People v. Conley

Justice Cerda delivered the opinion of the court.

The defendant, William J. Conley, was charged with two counts of aggravated battery based on permanent disability and great bodily harm. . . . He was found guilty after a jury trial of aggravated battery based solely on permanent disability on July 17, 1986. The defendant's motions for judgment notwithstanding the verdict or a new trial were denied, and the defendant was sentenced to 30 months' probation including 40 days of periodic imprisonment. . . .

The defendant was charged with aggravated battery in connection with a fight which occurred at a party on September 28, 1985, in unincorporated Orland Township. Approximately 200 high school students attended the party and paid admission to drink unlimited beer. One of those students, Sean O'Connell, attended the party with several friends. At some point during the party, Sean's group was approached by a group of 20 boys who apparently thought that someone in Sean's group had said something derogatory. Sean's group denied making a statement and said they did not want any trouble. Shortly thereafter, Sean and his friends decided to leave and began walking toward their car which was parked a half block south of the party.

A group of people were walking toward the party from across the street when someone from that group shouted "There's those guys from the party." Someone emerged from that group and approached Sean, who had been walking with his friend Marty Carroll 10 to 15 steps behind two other friends, Glen Mazurowski and Dan Scurio. That individual demanded that Marty give him a can of beer from his six-pack. Marty refused, and the individual struck Sean in the face with a wine bottle, causing Sean to fall to the ground. The offender attempted to hit Marty, but missed as Marty was able to duck. Sean sustained broken upper and lower jaws and four broken bones in the area between the bridge of his nose and the lower left cheek. Sean lost one tooth and had root canal surgery to reposition 10 teeth that had been damaged. Expert testimony revealed that Sean has a permanent condition called mucosal mouth and permanent partial numbness in one lip. The expert also testified that the life expectancy of the damaged teeth might be diminished by a third or a half.

At trial, the State presented Officer Houlihan, Doctor Arnold S. Morof, and five occurrence witnesses. Of the five occurrence witnesses, only Marty Carroll identified Conley as the offender. The only other witness connecting Conley to the crime was another student, Demetrius Kereakas, who testified that he saw Conley throw a bottle at Dan Scurio's car as the four boys left after the incident. The defense recalled State witness Marty Carroll and presented seven witnesses in addition to the defendant. Four of the defense witnesses testified that the defendant was not the offender, but rather that Sean was hit by a Robert Frazer, who is known in school as "Crazy Bob" or "Terminator." The party was held at a residence surrounded by open fields. There were no streetlights and most of the witnesses had been drinking before the incident.

At the end of the trial, the jury was furnished with four verdict forms for the two counts of aggravated battery. The jury returned a guilty verdict for aggravated battery based on permanent disability, failing to sign the remaining verdict forms. The State's Attorney advised the trial judge that the jury had returned only one verdict but that he had no objections. The trial court accepted the verdict and discharged the jury. It must be noted here that when a verdict on less than all the counts is accepted by the trial court and the jury is discharged, the jury's silence as to other counts is treated as an acquittal on those counts for purposes of double jeopardy. . . . Therefore, had this court found it necessary to reverse and remand for a new trial, the defendant could not have been retried for aggravated battery based on great bodily harm.

The defendant initially contends on appeal that the State failed to prove beyond a reasonable doubt that Sean O'Connell incurred a permanent disability. Section 12 -- 4(a) of the Criminal Code of 1961 provides that: "[a] person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery." . . . The defendant contends there must be some disabling effect for an aggravated battery conviction based on permanent disability. The defendant does not dispute that Sean lost a tooth or that surgery was required to repair damaged teeth. The defendant also does not dispute that Sean will have permanent partial numbness in one lip or suffer from a condition called mucosal mouth. The defendant maintains, however, that there is no evidence as to how these injuries are disabling because there was no testimony of any tasks that can no longer be performed as a result of these injuries.

The parties cite no Illinois decisions, nor have we found any, defining permanent disability in the context of aggravated battery. The State relies on People v. Post . . ., for the proposition that loss of function is not required for a finding of permanent disability. In Post, the victim had been stabbed once in the back and three times in the leg, but incurred only permanent scarring. The court affirmed the defendant's conviction for aggravated battery based on permanent disability. However, Post is not dispositive of the issue as the defendant was also convicted of aggravated battery based on great bodily harm and disfigurement, and the defendant never raised the issue of sufficiency of the evidence regarding permanent disability. In Hicks, a young girl received severe burns on her chest caused by boiling water. Hicks is also not dispositive of the issue as the defendant was convicted of heinous battery. Thus, as the defendant points out in his reply brief, this appears to be a question of first impression.

The function of the courts in construing statutes is to ascertain and give effect to the intent of the legislature. . . . The starting point for this task is the language itself . . ., and the language should be given its plain and ordinary meaning. . . . The defendant urges the court to adopt the definition found in Webster's Third New International Dictionary which defines disability as an "inability to do something." The State refers to additional language from the same source that a disability is a "physical or mental illness, injury, or condition that incapacitates in any way." . . . There is some support for defendant's proposed definition in an old Illinois decision. . . .

In arriving at a definition, however, it is also proper to consider the statute's purpose and the evils sought to be remedied. . . . The Committee Comment explains that section 12 -- 4(a) incorporates the old offense of mayhem. . . . At common law the offense of mayhem required the dismemberment or disablement of some bodily part. Initially, the law sought to protect the King's right to the military services of his subjects. However, modern criminal codes have expanded their protection against a wider range of injuries. As one court explained:

"What, then, originated as the narrow common law offense of mayhem is generally today a statutory offense of considerably larger dimensions. The transition has been accompanied, if not induced, by a shift in emphasis from the military and combative effects of the injury to the preservation of the human body in normal functioning. The statutory counterparts of nonstatutory mayhem doubtless include all that the common law proscribed. But what is important now is not the victim's capacity for attack or defense, but the integrity of his person." United States v. Cook . . .

Under this view, it seems apparent that for an injury to be deemed disabling, all that must be shown is that the victim is no longer whole such that the injured bodily portion or part no longer serves the body in the same manner as it did before the injury. Applying this standard to the case at hand, the injuries Sean O'Connell suffered are sufficient to constitute a permanent disability. Sean will endure permanent partial numbness in one lip and mucosal mouth. He lost one tooth and there is also a chance he may lose some teeth before attaining the age of seventy.

The defendant further argues that the State failed to prove beyond a reasonable doubt that he intended to inflict any permanent disability. The thrust of defendant's argument is that under section 12 -- 4(a), a person must intend to bring about the particular harm defined in the statute. The defendant asserts that while it may be inferred from his conduct that he intended to cause harm, it does not follow that he intended to cause permanent disability. The State contends it is not necessary that the defendant intended to bring about the particular injuries that resulted. The State maintains it met its burden by showing that the defendant intentionally struck Sean.

The law on this question is unclear. The defendant relies upon People v. Crosser . . ., and Bay State Insurance Co. v. Wilson . . . which both hold that aggravated battery is a specific intent crime. The State, however, relies upon People v. Allen . . . In Allen, the court wrote that in committing the offense of aggravated battery, "the only mental state required is that the accused knowingly and intentionally cause the social harm defined in the statute, no premeditation or malice being necessary." . . . The court then went on to state that it is not necessary that the defendant intended to cause the particular injury which resulted. . . . Resolution of this issue is made difficult as there exist inconsistent decisions within the first district. Allen is cited with approval by the third division in People v. Perry . . .; however, specific intent analysis is applied in another decision by the third division in People v. Farrell . . . . The fifth division has also produced inconsistent decisions. In People v. Gomez . . . , it was stated that aggravated battery is a specific intent crime. However, just the opposite was written in People v. Gvojic . . .

For proper resolution of this issue, it is best to return to the statutory language. Section 12 -- 4(a) employs the terms "intentionally or knowingly" to describe the required mental state. . . .

Section 12 -- 4(a) defines aggravated battery as the commission of a battery where the offender intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement. Because the offense is defined in terms of result, the State has the burden of proving beyond a reasonable doubt that the defendant either had a "conscious objective" to achieve the harm defined, or that the defendant was "consciously aware" that the harm defined was "practically certain to be caused by his conduct." . . . This is the identical construction found in People v. Farrell . . ., which we conclude is the correct statement of the law.

Although the State must establish the specific intent to bring about great bodily harm, or permanent disability or disfigurement under section 12 -- 4(a), problems of proof are alleviated to the extent that the ordinary presumption that one intends the natural and probable consequences of his actions shifts the burden of production, though not persuasion, to the defendant. . . . If the defendant presents evidence contrary to the presumption, then the presumption ceases to have effect, and the trier of fact considers all the evidence and the natural inferences drawn therefrom. . . . Intent can be inferred from the surrounding circumstances, the offender's words, the weapon used, and the force of the blow. . . . As the defendant's theory of the case was mistaken identity, there was no evidence introduced negating the presumption of intent. However, even if Conley had denied any intention to inflict permanent disability, the surrounding circumstances, the use of a bottle, the absence of warning and the force of the blow are facts from which the jury could reasonably infer the intent to cause permanent disability. Therefore, we find the evidence sufficient to support a finding of intent to cause permanent disability beyond a reasonable doubt.

The defendant next contends that the trial court improperly restricted the scope of his examination of State witness Marty Carroll during his case in chief. . . .

. . . Here, the defendant had an opportunity to cross-examine Marty Carroll during the State's case and his questions regarding the offender's description should have been presented at that time. Therefore, there was no abuse of discretion in prohibiting the defendant from pursuing this line of questioning.

Next, the defendant argues that the trial court erred in permitting improper impeachment of four defense witnesses. Matt Tanzer, Kevin McGinley, and Joseph Longhini testified they were present when Sean was hit and that Bob Frazer, and not the defendant, was the culprit. Scott Bucich testified that he observed the defendant in a different altercation not involving Sean. On cross-examination, the witnesses admitted they failed to volunteer this information to the police which may have exonerated the defendant. The defendant maintains that the trial court erroneously overruled his objections for lack of foundation because there was no showing that the police or other authority ever questioned these witnesses. The defendant relies on People v. Fabian . . ., construing that decision to hold that a witness' failure to volunteer knowledge of a murderer's identity to police during earlier conversations was not impeaching because the police never inquired as to his ability to identify the offender. Defendant's reliance on Fabian is misplaced, however, as the issue in Fabian was the weight, and not the admissibility, of the evidence in determining whether the defendant was proved guilty beyond a reasonable doubt. . . .

The rule for impeachment by omission is that it is permissible to use prior silence to discredit a witness' testimony if: (1) it is shown that the witness had an opportunity to make a statement, and (2) under the circumstances, a person would normally have made the statement. . . . At issue here is whether the State properly established the required evidentiary foundation for this impeachment. In People v. Taylor . . ., two defense witnesses testified that the victim of a shooting had been shot by his own brother, and not by the defendant, when the brother fired a gun into a crowd during a street altercation. The witnesses admitted on cross-examination that they failed to go to the police with this information which may have exonerated the defendant. The court held this impeachment was proper because the witnesses, who were friends of the defendant, knew of the defendant's arrest eight months before trial. . . . [W]here a witness is a friend of the accused, and has had knowledge of the friend's arrest before trial, evidence of the witness' failure to give exculpatory information to the authorities is admissible to impeach an exculpatory story offered for the first time at trial. However, where the witness has not had sufficient notice, there must be evidence of other circumstances under which a reasonable person would have given exculpatory information to the authorities. For the case before us, resolution of this issue requires an examination of the pertinent testimony of each witness.

Matt Tanzer testified that he was a close friend of the defendant. Tanzer also testified that he had discussed the case with the defendant and other friends before trial. Although there was no testimony elicited on cross-examination as to how much time had elapsed before trial during which Tanzer knew of the defendant's arrest, we do not believe this less than perfect examination to be reversible error. Thus, a sufficient foundation was established for impeaching Tanzer.

Joseph Longhini testified he had only known the defendant for less than a year and was not a close friend. However, Longhini also testified that he discussed the case with the defendant before trial and told him he would be available if the defendant needed him. Thus, a sufficient foundation was established.

Kevin McGinley testified that he was a close friend of the defendant. However, in addition to the absence of testimony indicating when he first learned of the defendant's arrest, there was also no testimony that he had discussed the case with anyone. Moreover, no investigators for the police or the State ever questioned McGinley as to what he knew. Therefore, use of his prior silence was improper for lack of foundation.

Scott Bucich testified that he had known the defendant for a number of years. Bucich also testified that he discussed the case with the defendant before trial when the defendant called him to learn what Bucich knew of the incident. However, Bucich was a witness only to the defendant's altercation with another individual named John O'Brien. Under these circumstances, a friend of the accused would not normally go to the police to volunteer information pertaining to a separate fight. Thus, the use of Bucich's prior inaction was improper.

Nonetheless, this court finds these errors to be harmless. Error is harmless where a reviewing court can safely conclude, after consideration of the totality of the evidence, that a trial without the error would not produce a different result. . . . To say that the failure of McGinley and Bucich to volunteer information to the police affected the outcome of the case is speculative, especially in view of the fact that Tanzer and Longhini were properly impeached.

[Defendant’s fourth and fifth contentions are omitted.]

The judgment of the circuit court is affirmed.

Judgment affirmed.