APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
542 N.E.2d 1205, 186 Ill. App. 3d 1043, 134 Ill. Dec. 698 1989.IL.1191
Appeal from the Circuit Court of Hamilton County; the Hon. David Underwood, Judge, presiding.
JUSTICE LEWIS delivered the opinion of the court. GOLDENHERSH and HOWERTON, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS
Defendant, Robert Prince, was found guilty by a jury of the offenses of armed violence, aggravated battery, obstruction of Justice, and the possession of a firearm without the requisite firearm owner's identification card. (Ill. Rev. Stat. 1987, ch. 38, pars. 33A-2, 12-4(b)(1), 31-4(a), 83-2(a).) The circuit court entered judgment on the convictions of armed violence and the possession of a firearm without a firearm owner's identification card, but vacated the convictions for aggravated battery and obstruction of Justice. In so doing, the court found that the aggravated battery was the underlying offense for the armed violence charge and that the charge of obstruction of Justice was not a proper charge. The court declared a mistrial on the remaining charge, attempted murder, as the jury could not arrive at a unanimous decision on this offense. Subsequently, the court sentenced the defendant to 12 years' imprisonment, to pay a fine of $1,500, and to pay $152 to the Violent Crimes Assistance Fund for the armed violence conviction, and to a concurrent sentence of 364 days' imprisonment for the possession of a firearm without a firearm owner's identification card conviction. The defendant filed a motion for a new trial which was denied by the court. From his convictions and sentences, the defendant appeals. Additionally, the State, after a separate written order was entered by the court vacating the obstruction of Justice conviction, appeals that order.
On appeal, the defendant raises three issues: first, that the filing of additional charges by the State's Attorney after the defendant had withdrawn his guilty plea was indicative of prosecutorial vindictiveness; second, that the separate and cumulative effect of evidentiary errors denied the defendant a fair trial; and third, that the defendant's sentence should be vacated as the circuit court failed to consider in mitigation that the victim had a violent temperament and that the defendant held an unreasonable belief of self-defense and improperly considered as a factor in aggravation that the sentence was necessary to deter others. In addition to these issues, the defendant filed two motions to dismiss the State's appeal of the vacating of the obstruction of Justice conviction, both of which were considered with this case at oral arguments. The first motion to dismiss challenged the State's right to appeal this decision and the second motion to dismiss claimed that the State did not timely file its brief for its appeal. We first consider the defendant's appeal.
To address the defendant's issue of prosecutorial vindictiveness, it is necessary to set forth the procedural history of this case. The defendant was originally charged by information with the offenses of attempted murder and aggravated battery. (Ill. Rev. Stat. 1985, ch. 38, pars. 8-4(a), 12-4(b)(1).) Prior to the defendant's trial on these offenses, the State's Attorney sent a letter to defense counsel in which he indicated that he intended to prosecute only the attempted murder charge. On April 20, 1987, this case proceeded to trial before a jury. Three days into the defendant's trial, on April 23, 1987, after the State had rested its case in chief and the defendant had presented his case but before the State presented rebuttal evidence, the defendant initiated plea negotiations and entered a plea of guilty to the lesser offense of aggravated battery, which was accepted by the court. In exchange for the defendant's plea of guilty, the State agreed to dismiss the charge of attempted murder. Shortly thereafter, on May 26, 1987, the defendant filed a petition to withdraw his guilty plea. At the hearing on the petition, the State did not object to the petition but stated that if the defendant believed he had been pressured into his guilty plea, the State would not oppose the withdrawal of his plea. In addition, the State advised the court that at the time of the plea agreement, the prosecutor was unaware of how extensive the defendant's criminal history was and, on that basis, would concur in the withdrawal of the defendant's guilty plea. The court allowed the defendant to withdraw his guilty plea.
On September 10, 1987, the State filed a new information in which the defendant was charged with attempted murder, aggravated battery, obstruction of Justice, and the possession of a firearm without the requisite firearm owner's identification card. (Ill. Rev. Stat. 1987, ch. 38, pars. 8-4(a), 12-4(b)(1), 31-4(a), 83-2(a).) The defendant filed a motion to dismiss the information, contending that the prosecution of these charges was barred by sections 3-3 through 3-8 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, pars. 3-3 through 3-8), that prosecution of the charges of attempted murder and aggravated battery would result in the defendant being subject to double jeopardy for these offenses, and that the instituting of the additional charges of obstruction of Justice and of possession of a firearm without a firearm owner's identification card was a punishment for the defendant's exercising of his right to withdraw his guilty plea. The circuit court denied the defendant's motion to dismiss.
On October 5, 1987, the State filed an amended information in which the charge of armed violence was added and the offense of aggravated battery was amended to state "great bodily harm" instead of "bodily harm." (Ill. Rev. Stat. 1987, ch. 38, par. 33A-2.) The State's Attorney also filed an affidavit with the court, stating that he did not file the new information charging the defendant with additional offenses as punishment, but that he instituted the additional charges "on the basis of an evaluation of the defendant's conduct (which this affiant was better prepared to do after reviewing the transcript of the first trial) and the criminal charges that prohibit such conduct." The defendant renewed his motion to dismiss the information after the filing of the amended information, which motion was also denied by the court.
This case went to trial before the second jury on October 20, 1987, and at the close of the evidence, the jury found the defendant guilty of the offenses of armed violence, aggravated battery, obstruction of Justice, and possession of a firearm without a firearm owner's identification card. As noted previously, the court entered judgment on the convictions for armed violence and possession of a firearm without a firearm owner's identification card, vacated the convictions for aggravated battery and obstruction of Justice, and declared a mistrial as to the charge of attempted murder.
In addition to the foregoing procedural history, a statement of the facts of this case is needed. It should be noted that the evidence presented at the defendant's first trial was essentially identical to evidence presented at the second trial, and since only the evidence presented at the second trial is necessary for this appeal, the facts presented at the first trial need not be set forth here. At trial, Linda Maurer testified that on July 27 and July 28, 1986, she attended a party at Gary Woolard's home. She arrived at the party at about 11 p.m. with her fiance, Joe Dennis. During the party, Maurer drank three drinks but she denied that she had taken any drugs. When Maurer first saw the defendant at the party, the defendant showed Dennis and herself a gun he had bought. The defendant told them that he brought the gun with him in case someone gave him "trouble."
Shortly after midnight, Maurer saw the defendant and Stanley Walters together arguing. The defendant and Walters were outside between the house and the garage, and were approximately five feet from each other. Although it was night, the area where the defendant and Walters were standing was well lighted. According to Maurer's testimony, Walters was standing still, and although Maurer saw that Walters had a beer in his hands, she did not see Walters throw beer on the defendant. She then saw the defendant pull out his gun and shoot at Walters three times, one of the shots going into the ground and the other two shots being fired at Walters. After the shooting, the defendant kept the gun aimed at Walters and said to Walters, "Don't think I won't shoot you, you m--- f/--." The defendant then walked away. Maurer left the party and went with Walters to the hospital.
Stanley Walters testified that he arrived at Gary Woolard's party with Paul Hauschild at about 10 or 11 a.m. on July 27. That day, Walters drank approximately 30 8-ounce cups of beer, four or five margaritas, and did four or five "lines" of cocaine. A little after midnight, Walters got into an argument with the defendant. Walters told the defendant that he should not go into Gary Woolard's house, but he did not threaten the defendant. He and the defendant exchanged words and Walters turned around towards the defendant. As Walters turned around, the beer he held in his hand went all over Paul Hauschild, but Walters did not think that any of the beer went onto the defendant. After that, the defendant shot Walters twice, once in the chest and once in the neck. Walters stated that he was then taken to the hospital by Joe Dennis.
On cross-examination, Walters testified that he did not use cocaine on a regular basis, and that on the day of the party, he did not do the cocaine in front of anyone. He believed that Paul Hauschild was unaware that Walters had cocaine in his possession, even though Walters had arrived with Hauschild at the party after having travelled together from Chicago, a 5 1/2-hour drive. Walters denied that he still used cocaine.
Greg Dolden testified that he arrived at Gary Woolard's party on July 27, 1986, at about 4 or 5 p.m. Dolden drank approximately six beers at the party, but he did not do any drugs. Dolden's testimony was similar to Maurer's testimony in that shortly after midnight, he saw the defendant and Walters arguing. Dolden stated that he was standing next to the defendant and that Walters was five feet away from the defendant. Dolden did not know what Walters and the defendant were arguing about, but he saw Walters throw a beer which went onto Paul Hauschild. The defendant pulled a silver .25 caliber gun out of his back pocket and fired three shots at Walters. Next, the defendant backed away with the gun still aimed, got into his car, and drove away. After the defendant left, Joe Dennis and Dennis' girlfriend, Linda Maurer, drove Walters to the hospital.
Dolden admitted that he had a prior conviction for aggravated battery in Saline County. He stated that he had received a sentence of two years' probation and a $1,000 fine for this offense. Dolden also testified that Walters was his ex-brother-in-law.
Staci Dolden testified that she worked for the Illinois Department of Corrections. On July 27, 1986, she arrived at Gary Woolard's party at around 4 or 5 p.m. She drank approximately two margaritas and she did not take any drugs at the party. She too witnessed the argument between the defendant and Walters. She heard Walters ask the defendant to leave the party because they didn't want any trouble. This statement precipitated further words between the defendant and Walters. She also saw Walters throw a beer towards the defendant, but she stated that the beer went onto Paul Hauschild. Defendant then pulled out a gun and shot once at the ground and then two times at Walters. The defendant backed away with his gun still pointed, got into his car, and left.
Prior to the shooting, Staci did not see Walters with a weapon, and Walters appeared to her to be calm. She stated that Walters had never been violent around her and that he had always appeared to be mild mannered. It was Staci's recollection that Walters went to the hospital after the defendant left.
Joe Dennis, Walters' cousin, testified that he arrived at Gary Woolard's party at about 11 p.m. on July 27, 1986. He drank three drinks at the party but did not take any drugs. Dennis corroborated Maurer's testimony about the defendant showing them a gun and stating that he brought it to prevent anyone from giving him trouble.
Dennis also witnessed the argument between the defendant and Walters. He could not hear what they were saying but, when he moved closer, he could hear them arguing. He too stated that the defendant pulled a gun out from his back pocket and that the gun went off towards the ground, but that the defendant raised the gun up and shot twice. Dennis saw nothing in Walters' hands. Dennis did not see Walters throw a beer, but he admitted that a beer ...