People v. Villa

• Decision Date: 06 February 1981
• Docket Number: 79-1447,Nos. 79-871,s. 79-871
• Citation: People v. Villa, 93 Ill.App.3d 196, 416 N.E.2d 1226, 48 Ill.Dec. 704 (Ill. App. 1981)
• Parties: , 48 Ill.Dec. 704 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald VILLA, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 1226

416 N.E.2d 1226

93 Ill.App.3d 196, 48 Ill.Dec. 704

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald VILLA, Defendant-Appellant.

Nos. 79-871, 79-1447.

Appellate Court of Illinois, First District, Fifth Division.

Feb. 6, 1981.

Rehearing Denied March 5, 1981.

Ralph Ruebner, Deputy State Appellate Defender, Nancy Abrahams, Asst. State Appellate Defender, Chicago, for defendant-appellant.

Bernard Carey, State's Atty., Chicago (Marcia B. Orr, James S. Veldman, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

WILSON, Justice:

Following a jury trial, defendant was convicted of aggravated battery (Ill.Rev.Stat.1977, ch. 38, par. 12-4(a), (b-1), (b-6)), armed robbery (Ill.Rev.Stat.1977, ch. 38, par. 18-2) and attempt murder (Ill.Rev.Stat.1977, ch. 38, par. 8-4), and sentenced to serve a term of 30 to 90 years. On appeal, he presents these issues: (1) the trial court erred in refusing to allow a peremptory challenge; (2) testimony by Drs. Cerullo and Lewis deprived him of a fair trial; (3) the trial court erred in refusing to submit an instruction on prior inconsistent statements; (4) testimony concerning the patrolman's children deprived him of a fair trial; (5) the conviction for aggravated battery is inconsistent with the attempt murder conviction; and (6) the sentences imposed are excessive. We affirm in part and reverse in part. The pertinent facts follow.

On July 12, 1977, Michael Koenig was a cashier and shelf stocker on the 3-11 p. m. shift at the 7-Eleven store located in a mini-mall with five other businesses in Tinley Park. At approximately 10 p. m. defendant entered the store, obtained a frozen pizza from the freezer section and approached the cash register with it. Koenig rang up the bill for the pizza and then saw that defendant was pointing a gun at him. Koenig indicated to him that he could have anything he wanted, and defendant asked for keys to the store. As only the store manager had keys to the front door, they proceeded to the manager's desk in the back storeroom. Defendant unsuccessfully attempted to locate the keys in the desk while Koenig was instructed to lie on the floor. Koenig testified that he was then ordered to his feet and marched at gunpoint back to the front of the store where defendant informed him that he did not wish to hurt him but that he had already killed three people.

Koenig went to the cash register and defendant approached another customer in the store and ordered him behind the counter. Defendant asked them whether they had any money, but told them to keep it as it was their own. Koenig stated that defendant then reached down to the floor safe and removed a bag of change on top of the safe. Another customer had entered the store and he also was ordered to get behind the counter. Defendant asked for keys to the safe and after being informed that only the manager had them, then ordered Koenig to put the bills from the cash register into the change bag.

Gwenda Sangren and her son, David, then drove up to the store. David entered the store to make a purchase but Koenig told him the store was closed as defendant instructed him to do. However, Gwenda noticed an "open twenty-four hours" sign and she then went into the store. She was also told that the store was closed, but as she started to leave, Koenig called her back, per defendant's instruction. As she approached the counter, defendant pointed the gun at her. He then motioned for the three men to go toward the rear of the store and led Gwenda there also. After frisking the men for weapons, he made them lay face down on the floor.

Defendant returned to the front of the store with Gwenda and they started out the front door. He returned to the back of the store and threatened to kill the men if they moved. When he returned to the front again, he placed the money bag into her slacks. He then placed his arm around her and they walked out of the store. They had only a gone a few steps when she heard a man ask what was going on. Villa released his hold on her and she looked around and saw that the man who had spoken was a police officer, whereupon, she took refuge behind one of the pillars along the front of the stores in the mall. The money bag was still inside her clothing. She saw another police officer standing almost directly in front of her and she guided his attention to the happenings behind the pillar.

She heard defendant shout profanities at Officer Louis Jogmen and ask him if he was married. She also heard him threatening to kill Jogmen after asking for his handcuffs. She then saw that the second policeman had his gun drawn and pointed in the direction of defendant. Two gunshots were heard; one from in back of her where defendant and Jogmen were; and one from in front of her where other police officers were located. She began to scream and heard running around her. A police officer approached her and she gave him the money bag which defendant had placed in her clothing.

Eric Murphy testified that he was sitting in the real estate and insurance office when his friend, Rod Ohlrogge, entered the office with David. After conversing with them, he phoned the Tinley Park police station.

Officer Louis Jogmen received a radio call concerning the 7-Eleven store at about 10 p. m. He parked his car and drew his service revolver after being informed that something was happening in the store. As he and Murphy approached the store, defendant and Gwenda emerged. Jogmen asked what was happening, whereupon defendant turned and pulled a revolver out of his belt and pointed it at his head, shouting for him to "Drop the f gun or he was going to blow his f head off." He placed his revolver on the sidewalk and defendant ordered him to lie on the walkway face down. Defendant straddled him and held the gun to his head. Jogmen further stated that defendant asked whether he was married, to which he responded that he was and had a brand new baby.

At this point, Officer David Peterson arrived and ordered defendant to freeze. Defendant ordered him back and threatened to blow Jogmen's head off. Jogmen indicated that he didn't remember anything more until he woke up in the hospital two months later. He had undergone a series of nine operations and required physical, occupational and speech therapy. Among his disabilities is his inability to remember recent events.

Officer Peterson testified that when he responded to the second radio call, he parked north of the realty office and drew his revolver as he exited the squad car. He walked towards the 7-Eleven store and noticed Jogmen lying on the ground with defendant straddling him. He assumed a combat position and ordered defendant to "freeze." Defendant ordered him to back up or he would "blow off his (Jogmen's) mother f head." Defendant then raised his right arm and pointed the gun at him but he retreated behind a pillar.

Officer Allen Bechtel testified that as he approached the store on foot he heard screaming and profanity and saw defendant leaning over Jogmen. Gwenda motioned over her shoulder to show him where defendant and Jogmen were. He placed both hands on his drawn revolver and walked toward defendant's back. Peterson saw Bechtel approaching defendant and attempted to hold defendant's attention. Defendant shouted again that he was going to kill Jogmen. Bechtel saw defendant point the gun at Peterson, whereupon he assumed a combat stance and shot defendant in the top of the back. Both Bechtel and Peterson ran toward the two men, whereupon, Peterson noted that Jogmen was bleeding from a head wound and was also handcuffed. They removed the handcuffs and called for an ambulance. Two revolvers were recovered from the scene, one belonged to Jogmen, and a blue steel revolver belonged to defendant.

Officer David Rogers, who inventoried the three guns involved in the incident, testified that defendant's gun had been fired a single time since it was last loaded.

Dr. Leonard Cerullo, a neurosurgeon, and Dr. Victor Lewis, a plastic and reconstructive surgeon, testified that they received Jogmen as a patient on July 31, 1977. They performed surgery on him, removing dead brain tissue, bone fragments and reconstructed the skull. Cerullo indicated that the portion of the brain removed controlled recent memory and that there also remains a bullet fragment in the brain, but more damage would be done by trying to remove it than by leaving it in its present position.

Defense counsel moved for a mistrial following their testimony, arguing that it was inflammatory and overwhelming to the jury and unnecessary to prove the element of great bodily harm required by the aggravated battery charge. The motion was denied. The State's exhibits were accepted into evidence, to which defense objected to No. 3, the gun identified as defendant's, and No. 6, a photograph of the gunshot wound in Jogmen's head.

Defense counsel attempted to submit an instruction on prior inconsistent statements because Gwenda had testified differently about the two gunshots that she had told police; however, the court denied this request based on the belief that the statement given to the police and his notes of Gwenda's testimony were similar. Defense counsel also argued that the State's closing argument referring to Jogmen's children was inflammatory. The court sustained an objection but denied the motion for a mistrial.

OPINION

Defendant initially argues that the trial court erred by refusing to allow the defense to exercise a peremptory challenge against a prospective juror. He asserts that after defense accepted the first panel and tendered it to the State, which also accepted the panel, he attempted to have venireman John Spears removed for cause. Spears was asked by the State that if they failed to prove defendant guilty beyond a reasonable doubt, could he sign a not guilty verdict, to which he responded, "I guess I have to." Defense's challenge for cause was denied as...