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12/21/95 PEOPLE STATE ILLINOIS v. PATRICK BROWN

December 21, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
PATRICK BROWN, APPELLANT.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Vermilion County, the Hon. Thomas J. Fahey, Judge, presiding.

Rehearing Denied January 29, 1996.

The Honorable Justice Miller delivered the opinion of the court: Justice Harrison, dissenting: Justices McMORROW and Nickels join in this dissent.

The opinion of the court was delivered by: Miller

JUSTICE MILLER delivered the opinion of the court:

Following a jury trial in the circuit court of Vermilion County, defendant, Patrick Brown, was found guilty of one count of aggravated battery of a child (Ill. Rev. Stat. 1989, ch. 38, par. 12-4.3(a)) and three counts of cruelty to children (Ill. Rev. Stat. 1989, ch. 23, par. 2368). Defendant's convictions and sentences were affirmed on appeal to the appellate court. (No. 4-90-0806 (unpublished order under Supreme Court Rule 23).) Defendant thereafter filed a pro se petition for post-conviction relief (see Ill. Rev. Stat. 1989, ch. 38, pars. 122-1 through122-8), contending that his constitutional rights had been violated in that his convictions were based on the false testimony of one of the complaining witnesses. The trial judge summarily dismissed defendant's post-conviction petition without conducting an evidentiary hearing. (Ill. Rev. Stat. 1989, ch. 38, par. 122-2.1(a)(2).) The appellate court affirmed. (No. 4-93-0322 (unpublished order under Supreme Court Rule 23).) We granted defendant's petition for leave to appeal (145 Ill. 2d R. 315(a)). The sole issue presented for review is whether a post-conviction petition alleging that a defendant's conviction is based on the State's unknowing use of false testimony raises a constitutional question and thereby avoids summary dismissal. For the reasons that follow, we affirm the judgment of the appellate court.

FACTS

On April 12, 1990, defendant was initially charged by information in the circuit court of Vermilion County with one count of aggravated battery of a child. (Ill. Rev. Stat. 1989, ch. 38, par. 12-4.3(a).) On September 6, 1990, an amended information was filed, charging defendant with two counts of aggravated battery of a child (Ill. Rev. Stat. 1989, ch. 38, par. 12-4.3(a)) and three counts of cruelty to children (Ill. Rev. Stat. 1989, ch. 23, par. 2368). The children involved were defendant's minor sons, J.B. and S.B., who were 10 and 11 years old respectively at the time of the incidents in question. Count I of the amended information alleged that defendant committed the offense of aggravated battery in that he knowingly and without lawful justification caused great bodily harm to J.B. by causing him to ingest sufficient alcohol to become intoxicated. (Ill. Rev. Stat. 1989, ch. 38, par. 12-4.3(a).) Count II alleged that defendant committed the offense of aggravated battery of a child in that he knowingly and without legal justification caused great bodily harm to J.B. by strikingand choking him. (Ill. Rev. Stat. 1989, ch. 38, par. 12-4.3(a).) The information also alleged that defendant committed three counts of cruelty to children in that defendant willfully and unnecessarily injured the health of J.B. and S.B. by (1) causing and permitting J.B. to ingest sufficient alcohol to become intoxicated (count III), (2) striking and choking J.B. (count IV), and (3) causing and permitting S.B. to ingest sufficient alcohol to become intoxicated (count V). Ill. Rev. Stat. 1989, ch. 23, par. 2368.

The incidents giving rise to these charges occurred on April 10, 1990, while J.B. and S.B. were staying with defendant at his home. The evidence introduced at trial regarding the incidents in question consisted primarily of the testimony of J.B., S.B., ambulance personnel, physicians, police officers, the boys' mother and her fiance, defendant, defendant's mother, and defendant's girlfriend at the time of the incidents. J.B. and S.B. were the only two witnesses, other than defendant, who were present in defendant's home at the time defendant allegedly hit J.B and made both boys drink alcohol. Given the issue presented in this case, we concern ourselves mainly with the testimony J.B., S.B., and defendant gave at trial.

Both boys testified at trial that defendant gave each of them a glass of whiskey and told them to drink it. J.B. described the glass as approximately seven inches tall and almost full of whiskey. J.B. stated that he drank the glass of whiskey because defendant told him to, and asserted that when defendant told him to drink the whiskey, defendant said something to the effect of "being like me." After drinking the whiskey, defendant instructed J.B. to get two cans of beer out of the refrigerator. He then told J.B. and S.B. to each drink one. After finishing the beers, J.B. testified that defendant hit him in the chest with his fists and also hit himon the head with a screwdriver. Both boys also testified that defendant choked J.B. Specifically, the boys remembered defendant choking J.B. after S.B. was unable to locate the "dope" defendant had told S.B. to get. Following the above incidents, J.B. went into seizures and had difficulty breathing. S.B. testified that during the seizure defendant was sitting on J.B and hitting him in the chest. S.B. also stated that when J.B. being convulsing, defendant had S.B. call their mother because defendant did not know what was wrong with J.B. After this phone call, the boys' mother called an ambulance.

Police officers and ambulance personnel subsequently arrived at defendant's home, and the ambulance took J.B. to the hospital. While en route to the hospital, J.B. stopped breathing, but was resuscitated. He eventually recovered after having his stomach pumped. Results of blood tests performed on J.B. at the hospital revealed J.B. had a blood-alcohol content of 0.09. Dr. Pliura, who treated J.B. in the emergency room, testified that in his opinion the majority of J.B.'s medical problems were caused by the rapid ingestion of alcohol.

At trial, defendant admitted to giving each boy one can of beer, but denied giving the boys any whiskey or having any knowledge of them drinking whiskey. Defendant further denied ever intentionally hitting either boy and stated that the only way either boy could have been hit was if it was done accidentally.

Based on the evidence presented, the jury found defendant guilty of aggravated battery of a child based on intoxication, but not guilty of aggravated battery of a child based on striking and choking. The jury was also found defendant guilty on all three counts of cruelty to children. Defendant's motion for a new trial was denied. At sentencing, the trial judge found that one count of cruelty to children merged into the aggravated battery conviction (count I). Defendant was thereafter sentencedto 25 years' imprisonment on the aggravated battery of a child conviction and to three years' imprisonment on the two remaining cruelty to children convictions. The three sentences were to run concurrently to each other and consecutively to sentences imposed in unrelated matters.

Defendant's convictions and sentences were affirmed on appeal to the appellate court. (No. 4-90-0806 (unpublished order under Supreme Court Rule 23).) Defendant thereafter filed a pro se petition for post-conviction relief. In his petition, defendant charged that he was denied his constitutional right to a fair trial because his convictions were based on the false testimony of one of the State's witnesses. Defendant asserted that after trial an affidavit from S.B. was for the first time made available to him that claimed S.B. testified falsely at trial. Defendant maintained that according to S.B.'s affidavit both J.B. and S.B., the State's only witnesses to the incidents in question, testified falsely. Defendant therefore asserted that this affidavit established that he was denied his constitutional right to a fair trial. Defendant further alleged that S.B.'s affidavit clearly implied that "coercion" from certain police officers was "instrumental" in persuading defendant's sons to testify falsely and that such testimony led to his convictions.

Attached to defendant's petition was an affidavit from S.B. in which S.B. claimed to have testified falsely at defendant's trial about defendant forcing S.B. and J.B. to drink whiskey. Rather, S.B. asserted in the affidavit that he and J.B. drank the whiskey without defendant's knowledge. Part of the reason S.B. gave for testifying falsely was that he "did not want to be whipped or grounded for sneaking whiskey." S.B. also stated in the affidavit that defendant was wrestling with him and J.B., but was not being rough. S.B. admitted that defendant gave him and J.B. a beer, and furtherclaimed that when J.B. began making ...


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