People v. Irvine, 1-06-0005.
| Decision Date | 31 January 2008 |
| Docket Number | No. 1-06-0005.,1-06-0005. |
| Citation | 882 N.E.2d 1124 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Alfred IRVINE, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Michael J. Pelletier, Deputy Defender, Office of the State Appellate Defender, Chicago (Patricia Unsinn, of counsel), for Defendant-Appellant.
Richard A. Devine, State's Attorney, State's Attorney of cook County, Chicago (James E. Fitzgerald, Ashley Romito, Annette Collins, Susan Schierl Sullivan, Veronica Calderon Malavia, of counsel), for Plaintiff-Appellee.
Defendant, Alfred Irvine, was found guilty of domestic battery and sentenced to 12 months of conditional discharge, to mandatory domestic violence classes and to fees and fines of $379. In this appeal, the defendant presents the following issues for review: (1) whether the State proved the defendant guilty of domestic battery beyond a reasonable doubt; (2) whether section 12-3.2 of the Criminal Code of 1961 (Criminal Code) is unconstitutionally vague (720 ILCS 5/12-3.2 (West 2004)); (3) whether the defendant received ineffective assistance of counsel; (4) whether the trial court erred in its recollection of the evidence when it weighed the credibility of witnesses and found the defendant guilty; (5) whether the defendant is entitled to a credit of $5 per day toward the fines assessed against him for time he spent in custody prior to sentencing; and (6) whether a $30 fee for minor traffic ordinance violations must be vacated.
We hold: (1) that the evidence was sufficient to find the defendant guilty beyond a reasonable doubt of the offense of domestic battery; (2) that section 12-3.2(a) of the Criminal Code is not unconstitutionally vague; (3) that the defendant did not receive ineffective assistance of counsel; (4) that any error occasioned by the trial court's recollection of the evidence in this case was harmless beyond a reasonable doubt and does not undermine confidence in the verdict; (5) that People v. Jones, 223 Ill.2d 569, 308 Ill.Dec. 402, 861 N.E.2d 967 (2006), makes it clear that the defendant is entitled to a $10 credit for the two days he was incarcerated prior to sentencing; and (6) that the trial court erred when it imposed a fee, pursuant to section 27.2a(w)(1)(E) of the Clerks of Courts Act (705 ILCS 105/27.2a(w)(1)(E) (West 2004)), because the defendant was charged in a misdemeanor complaint but was not charged with a minor traffic or ordinance violation.
Defendant was arrested near the intersection of Belmont and Clark Streets in Chicago following an altercation with Niya White and charged in a misdemeanor complaint with one count of domestic battery in violation of section 12-3.2 of the Criminal Code. 720 ILCS 5/12-3.2 (West 2004). The State filed a petition for an order of protection against the defendant, pursuant to the Illinois Domestic Violence Act of 1986 (the Act) (750 ILCS 60/101 et seq. (West 2004)), and on May 25, 2005, an order of protection was entered against the defendant. Finally, the defendant waived his right to a jury trial, and a bench trial was held on June 15, 2005.
White testified at trial that she and the defendant had been involved in a full relationship for approximately 45 days. However, White also testified that she and the defendant continued to have a sexual relationship after the official break up of the full relationship. According to White, the sexual relationship ended on May 2, 2005. White testified that she arranged to meet with the defendant on May 2, 2005, and saw him near the intersection of Belmont and Clark in Chicago at approximately 5:30 p.m. White was with Jermaine Edward and a man whose name was Erotica. White testified that, when she approached the defendant, he was with Natasha Salazar. White started asking the defendant questions but their conversation quickly degenerated into an argument. White testified that, "Irvine grabbed [her], choked [her] on the neck, and he shoved [her] into a glass window." White also testified that the defendant slapped her in the face with an open hand and grabbed her by the hair and threw her against a parked car. According to White, the altercation ended when an unidentified man dressed in black broke things up.
Once the altercation ended, White walked to the Open Door Shelter and called the police. When the police arrived later that evening, they took White's statement and then they arrested the defendant. White testified on direct examination that she had a swollen face and a painful scalp, but on cross-examination she testified that she decided not to go to the hospital. At the conclusion of White's testimony, the State rested and the defendant made a motion for a directed verdict. Finally, after the defendant waived argument on his motion, the trial court denied the motion.
Natasha Salazar testified that she and the defendant had been together on Belmont Street, in Chicago, for approximately an hour when White approached with two other people whom Salazar had previously seen. According to Salazar, White started talking and, at first, everything seemed okay, but then the conversation degenerated into an argument. Salazar testified that she got mad during the first 30 seconds of the conversation, so she walked a few blocks to the Dunkin' Donuts on the corner of Belmont and Clark. Streets. Salazar testified that she was at Dunkin' Donuts for approximately five to seven minutes, that she purchased a bagel and began to consume it, and that she went back outside to get her hat from the defendant. Once she was outside, she watched as White got angry and pushed the defendant, and Irvine pushed back after he was pushed. Salazar got her hat from Irvine. According to Salazar, "she [White] tried to come up and get in my face [and] started to fighting [sic] with the `boot cops' out there." Salazar explained that "boot cops" are employees of a towing company that tows cars from the Dunkin' Donuts parking lot. Salazar testified that the boot cops pushed White away from her and Irvine. Finally, Salazar testified that she walked away from the scene and did not see Irvine again until he was arrested.
Irvine testified that he and Salazar were standing in front of the library when White approached and told him that they needed to talk. Irvine testified that Salazar left after a minute and walked off toward the nearby Dunkin' Donuts without her hat. Defendant testified that he had Salazar's hat, and therefore, he followed Salazar and walked in the direction of Dunkin' Donuts. According to the defendant, he told White, "[L]eave me alone, I don't want to be bothered with you, we're done." Nevertheless, White followed him for three blocks as he walked toward the Dunkin' Donuts. Defendant testified that White repeatedly grabbed and pulled his shoulder while she told him that they needed to talk. The defendant explained how he tried to enter Dunkin' Donuts but that the boot cops would not let him enter the store. Defendant testified that he and White passed the Open Door Shelter as they walked. According to the defendant, White pushed him again in front of the Open Door Shelter. The defendant testified that he pushed her back to get her off him and told her to leave him alone because he did not want to have anything to do with her. The defendant also testified that Salazar approached and asked for her hat and that White started hitting his back and shoulders when he turned to give the hat to Salazar. At that point, the defendant testified the boot cops broke up the fight.
The trial court listened to the closing arguments, reviewed the testimony of White, Salazar and the defendant and stated,
The defendant was convicted of domestic battery and (1) was sentenced to 12 months of conditional discharge, (2) was ordered to complete domestic violence counseling; (3) was sentenced to a complete stay-away order of protection from White; and (4) was ordered to pay fees and fines of $379. The defendant filed a motion for a finding of not guilty or for a new trial.
On December 21, 2005, the defendant filed a second amended motion for a finding of not guilty or for a new trial on the basis of newly discovered evidence: the affidavit of D'Angelo Zavala, one of the boot cops that witnessed the altercation. Zavala averred in his affidavit that he had watched as White followed the defendant and tried to argue with him. According to Zavala, the defendant tried to ignore White, who shoved him from behind before the defendant turned and pushed back. The defendant argued that he was previously unable to secure the affidavit or testimony of Zavala because of the order of protection in effect before the trial and the fact that Zavala worked in an area frequented by White.
On December 21, 2005, the trial court denied the defendant's second amended motion for a finding of not guilty or a new trial (1) because the trial court judged the credibility of witnesses and believed White; (2) because the trial court indicated it judged the interest, bias, motive and prejudices and correctly applied the law to reach the right decision; and (3) because the trial court found that the defendant was not entitled to a new trial because the alleged newly discovered evidence could have been discovered during the trial through the exercise of reasonable diligence.
The defendant argues that he was erroneously convicted of domestic battery because the State failed to prove that he was a family...
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