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People v. Kavinsky

OPINION FILED JULY 16, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JERRY KAVINSKY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. CHARLES R. NORGLE, Judge, presiding.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

After trial by jury defendant, Jerry Kavinsky, was convicted of armed violence (Ill. Rev. Stat. 1977, ch. 38, par. 33A-2), forcible detention (Ill. Rev. Stat. 1977, ch. 38, par. 10-4) and attempt escape (Ill. Rev. Stat. 1977, ch. 38, par. 8-4.) He was thereafter sentenced to imprisonment for concurrent terms of 15, 7 and 5 years for the respective offenses. Defendant appeals, contending that (1) the armed violence statute is unconstitutional; (2) the indictment charging forcible detention does not adequately state that offense; and (3) that his convictions and sentences for forcible detention and attempt escape must be vacated as they are included within the offense of armed violence for which he was also convicted.

Defendant also seeks review of claims of error that the prosecutor made an improper prejudicial argument to the jury and that the trial court unduly restricted defendant's cross-examination of certain State witnesses. Defendant filed a post-trial motion in arrest of judgment in which he alleged infirmities in the indictment charging forcible detention and armed violence and in an amended post-trial motion for a new trial he further assigned as error the entry of judgments of conviction and sentence for armed violence and forcible detention. He failed, however, to include in his post-trial motions the errors now urged relating to argument and cross-examination and these contentions will be deemed waived on review and will be considered only to the extent necessary to determine if they constitute plain error under Supreme Court Rule 615(a).

The record discloses that defendant, who was then aged 16 years, was in custody in the Du Page County Youth Home on May 1, 1978. At about 6 p.m. Eric Johnson, an employee of the home, released defendant and Don Cagle, who was also in custody, from their rooms to permit them to select reading materials from the bookroom. At the bookroom defendant grabbed Johnson about the neck and held a knife against his side. Defendant instructed him to turn over the keys, stating he "was getting out of there," and Johnson did so. Cagle tried the keys on an outside door and when it would not open he tied Johnson's hands and the three headed towards the control center of the Youth Home. In route Cagle unsuccessfully tried the keys on two security doors and defendant stated to a third resident of the home, "Come on, we're getting out of here." Defendant continued to hold the knife at Johnson's side and they proceeded to the nearby control center where they stood outside the door. Barbara Batchelor, an employee working in the control center, unlocked it so they could enter and once inside defendant held up the knife so that Batchelor could see it telling her he was serious and they were getting out of there. Robert Farra and Scott Watkins, also employees of the Youth Home, then came into the control center and defendant was disarmed and returned to custody.

In support of his contention the armed violence statute is unconstitutional defendant refers only to a decision of the circuit court of Jackson County in People v. Haron (Nos. 78-CF-162, 79-CF-102 (Cir. Ct., Jackson County, May 1, 1980), which held it to be unconstitutional on a number of grounds. The State appealed that case directly to the Supreme Court and it decided People v. Haron (1981), 85 Ill.2d 261, 422 N.E.2d 627, while this case was here under advisement. The supreme court determined that the armed violence statute was not unconstitutionally vague and overbroad, but did not reach other claims of constitutional infirmity asserted in that case. The court did conclude that the General Assembly did not intend that the presence of a weapon may serve to both enhance an offense from a misdemeanor to felony and also serve as the basis for a charge of armed violence. Insofar as it was considered by our supreme court, the decision of the trial court in Haron, relied upon by defendant herein, was thus upheld only to the extent it dismissed the armed violence charge against that defendant where it was so based upon a predicate misdemeanor whereby a battery was enhanced by the presence of a weapon to aggravated battery and also to armed violence.

• 1 In the present case, however, defendant was charged with the predicate Class 2 felonies of attempt escape and forcible detention. His use of a dangerous weapon in carrying out these offenses was the basis alleged to support the armed violence charge and did not here serve to enhance any offense from a misdemeanor to a felony. Defendant has not sought in his arguments in this court to relate the issues of the cases before the circuit court in Haron to those presented here but has simply attached to his brief a copy of the trial judge's order in that case in which it found the statute to be unconstitutional. As a general rule a defendant may not avoid his prosecution because a similar prosecution of other persons under the same statute might violate their constitutional rights. (People v. Garrison (1980), 82 Ill.2d 444, 449, 412 N.E.2d 483, 486.) As defendant had not presented arguments as to how the circuit court decision relied upon is applicable to this case, we will not consider further the general constitutional issues mentioned by the trial court in Haron to which we have been referred.

We next consider whether the indictment sufficiently alleged the offense of forcible detention. Section 10-4(a) of the Criminal Code of 1967 (Ill. Rev. Stat. 1977, ch. 38, par. 10-4(a)) provides:

"(a) A person commits the offense of forcible detention when he holds an individual hostage without lawful authority for the purpose of obtaining performance by a third person of demands made by the person holding the hostage, and

(1) the person holding the hostage is armed with a dangerous weapon as defined in Section 33A-1 of this Code, or

(2) the hostage is known to the person holding him to be a peace officer or a correctional employee engaged in the performance of his official duties." (Emphasis added.)

Count IV of the indictment in this case charged:

"JERRY KAVINSKY committed the offense of FORCIBLE DETENTION in that he without lawful authority, held Eric Johnson hostage for the purpose of obtaining his release from the DuPage County Youth Home, knowing said Eric Johnson to be a correctional employee engaged in the performance of his official duties * * *." (Emphasis added.)

And in count V the offense was alleged as follows:

"JERRY KAVINSKY committed the offense of FORCIBLE DETENTION in that he while armed with a dangerous weapon and without lawful authority held Eric Johnson hostage for the purpose of obtaining his release from ...


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