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09/14/88 the People of the State of v. Joe W. Harvey

September 14, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOE W. HARVEY, DEFENDANT-APPELLANT



Before determining whether the evidence was adequate to sustain the finding of defendant's guilt, a determination must be made as to defendant's accountability for the acts of others. The State asserts the defendant is at least guilty under the accountability theory because he aided and abetted Maxwell and Elliott.

APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

528 N.E.2d 1053, 174 Ill. App. 3d 463, 124 Ill. Dec. 162 1988.IL.1378

Appeal from the Circuit Court of Livingston County; the Hon. William M. Roberts, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE GREEN delivered the opinion of the court. McCULLOUGH J., concurs. JUSTICE LUND, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

After a joint bench trial in the circuit court of Livingston County, defendant Joe W. Harvey and co-defendant Stephen G. Maxwell were convicted on April 17, 1987, of involuntary manslaughter (Ill. Rev. Stat. 1985, ch. 38, par. 9-3(a)). On June 25, 1987, defendant was sentenced to 30 months' probation. This case concerns only the subsequent appeal of defendant, and the only issue he raises is the sufficiency of the evidence to support the conviction. We conclude the proof was sufficient for the circuit Judge to reasonably have determined defendant's guilt was proved beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.) Accordingly, we affirm.

The evidence must be examined in the light of section 9 -- 3(a) of the Criminal Code of 1961, the relevant portion of which defines the offense of involuntary manslaughter as follows:

"A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly . . .." Ill. Rev. Stat. 1985, ch. 38, par. 9-3(a).

Our supreme court has observed that criminal liability does not attach to every act of negligence resulting in injury, or even death, but only to negligence of such a reckless or wanton characteristic as to show an utter disregard for the safety of others under circumstances likely to cause injury. (People v. Crego (1946), 395 Ill. 451, 458, 70 N.E.2d 578, 581.) The State asserts the proof supported a finding of defendant's guilt either directly or by accountability (Ill. Rev. Stat. 1985, ch. 38, par. 5-1). As we deem the evidence of direct guilt sufficient, we will not discuss the complicated question of accountability for an offense where the principal mental state involved is recklessness.

Only some details of the occurrence giving rise to defendant's conviction are disputed. The death of the alleged victim, G.H., a 15-year-old, 100-pound, 5-foot 2-inch resident of the Salem Children's Home (Salem), occurred at that institution on August 3, 1986, while counselors Maxwell, Stephen Elliott, and defendant were attempting to restrain him as punishment for disobedience. Salem is one of the several private institutions operated in the State which has evolved from an orphanage and foster home to a child-care facility for children suffering from conduct disorders that often result from a distressed home life. While Salem cares for children with various disorders, it and similar types of facilities are used by juvenile courts as last-chance placements in attempts to avoid placement with the Department of Corrections, Juvenile Division.

Salem, like others, is church-related, but, because most placements come through the Illinois Department of Children and Family Services , and Salem is dependent to a large degree on State expense reimbursement, DCFS rules and regulations are applicable to the home operation. The Salem staff, then, is charged with the responsibility for many disturbed children. G.H. was one such child, with lower than average intelligence, a discipline problem, and who had previously required restraint.

On August 3, 1986, G.H. was sent to his room after lunch and directed to write sentences as punishment for misbehavior. Elliott gave G.H. a time limit to do the sentences and told him restraint would be used if he failed to comply. At 3 p.m., Elliott and defendant went to G.H.'s room, found G.H. had not written the sentences, and proceeded to attempt restraint. The defendant approached G.H. from the rear and, upon touching him, G.H. began swinging his arms and kicking wildly. At this point, both defendant, who had been a good high school wrestler, and Elliott attempted to restrain G.H.

G.H. was taken to the floor with defendant at G.H.'s back, and Elliott at his feet. Defendant was attempting to place G.H. in a basket-hold. In simple terms, this hold involves a counselor standing behind the youth, grabbing the youth's right hand with his left hand, and pulling it across the youth's chest, and then doing the same with the youth's left hand with his right hand. If further control is necessary, the youth is brought to a sitting position. If the youth is trying to butt the counselor with his head, then the counselor would lean his shoulder against the youth's neck, forcing the youth's chin on his chest. Michael Kaufman, operations manager at Salem, testified the procedure does not include application of further pressure to the back of the youth being restrained.

G.H. then stretched out using his left hand to grab one of the beds. At this point, defendant had control of one of G.H.'s arms but not the other. Defendant was unable to loosen G.H.'s grip, so Maxwell, a supervisor who was standing by, came over and stepped on G.H.'s wrists. Soon G.H. released his hold on the bed, swinging his arm around and striking defendant in the face. Maxwell then laid down on G.H. with his sternum across G.H.'s upper body. The contact lasted only a few seconds, and G.H., in some way, was able to push Maxwell off of him. Maxwell got off G.H. and tried to control G.H.'s loose arm, but G.H. bit Maxwell's arm. Maxwell became angry and placed his knee on the side of G.H.'s neck. While Maxwell was doing this, Elliott was striking G.H. in the legs, and defendant was striking G.H. in the midpoint of his body with the side of his hand and forearm.

At this point, the three men apparently obtained control over G.H. They became aware he had urinated, and his eyes were closed. Elliott testified that blood trickled slightly from G.H.'s mouth. With the use of his knee, defendant raised G.H. to at least a sitting position and held him there for a short time in a basket-hold. Defendant was temporarily relieved by Elliott for a short time and then returned to hold G.H. In the meantime, Maxwell had left, obtained handcuffs, returned and placed the handcuffs on G.H. By this time G.H. was limp, and his eyes were closed. Mark Craig, another Salem employee, arrived on the scene and became concerned with the appearance of G.H.'s condition. Upon examination of defendant, the persons present discovered he was not breathing and had no pulse. Attempts at reviving G.H. failed because of large amounts of vomit in his mouth, throat, and air passages.

Other than the decedent, G.H., there were only five eyewitnesses to the struggle: Elliott and Phillip Hinton, a resident of Salem, who testified for the State; the defendant and Maxwell, who testified for the defense; and a Salem resident who was never called. The testimony of each conformed generally to the described facts we have related. Elliott had earlier been charged with murder but had negotiated a plea agreement whereby he pleaded guilty to battery and received a fine of $100 in exchange for an agreement to testify for the State. He testified that, at the time Maxwell was lying on G.H., the minor twice complained he could not breathe. Hinton testified he entered the room where the struggle occurred when he heard yelling. He related he had arrived at the time G.H. had bit Maxwell and heard Maxwell ask G.H. if G.H. was ready to be put in restraint. According to Hinton, G.H. responded he was not ready and also complained he could not breathe, whereupon defendant struck G.H. several times in the stomach with the side of his fist and forearm. Elliott's testimony agreed with Hinton's that defendant was hitting G.H. in the stomach with the side of his hand or fist at that time, but he stated he did not hear G.H. complain about an inability to breathe except when Maxwell laid on him. Neither defendant nor Maxwell testified in regard to any complaint by G.H. concerning an inability to breathe. They were not questioned on the point. Defendant contended he hit G.H. in the side of his midsection rather than in the stomach.

Four physicians also testified. Dr. Larry Stalter, the physician for Salem, and Dr. Gregorio Manabat both attempted to treat G.H. when he was brought into the emergency room. Both found no indication of bodily injury sufficient to cause G.H.'s death. Both were of the opinion that he had died from lack of oxygen resulting from his vomiting under circumstances which caused his vomit to aspirate, i.e., to get into his wind passages, rather than to be eliminated through his mouth. Their opinions were based upon the large amount of vomit found in those areas. Dr. James D. Blanding, a board-certified pathologist, testified he performed an autopsy upon the decedent's body. He, too, found no indication of bodily injury and also concluded death resulted from aspiration. He stated that the body condition indicated no heavy blows had been administered, and the extent to which the vomit had penetrated the respiratory system indicated the decedent had vomited and aspirated before he died. On the other hand, Dr. Edward Shalgos, a forensic pathologist, testified upon the basis of information containing the facts we have described, presented in the form of a hypothetical question, that in his opinion, the deceased most likely died from shock, and, in the process, the vomit entered the air passages described.

In explaining his decision to convict the defendant, the trial Judge emphasized his belief that G.H. had complained of his inability to breathe. The Judge who heard and saw the witnesses was entitled to decide upon their credibility (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313) and could properly have concluded G.H. complained of his inability to breathe both when Maxwell was on top of him and when defendant was striking him in the mid portion of his body. Although the evidence was undisputed that noticeable trauma to the stomach area did not result from this striking, the court could conclude defendant was hitting G.H. in the stomach. These alleged complaints of G.H. occurred in the context of a vigorous struggle between a 100-pound boy on one side and three adults weighing approximately 240, 150, and 150 pounds respectively on the other side.

We recognize the three Salem employees were withholding the use of maximum force and could easily have brought G.H. into restraint earlier had they elected to do so. We are also cognizant that the evidence showed G.H. had gone limp and feigned injury on previous occasions. We recognize the difficulty of the task assigned to them and to others in similar positions. However, G.H. had not attacked them until they attempted to impose restraint on him. Furthermore, no indication existed that he would have injured them had they let up on their attempts at restraint to check his ability to breathe at sometime before they finally subdued him. The evidence supports a determination by the trial court that, rather than doing so, defendant and others continued to struggle with G.H. to restrain him although G.H. had successively complained of an inability to breath on two occasions, closed his eyes, urinated in his pants, and gone limp. The trial court noted that so inattentive were defendant, Maxwell, and Elliott as to G.H.'s condition that they continued to hold him in restraint until Craig arrived and immediately warned them G.H. appeared to be in serious condition. The Judge could have found from the evidence that the basket-hold by which G.H. was being restrained caused him to be bent forward to where his chest was nearly touching his legs.

Under the totality of the circumstances which the trial Judge could have found to exist, the Judge could properly have determined beyond a reasonable doubt that defendant's conduct of continuing the struggle and placing G.H. in restraint was likely to cause serious bodily harm to G.H. and that, after the complaints which defendant had received, his conduct showed an utter disregard for the safety of G.H.

We recognize the reluctance of courts of review to uphold convictions of involuntary manslaughter arising from a single act in cases involving the driving of a motor vehicle. This reluctance is exemplified by such cases as People v. Potter (1955), 5 Ill. 2d 365, 125 N.E.2d 510, People v. Friesen (1978), 58 Ill. App. 3d 180, 374 N.E.2d 15, and People v. Chambers (1972), 8 Ill. App. 3d 430, 289 N.E.2d 476, cited by defendant. We are also aware of People v. Post (1968), 39 Ill. 2d 101, 233 N.E.2d 565, where the conviction of a defendant was reversed. The defendant there killed an intruder when a warning shot, fired by the defendant, ricocheted and hit the intruder. Here, the defendant's guilty conduct consisted of several acts which occurred after a complaint by the victim that he was endangered.

This case also differs from People v. LaCombe (1982), 104 Ill. App. 3d 66, 432 N.E.2d 672, where a conviction for involuntary manslaughter was overturned on review. That defendant had driven a truck into a school yard at night under circumstances where a passenger leaned out the window, lost his grip, fell out, and was run over. The driving of that defendant was not deemed to be such as likely to cause death or great bodily harm. Unlike here, in that case, there was no evidence the victim warned the defendant that he was in difficulty. We are also aware of the decision in People v. Frary (1976), 36 Ill. App. 3d 111, 343 N.E.2d 233. In that case, defendant followed a motorcycle at a speed of 75 miles per hour after he had drunk some intoxicant. The evidence was held to be insufficient to support a determination of recklessness, and his conviction was overturned. However, the opinion did not indicate ...


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