Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County. No. 10 CR 4124
Honorable Michele M. Pitman, Judge, presiding.
JUSTICE delivered the judgment of the court, with opinion.
Presiding Justice Neville and Justice Pucinski concurred in
the judgment and opinion.
1 Following simultaneous but severed bench trials, defendant
Stevie Smith and codefendant Jerry Brown were convicted of
robbery and aggravated battery of a senior citizen (Brown is
not a party to this appeal). Smith was sentenced to
consecutive prison terms of 12 years and 6 years,
respectively. On appeal, Smith contends only that his
conviction for aggravated battery of a senior citizen should
be vacated because it violates the one-act, one-crime
doctrine where it is based on the same single physical act as
his robbery conviction.
2 We agree and vacate the aggravated battery of a senior
citizen conviction. On this record, we hold that the one-act,
one-crime principle was violated, as the basis for both
convictions- robbery and aggravated battery of a senior
citizen-was Smith's single physical act of punching
4 Smith and Brown were tried on charges of first degree
murder, aggravated battery of a senior citizen, robbery, and
aggravated battery. At trial, Deborah Halloran testified that
William Burtner was the commander of the Veterans of Foreign
Wars (VFW) post in Midlothian, where she was employed as the
bar manager. At about 9:30 a.m. on November 16, 2009, Burtner
and Halloran prepared money for deposit into four accounts
the VFW maintained at the local A.J. Smith Bank. Deposits for
three accounts were placed into three bank deposit bags. An
additional amount was placed inside a cigar box so Burtner
could open a new account. Burtner left the VFW post with the
three deposit bags and the cigar box and drove to the bank.
5 A teller at the A.J. Smith Bank, Connie Weimar, testified
that at about 10:15 a.m. on November 16, she looked out the
window and saw Burtner walking towards the bank carrying bank
deposit bags in his hand. As Burtner approached the entrance,
he passed behind a wall and Weimar lost sight of him. Weimar
next saw a man wearing a hooded sweatshirt walking quickly
past the front of the bank towards Burtner. The hood covered
the man's head and Weimar could not see his face. Nothing
was in the man's hands. The man disappeared from
Weimar's sight for "a matter of seconds." When
she next saw him, he was carrying something in his hand, had
turned around, and was running to the adjacent Wendy's
parking lot. He got into the front passenger seat of a black
car that then took off. Weimar yelled "Call 911."
Two bank employees brought Burtner inside the bank and sat
him down in a chair. Later, the man wearing the hooded
sweatshirt was determined to be Smith.
6 Tamara Esposito was at the bank when her supervisor yelled
"Call 911, I believe somebody was just robbed."
Esposito went to the front door and saw Burtner on the ground
outside. Esposito and a security guard went outside and
helped Burtner. He asked Esposito to retrieve a cigar box
from the ground, which contained money and checks. Esposito
saw a black sports car speeding out of the Wendy's
parking lot. Esposito and the security guard brought Burtner
inside the bank. Burtner was slightly bent over and holding
his left side near his rib cage, had labored breathing, and
was experiencing difficulty speaking. Burtner told Esposito
that he was punched in his left side.
7 Paramedic Cory Katsibubas treated Burtner at the bank.
Burtner was holding his left side in his back rib area.
Burtner complained of pain in that area and also pain when
taking deep breaths. Katsibubas administered oxygen and
transported Burtner to the hospital. The State presented a
stipulation that Burtner told Katsibubas that "he was
hit from behind, and he fell."
8 Meanwhile, a high-speed police chase of the black car,
driven by codefendant Brown, had ensued. Smith and Brown
crashed into another vehicle and came to a stop. They ran
from the black car in opposite directions. Minutes later,
police found Brown hiding underneath a vehicle in a backyard
and placed him in custody. During a custodial search, police
recovered over a thousand dollars from his right pocket. The
A.J. Smith bank deposit bags and money were found inside the
black car. Blood samples taken from the passenger's side
of the black car were submitted to the Illinois State Police
crime laboratory for testing. Results of that testing
indicated a DNA match with Smith, and he was arrested on
February 5, 2010.
9 Mary Burtner, William's wife, testified that her
husband was treated and released from the hospital on the day
of the robbery. When he returned home, he was in a lot of
pain, uncomfortable, and favoring his left side. The next
day, he felt worse. The following morning, November 18,
although still in a lot of pain, he went to chemotherapy for
his lung cancer. At the hospital, he was unable to walk due
to his pain and needed a wheelchair. When the couple arrived
home at about 3 p.m., her husband was still holding his left
side and was unable to get out of the car. She assisted him
into their home and to bed. He fell asleep. She checked on
him, and around 8:30 p.m., she found her husband unresponsive
and called 911.
10 Paramedics arrived. Burtner was unresponsive, not
breathing, and had no pulse or blood pressure. Paramedics
performed CPR, administered cardiac medications, and
transferred him to the hospital. There were no signs of life.
The State presented the death certificate indicating that
Burtner was 65 years old at death.
11 An assistant chief medical examiner, Dr. Ponni Arunkumar,
performed an autopsy. Burtner suffered from lung cancer, two
prior heart attacks, and heart disease and had three
fractured ribs on the left side of his chest wall. The rib
fractures were less than three or four days old and were
consistent with being punched. Dr. Arunkumar determined that
the cause of death was hypertensive cardiovascular disease
with, as a significant ...