People v. Larry, 2-85-0234

• Court: Appellate Court of Illinois
• Writing for the Court: UNVERZAGT
• Citation: People v. Larry, 494 N.E.2d 1212, 144 Ill.App.3d 669, 98 Ill.Dec. 885 (Ill. App. 1986)
• Decision Date: 24 June 1986
• Docket Number: No. 2-85-0234,2-85-0234
• Parties: , 98 Ill.Dec. 885 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Eddie V. LARRY, Defendant-Appellant.

Page 1212

494 N.E.2d 1212

144 Ill.App.3d 669, 98 Ill.Dec. 885

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Eddie V. LARRY, Defendant-Appellant.

No. 2-85-0234.

Appellate Court of Illinois Second District.

June 24, 1986.

G. Joseph Weller, Steven E. Wiltgen, Deputy Defenders, Office of State Appellate Defender, Elgin, for defendant-appellant.

James E. Ryan, State's Atty., Wheaton, Kenneth R. Boyle, Director, Springfield, William L. Browers, Deputy Director, State's Attys. Appellate Service Com'n, Elgin, Andrea Becker, Broadview, for plaintiff-appellee.

Justice UNVERZAGT delivered the opinion of the court:

The defendant, Eddie V. Larry, was indicted on May 29, 1984, in the circuit court of DuPage County on six counts: count I, attempted murder (Ill.Rev.Stat.1983, ch. 38, pars. 8-4(a), 9-1(a)(1)); count II, armed violence based on attempted rape (Ill.Rev.Stat.1983, ch. 38, pars. 33A-2, 11-1(a)); count III, armed violence based on aggravated battery causing great bodily harm (Ill.Rev.Stat.1983, ch. 38, pars. 33A-2, 12-4(a)) count IV, attempted rape (Ill.Rev.Stat.1983, ch. 38, pars. 8-4(a), 11-1(a)); count V, aggravated battery causing great bodily harm (Ill.Rev.Stat.1983, ch. 38, par. 12-4(a)); and count VI, aggravated battery using a deadly weapon (Ill.Rev.Stat.1983, ch. 38, par. 12-4(b)(1)). Following a jury trial, the defendant was acquitted on the attempted murder charge, but was found guilty of all the remaining charges. Judgments were entered on the verdicts. He was sentenced to concurrent terms of 10 years' imprisonment on each of the two armed violence convictions.

Defendant contends (1) that it was error for the court to refuse to instruct the jury on the defense of involuntary intoxication, and (2) that the court erred in entering judgments of guilty on the verdicts of attempted rape and aggravated battery (counts IV and V) where they were the predicate offenses for the armed violence charges (counts II and III), and in entering judgment on the guilty verdict of aggravated battery using a deadly weapon (count VI) since that charge was based on the single physical act of stabbing the victim with a knife as was charged in count V.

Nancy Garrett testified that on May 8, 1984, she was employed at Dunkin' Donuts in Oak Brook Terrace. About 3:15 a.m., a man subsequently identified as the defendant entered the store. He purchased two donuts and left. Garrett returned to work in a storage area of the shop. She heard a bell ring, indicating that someone had entered the store. She walked toward the customer area and saw the defendant standing by the door between the customer area and the kitchen. The defendant had a knife in his hand. He told Garrett to "get in back." In the storage area, she fell to the floor. The defendant knelt beside her, reached up under her dress and pulled down her underpants to her ankles. He pulled down his pants and tried to have intercourse with her. The defendant then stood up "real fast," picked up his knife and went to the sink in the kitchen and looked around. Garrett pulled up her pants and ran toward a door, but the defendant came from behind her and grabbed her by the neck. He stabbed her in the stomach and right chest area. He then gripped her neck with both hands. Garrett came to lie on the floor again. The defendant straddled her, pushing down on something in her neck with both hands. She repulsed the defendant by kicking him in the genitals. For a moment, the defendant stood by a freezer and looked around. He grabbed a shovel and returned to Garrett, striking her three times on her head. He pulled her up to her feet by her apron, grabbed a plastic garbage bag with both hands, brought it over her head and around her neck and pulled it tight. Garrett then blacked out. The next thing she remembered was Officer Gomez calling her name.

Frank Gomez, an Oak Brook Terrace police officer, testified that he was on routine patrol in his car on May 8, 1984. About 3:30 a.m., he pulled into the parking lot of the Dunkin' Donuts. A man later identified as the defendant approached Gomez's car from the rear. The defendant was wearing a purple jogging outfit. The defendant told Gomez that his car was out of gas and asked for a gas can. Gomez told the defendant to go to a Citgo station down the street. Gomez observed the defendant walk to a dark green car parked in the Dunkin' Donuts parking lot, open the trunk, and take out a gas can. The defendant then walked toward the Citgo station. Gomez entered the Dunkin' Donuts store, and called out Garrett's name. Shortly thereafter, he saw Garrett approaching from the east doorway; she was bleeding from wounds in her neck and stomach. She said that a man tried to rape her. She described him to Gomez as a black male in a purple jogging suit, with a dark-colored car. Gomez drew his weapon, searched the rear area of the store, and radioed for an ambulance and other police units. He left the store and saw the defendant in the parking lot. The defendant was carrying a gas can toward his car. Gomez placed the defendant under arrest. Other police officers and paramedics arrived. After a conversation with a paramedic, Gomez asked the defendant where the weapon was. The defendant, now handcuffed, led Gomez to a grassy area in front of a Ground Round restaurant next door. The defendant stopped, nodded, and in the grass nearby a knife was found. Gomez identified People's Exhibit No. 6 as a photograph of the knife. The defendant was given Miranda warnings and he indicated he understood. Gomez drove the defendant to the police station. At the station, the defendant asked whether he was in trouble. He was advised again of his Miranda rights and placed in a cell. He asked to talk with Gomez about the incident and inquired whether this would go on his record. Gomez refused to talk to the defendant and suggested he wait for the arrival of a detective.

Oak Brook Terrace police officer John Kolberg testified that the blade of the knife found in the grass near the Dunkin' Donuts was four inches long. At 6:45 a.m. on the morning of May 8, the defendant made a statement to him. The defendant related that prior to the incident, he saw a man named Lazar in Broadview. He picked up Lazar, and they drove around, smoking marijuana. The defendant dropped Lazar off and proceeded to the Dunkin' Donuts. He purchased some donuts from Nancy Garrett, went to his car, retrieved a knife, and returned to the store. He told Garrett to take her clothes off. She backed away from him, and he pushed her to the floor. He removed her underpants and tried to have intercourse with her. Garrett got away from him briefly, and he struck her with a shovel, choked her with plastic garbage can liners, and stabbed her. He left the restaurant and dropped his knife in front of the Ground Round restaurant. He then related the circumstances of his capture. After relating this version of the incident, Kolberg asked the defendant why he had attacked the victim. The defendant replied that he was not sure, that everything seemed to go "very fast." He felt that the marijuana he had been smoking may have contained a chemical or something which made him behave the way he did. Kolberg asked the defendant if he intended to rape the victim when he approached her, and the defendant replied that he did intend to do that, but was unable to because of the struggle. The defendant prepared and signed a written statement. The statement, People's Exhibit No. 36, followed closely the substance of the defendant's oral statement, except that the defendant's written statement indicated that before he left Dunkin' Donuts, he saw Garrett crying and he began to cry, too.

Oak Brook Terrace police officer John Carpino testified that he was with Officer Kolberg and the defendant when the defendant made the written statement. The defendant took about 50 minutes to write the statement during which he was writing continuously. Carpino said the statement had about one correction in each line.

The defendant testified that he graduated from a special education program in high school. Prior to May 8, 1984, he was employed at Sears, and Hines Hospital. On May 7, 1984, he came home from work, ate dinner, went to his friend's James Head's house for about a hour, and then went to his girl friend's house. He had sexual relations with his girl friend, drove her to a store and dropped her off back at her house. He then drove around for awhile and stopped to visit with some friends until about 2 or 2:30 in the morning. He went to a convenience food store and bought an orange soda. Sometime between 2:30 and 3 a.m., he saw Lazar Walker, who lived around the corner from him. He asked Lazar if he wanted a ride, and Lazar got into defendant's car. They headed west on Roosevelt Road. While in the car, Lazar began to roll a marijuana cigarette. Lazar took a brown envelope out of his shirt pocket, and he put white powder from the envelope on top of the marijuana. The defendant testified Lazar had given him marijuana on two different occasions toward the end of April when they were at some friends' houses. On both occasions, after he smoked the marijuana, he got dizzy, drowsy and hungry. After Lazar put the powder on the marijuana, he finished rolling up the cigarette paper and handed it to the defendant, who lit it with his car cigarette lighter. Defendant testified he never asked Lazar what the powder was, nor did he receive any information at that time as to what the powder was. In response to why he did not ask Lazar what the powder was, the defendant replied: "I just didn't bother asking him. Really don't know." The next thing defendant remembered happened was that he ran a red light at 25th Avenue, and he remembered pulling up at the Dunkin' Donuts. He went in and bought two chocolate donuts from the girl behind the counter. He handed her a dollar bill. He left the store, got in his car, and began to feel...