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10/19/95 PEOPLE STATE ILLINOIS v. ROB D. BAILEY

October 19, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
ROB D. BAILEY, APPELLEE.--THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE, V. ALLEN COYNE, APPELLANT.



No. 76151.--Appeal from the Circuit Court of Will County, the Hon. William Penn, Judge, presiding. No. 76531.--Appeal from the Circuit Court of Cook County, the Hon. Thomas Nowinski, Judge, presiding.

The Honorable Justice Miller delivered the opinion of the court: Justice Heiple, concurring in part and dissenting in part: Justice Harrison joins in this partial concurrence and partial dissent.

The opinion of the court was delivered by: Miller

JUSTICE MILLER delivered the opinion of the court:

In these consolidated appeals, we are presented with the question of the constitutionality of the stalking and aggravated stalking statutes. (720 ILCS 5/12-7.3, 12-7.4 (West 1992).) In cause No. 76531, defendant, Allen Coyne, also challenges the constitutionality of section 110-6.3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110-6.3 (West 1992)), the denial of bail provisions in stalking and aggravated stalking offenses. For the reasons that follow, we uphold the constitutionality of the stalking and aggravated stalking statutes and section 110-6.3 of the Code.

I. BACKGROUND

Cause No. 76151

In cause No. 76151, defendant, Rob D. Bailey, was charged in June 1993 by indictment in the circuit court of Will County with the offense of stalking. (720 ILCS 5/12-7.3 (West 1992).) The basis for the indictment was that on April 1, 1993, defendant Bailey (Bailey) threatened Richard E. Bailey (Richard), Bailey's brother, by stating, "Maybe I'll just blow you and your whole family away." This threat was alleged to have been made with the intent to place Richard in reasonable apprehension of death or bodily harm.

The State also alleged that in furtherance of the threat Bailey placed Richard under surveillance by parking across the street from Richard's home for approximately five minutes at 11 a.m. on April 30, 1993. The State additionally alleged that in furtherance of the threat Bailey followed Richard from St. Joseph Medical Center, where both Bailey and Richard worked, to Richard's home at midnight on June 6, 1993. Bailey drove the same route as Richard until the intersection of Midland and Delmar Streets, where Bailey continued on Midland while Richard turned. On the way to Richard's home, Bailey drove about 15 to 20 feet directly behind Richard's vehicle and changed lanes when Richard changed lanes.

Prior to trial, the trial judge, on Bailey's motion, ruled that the stalking statute was unconstitutional because it: (1) failed to define the term "follows" or the phrase "in furtherance of," thereby rendering the statute vague as to what conduct was unlawful; (2) failed to contain the language "without lawful authority," thereby ignoring that certain threats may be legal, and thus making innocent conduct unlawful; (3) exempted the act of picketing during bona fide labor disputes without any compelling State reason and was vague in that "bona fide labor disputes" was not defined; and (4) gave unfettered discretion to prosecutors in charging violations of the stalking statute, effectively revoking the assault and disorderly conduct statutes (720 ILCS 5/12-1, 26-1(a)(1) (West 1992)). The State appealed the trial judge's ruling directly to this court pursuant to Supreme Court Rule 603. 134 Ill. 2d R. 603.

Cause No. 76531

In cause No. 76531, defendant Coyne was charged in June 1993 by a two-count indictment in the circuit court of Cook County with the offenses of stalking and aggravated stalking. (720 ILCS 5/12-7.3, 12-7.4 (West 1992).) The indictment alleged that on September 19, 1992, Coyne threatened Mary Ann Michalski with the intent to place her in reasonable apprehension of bodily harm. It was also asserted that in furtherance of the threat Coyne knowingly placed Michalski under surveillance on December 8, 1992, and followed her on January 7, 1993. This conduct was further alleged to have violated an order of protection.

Coyne was subsequently taken into custody and held without bail. The State then filed a petition to deny bail under section 110-6.3 of the Code (725 ILCS 5/110-6.3 (West 1992)). In its petition, the State alleged that Coyne's admission to bail posed a real and present threat to the physical safety of Michalski and that denial of release on bail or personal recognizance was necessary to prevent the fulfillment of Coyne's threat. On the same day the State's motion was filed, Coyne filed a motion to declare section 110-6.3 unconstitutional. Following a hearing, the trial judge granted the State's motion to deny bail and denied Coyne's motion to declare section 110-6.3 of the Code unconstitutional. Coyne was thereafter held in custody without bail.

At trial, Michalski testified that she and Coyne began dating in August 1990, and that she moved in with him in May 1991. They lived together until September 1991, when Michalski terminated the relationship by moving out. Michalski also testified to the incidents alleged in the indictment. She testified that on September 19, 1992, she received a series of phone calls from Coyne. During one phone call, Coyne indicated that it was time for her "to kiss [her] children goodbye because he was going to come and blow [her] away." Michalski interpreted Coyne's statement to mean that he was going to kill her. After reporting the incident to the police, a police officer came to her apartment, and she made out a police report. While the officer was there, the phone continued to ring. The officer answered the phone, identified himself, but received no response.

On December 8, 1992, at 8:45 p.m. Michalski observed Coyne standing on her patio and looking inside her apartment through the patio window. Michalski immediately phoned the police. While she was reporting the incident, Coyne ran to a vehicle and drove off. Michalski was able to give the police a description of the vehicle, and Coyne was subsequently arrested.

On January 7, 1993, Michalski was at the Bridgeview courthouse for a hearing on Coyne's violation of probation. A continuance was given in the case, and Michalski immediately left the courtroom. While in the parking lot, Michalski was shoved from behind. She turned around, and Coyne was standing behind her with a grin on his face. Coyne told Michalski that she was "not even going to make it to [her] birthday." Coyne's next court appearance was scheduled for that date. After getting into her girlfriend's truck, Michalski observed Coyne write the license plate number on his hand.

It was uncontested at trial that a valid order of protection was in effect at the time of each of the incidents Michalski described in her testimony.

Beverly Osterman testified that she drove Michalski to the Bridgeview courthouse on January 7, 1993. Osterman's testimony essentially corroborated Michalski's testimony regarding the incident between Michalski and Coyne at the courthouse. Osterman testified that Michalski almost fell after entering the parking lot at the courthouse and that Coyne was standing about six inches behind Michalski. Osterman further corroborated Michalski's testimony that Coyne told her that she would not live to see her next birthday.

Coyne testified on his own behalf. He denied following Michalski out of the courthouse on January 7, 1993. He also denied that he said anything to her or that he pushed her. He admitted seeing her in the parking lot, but asserted that he was 10 to 12 feet away from her. In support of this testimony, Coyne offered the testimony of Albert Falk and James McFarland.

Falk testified that he was in the courtroom on June 9, 1993. He stated that Coyne remained in the courtroom for several minutes after Michalski left. Falk observed that Michalski returned to the courtroom 10 to 15 minutes after Coyne left, claiming that she had been assaulted. On cross-examination, Falk admitted that he did not observe what Coyne did after he left the courtroom.

McFarland testified that he drove Coyne to the Bridgeview courthouse on January 7, 1993. McFarland dropped Coyne off at the front of the courthouse and observed Coyne enter the building. He then parked the car in the courthouse parking lot and remained in the car reading a newspaper. McFarland testified that approximately 45 minutes later he looked up from his newspaper and observed Coyne enter the parking lot. McFarland testified that he did not observe Coyne push or speak with anyone. On cross-examination, he admitted that he did not know whether Coyne had been in the parking lot prior to the time that he saw him.

Coyne also denied that the events Michalski described in her testimony ever occurred. He further stated that he never placed her in apprehension of bodily harm, nor recalled saying anything to her that would cause her to be in apprehension of bodily harm. Coyne also asserted that he drove Michalski to the hospital in February 1992, and stayed with her for 10 hours. He then took Michalski to get a prescription for lithium filled. Coyne also stated that he spent Easter weekend in 1992 with Michalski in Chicago. He maintained that Michalski had won a complimentary hotel room from a radio station, but that he paid for the amenities with his credit card. Coyne further stated that he last went out socially with Michalski on June 17, 1992, although they had stopped living together in September 1991. He also testified that from the time they stopped living together until June 12, 1992, he spent at least five nights a week at Michalski's apartment.

Richard Christianson also testified for the defense. He stated that he was with Coyne at a tavern on December 8, 1992, the night Coyne was alleged to have placed Michalski under surveillance. He maintained that they arrived at 7 p.m., and he last saw Coyne shortly before 9 p.m. At that time, Coyne told Christianson he was leaving to go to a restaurant that closed at 9 p.m. On cross-examination, Christianson admitted that he did not know where Coyne went after he left the bar.

In rebuttal, Michalski admitted that she went to the hospital in February 1992, but denied that Coyne drove her to the hospital or visited her there. She further denied spending Easter weekend in 1992 with Coyne and denied that she went out with him on June 17, 1992. She also asserted that Coyne never spent the night at her apartment between the time they stopped living together and June 17, 1992. She further denied having a prescription for lithium filled.

Coyne was thereafter convicted of stalking and aggravated stalking. The trial judge found that the stalking conviction merged into the aggravated stalking conviction. The trial judge therefore entered judgment only on the aggravated stalking conviction. Coyne's motion for a new trial was denied. He was subsequently sentenced to six months' imprisonment, with credit for six months served, and two years' probation. We granted Coyne's request for direct appeal to this court and consolidated his appeal with the State's appeal in cause No. 76515. 134 Ill. 2d R. 302(b).

II. DISCUSSION

We begin our discussion with the pertinent statutes. The stalking statute in effect at the time both defendants were charged provided:

"(a) A person commits stalking when he or she transmits to another person a threat with the intent to place that person in reasonable apprehension of death, bodily harm, sexual assault, confinement or restraint, and in furtherance of the threat knowingly does any one or more of the following acts on at least 2 separate occasions:

(1) follows the person, other than within the residence of the defendant;

(2) places the person under surveillance by remaining present outside his or her school, place of employment, vehicle, other place occupied by the person, or residence other than the residence of the defendant.

(b) Sentence. Stalking is a Class 4 felony. A second or subsequent conviction for stalking is a Class 3 felony.

(c) Exemption. This Section does not apply to picketing occurring at the workplace that is otherwise lawful and arises out of a bona fide labor dispute." 720 ILCS 5/12-7.3 (West 1992).

In addition, Coyne was charged with the offense of aggravated stalking. The aggravated stalking statute under which Coyne was charged provided:

"(a) A person commits aggravated stalking when he or she, in conjunction with committing the offense of stalking, also does any of the following:

(1) causes bodily harm to the victim;

(2) confines or restrains the ...


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