APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
527 N.E.2d 1342, 173 Ill. App. 3d 1043, 123 Ill. Dec. 567 1988.IL.1273
Appeal from the Circuit Court of Saline County; the Hon. Arlie O. Boswell, Jr., Judge, presiding.
JUSTICE KARNS delivered the opinion of the court. WELCH and LEWIS, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS
Defendant, William E. Hayes, was convicted by a jury of theft over $300, theft of a firearm, possession of burglary tools, criminal damage to property and two counts of burglary. The circuit court of Saline County sentenced defendant to two 10-year extended terms for the burglary convictions, six-year extended terms for the two theft and possession of burglary tools convictions, and 364 days' imprisonment plus restitution for the criminal damage conviction, with all sentences to be served concurrently. Defendant now appeals his convictions and sentences.
At approximately 2 a.m. on February 21, 1986, James See noticed two new cars pull out of the garage of Pool Pontiac, Buick, AMC in Harrisburg, Illinois. He then observed two men get out of these new cars and make several attempts to close the garage door. The men got back in the cars and drove off, almost hitting See as they drove out of the dealership lot. See followed them for a short time until he determined which direction they were heading and called the police.
Rob McConnell, the deputy sheriff of Saline County, after being notified of these events, drove out to Route 13 in a squad car followed by Officer Ron Crank. McConnell and Crank observed two new 1986 cars with dealer license plates tied on the backs drive south on Route 13 and turn off onto a gravel road. They activated their red lights, and the two 1986 cars sped away. Both cars drove into ditches, backed out and then ran side by side for a quarter of a mile until one car pulled off to the left just before an intersection. Crank chased the turning car until it stopped, and the driver jumped out and ran into a plowed field. Crank then apprehended the driver, co-defendant Bill Lands.
In the meantime, the driver of the second 1986 car sped on pursued by McConnell. The driver turned left at the next intersection, proceeded for a mile and one-half, then turned north onto the next gravel road back toward Route 13 when the car ran into another ditch. The tires were spinning and throwing gravel when McConnell ran up to the car and found the driver laying back in the seat, apparently unconscious. McConnell went back to his car to find a tool to pry open the driver's door. As he returned, he found the driver's door ajar about four inches and jammed into the bank of the ditch. He unlocked the passenger door and called several times for the driver to get out. When the driver did not "come around," McConnell, with the help of another officer who had just arrived, dragged the driver out on the ground and handcuffed him. McConnell assisted the driver to his feet when the driver called McConnell by name and said there was no need to be rough. McConnell recognized the driver as being defendant. Defendant was then arrested and taken to police headquarters. All of the officers who observed him characterized defendant as being extremely intoxicated, although able to understand what was being said to him. Crank even noticed that defendant had two beers sticking out of his pockets. Defendant refused to take a breathalyzer test.
The owner of the dealership testified that upon being notified by the police, he went to his lot and discovered a broken window on the south side of the dealership and the overhead door to the garage partially open. The offices were ransacked. A pistol normally kept in an office drawer, a battery charger, a set of license plates and two new cars were missing. The cars were later returned in dirty condition with one car having a chipped windshield. The battery charger, the pistol and two large knives were found in the trunk of one of the cars.
Defendant presented a defense of voluntary intoxication. According to several of defendant's friends, defendant had been partying and drinking steadily for a two- to three-day period before the incident at the dealership. He had passed out for numerous short periods of time during the two or three days and was unable to eat, being too drunk to bring forkfuls of food into his mouth.
On the evening of the 20th, an employee at a nearby liquor store sold defendant 750 milliliters of Peachtree Schnapps and a 12-pack of Busch beer at approximately 6:30 p.m. The employee believed defendant was already drunk at that time. Defendant returned to the store two more times that evening, sometime between 9 and 10 p.m. and then around 11 p.m., and purchased two more cases of beer and another fifth and a half gallon of Peachtree Schnapps. Defendant later went to Cheers tavern with Lands and two other men and continued drinking. Eventually defendant and Lands left the bar together while the others remained. Neither defendant nor Lands testified at defendant's trial. The jury found defendant guilty on all counts.
Defendant first argues on appeal the trial court erred in refusing to give six defense-tendered instructions referring to the affirmative defense of voluntary intoxication, containing the phrase "at the time of the offense, defendant was capable of acting knowingly," when the court found sufficient evidence of intoxication to merit a jury instruction on voluntary intoxication. Defendant believes the court vitiated the effect of the voluntary intoxication instruction by failing to give the five accompanying issues instructions and the one burden of proof instruction as tendered by him in accordance with the recommendations suggested in the introduction to the chapter on defenses of the Illinois Pattern Jury Instructions.
A defendant is entitled to have the jury instructed on the defense of voluntary intoxication when there is evidence on the record of intoxication and a resultant negation of the existence of the requisite mental state for the crime charged. (People v. Feagans (1983), 119 Ill. App. 3d 941, 948, 457 N.E.2d 459, 463.) Defendant must show that his intoxication was so extreme as to suspend all reason or to render him incapable of acting knowingly. (Feagans, 119 Ill. App. 3d at 948, 457 N.E.2d at 463; People v. Moon (1982), 107 Ill. App. 3d 568, 572, 437 N.E.2d 823, 825; People v. Aguirre (1975), 30 Ill. App. 3d 854, 857, 334 N.E.2d 123, 127.) Merely being drunk or ...