People v. Novotny

• Decision Date: 22 November 1968
• Docket Number: No. 41097,41097
• Citation: 244 N.E.2d 182,41 Ill.2d 401
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Ronald C. NOVOTNY, Appellant.
• Court: Illinois Supreme Court

Page 182

244 N.E.2d 182

41 Ill.2d 401

The PEOPLE of the State of Illinois, Appellee, v. Ronald C. NOVOTNY, Appellant.

No. 41097.

Supreme Court of Illinois.

Nov. 22, 1968.

Rehearing Denied Jan. 28, 1969.

Driscoll & Cleary, Chicago, (William J. Nellis and Blacher, Buckun & Nellis, Chicago, of counsel), for appellant.

William G. Clark, Atty. Gen., Springfield and John J. Stamos, State's Atty., Chicago, (Fred G. Leach, Asst. Atty. Gen., and Elmer C. Kissane and John M. Goldberg, Asst. State's Attys., of counsel), for appellee.

UNDERWOOD, Justice.

Defendant, Ronald C. Novotny, 19 years old, was found guilty of aggravated battery in a bench trial in the circuit court of Cook County. His petition for probation was allowed, and he was admitted to probation for one year with 30 days imprisonment as a condition thereof. Two grounds are urged for reversal: (1) that he was deprived of the right to trial by jury when his attorney, without consulting him, waived a jury trial in return for the State's agreement to reduce the charge from a 'felony' to a misdemeanor, and (2) that he was not proved guilty beyond a reasonable doubt. As to (1) both the State and defense counsel characterize the original charge as a felony. The record contains only one complaint, a partially printed and partially typed form, which charged defendant with aggravated battery, an offense for which the alternative penalties provided may be imprisonment in the penitentiary for 1 to 10 years or imprisonment in a penal institution other than the penitentiary for not to exceed one year. (Ill.Rev.Stat.1967, chap. 38, par. 12--4(a).) Under our decisions prior to adoption of the Criminal Code of 1961 the presence of the alternative penalty of imprisonment other than in the penitentiary rendered the offense a misdemeanor. (Lamkin v. People, 94 Ill. 501; Baits v. People, 123 Ill. 428, 16 N.E. 483; People v. Stavrakas, 335 Ill. 570, 582, 167 N.E. 852.) Since no substantial difference exists between the definition of 'felony' (Ill.Rev.Stat.1961, chap. 38, par. 585) which preceded the 1961 Code and the one presently appearing therein (Ill.Rev.Stat.1967, chap. 38, par. 2--7), it would seem that the decisions construing the former statutory definition remain valid. This does not, however, alter our disposition of the case, for the reasons hereinafter indicated.

While the complaint in this cause was filed July 11, 1967, and alleges an offense on July 9, the complaining witness referred to August 8 as the date involved. However, no point is made of this, and it seems apparent that the conduct testified to actually occurred on July 8 and 9. Complainant, Thomas Esones, a Cook County deputy sheriff, testified that on August 8 he drove to a friend's house in Summit about 8:00 P.M. to play cards. Esones testified that at approximately 2:35 A.M. the next morning while driving home alone from the card game he noticed a crowd of 10 to 15 youths in a parking lot at the corner of Archer and Mayfield in Chicago; he saw two women nearby and testified he 'pulled on the end of the lot, and * * * (t)hey said that there was youths swearing. They were afraid to get in their car.' He then got out of his car, approached the group, identified himself as a deputy sheriff, displayed his badge to the youths, and asked them why they were swearing at the two women. The witness stated that the boys denied swearing, and Esones responded that he would call a Chicago squad car to tell them to move on. At this point Esones testified several of the youths attacked him, and the defendant struck him in the head with a pipe. He stated that soon after the initial attack by 'Novotny and his friends' the youths administered another beating during which they took the officer's badge and threw it away. Esones was hospitalized with a brain concussion and a back injury for one week as a result of this incident. On cross-examination the witness admitted that he had drunk a 'couple of beers', but no more than two, earlier in the evening while he was playing cards. He further stated that when he was knocked to the ground by the defendant and the others, he picked up a tail pipe that was lying on the ground and started swinging to defend himself.

The second witness presented by the State was Officer Hycner of the Chicago Police Department who arrested the defendant about four hours after the complaining witness was attacked. Officer Hycner was assigned patrol duty in the area of Archer and Mayfield, and after receiving a report of the incident he went to the hospital where Esones was being treated. The officer testified that when he visited Esones shortly after the attack, Esones asked him if he would go to 'look for his star, because they threw his star away.' Officer Hycner proceeded to the intersection of Archer and Mayfield, and found the badge of the complaining witness in the middle of Archer Avenue. The officer then acquired information which led him to the house of the defendant where he interviewed Novotny, and noticed a laceration on his neck. The defendant agreed to accompany the officer to the hospital where Esones positively identified him as one of the assailants. Officer Hycner stated on cross-examination that the defendant was at all times co-operative.

The defendant and four other witnesses testified for the defense. Novotny said he had been out on Saturday night with several friends and that early the next morning he arrived at the shopping center parking lot at Archer and Mayfield where it was the practice of his friends to congregate on Friday and Saturday nights. According to the defendant, when Esones walked up to the group of youths he appeared to be drunk, I.e., he reeled when he walked, slurred his speech, and had bloodshot eyes. Novotny stated that Esones accused the group of swearing at him and two girls who were riding in his car, that Esones yelled at the youths and pushed them around; and that at one point the defendant asked him, 'Why don't you shut up?' Complainant's response to this remark, according to the defendant, was to grab the defendant by the shirt collar, and when the defendant pushed away from his grasp Esones started to fight with him. The defendant stated that in the process of defending himself he knocked Esones down, and Esones then picked up a pipe from the ground and struck the defendant causing a head wound that required five stitches. Novotny asserted that at no time did the complaining witness identify himself as a police officer or display his badge. The defendant further testified that he never wielded a pipe against Esones but rather the head injuries suffered by Esones were incurred when he was knocked down and his head struck an abutment in the parking lot.

The four remaining witnesses presented by the defense included the defendant's twin brother and three other youths who were friends of the defendant and who were present in the parking lot when the defendant and the complainant came to blows. The testimony of these four witnesses substantially corroborated defendant's version of events. A composite summary of their testimony would be that Esones was belligerent, apparently drunk, and the aggressor in the fight during which Esones struck the defendant with a pipe. Furthermore, none of these witnesses recalled ever hearing Esones announce his office or seeing him display his badge.

The court found the defendant guilty of aggravated battery as charged in the complaint. The defendant thereafter filed post-trial motions to vacate the judgment, for a new trial and in arrest of judgment. These were denied. Included in the defendant's post-trial motion was the allegation that he 'was deprived of his statutory and Constitutional right to a jury trial.' This argument is based on the allegation that defendant's retained counsel waived a jury trial on behalf of his client without first consulting Novotny as to whether he wanted a jury or bench trial. Defendant's testimony and affidavit in the post-trial proceedings indicate that he was inexperienced in criminal matters, that he did not know or understand that he had a right to trial by jury, and that he did not discuss with his attorney the availability or advisability of a jury trial. His attorney also testified in the post-trial proceedings. It is clear that while both the prosecution and defense may have been mistaken in thinking the charge a felony, defendant's counsel was interested in eliminating the possibility of a penitentiary sentence. It is admitted that counsel's waiver of a jury trial was in exchange for the State's reduction of the charge. It seems clear, also, that a penitentiary sentence could not thereafter have been imposed regardless of the felony or misdemeanor character of the original complaint. While not conclusively established by the record the complaint contained therein was apparently the only one ever filed. Printed near the top of this form was the word 'FELONY'. This complaint was filed July 11, the defendant remanded to the sheriff's custody and a preliminary hearing apparently scheduled, on the defendant's motion, for July 28. On that date the cause was again continued on defendant's motion to August 28. When asked by the clerk on the 28th if they were 'Ready for hearing?', defense counsel answered 'Yes', the assistant State's Attorney requested and was granted leave of court 'to amend this complaint to read misdemeanor instead of felony', defense counsel announced 'No objection. Waive a jury. Defendant's plea is not guilty and trial by this Court.' The amendment apparently consisted solely of striking the printed word 'FELONY' on the complaint and substituting an illegible word which appears to be an abbreviation of 'misdemeanor'. At the time the foregoing statements were made to the court defendant was standing in front of the bench next to his attorney according to the latter's testimony at the hearing on the post-trial motions. Defendant testified thereat...