People v. Deason

• Decision Date: 13 December 1991
• Docket Number: No. 4-91-0291,4-91-0291
• Citation: 165 Ill.Dec. 395,584 N.E.2d 829,223 Ill.App.3d 320
• Parties: , 165 Ill.Dec. 395 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Chastity L. DEASON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 829

584 N.E.2d 829

223 Ill.App.3d 320, 165 Ill.Dec. 395

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Chastity L. DEASON, Defendant-Appellant.

No. 4-91-0291.

Appellate Court of Illinois,

Fourth District.

Dec. 13, 1991.

Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Springfield, Judith L. Libby, Asst. Defender, for defendant-appellant.

Tony Lee, State's Atty., Paxton, Kenneth R. Boyle, Director, State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, Elliott Turpin, Staff Atty., for plaintiff-appellee.

Justice STEIGMANN delivered the opinion of the court:

A jury convicted defendant, Chastity L. Deason, of attempt (murder) (Ill.Rev.Stat.1989, ch. 38, pars. 8-4, 9-1), home invasion (Ill.Rev.Stat.1989, ch. 38, par. 12-11), and armed robbery (Ill.Rev.Stat.1989, ch. 38, par. 18-2), and she was sentenced to three concurrent terms of 18 years in prison. Defendant appeals, arguing (1) she was improperly convicted of attempt (murder) because (a) at the time of the alleged offense, the offense of murder no longer existed, having been replaced with first degree murder, and (b) the jury was not properly instructed that the specific intent to kill the victim was a necessary element of attempt (murder); (2) the trial court denied her a fair trial by erroneously excluding certain statements made by her codefendant; and (3) the trial court considered improper factors when it determined the sentences to impose upon her. We affirm in part, reverse in part, and remand with directions.

I. FACTS

Because defendant does not challenge the sufficiency of the evidence to sustain her convictions, we will review the evidence only to the extent necessary to place her arguments on appeal in context.

On the evening of April 10, 1990, Mitchell Page, Jennifer Little, and defendant were present at Christina Hammock's home in Gibson City, Illinois. Defendant and Page asked to borrow Hammock's car "to go to talk to someone." Hammock agreed, and defendant and Page drove off in Hammock's car. Little, who was Page's pregnant girlfriend, remained at Hammock's house. Defendant and Page had previously discussed getting some money to help Little.

Defendant and Page drove to Lawrence Gordon's house. Page got out of the car and told defendant to pull the car into the driveway. She did so and then accompanied him to the back door of Gordon's residence, which was unlocked. Page entered first, carrying a baseball bat, and defendant followed him into the residence. Page told her to shine the flashlight, which she had brought into the residence, so that he could see. Page walked into the bedroom, while defendant stayed in the hallway between the bedroom and the kitchen. Defendant heard Gordon snoring in the bedroom, but she never went inside. She then heard something being hit with the baseball bat, and later described it as sounding "like someone hitting a large bag of fluid." Defendant looked into the bedroom and saw that Gordon's forehead was bloody. Page told her to find Gordon's pants, but she remained standing in the hallway. Page then found Gordon's pants, removed Gordon's checkbook and wallet, and said, "Let's go." Page pulled defendant out the back door, and they drove back to Hammock's house. In the car, Page discovered that Gordon's wallet contained $22. On the way back, they stopped at Page's mother's house, where Page left a note.

Upon their return to Hammock's house, defendant and Page asked Hammock to drive them to Danville, and she agreed. Hammock, Little, defendant, and Page then drove to Danville, where they spent the night. At Page's direction, Hammock drove to Danville on the back roads.

The next morning Hammock drove the group back to Champaign. En route, Page informed Hammock that the night before he went to the house of an old man where he thought there would be $20,000 in the basement. Page said that because the old man had a shotgun, Page hit him in the head with a baseball bat, and Page now thought that the man was dead. While still en route to Champaign, defendant told Hammock that Page had ordered her out of the car and into the house when they arrived at the old man's residence.

After driving to Champaign, Page asked to borrow the car from Hammock, and she agreed. Page, Little, and defendant then drove off in Hammock's car and never returned it. The three of them drove around Champaign to various banks trying to cash a check from Gordon's checkbook. According to defendant, Page was ordering her to try to cash a check because only she had any identification. However, no Champaign bank would cash the check. Later, they drove to Farmer City, where defendant claimed Page threatened her if she would not again try to cash a check. This time she succeeded and cashed a check for $583.75. Defendant maintained she did so because she was afraid of Page. After cashing the check, defendant, Page, and Little drove south and were ultimately arrested in Mississippi a few days later.

As a result of being beaten by Page with the baseball bat, Gordon suffered extensive injuries to his brain, skull, eyes, cheekbones, nose, and jaw. His left optic nerve was severed. His medical treatment required his jaw to be wired shut and metal plates to be implanted in his head. His face received multiple sutures. He also lost a great deal of blood and needed to spend two weeks in the hospital and two more weeks at a rehabilitation center.

Defendant asserted the defense of compulsion (Ill.Rev.Stat.1989, ch. 38, par. 7-11), and the trial court instructed the jury accordingly. The State's theory of the case was that defendant was accountable for Page's criminal behavior (Ill.Rev.Stat.1989, ch. 38, par. 5-2), and the trial court instructed the jury on accountability.

II. THE FAILURE OF THE STATE TO CORRECTLY CHARGE THE OFFENSE OF ATTEMPT

The State charged defendant with attempt (murder) based upon the beating of Gordon with a baseball bat in April 1990. However, effective July 1, 1987, the offense of murder, as defined in section 9-1 of the Criminal Code of 1961 (Code) (Ill.Rev.Stat.1985, ch. 38, par. 9-1), ceased to exist. Instead, Public Act 84-1450 (Pub. Act 84-1450, eff. July 1, 1987 (1986 Ill. Laws 4221)) replaced murder in section 9-1 of the Code with first degree murder (Ill.Rev.Stat.1987, ch. 38, par. 9-1). Based upon this statutory change, defendant argues that she was convicted of an offense--attempt (murder)--that no longer existed. Defendant argues that the State's misnaming of this offense is a fatal defect, which requires reversal of her conviction as a plain error. We disagree.

We first note that defendant at the trial level did not challenge the information which charged her with attempt (murder). In People v. Clay (1988), 167 Ill.App.3d 628, 634, 118 Ill.Dec. 175, 180, 521 N.E.2d 243, 248, the court addressed a similar argument and wrote the following:

"The sufficiency of an information * * * which is attacked for the first time on appeal[ ] is not to be determined by whether its form follows precisely the provisions of the statute. (People v. Gilmore (1976), 63 Ill.2d 23, 29.) Rather, the information or indictment is considered sufficient if it apprised the accused of the precise offense charged with sufficient specificity so that he could prepare his defense and bar future prosecutions arising out of the same conduct."

In the present case, that standard has clearly been met. The only change in section 9-1 of the Code brought about by Public Act 84-1450 was to the title of the offense, changing it from "murder" to "first degree murder." Substantively, the offense of murder was defined no differently than is the offense of first degree murder. The significant change caused by Public Act 84-1450 was to section 9-2 of the Code, wherein voluntary manslaughter (see Ill.Rev.Stat.1985, ch. 38, par. 9-2) became second degree murder (see Ill.Rev.Stat.1987, ch. 38, par. 9-2). (For a more extensive discussion of the nature of these changes, see People v. Newbern (1991), 219 Ill.App.3d 333, 161 Ill.Dec. 912, 579 N.E.2d 583.) However, the present case did not involve either second degree murder or attempt (second degree murder). The record shows that the trial court and both counsel fully understood the present case involved a charge of attempt (murder) under section 9-1 of the Code, even though no one referred to this offense by its correct title of attempt (first degree murder).

In support of her argument that her conviction for attempt (murder) must be reversed, defendant cites People v. Wasson (1988), 175 Ill.App.3d 851, 125 Ill.Dec. 369, 530 N.E.2d 527, a decision of this court which held that defendant's conviction of aggravated criminal sexual assault could not stand because he was charged with committing that offense before the offense was enacted. (Wasson, 175 Ill.App.3d at 855, 125 Ill.Dec. at 371, 530 N.E.2d at 529.) However, as the State correctly points out, Wasson is distinguishable because aggravated criminal sexual assault, as added to the Code by Public Act 83-1067 (Pub. Act 83-1067, eff. July 1, 1984 (1983 Ill. Laws 7251)), was an entirely new offense. Accordingly, we reject defendant's argument that she was somehow hindered in preparing her defense because she was forced to answer to a charge for which she could not have been lawfully convicted.

III. THE FAILURE OF THE ATTEMPT (MURDER) INSTRUCTIONS TO

REQUIRE THE JURY TO FIND THE SPECIFIC INTENT TO KILL

In pertinent part, the jury was instructed that in order to convict defendant of attempt (murder), it had to find beyond a reasonable doubt that defendant, or one for whose conduct she was legally responsible, "performed an act which constituted a substantial step toward the commission of the offense of murder * * * and * * * did so with intent to commit the offense of murder." The trial court also instructed the jury as follows: "A person commits the offense of murder when he kills an...