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People v. Nugin

OPINION FILED AUGUST 21, 1981.

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

v.

GREGORY NUGIN, A/K/A GREGORY BROWN, A/K/A LARRY NUGIN (IMPLEADED), DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT L. SKLODOWSKI, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Defendant was convicted of aggravated battery by a jury but acquitted of aggravated kidnapping, kidnapping, and armed violence. He was sentenced to three years' imprisonment, to be served consecutively to another 3-year sentence on an unrelated charge and, on appeal, he contends that the trial court erroneously instructed the jury; that he was prejudiced by the prosecution's cross-examination and closing argument; and that a consecutive sentence was improperly imposed.

Janice Freeman (the victim) testified that, at the request of Lamont Johnson, she stored a submachine gun in her apartment; that three days later she met Johnson, along with Gregory Knox, Matthew Crosby, defendant, and her brother-in-law (Gerald Freeman) in her building; that Freeman asked her for the gun and, when she pointed to the closet, he struck her in the face; that Freeman then entered her apartment and she was pushed into an adjacent apartment by Johnson, who held a gun to her head; that Knox struck her in the face and then hit her with an iron lawn chair; that they continued to ask for the submachine gun and, when she said that she did not know where it was, Knox and Johnson said they would kill her; that Johnson, Crosby, and Knox then dragged her down the stairwell and out of the building where Johnson, Knox and Crosby put her in the trunk of a vehicle which had been opened by defendant; that Freeman said she would be killed if she did not tell them the whereabouts of the gun; that she subsequently was removed from the vehicle and led into an abandoned apartment on May Street, where she was tied to a chair and beaten by Johnson and Knox; that Knox instructed defendant to fill a syringe with battery acid and, after defendant returned with the syringe, Knox placed the needle in her neck; and that at that point someone said he heard the police, and they all left except defendant and Crosby, who remained and untied her. On cross-examination, she testified that she never heard anyone threaten defendant and that he did not strike her, point a gun at her, or put her in the trunk of the car.

Rochelle Geiger, the victim's 13-year-old daughter, testified that she was alone when Freeman, Knox, Johnson, Crosby, and defendant came to her mother's apartment looking for a gun; that when her mother arrived, Freeman struck her twice; that subsequently her mother was put inside the trunk of a car; that defendant was in the car; and that later she was with Freeman and Knox when defendant told them that her mother "got loose." On cross-examination, the witness testified that she never saw defendant hit her mother.

Officer Shaw testified that after a conversation with a woman who had approached his squad car, he went to an address on May Street where he found the victim (who appeared to have been beaten) and defendant in a building basement; that Crosby was outside this building at that time; and that the victim indicated that neither defendant nor Crosby had anything to do with her injuries. Officers Shaw and Griffen, who arrived later, testified that defendant told them he had no knowledge of how the victim sustained her injuries and that he was simply there to pick her up and take her home.

Officer Rochowicz testified that defendant gave a statement that he knew the victim and the others at her apartment; that the victim was "slapped around" by the others, but not by him; that in response to a request by the others, he drove them and the victim to a May Street address; that the victim sat in the front seat during this ride; that upon their arrival, the group entered a basement apartment; that he produced a syringe and needle which he filled with water, although he told the victim the syringe contained battery acid; and that he had nothing else to do with the incident.

Defendant, who is about 5'2" tall and weighs 110 pounds, testified that after parking his car, he and a friend entered the back staircase of an apartment building; that on the second floor, he observed that the victim and Freeman, who was 6' tall and weighed 190 pounds, were having a fight in the presence of approximately eight other persons — including Johnson, who is 6'1" tall and weighs 210-220 pounds; that he and his friend returned to his car; that he had just opened the door when he saw Johnson and Crosby dragging the victim down the stairs; that Knox, in the company of Freeman, Johnson, Crosby, and the victim, pointed a gun at him and instructed him to open the trunk; that he did so because he was afraid of the men; that after he opened the trunk the others placed the victim inside and closed it; that Knox again pointed a gun at him and said that he wanted to be dropped off; that Knox, Johnson, and Crosby entered the car and instructed him to drive to 63d and May; that upon arrival, he opened the trunk and the men instructed him to go into the basement of a building with them; that as they walked into the building, one of the men was standing in front of him with the victim, another man was in back of him, and the third was in between them; that the men then tied up the victim and Knox gave him a needle and instructed him to fill it with battery acid from his car; that instead, he filled it with water and gave it to Knox, who placed the needle in the victim's fingernail; that when police arrived outside the building, the others fled, but he remained and untied the victim; that Officer Shaw then entered and defendant told him that he knew nothing about the incident; and that the reason he did not tell the police about the victim being locked in the car was that he knew he would be going to jail with Knox, Crosby, and Johnson, who had told him not to tell the police anything.

OPINION

Defendant's principal contention on appeal is that he was prejudiced by certain language in the two issues instructions given to the jury on the aggravated battery charge. The first is Illinois Pattern Jury Instructions, Criminal, No. 11.10 (1968) (hereinafter cited as IPI Criminal), with the "used a deadly weapon" insert, *fn1 as follows:

"To sustain the charge of aggravated battery, the State must prove the following propositions:

First: That the defendant or one for whose conduct the defendant is responsible knowingly or intentionally caused bodily harm; and

Second: That the defendant or one for whose conduct the defendant is responsible used a deadly weapon; and

Third: That the defendant or one for whose conduct the defendant is responsible did not act under compulsion.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then ...


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