People v. Marston
| Decision Date | 17 November 2004 |
| Docket Number | No. 2-03-0490.,2-03-0490. |
| Citation | 818 N.E.2d 1261,353 Ill. App.3d 513,289 Ill.Dec. 58 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth L. MARSTON, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
G. Joseph Weller, Deputy Defender (Court-appointed), Kathleen J. Hamill (Court-appointed), Office of the State Appellate Defender, Elgin, for Kenneth L. Marston.
Meg Gorecki, Kane County State's Attorney, St. Charles, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Gunta Z. Hadac, Grayslake, for the People.
A jury found defendant, Kenneth L. Marston, guilty of home invasion (720 ILCS 5/12-11(a)(2) (West 2002)), aggravated battery (720 ILCS 5/12-4(b)(1) (West 2002)), and criminal trespass to a residence (720 ILCS 5/19-4 (West 2002)). The trial court merged the conviction of criminal trespass to a residence with the home invasion conviction. The court imposed concurrent prison terms of seven years for the home invasion and three years for the aggravated battery. On appeal, defendant argues alternatively that we must (1) vacate his aggravated battery conviction pursuant to the one-act, one-crime and lesser-included-offense doctrines or (2) reduce his aggravated battery conviction to simple battery because the pole used in the offense was not a "deadly weapon" under the aggravated battery statute. We affirm.
The evidence presented at trial indicated the following facts. Early in 2001, Kimberly Jessongne Rose and defendant resided together and were attempting to reconcile a "volatile" romantic relationship. In March 2001, Kimberly decided to leave their home and move in with a girlfriend, Diana Fure Malcara. On March 30, 2001, Kimberly and Diana hosted a social gathering in their new apartment. Kimberly invited defendant even though she knew she was scheduled to work until 2 a.m. on the evening of the party. Defendant arrived at the party while Kimberly was at work, and defendant repeatedly asked Diana to call Kimberly to determine when she would return from work. Kimberly arrived home after 2 a.m., and she and defendant argued in the kitchen until Kimberly told defendant to leave. Diana attempted to separate the two, and defendant allegedly struck Diana with his fist. Two of the male partygoers fought with defendant and forcibly ejected him.
Kimberly went to her bedroom, which was on the second floor of the apartment. Defendant climbed onto the roof of a car port that was adjacent to Kimberly's closed bedroom window. Defendant broke the glass with a pole that Kimberly believed to be metal and approximately two to three feet long. Diana estimated that the pole was only 16 inches long, and another witness characterized it as a steel curtain rod or shower rod that had been pinched on one end to sharpen it. Defendant lunged through Kimberly's broken window, went to Diana's bedroom, and attacked one of the men with whom he had fought earlier. William Cook, the complainant, testified that he attempted to stop the fight, but defendant jabbed the side of his torso three times with the pole. A photo admitted into evidence shows that William suffered three large red marks along his rib cage. William kicked defendant down the stairs, and defendant fled to a friend's home, where he photographed his own injuries.
The jury found defendant guilty of home invasion, aggravated battery, and criminal trespass to a residence. The trial court merged the conviction of criminal trespass to a residence with the home invasion conviction. The court imposed concurrent prison terms of seven years for the home invasion and three years for the aggravated battery, and this timely appeal followed.
Defendant initially argues that his conviction of aggravated battery must be vacated under one-act, one-crime and lesser-included-offense principles. The State contends that defendant waived the issues by failing to raise them in a posttrial motion, and defendant responds that we should consider his claims under the plain error doctrine.
A defendant's failure to object at trial and to raise the issue in a posttrial motion operates as a waiver of the right to raise the issue as a ground for reversal on review. People v. Harvey, 211 Ill.2d 368, 385, 286 Ill.Dec. 124, 813 N.E.2d 181 (2004). The plain error rule (134 Ill.2d R. 615(a)) provides a "'"narrow and limited exception"'" (People v. Hampton, 149 Ill.2d 71, 100, 171 Ill.Dec. 439, 594 N.E.2d 291 (1992), quoting People v. Szabo, 113 Ill.2d 83, 94, 100 Ill.Dec. 726, 497 N.E.2d 995 (1986), quoting People v. Pastorino, 91 Ill.2d 178, 188, 62 Ill.Dec. 172, 435 N.E.2d 1144 (1982)) and is applied to ameliorate the harshness of strict application of the waiver rule (People v. Godsey, 74 Ill.2d 64, 72, 23 Ill.Dec. 117, 383 N.E.2d 988 (1978)). "The plain error rule allows a reviewing court to consider a trial error not properly preserved when `(1) the evidence in a criminal case is closely balanced or (2) where the error is so fundamental and of such magnitude that the accused was denied a right to a fair trial.'" Harvey, 211 Ill.2d at 387,286 Ill.Dec. 124,813 N.E.2d 181, quoting People v. Byron, 164 Ill.2d 279, 293, 207 Ill.Dec. 453, 647 N.E.2d 946 (1995); see 134 Ill.2d R. 615(a). We address defendant's argument because an alleged one-act, one-crime violation and the potential for a surplus conviction and sentence affect the integrity of the judicial process, thus satisfying the second prong of the plain error rule. See Harvey, 211 Ill.2d at 389,286 Ill.Dec. 124,813 N.E.2d 181.
In People v. King, 66 Ill.2d 551, 6 Ill.Dec. 891, 363 N.E.2d 838 (1977), our supreme court held that a criminal defendant may not be convicted of multiple offenses when those offenses are all based on precisely the same physical act. Harvey, 211 Ill.2d at 389, 286 Ill.Dec. 124, 813 N.E.2d 181; King, 66 Ill.2d at 566, 6 Ill.Dec. 891, 363 N.E.2d 838. The supreme court reaffirmed and clarified the King rule in People v. Rodriguez, 169 Ill.2d 183, 214 Ill.Dec. 451, 661 N.E.2d 305 (1996), noting that there are two steps to a King analysis. Harvey, 211 Ill.2d at 389, 286 Ill.Dec. 124, 813 N.E.2d 181; Rodriguez, 169 Ill.2d at 186, 214 Ill.Dec. 451, 661 N.E.2d 305.
First, a court ascertains whether the defendant's conduct consisted of a single physical act or separate acts. Harvey, 211 Ill.2d at 389, 286 Ill.Dec. 124, 813 N.E.2d 181; Rodriguez, 169 Ill.2d at 186, 214 Ill.Dec. 451, 661 N.E.2d 305. "`Multiple convictions are improper if they are based on precisely the same physical act.'" Harvey, 211 Ill.2d at 389, 286 Ill.Dec. 124, 813 N.E.2d 181, quoting Rodriguez, 169 Ill.2d at 186, 214 Ill.Dec. 451, 661 N.E.2d 305. "The definition of an `act' under the King doctrine remains simply what [the supreme court] stated in King: `any overt or outward manifestation which will support a different offense.'" Rodriguez, 169 Ill.2d at 188, 214 Ill.Dec. 451, 661 N.E.2d 305, quoting King, 66 Ill.2d at 566, 6 Ill.Dec. 891, 363 N.E.2d 838.
If the court determines that the defendant committed multiple acts, the court moves on to the second step and determines whether any of the offenses are lesser-included offenses. Harvey, 211 Ill.2d at 389, 286 Ill.Dec. 124, 813 N.E.2d 181; Rodriguez, 169 Ill.2d at 186, 214 Ill.Dec. 451, 661 N.E.2d 305. If any of the offenses are lesser-included offenses, then, pursuant to King, multiple convictions are improper. Harvey, 211 Ill.2d at 389, 286 Ill.Dec. 124, 813 N.E.2d 181; Rodriguez, 169 Ill.2d at 186, 214 Ill.Dec. 451, 661 N.E.2d 305. If none of the offenses are lesser-included offenses, then multiple convictions may be entered. Harvey, 211 Ill.2d at 389-90, 286 Ill.Dec. 124, 813 N.E.2d 181; Rodriguez, 169 Ill.2d at 186, 214 Ill.Dec. 451, 661 N.E.2d 305.
Count I of the indictment charged defendant with home invasion in that he "knowingly and without authority, entered the dwelling place of Diana Fure, * * * knowing William Cook to be present within that dwelling place and intentionally caused injury to William Cook, in that he struck William Cook about the body with a metal pole." (Emphasis added.) Count II of the indictment charged defendant with aggravated battery in that he, "in committing a battery, * * * without legal justification, and by use of a deadly weapon, knowingly caused bodily harm to William Cook, in that he struck William Cook about the body with a metal pole." (Emphasis added.)
Defendant argues that we must vacate his conviction of aggravated battery because it is based on the identical act on which the home invasion charge was based: inflicting injury by striking William about the body with a metal pole. The State responds that the multiple convictions are proper because defendant's entry into the home was a separate act on which the home invasion charge was based. The State alternatively contends that the evidence at trial indicated that defendant struck William about the body three times and that each injury supports a separate conviction.
The State argues that this case is governed by People v. Tate, 106 Ill.App.3d 774, 62 Ill.Dec. 522, 436 N.E.2d 272 (1982), and its progeny. In Tate, a jury found the defendant guilty of home invasion and aggravated battery based on evidence that the defendant entered the victim's home and stabbed her once. The charging instrument alleged that the defendant committed home invasion in that he entered the dwelling without authority and inflicted an "injury" (Ill.Rev.Stat.1979, ch. 38, par. 12-11(a) (now 720 ILCS 5/12-11(a) (West 2002))) and committed aggravated battery in that he inflicted "great bodily harm" during a battery (Ill.Rev.Stat.1979, ch. 38, par. 12-4 (now 720 ILCS 5/12-4(a) (West 2002))). Tate, 106 Ill.App.3d at 778, 62 Ill.Dec. 522, 436 N.E.2d 272.
The Appellate Court, Fourth District, considered whether the two convictions were "`carved'" from the same act, thereby...
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