The People Of The State Of Ill. v. Schmidt, No. 1-06-2563.

CourtUnited States Appellate Court of Illinois
Writing for the CourtPresiding MURPHY delivered the opinion of the court on rehearing
Citation924 N.E.2d 998,338 Ill.Dec. 472,392 Ill.App.3d 689
Docket NumberNo. 1-06-2563.
Decision Date17 June 2009
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Michael SCHMIDT, Defendant-Appellant.

392 Ill.App.3d 689
924 N.E.2d 998
338 Ill.Dec.
472

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Michael SCHMIDT, Defendant-Appellant.

No. 1-06-2563.

Appellate Court of Illinois,
First District, Third Division.

June 17, 2009.


924 N.E.2d 999

COPYRIGHT MATERIAL OMITTED

924 N.E.2d 1000

COPYRIGHT MATERIAL OMITTED

924 N.E.2d 1001

COPYRIGHT MATERIAL OMITTED

924 N.E.2d 1002
Michael J. Pelletier, Deputy Appellate Defender, Anne E. Carlson, Asst. Appellate Defender, Chicago, for Appellant.

Richard A. Devine, Cook County State's Attorney (James E. Fitzgerald, Alan J. Spellberg and Ramune Rita Kelecius, Assistant State's Attorneys, of counsel), Chicago, for Appellee.

Presiding Justice MURPHY delivered the opinion of the court on rehearing:

Defendant, Michael Schmidt, was convicted of felony murder, aggravated possession of a stolen motor vehicle, and aggravated battery after he fled from the police in a stolen sport utility vehicle (SUV) and struck a family that was crossing the street, killing six-year-old Alexander Diaz and injuring four other members of the Diaz family. Defendant was sentenced to concurrent terms of 40 years' imprisonment for the murder, 15 years for aggravated possession of a stolen motor vehicle, and 5 years for each of the aggravated batteries. On appeal, defendant argues that (1) aggravated battery not resulting in great bodily harm, the underlying felony for his felony murder conviction, was not a forcible felony; (2) he was not proven guilty beyond a reasonable doubt of felony murder or aggravated battery; (3) the State made improper comments during closing and rebuttal arguments; and (4) the judge failed to question potential jurors in accordance with People v. Zehr, 103 Ill.2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984). He does not challenge his conviction for aggravated possession of a stolen motor vehicle. For the following reasons, we affirm in part and reverse in part.

I. FACTS

Defendant was charged in a 35-count indictment with first-degree murder, attempted first-degree murder, aggravated possession of a stolen motor vehicle, burglary, aggravated driving under the influence of alcohol, reckless homicide, and aggravated battery. The State proceeded at trial on the charges of felony murder, aggravated possession of a stolen motor vehicle, and aggravated battery. The felony-murder charge was predicated on the aggravated battery of Chicago police officer Michael Yzaguirre, who was hit by the side mirror of the SUV when defendant sped away attempting to elude the police.

At trial, Felicita Diaz testified that on October 12, 2004, she was walking with her children to the store. Gabriella, 6 months old, was strapped into a stroller; Alexander, 6, was holding onto the stroller on the left side; Margarito, 7, held onto the right side; and Leticia, 12, walked behind the stroller with Felicita. At the northwest

924 N.E.2d 1003
corner of Greenview and Sunnyside, a four-way stop, Felicita stopped and looked both ways before crossing south. As they approached the sidewalk on the other side of the street, she heard a loud noise and saw a truck moving quickly at them. Alexander said, “Mommy, a car.” Before she could do anything, the truck struck the family and threw them to the ground.

After she was hit, she looked for her children. She found Leticia and Margarito lying on the ground and the stroller broken and upside down in the road. She then took Gabriella out of the stroller and continued to look for Alexander. She found him unresponsive on the grass, by the stop sign that the truck had run over. She started yelling for help. She saw three men getting out of the truck and asked them in Spanish to help her. She turned to look at Alexander, but when she turned to the truck again, the three men were gone.

Alexander died at the scene from a broken neck and massive head injuries. Leticia suffered from a broken ankle, and Margarito, Gabriella, and Felicita all had bruises.

Mary App testified that on October 12, 2004, she was walking outside her apartment on Greenview toward Wilson. She lived in the area and described the neighborhood as quiet and residential, with around 30 or 40 young families living there. As she walked, she saw a large black SUV driving “very quickly” in her direction “wobbling back and forth.” The SUV looked like it was trying to slow down but was going “way too quickly” when it attempted a right turn. As a result, the truck “went in a diagonal direction,” ran over a stop sign, and hit a church. Although the intersection had a four-way stop, the SUV did not stop.

There was a family walking across the street; when they saw the SUV, they started running and screaming loudly. She did not see the family again “until a couple of them started to sprawl out.” App saw a girl hobbling around with a broken foot or leg, screaming loudly. The mother was clutching a baby, also screaming loudly. Someone had to “drag” a boy out who was bleeding from his nose, ears, and the top of his head. No one from the SUV stopped to help the injured family.

Christopher Anleu testified that on October 12, 2004, at 5 p.m., defendant and Joe Garcia visited him at his house. Anleu testified that neither he, defendant, nor Garcia was a member of the Latin Kings street gang in October 2004, although defendant probably hung around with members of the gang. The three watched television and drank from a gallon of vodka, which they did not finish. Defendant left after 45 minutes and said he would be back. He returned 30 to 45 minutes later with a Lexus truck and asked if they wanted to go cruising. Anleu did not know that it was stolen because defendant had a key. The owner of the SUV testified that the valet keys were in the glove compartment.

Anleu testified that at the intersection of Wilson and Clark, defendant stopped at the light and yelled to some friends who were on the sidewalk on the other side of the street. A man approached the driver's side of the car, and as he got closer, Anleu realized that the man was a police officer. The officer, standing by the driver's side rearview mirror, told defendant to stop the car, but defendant drove away “pretty fast” down Wilson. When defendant pulled away, Anleu heard a thump from the area of defendant's side mirror. He heard someone say, “F-k, the cop got hit” or “I think I hit the cop,” but he was not sure who said it. As defendant drove quickly down Wilson, he said that the car was stolen and “f-k, 5-0” was coming.

924 N.E.2d 1004

Defendant continued driving “pretty fast.” When he attempted to turn down a side street, he lost control of the car and hit a church. After the truck hit the building, defendant commented that the car was “f-ked up.” Anleu, “intoxicated, like, to an extreme,” walked toward Ashland, where he heard sirens, while defendant and Garcia fled. Anleu testified that he did not see any people in the road before defendant lost control of the truck.

Officer Michael Yzaguirre testified that on October 12, 2004, at 8 p.m., he was on the corner of Wilson and Clark dressed in civilian clothes and a bulletproof vest, with his badge hanging around his neck. As he spoke to someone suspected of gang activity, he heard tires screeching and saw a large SUV come out of an alley. The SUV stopped at the traffic light, and the driver, whom he identified as defendant, leaned out of the window, made a Latin Kings hand signal, and yelled, “Latin Kings, what you about?” Yzaguirre approached the SUV from the front, with his jacket open so defendant could see that he was a police officer. As he stood with his left hip touching the driver's side front fender, he yelled “Police, put the car in park.” When defendant dropped his hands to his lap, Yzaguirre drew his weapon and said, “Police, let me see your hands.” When defendant raised his hands, Yzaguirre ordered him to turn the SUV off. However, defendant dropped his hands into his lap again, and Yzaguirre said once again, “Police. Let me see your hands.”

Defendant raised his hands, but the light had changed, so defendant “floored his vehicle and came right at me.” Yzaguirre leaned back, but the mirror hit his left forearm and knocked him back two feet. Yzaguirre testified that the SUV then proceeded westbound on Wilson and north on Greenview at a “very high rate of speed.” Yzaguirre and his partners quickly went to their car and tried to chase defendant. When they arrived at Sunnyside and Greenview, they saw the SUV up against a wall, having run over a stop sign. The Diaz family was on the ground. Witnesses pointed west on Sunnyside; when he looked in that direction, two men looked at him and fled. Yzaguirre and his partner chased and apprehended the two men, Anleu and Garcia.

Within the hour, defendant was found hiding on the porch of an apartment building on Greenview. His fingerprint was found on the exterior of the front passenger's side window of the SUV.

Later that night, Yzaguirre was treated and released for muscle contusions to his shoulder. He was still sore the next day. The parties stipulated that Dr. Alison Stewart, the emergency room doctor who treated Yzaguirre, concluded that he suffered from a contusion to the left shoulder. Stewart stated that during the examination, Yzaguirre said he was standing on the front passenger end of a vehicle, facing the driver, when the driver pulled away. He said that the side mirror hit his left forearm and pulled and twisted his left shoulder backward. Yzaguirre complained of pain in his left shoulder.

Chicago police officer Patrick Kearns testified that he was working with Yzaguirre on October 12, 2004. He heard screeching tires and saw a large SUV coming out of an alley. Defendant was driving, and two other men were passengers. Defendant flashed gang signs with his hands and yelled “Latin King love.” Yzaguirre approached the SUV, with Kearns six to eight feet behind him, and yelled “Police” and told defendant to put the car in park. Defendant's hands were...

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    • United States Appellate Court of Illinois
    • 17 Julio 2013
    ...for the court reporter with a hyphen. 4. Prior to oral argument, defendant moved to cite as additional authority, People v. Schmidt, 392 Ill.App.3d 689, 694–96, 338 Ill.Dec. 472, 924 N.E.2d 998 (2009), in which this court held that an aggravated battery that does not result in great bodily ......
  • People v. Lattimore, No. 1–09–3238.
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    ...he was obstructing Raciak's investigation, any more than watching from inside the vehicle had obstructed it. ¶ 58 In People v. Schmidt, 392 Ill.App.3d 689, 338 Ill.Dec. 472, 924 N.E.2d 998 (2009), the defendant did not act knowingly when he drove a stolen sport utility vehicle at a high rat......
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    ...discussed either the prior version of Rule 431(b) or whether the 2007 amendment has retroactive application. E.g. People v. Schmidt, 392 Ill.App.3d 689, 710, 338 Ill.Dec. 472, 924 N.E.2d 998 (2009); People v. Braboy, 393 Ill.App.3d 100, 109, 331 Ill.Dec. 959, 911 N.E.2d 1189 (2009). 7. The ......
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35 cases
  • People v. Dionte J. (In re Dionte J.), Docket No. 1–11–0700.
    • United States
    • United States Appellate Court of Illinois
    • 17 Julio 2013
    ...for the court reporter with a hyphen. 4. Prior to oral argument, defendant moved to cite as additional authority, People v. Schmidt, 392 Ill.App.3d 689, 694–96, 338 Ill.Dec. 472, 924 N.E.2d 998 (2009), in which this court held that an aggravated battery that does not result in great bodily ......
  • People v. Lattimore, 1–09–3238.
    • United States
    • United States Appellate Court of Illinois
    • 2 Septiembre 2011
    ...825. Therefore, the analysis in Belk is not applicable to this case. ¶ 55 The second case that defendant cites is People v. Schmidt, 392 Ill.App.3d 689, 338 Ill.Dec. 472, 924 N.E.2d 998 (2009). In Schmidt, the defendant was driving a stolen vehicle when he was approached at a stoplight by a......
  • People v. Carter, 1-17-0803
    • United States
    • United States Appellate Court of Illinois
    • 22 Octubre 2019
    ...¶ 15, 422 Ill.Dec. 112, 102 N.E.3d 781 ; Smith , 2016 IL App (1st) 140496, ¶ 11, 401 Ill.Dec. 828, 51 N.E.3d 21 ; People v. Schmidt , 392 Ill. App. 3d 689, 695-96, 338 Ill.Dec. 472, 924 N.E.2d 998 (2009). As we explained in Schmidt ,"by using the word ‘other’ after listing 14 specific felon......
  • People v. Harmon, 1–12–2345.
    • United States
    • United States Appellate Court of Illinois
    • 30 Diciembre 2015
    ...172 Ill.Dec. 135, 595 N.E.2d 198 ; In re Angelique E., 389 Ill.App.3d 430, 329 Ill.Dec. 740, 907 N.E.2d 59 (2009) ; People v. Schmidt, 392 Ill.App.3d 689, 338 Ill.Dec. 472, 924 N.E.2d 998 (2009), appeal denied, 234 Ill.2d 545, 336 Ill.Dec. 489, 920 N.E.2d 1079 (2009) ; and In re Rodney S., ......
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