People v. Ptak

• Decision Date: 09 February 1990
• Docket Number: No. 2-88-1174,2-88-1174
• Citation: 550 N.E.2d 711,193 Ill.App.3d 782
• Court: United States Appellate Court of Illinois
• Parties: , 140 Ill.Dec. 826 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony P. PTAK, Defendant-Appellant.

Page 711

550 N.E.2d 711

193 Ill.App.3d 782, 140 Ill.Dec. 826

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony P. PTAK, Defendant-Appellant.

No. 2-88-1174.

Appellate Court of Illinois Second District.

Feb. 9, 1990.

Barbara R. Paschen, Office of the State Appellate Defender, Elgin, John F. Donahue, Law Offices of Donahue, Sowa & Bugos, Joseph T. Bugos, Law Offices of John F. Donahue, Lisle, for Anthony P. Ptak. James E. Ryan, DuPage County State's Atty., Wheaton, William L. Browers, Deputy Director, Elgin, Colleen M. Griffin, State's Attys. Appellate Prosecutor, Elgin, for the People.

Justice INGLIS delivered the opinion of the court:

Defendant, Anthony Ptak, was charged by indictment with aggravated battery (Ill.Rev.Stat.1985, ch. 38, par. 12-4(a)), armed violence (Ill.Rev.Stat.1985, ch. 38, par. 33A-2), and attempted murder (Ill.Rev.Stat.1985, ch. 38, pars. 8-4, 9-1(a)(1)). Following a jury trial, defendant was acquitted of the offense of attempted murder, but was found guilty of armed violence and aggravated battery, and was sentenced to six years' imprisonment. On appeal, defendant contends that (1) the trial court improperly instructed the jury that a broken glass bottle was a dangerous weapon as a matter of law; and (2) he was denied effective assistance of counsel. We affirm.

At trial, Dennis Lindsey testified that on September 18, 1987, he was living in an apartment with his pregnant girlfriend, Vicky Grissette, and defendant. Lindsey stated that he, Grissette, and two friends were cleaning the apartment when defendant arrived around 4 a.m. Defendant was very angry when he entered the apartment and began arguing with Grissette. Lindsey heard the argument, entered the room, and pushed defendant onto the couch. Lindsey told defendant to leave Grissette alone and began to walk towards the kitchen to get a beer. At that time, defendant hit Lindsey in the head with a beer bottle. The beer bottle broke, and defendant began stabbing Lindsey with the jagged edges of the broken bottle. Lindsey stated that he was stabbed in the left arm, back, and chest. Grissette then got Lindsey out of the apartment and to a hospital. Lindsey stated that he was in the hospital for nearly one week following the attack.

Vicky Grissette testified that defendant arrived at the apartment around 3 a.m. and began drinking beer with Lindsey and a friend in the kitchen. Shortly thereafter, defendant began arguing with Grissette and pushed her once in the chest. Grissette stated that Lindsey and defendant then began their altercation, with Lindsey ending up on the kitchen floor after being cut by defendant's broken beer bottle. Grissette was able to get Lindsey out of the apartment and into his car, and a friend drove them to the hospital.

Officer James Kaplan of the Addison police department testified that defendant walked into the police station on September 18, 1987. Officer Kaplan stated that defendant "appeared quite disorderly" and had dried blood on his face, hands, and clothing. Defendant told Officer Kaplan that he was involved in a fight with Lindsey and that he stabbed Lindsey with a broken bottle. Officer Kaplan further testified that paramedics were called to the police station to treat a bump on defendant's forehead.

Dr. Raymond Dieter, a surgeon associated with Elmhurst Hospital, testified that he saw Dennis Lindsey in the emergency room. Dr. Dieter stated that Lindsey had a severe laceration on his left arm, along with smaller cuts on his back, side, and hands. The lacerations resulted in Lindsey losing approximately one-half of his blood. Dr. Dieter stated that without medical treatment, the injuries to Lindsey would be life-threatening.

The State rested its case after Dr. Dieter's testimony. Defendant's motion for a directed verdict was denied, and defendant called two witnesses to testify. Defendant did not testify at trial. Following closing arguments, the jury found defendant guilty of armed violence and aggravated battery. Defendant filed a timely notice of appeal.

Defendant's first contention on appeal is that the trial court improperly instructed the jury that a broken glass bottle was a dangerous weapon as a matter of law. Defendant argues that whether he was armed with a dangerous weapon was an element of the offense which the State was required to prove beyond a reasonable doubt. Defendant contends that instructing the jury in this manner effectively curtailed the jury's freedom, as the trier of fact, to make an independent assessment of the evidence.

The State disagrees, arguing instead that a broken beer bottle is a per se dangerous weapon in that it is capable of serious bodily harm and has "no ascertainable legitimate use." As such, the State contends that the jury was properly instructed in this case.

A person is guilty of the offense of armed violence if he or she commits any felony while armed with a dangerous weapon. (Ill.Rev.Stat.1985, ch. 38, par. 33A-2.) A person is considered "armed with a dangerous weapon" if:

"he carries on or about his person or is otherwise armed with a category I or category II weapon. (b) A category I weapon is a pistol, revolver, rifle, shotgun, spring gun, or any other firearm, sawed-off shotgun, a stun gun or taser as defined in paragraph (a) of Section 24-1 of this Code, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, or any other deadly or dangerous weapon or instrument of like character." Ill.Rev.Stat.1985, ch. 38, par. 33A-1.

Any weapon specifically listed in the definition is considered to be a per se dangerous weapon. (People v. Weger (1987), 154 Ill.App.3d 706, 712, 107 Ill.Dec. 181, 506 N.E.2d 1072.) A broken glass bottle is not specifically listed in the definition. However, a weapon not listed in the definition can become a dangerous weapon when it is used in a manner dangerous to the well-being of the person threatened and is also of "like character." (Weger, 154 Ill.App.3d at 712, 107 Ill.Dec. 181, 506 N.E.2d 1072.) In Weger, the appellate court determined that the trial court erred in holding that a straight-blade razor was a per se dangerous weapon. (154 Ill.App.3d at 712, 107 Ill.Dec. 181, 506 N.E.2d 1072.) The court noted that even though the razor was easy to conceal and contained a sharp edge, it did have a legitimate use as a shaving device. (154 Ill.App.3d at 713-14, 107 Ill.Dec. 181, 506 N.E.2d 1072.) As such, the State was required to show that the defendant used the razor as a weapon, which the State was unable to do. 154 Ill.App.3d at 714, 107 Ill.Dec. 181, 506 N.E.2d 1072.

The Weger court specifically relied on City of Pekin v. Shindledecker (1981), 99 Ill.App.3d 571, 55 Ill.Dec. 229, 426 N.E.2d 13, in reaching its decision. In Shindledecker, the court had to decide if a device not specifically listed in section 24-1 of the Criminal Code of 1961 (Ill.Rev.Stat.1979, ch. 38, par. 24-1) was a dangerous weapon. The court stated:

"Common sense must be the guide. Such an approach acknowledges the character of the device and its potential for harm, while not being oblivious to the article's everyday use, the circumstances of its discovery, and in certain cases, the person's explanation as to its presence or possession. If it were otherwise, a baseball bat, rolling pin, and perhaps a golf club could qualify as bludgeons if a strict definition of that word is employed (see Webster's Third New International Dictionary 240 (unabr. ed. 1976)). This would lead to obviously absurd results." Shindledecker, 99 Ill.App.3d at 574, 55 Ill.Dec. 229, 426 N.E.2d 13.

The State argues that, applying Weger and Shindledecker to the present case, the trial court properly considered the broken bottle to be a dangerous weapon as a matter of law. We agree.

In the case at bar, defendant used a broken beer bottle to inflict serious injuries upon the victim, using the bottle in a manner similar to a knife or dagger. Furthermore, unlike the straight-blade razor used in Weger, the broken bottle had no ascertainable legitimate use. Since the character of the weapon was such as to support only one conclusion, namely, that the weapon was dangerous, had no legitimate use and was used in a manner similar to a knife or dagger, the trial court properly determined that the weapon was a category I weapon. See People v. Westefer (1988), 169 Ill.App.3d 59, 61-62, 119 Ill.Dec. 522, 522 N.E.2d 1381.

We are also aware of other court decisions which support our determination that a broken bottle is a dangerous weapon as a matter of law. In People v. Thornton (1986), 145 Ill.App.3d 669, 99 Ill.Dec. 660, 496 N.E.2d 6, the trial court, in a bench trial, found that a broken beer bottle, which was used to slice the victim's ear and neck, was clearly a dangerous weapon for purposes of the armed violence statute. (Thornton, 145 Ill.App.3d at 671, 99 Ill.Dec. 660, 496 N.E.2d 6.) The appellate court affirmed the defendant's conviction, often referring to the broken bottle as a "deadly" or "dangerous" weapon. 145 Ill.App.3d at 671-72, 99 Ill.Dec. 660, 496 N.E.2d 6; see also People v. Samier (1985), 129 Ill.App.3d 966, 969, 85 Ill.Dec. 233, 473 N.E.2d 601 (knife with blade of less than three inches was a deadly weapon given that knife was used to threaten life of victim on two occasions); People v. Hunter (1973), 14 Ill.App.3d 879, 888, 303 N.E.2d 482 (jury properly inferred that broken bottle was used as a deadly weapon when the victim's daughter testified that she swept up broken glass from a beer or pop bottle in area where her father was attacked).

Defendant also contends that the trial court's instruction to the jury that the broken bottle was a dangerous weapon constituted an improper conclusive presumption. To support his argument, defendant cites Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. In Sandstrom, the Supreme Court determined that it was improper to give a jury...