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People v. Smith

Court of Appeals of Illinois, First District, Second Division

June 14, 2018

STEVIE SMITH, Defendant-Appellant.

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

          JUSTICE HYMAN delivered the judgment of the court. Justices Neville and Pucinski concurred in the judgment.



         ¶ 1 The Illinois Supreme Court entered a supervisory order denying defendant Stevie Smith's petition for leave to appeal, and directing this court to vacate its initial judgment (People v. Smith, 2017 IL App (1st) 151312). The supervisory order instructed us to consider the effect of People v. Coats, 2018 IL 121926, on the issue of whether defendant's convictions for robbery and aggravated battery of a senior citizen violate the one-act, one-crime rule. After reconsidering the issue, we again vacate the aggravated battery of a senior citizen conviction and hold that the convictions violate the one-act, one-crime principle, as the basis for both convictions-robbery and aggravated battery of a senior citizen-was Smith's single physical act of punching the victim.

         ¶ 2 Background

         ¶ 3 Smith and co defendant Jerry Brown were tried on charges of first degree murder, aggravated battery of a senior citizen, robbery, and aggravated battery.

         ¶ 4 At trial, Deborah Halloran testified that William Burtner served as the commander of the Veterans of Foreign Wars (VFW) post in Midlothian, where she worked as bar manager. At about 9:30 a.m. on November 16, 2009, Burtner and Halloran prepared money for deposit into accounts the VFW maintained at the local AJ. 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 AJ. Smith Bank, Connie Weimar, testified that at about 10:15 a.m., she looked out the window and saw Burtner walking towards the bank carrying bank deposit bags. 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, 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 Bank employee, Tamara Esposito, heard her supervisor yell "Call 911, I believe somebody was just robbed." Esposito went to the front door and saw Burtner on the ground. Esposito and a security guard 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 A paramedic treated Burtner at the bank. According to the paramedic, 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. The paramedic administered oxygen and transported Burtner to the hospital. The State presented a stipulation that Burtner told the paramedic 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 automobile and came to a stop. They ran from in opposite directions. Minutes later, police found Brown hiding underneath a car 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. Illinois State Police crime laboratory for tested blood samples taken from the passenger's side of the black car. 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 suffering 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 couldn't walk due to the 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.

         ¶ 10 Paramedics arrived and performed CPR, administered cardiac medications, and transferred Burtner to the hospital. There were no signs of life. The State presented the death certificate indicating that Burtner was 65 years old.

         ¶ 11 An assistant chief medical examiner, Dr. Ponni Arunkumar, performed an autopsy. Burtner had lung cancer, two prior heart attacks, and heart disease, and there were three fractured ribs on the left side of his chest wall. The rib fractures, less than three or four days old, were consistent with being punched. Dr. Arunkumar determined that the cause of death was hypertensive cardiovascular disease with the fractured ribs ...

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