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 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.
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
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
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 ...