 579 N.E.2d at 865); it could have decided, for example, that defendant's decision to relieve Valentini of his wallet was merely an afterthought. Alternatively, the disparity in the verdicts could reflect jury leniency. (People v. Hyman (1972), 8 Ill.App.3d...