People v. Land

• Decision Date: 29 July 2011
• Docket Number: No. 1–10–1048.,1–10–1048.
• Citation: 955 N.E.2d 538,353 Ill.Dec. 71,2011 IL App (1st) 101048
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Jenell LAND, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 101048

955 N.E.2d 538

353 Ill.Dec. 71

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Jenell LAND, Defendant–Appellant.

No. 1–10–1048.

Appellate Court of Illinois, First District, Sixth Division.

June 24, 2011.Rehearing Denied July 29, 2011.

Michael J. Pelletier, Alan D. Goldberg, Benjamin Wimmer, all of State Appellate Defender's Office, of Chicago, for Appellant.Anita M. Alvarez, State's Attorney, County of Cook (Alan J. Spellberg, Michelle Katz, Christine Cook, Assistant State's Attorneys, of counsel), for Appellee.

OPINION

Justice R. GORDON delivered the judgment of the court, with opinion.

¶ 1 Defendant Jenell Land was found guilty by a jury of aggravated cruelty to a companion animal, a Class 4 felony. 510 ILCS 70/3.02 (West 2006). After the trial court denied her motion for a new trial, defendant was sentenced to 30 months' probation.

¶ 2 On this appeal, defendant claims that the trial court erred: (1) when it 1 failed to instruct the jury that the State had to prove a specific intent by defendant to injure her dog; (2) when it responded to a jury note by stating that whether defendant intentionally committed an act that caused her dog to suffer was a question of fact for the jury to decide; (3) when it found that defendant received her Miranda warnings even though she was not paying attention during the officer's reading of them; (4) when it permitted the State during closing argument to refer to defendant's use of profanity in her dealings with the police; and (5) when it assessed certain fines and fees.

¶ 3 For the following reasons, we affirm defendant's conviction and vacate the two charges which defendant disputes on appeal.

¶ 4 BACKGROUND

¶ 5 The following facts are not in dispute. At trial, defendant admitted that she and her boyfriend purchased a heavy industrial tow chain to use as a collar for their pitbull dog. Defendant claimed that they did this because the dog had broken free from other collars, and they wanted to keep him from running away. On July 28, 2008, after receiving a citizen's complaint about a dog being left outside in hot weather without water or shelter, the investigating officer observed the chain wrapped around the dog's neck and instructed defendant that a tow chain was not a proper collar for a dog and that she had to change it. On November 30, 2008, a veterinarian euthanized the dog after observing a large gaping hole in the dog's neck and a tow chain wrapped around the dog's neck, with the chain embedded in the neck and coming through the hole. During the defense's opening statement at trial, defendant's sole defense was that her act was stupid but not criminal.

¶ 6 A key factual issue at trial concerned the length of time that the chain had been continuously on the dog. The veterinarian testified that it would take approximately a week for the chain to break through the skin to expose the muscle and then an additional five to seven weeks for the chain to become as embedded in the neck as it was. By contrast, defendant testified that, a week prior to November 30, the chain had been off the dog and his neck had no visible injury.

¶ 7 I. Pretrial Proceedings

¶ 8 On January 26, 2009, defendant was arrested for aggravated cruelty to a companion animal. On February 26, 2009, she was indicted for the same offense. The indictment charged:

“[O]n or about July 16, 2008[,] CONTINUING THROUGH NOVEMBER 30, 2008[,] at and within the County of Cook[,] JENNELL LAND committed the offense of AGGRAVATED CRUELTY TO ANIMAL [ sic ] in that SHE INTENTIONALLY COMMITTED AN ACT THAT CAUSED SERIOUS INJURY OF A COMPANION ANIMAL, A PIT BULL, BY PLACING A TOWING CHAIN AROUND IT'S NECK * * *.”

¶ 9 On April 26, 2009, defendant filed a motion to suppress statements and a separate motion to quash arrest and suppress evidence. Defendant moved to suppress her statements to the police on the ground that she was not informed of her Miranda rights after her arrest. She also claimed that the interrogation continued after she elected to remain silent “and/or” elected to consult with an attorney prior to further questioning. Defendant's motion to quash arrest and suppress evidence claimed that the police lacked either a warrant or probable cause when they arrested her on November 30, 2008. After an evidentiary hearing, both pretrial motions were denied.

¶ 10 II. Pretrial Suppression Hearing

¶ 11 Since one of defendant's claims on appeal concerns the pretrial suppression motion, the facts of the hearing are presented in detail.

¶ 12 At the pretrial suppression hearing held on May 20, 2009, the trial court heard first the motion to quash the arrest.

¶ 13 Defendant testified that she lived with her grandparents on Pacific Avenue, in Hoffman Estates, and that she was living at the Pacific Avenue address on November 30, 2008. However, on November 30, at approximately 9 p.m., she was with her children and their father at his residence on Briar Hill Drive in Schaumburg, and she had stayed there the night before. At approximately 9 p.m. police officers knocked on the door and she answered it. She then stepped outside and stood on the porch. Defendant testified that a male officer said “ ‘You've been a naughty girly, and you know what you've done wrong.’ ” The two officers, a male and a female, then dragged defendant to a police vehicle and handcuffed her. They transported her to the Schaumburg police department, where officers asked her questions and she made statements. Defendant testified that she was not shown a warrant for her arrest.

[353 Ill.Dec. 76] ¶ 14 The State then called Dennis Schmitt, a police officer with the Schaumburg police department. Schmitt testified that, on November 30, he was accompanied by fellow officer Brian Trumf, whom Schmitt was training. Schmitt received information from a community service officer that an animal was brought into an animal hospital with a chain embedded in its neck. That evening, they spoke to Karen Davies, the treating veterinarian technician, at her residence, and showed her a photographic array. The array included a photograph of defendant, taken prior to her arrest in this case. Davies identified defendant as one of the individuals who brought the dog to the animal hospital claiming that it was hers.

¶ 15 Schmitt testified that, after the identification, he went to the address that had been supplied to the veterinarian's office. The address was on Briar Hill Drive and he went there with Officers Brain Trumf and Kendra Ziebell and community service officer Max Marcus. After Schmitt knocked on the door, defendant opened it and said “[h]old on” and then closed the door. Then Schmitt heard a female voice say “[t]hat f* * * b* * * Call the cops.” Then defendant exited the house, closed the door behind her and stood on the walkway next to the garage. Then she made a remark to the effect that she had not done anything and the dog was not hers. At that time, defendant was placed under arrest and transported to the police station. Schmitt denied that any of the police officers dragged defendant to the police vehicle.

¶ 16 The trial court denied the motion to quash the arrest, finding that the police had probable cause to arrest based on the veterinarian's identification and the fact that the dog had an industrial chain embedded in its neck. The trial court also observed that defendant, by her own testimony, was arrested outside and not at her own home.

¶ 17 For the motion to suppress statements, the defense recalled defendant as a witness. Defendant testified that, on the evening of November 30, 2008, between 9 and 10 p.m., she was brought in handcuffs to the Schaumburg police department. It took approximately five minutes to travel to the police station In the station, she was taken to a processing center, where police officers questioned her. Prior to the questioning, she was not informed of her Miranda rights. Four police officers were present, including Schmitt and a female officer.

¶ 18 The State called Kendra Ziebell, a Schaumburg police officer, who testified as follows. On November 30, 2008, Ziebell went to Briar Hill Drive with Officer Schmitt. When defendant stepped out of the residence, she was yelling and combative. Before the officers advised her why they were there, defendant started yelling that the dog was not even hers and that “b* * * called the cops.” Then Officer Schmitt placed defendant under arrest and advised her of her Miranda rights. When Officer Schmitt asked her if she understood her rights, she replied that he was “a b* * * a* * * motherf* * *.” After being transported to the police station, defendant was placed in an open area of the booking room and handcuffed to a long bench. Approximately 20 to 25 minutes passed between defendant's initial arrest and the interview at the police station. Defendant never stated that she did not want to talk to the officers.

¶ 19 On cross-examination, Ziebell testified that defendant was not asked to sign a waiver of her Miranda rights. Ziebell wrote a report, but she did not indicate in the report that defendant received her Miranda rights because Ziebell was not the one who administered them.

[353 Ill.Dec. 77] ¶ 20 In closing, defense counsel argued that his “client has credibly indicated that she was never read her Miranda rights.” In addition to his client's testimony, defense counsel observed that there was no signed waiver of rights and no indication in a written report that the rights were read. After hearing argument from both sides, the trial court found credible the testimony of the two police officers that the Miranda rights were administered.

¶ 21 III. State's Evidence at Trial

¶ 22 Since we must later analyze whether the evidence on the issue of specific intent was closely balanced, and since defendant testified and denied intent, we must present in detail a description of the circumstantial evidence which may shed light on defendant's denial.

¶ 23...