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People v. Smith

Court of Appeals of Illinois, First District, Second Division

October 17, 2017

STEVIE SMITH, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 10 CR 4124 Honorable Michele M. Pitman, Judge, presiding.

          HYMAN JUSTICE delivered the judgment of the court, with opinion. Presiding Justice Neville and Justice Pucinski concurred in the judgment and opinion.


          HYMAN JUSTICE.

         ¶ 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 Burtner.

         ¶ 3 Background

         ¶ 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 ...

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