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06/30/97 PEOPLE STATE ILLINOIS v. TONY E. SHOULTZ

June 30, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
TONY E. SHOULTZ, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Sangamon County. No. 94CF319. Honorable Joseph P. Koval, Judge Presiding.

Honorable John T. McCullough, J., Honorable Rita B. Garman, J. - Concur. Honorable James A. Knecht, J. - Concur. Justice McCULLOUGH delivered the opinion of the court.

The opinion of the court was delivered by: Mccullough

JUSTICE McCULLOUGH delivered the opinion of the court:

Following a jury trial, defendant, Tony E. Shoultz, was convicted of first degree murder (720 ILCS 5/9-1(a)(1) (West 1994)) and intentional homicide of an unborn child (feticide) (720 ILCS 5/9-1.2 (West 1994)) and sentenced to natural life imprisonment. Defendant appeals, alleging (1) the feticide statute violates the proportionate penalties clause of the Illinois Constitution because it imposes greater penalties than does the Illinois Abortion Law of 1975 (Abortion Law) (720 ILCS 510/1 et seq. (West 1994)); (2) evidence he had been told the victim was pregnant was improperly admitted hearsay; (3) the court erred in failing to suppress his confession based on his intoxication; and (4) he was improperly sentenced to natural life imprisonment. We affirm.

The facts will be referred to only as they deal with the issues on appeal. On June 9, 1994, the victim, Jennifer Florence, was shot and killed while seated in a motor vehicle at 12th and Jackson Streets in Springfield, Illinois.

The obstetrician who had examined Jennifer on June 4, 1994, and administered a sonogram on June 6, 1994, stated that the fetus had then been alive and 11 or 12 weeks in gestational age. The coroner performing the autopsy testified that the fetus was in the late third month of the first trimester but was not viable in the sense it could have survived outside the womb. He also testified that Jennifer sustained three gunshot wounds, one of which penetrated her heart.

Defendant first argues that because the feticide statute imposes greater penalties for offenses than does the Abortion Law, it violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). Defendant contends (1) offenses under the feticide statute and the Abortion Law are "identical"; and (2) even if not identical, under certain circumstances, exactly the same criminal act can constitute a violation of both statutes. As to the second contention, that the offenses need not be identical, defendant cites People v. Wisslead, 94 Ill. 2d 190, 446 N.E.2d 512, 68 Ill. Dec. 606 (1983), a case that is wholly distinguishable. In Wisslead, the court compared two predicate offenses carrying unequal penalties, which were disproportionately enhanced by common aggravating acts, resulting in the elevation of the lesser predicate offense to the graver. Wisslead, 94 Ill. 2d at 195-96, 446 N.E.2d at 514-15.

There are in this case no common aggravating acts that disproportionately elevate the punishment for any predicate offenses. In addition, defendant presents a contorted argument based on a hypothetical scenario of a physician performing an abortion affecting a viable fetus and being held criminally liable under both statutes. Since defendant was not a physician performing an abortion on a viable fetus, he lacks standing to raise this claim.

As to defendant's claim that offenses under the feticide statute and the Abortion Law are "identical," even a cursory comparison reveals the fallacy of this conclusion. The feticide statute defines the offense as (1) an intent to cause death or great bodily harm to the woman or the fetus, or knowledge that acts create a strong probability of death or great bodily harm, and (2) knowledge the woman is pregnant, with an express exemption for any acts committed during an abortion. 720 ILCS 5/9-1.2 (West 1994). Section 6 of the Abortion Law mandates that (1) when a physician performing an intentional abortion judges that there is a reasonable possibility of sustained survival of a viable fetus, (2) he utilize the abortion method most likely to preserve the life and health of the fetus. 720 ILCS 510/6 (West 1994). The Abortion Law does not penalize abortions, but a failure to utilize abortion methods or medical care most likely to preserve the life or health of a viable fetus. The persons and acts subject to penalty under each statute, as well as the potential victims, are entirely different. Since defendant was not a physician performing an abortion on a viable fetus, he could not be liable under the Abortion Law; any physician performing an abortion is excepted from prosecution under the feticide statute.

The availability of different penalties for offenses that are related but not identical does not violate the constitutional prohibition against disproportionate penalties. People v. Parker, 277 Ill. App. 3d 585, 591, 660 N.E.2d 1296, 1300, 214 Ill. Dec. 347 (1996). Despite defendant's contention that both statutes profess to protect the unborn, the statutory schemes are not even similar.

Defendant next contends the testimony by Jennifer's caseworker, Jodi Grant, that she heard Jennifer tell the defendant she was pregnant, was improperly admitted hearsay used by the State to establish substantive evidence of an element of the offense of feticide. Grant testified she went to the victim's residence on June 7 to take Jennifer to Sojourn House. While waiting, Jennifer received two phone calls from the defendant, to whom Grant also spoke. The court first gave the jury a limiting instruction, and Grant then testified that she heard Jennifer mention she was pregnant. Over defendant's objection, the trial court admitted the testimony "for the purpose of showing that the victim advised the defendant she was pregnant, not that it's proof that she was." Hearsay testimony is an out-of-court statement offered to prove the truth of the matter asserted and is dependent on the credibility of the out-of-court declarant. People v. Rogers, 81 Ill. 2d 571, 577, 411 N.E.2d 223, 226, 44 Ill. Dec. 254 (1980). Where an out-of-court statement is offered for some purpose other than to establish the truth of the matter asserted, the statement is not hearsay and is admissible. People v. Albanese, 102 Ill. 2d 54, 70, 464 N.E.2d 206, 214, 79 Ill. Dec. 608 (1984). Testimony of out-of-court statements used other than to establish the truth of the matter asserted does not rest for its value on the credibility of the out-of-court declarant but, rather, on the credibility of the witness, who was present in court and subject to cross-examination. People v. Smith, 236 Ill. App. 3d 812, 819, 602 N.E.2d 946, 952, 177 Ill. Dec. 51 (1992). The State argues that the testimony was not offered for its truth, i.e., that Jennifer was pregnant, because this was established by Jennifer's treating physician and the coroner, but only to show that the conversation had occurred and the defendant had knowledge of the pregnancy. We agree.

A statement that is offered to prove that a listener had notice of the information contained therein, rather than to prove the truth of the matter asserted, is not hearsay. See Kochan v. Owens-Corning Fiberglass Corp., 242 Ill. App. 3d 781, 806, 610 N.E.2d 683, 699, 182 Ill. Dec. 814 (1993). A statement is not hearsay "when offered for the purpose of showing that the listener was placed on notice or had knowledge. *** The fact that the statement was made is relevant for its effect on the listener without regard to the truth of the matter asserted." M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 801.5, at 648 (6th ed. 1994). The statement by Grant was not offered for its truth, that Jennifer was pregnant, but solely to show defendant had knowledge of the pregnancy, and the jury was instructed to consider the testimony for this limited purpose. The testimony was not hearsay and was properly admitted.

Defendant next argues his gross intoxication rendered him unable to knowingly waive his Miranda rights and the court erred in not granting his motion to suppress. In support, defendant points to (1) statements made by Detective Oney to Grant that defendant was "drunker than 18 Indians" or "falling down drunk" at the time of the offense; (2) the testimony of Oney, Detective Ross, and arresting officer Schober that they noted an odor of alcohol on the defendant's breath and his glassy eyes; and (3) defendant's statements that he had been drinking heavily on the day prior to the offense and into the early morning hours on June 9. The defendant claims that Oney's and Ross' statements that they did not believe the defendant was intoxicated at the time of interrogation were "clearly unreasonable" and that this is a standard of review promulgated in People v. Clark, 92 Ill. 2d 96, 440 N.E.2d 869, 65 Ill. Dec. 14 (1982), as an exception to the deference normally accorded the trial court.

The trial court is in the best position to determine the credibility of witnesses at a suppression hearing and to resolve any conflicts in the evidence, and its decision will not be reversed on review unless contrary to the manifest weight of the evidence. People v. Rogers, 123 Ill. 2d 487, 495, 528 N.E.2d 667, 671, 123 Ill. Dec. 963 (1988). The fact that the defendant was under the influence of alcohol does not render his statements inadmissible unless the evidence clearly establishes that he was so grossly intoxicated he no ...


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