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10/04/96 PEOPLE STATE ILLINOIS v. SUSAN MILLER

October 4, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
SUSAN MILLER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court McHenry County. No. 94--CF--472. Honorable Henry L. Cowlin, Judge, Presiding.

Released for Publication November 5, 1996. Certiorari Denied June 23, 1997,

The Honorable Justice Thomas delivered the opinion of the court: McLAREN, P.j., and Inglis, J., concur.

The opinion of the court was delivered by: Thomas

The Honorable Justice THOMAS delivered the opinion of the court:

The defendant, Susan Miller, was charged by grand jury with attempted first degree murder (720 ILCS 5/8--4(a), 9--1(a)(2) (West 1994)), armed violence (720 ILCS 5/33A--2 (West 1994)), and two counts of aggravated battery (720 ILCS 5/12--4(a), (b)(1) (West 1994)). Following a jury trial in the circuit court of McHenry County, the defendant was found guilty but mentally ill on all charges. She was sentenced to 25 years in prison and fined $207. We affirm the convictions and sentence, but award the defendant full credit against the fine.

FACTS

The facts relevant to our decision are as follows. On June 25, 1994, members of the McHenry County sheriff's police were dispatched to 2917 Parkview Drive, Marengo, Illinois, in reference to astabbing which had occurred at that address. Upon their arrival, they learned that Dennis Miller had suffered knife wounds to his neck and back. Upon further investigation, the sheriff's police were dispatched to 405 1/2 Prairie Street, Marengo, Illinois, where they arrested the defendant and subsequently charged her with attempted first degree murder, armed violence, and two counts of aggravated battery.

A McHenry County grand jury returned a bill of indictment against the defendant on July 6, 1994. The State filed a motion for a fitness examination to ascertain whether the defendant was fit to stand trial. The trial court thereafter issued an order directing Robert Meyer, Ph.D., to conduct a psychological examination of the defendant for the purpose of determining the defendant's fitness to stand trial. Upon submission of Dr. Meyer's written report, the trial court found the defendant competent to stand trial. Trial was set for May 1, 1995.

At trial, the victim, Dennis Miller, testified that on the day in question he had picked up his father, Henry Miller, and taken him to Dennis' residence at 2917 Parkview Drive. They were just finishing mowing the grass, when the defendant, Dennis' half-sister, approached the residence in her vehicle. She got out of her vehicle and walked toward Dennis, who was standing in the driveway. She accused Dennis of stealing her coin collection. Dennis told her that he did not have her coin collection. Moments later, the defendant walked back to her vehicle and got a knife. Dennis told his father that the defendant had a knife. The defendant then approached Dennis and stabbed him in the neck. Dennis knocked her down to the ground, but she came back at him and stabbed him four more times as Dennis wrestled with her. At one point in their struggle, Dennis leaned over the defendant and let the blood emanating from his wounds fall on her. She got up from the ground and told him, "I hope you die you son of a bitch." Dennis then went into his house and called 911. He reported that he had been stabbed by his sister and that he was bleeding badly.

Henry Miller testified that the defendant was his daughter and that Dennis was his adopted son. He shared a residence with his daughter. On the day in question, he was at Dennis' house mowing the lawn. When he was finished mowing the lawn, he took his lawn mower into the garage. When he came back out, the defendant and Dennis were arguing. Dennis said, "Watch out, she's got a knife with her." Henry further testified that he then took Dennis' lawn mower into the garage. When he came back out, he saw that Dennis had been stabbed and was bleeding out of his neck and back. Nobodyother than the defendant and Dennis were present at the time of the stabbing.

Assistant State's Attorney Terence Nader read into the record the evidence deposition of Richard Lind, M.D. Dr. Lind, a general surgeon, examined Dennis in the emergency room of Woodstock Memorial Hospital, in Woodstock, Illinois, following the stabbing. He noted there were five stab wounds along the left side of Dennis' body: one in the neck, three along the posterior left chest, and one along the lower left flank. The neck wound was approximately four centimeters in depth. One of the chest wounds punctured Dennis' lung, causing it to collapse. The three other stab wounds were less severe.

James Bald, a forensic scientist with the Illinois State Police Crime Laboratory, testified as to evidence obtained from the execution of a search warrant at the defendant's residence. He analyzed certain articles of clothing of the defendant and determined that they contained blood stains inconsistent with the defendant's blood type, but consistent with Dennis' blood type. He also determined that blood from the driver's seat of the defendant's vehicle was inconsistent with the defendant's blood type, but consistent with Dennis' blood type.

The defendant testified on her own behalf. She testified that, prior to the police's arrival at her residence on the date in question, she had only been away from her house to purchase gas at a gas station in Marengo. She denied having been at her brother's residence that day. While she was being questioned by one of the officers, she had a petit mal seizure. She further testified that the physical evidence retrieved from her home was planted.

Dr. Meyer testified on behalf of the defendant. He testified that he had examined the defendant on several occasions and had examined past medical and psychiatric records pertaining to the defendant. He stated that the defendant had suffered a head injury after being thrown from a horse in 1969. That injury necessitated her having intracranial surgery. After that surgery, and as a result of the head trauma she suffered from the fall, she developed a seizure disorder. He explained that a person experiencing a seizure may not remember his or her actions because of the altered state of mind he or she experiences at the time.

On May 5, 1995, the jury returned a verdict of guilty but mentally ill on all charges. On June 12, 1995, defense counsel withdrew from the case and new counsel entered his appearance. The defendant filed an amended motion for a new trial, which was argued prior to the sentencing hearing on August 11, 1995, and denied. Followingarguments, the defendant was sentenced on the charge of attempted first degree murder to 25 years' imprisonment and fined $207. The defendant's motion to reconsider sentence was denied. She filed a timely appeal.

ANALYSIS

On appeal, the defendant raises six issues for our review. She contends that (1) the armed violence conviction must be vacated because it violates the proscription against "double enhancement"; (2) the attempted first degree murder conviction must be reversed because the State failed to prove that she possessed the requisite intent beyond a reasonable doubt and because the trial court erred in failing to instruct the jury on the target crime (murder); (3) the armed violence and aggravated battery convictions must be vacated because they arose out of the same physical act as the attempted first degree murder conviction; (4) the sentence for attempted first degree murder should be reduced because the trial court considered improper aggravating factors; (5) she received the ineffective assistance of counsel; and (6) she is entitled to full credit for the $207 fine imposed.

The defendant initially contends that the armed violence conviction must be vacated because it violates the proscription against double enhancement.

The State asserts at the outset that this issue has been waived because the defendant failed to preserve the issue by raising it in her amended motion for a new trial. As a general rule, the failure to raise an issue in a written motion for a new trial results in a waiver of that issue on appeal. People v. Enoch, 122 Ill. 2d 176, 186, 119 Ill. Dec. 265, 522 N.E.2d 1124 (1988). Having reviewed the defendant's amended motion for a new trial, we agree with the State that the defendant failed to raise this issue below. While the motion for a new trial generically references improper jury instructions, it does not specify the particular defect now raised on appeal. Accordingly, we deem this issue waived. Had we not deemed this issue waived, we would, nevertheless, resolve the issue in favor of the State.

In People v. Haron, 85 Ill. 2d 261, 52 Ill. Dec. 625, 422 N.E.2d 627 (1981), battery (a misdemeanor) was enhanced to the felony of aggravated battery based on the use of a deadly weapon. The aggravated battery charge was then used as the predicate felony for an armed violence charge. The supreme court held that the presence of a weapon could not serve to enhance an offense from a misdemeanor to a felony and also serve as the predicate offense for a charge of armed violence. Haron, 85 Ill. 2d at 278. In People v. Del Percio, 105 Ill. 2d 372, 377, 86 Ill. Dec. 314, 475 N.E.2d 528 (1985), the supreme court held that Haron also applies when a predicate felony is doublyenhanced because of the presence of a weapon. While a charge of armed violence (720 ILCS 5/33A--2 (West 1994)) may not be predicated on aggravated battery by use of a deadly weapon (720 ILCS 5/12--4(b)(1) (West 1994)), aggravated battery causing great bodily harm (720 ILCS 5/12--4(a) (West 1994)) is a proper predicate felony for the armed violence statute. See People v. Drakeford, 139 Ill. 2d 206, 213, 151 Ill. Dec. 337, 564 N.E.2d 792 (1990).

The defendant argues that the double enhancement proscription has been violated here because (1) the charging instrument utilized language that indicates that the armed violence charge was predicated upon aggravated battery by use of a deadly weapon; and (2) the jury instructions permitted the jury to convict the defendant of armed violence ...


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