187 Ill.App.3d 234, 134 Ill.Dec. 855, 543 N.E.2d 138
The defendant, William J. Conley, was charged with two counts of aggravated battery based on permanent disability and great bodily harm.1 After a jury trial he was convicted of aggravated battery based solely on permanent disability on July 17, 1986.2 The trial court denied the defendant's motions for judgment notwithstanding the verdict and for a new trial, and sentenced the defendant to 30 months' probation including 40 days of periodic imprisonment.3 On appeal the defendant raised several contentions regarding the sufficiency of the evidence and trial procedures.4
The events giving rise to the charge occurred at a party on September 28, 1985, in unincorporated Orland Township, attended by approximately 200 high school students.5 Sean O'Connell attended with several friends. At some point Sean's group was approached by a group of about 20 boys who apparently thought someone in Sean's group had made a derogatory remark.6 Sean's group denied making any statement and said they did not want trouble.7 Later Sean and his friends decided to leave and walked toward their car parked a half block south of the party.8
A group walking toward the party from across the street shouted, "There's those guys from the party." Someone from that group approached Sean, who was walking with his friend Marty Carroll ten to fifteen steps behind two other friends, Glen Mazurowski and Dan Scurio.9 The 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.10 The offender attempted to hit Marty but missed when Marty ducked.11
Sean sustained broken upper and lower jaws and four broken bones between the bridge of his nose and the lower left cheek.12 He lost one tooth and underwent root canal surgery to reposition ten damaged teeth. An expert testified Sean has a permanent condition identified as mucosal mouth and permanent partial numbness in one lip.13 The expert also testified the life expectancy of the damaged teeth might be diminished by a third to a half.14
At trial the State presented Officer Houlihan, Dr. Arnold S. Morof, and five occurrence witnesses. Of those five, only Marty Carroll identified Conley as the offender.15 Another student, Demetrius Kereakas, testified he saw Conley throw a bottle at Dan Scurio's car after the incident. The defense recalled Marty Carroll and presented seven witnesses plus the defendant.16 Four defense witnesses testified that the offender was Robert Frazer, known as "Crazy Bob" or "Terminator." The party venue was a residence surrounded by open fields with no street lights, and many witnesses had been drinking before the incident.17
At the end of the trial, the jury received four verdict forms for the two counts of aggravated battery.18 The jury returned a guilty verdict for aggravated battery based on permanent disability, failing to sign the remaining verdict forms.19 The State's Attorney advised the trial court that the jury had returned only one verdict and the court accepted the verdict and discharged the jury.20
Whether the State failed to prove beyond a reasonable doubt that the victim incurred a permanent disability?21
Under section 12-4(a) of the Criminal Code, a person commits aggravated battery when, in committing a battery, he intentionally or knowingly causes permanent disability.22 An injury constitutes a permanent disability when the victim is no longer whole such that the injured bodily portion no longer serves the body in the same manner as before the injury.23
No. The expert testimony established that Sean O'Connell suffered permanent partial numbness in one lip together with the permanent condition identified as mucosal mouth.2425 He lost one tooth and underwent root canal surgery to reposition ten damaged teeth. The expert also testified the life expectancy of the damaged teeth might be diminished by a third to a half. These specific and lasting impairments demonstrate that Sean is no longer whole in the normal functioning of his mouth and teeth, satisfying the statutory definition of permanent disability.26
The evidence was sufficient to prove beyond a reasonable doubt that the victim incurred a permanent disability.27
Whether the State failed to prove beyond a reasonable doubt that the defendant intended to inflict a permanent disability?28
Section 12-4(a) requires the State to prove that the defendant acted with the conscious objective to achieve permanent disability or was consciously aware that permanent disability was practically certain to result from his conduct.29 Intent may be inferred from the surrounding circumstances, the weapon used, and the force of the blow.30
No. The defendant struck Sean in the face with a wine bottle without warning and with sufficient force to fracture multiple facial bones and damage numerous teeth.3132 The defendant presented no evidence to rebut the presumption that he intended the natural and probable consequences of that conduct.33 The circumstances therefore permitted the jury to infer the required intent to cause permanent disability.34
The evidence was sufficient to prove beyond a reasonable doubt that the defendant intended to inflict a permanent disability.35
Whether the trial court erred in prohibiting the defense from asking a State identification witness to describe the offender during the defendant's case in chief?
No. The defendant had a full opportunity to cross-examine Marty Carroll during the State's case in chief and could have asked him to describe the offender at that time.3839 The decision to recall Carroll after the State rested fell within the trial court's discretion, and the court acted within that discretion by limiting further questioning on the description.40
The trial court did not err in prohibiting the defense from asking the identification witness to describe the offender during the defendant's case in chief.41
Whether the trial court erred in allowing evidence on cross-examination that four defense witnesses failed to tell police that another individual was the offender?
No. A sufficient foundation existed for the impeachment of Tanzer and Longhini because each had discussed the case with the defendant before trial.4445 Although the foundation was lacking for McGinley and Bucich, any error in allowing their impeachment was harmless in light of the properly impeached testimony and the overall evidence supporting the verdict.
The trial court did not commit reversible error in allowing the impeachment evidence.
Whether the State's use of the defendant's pretrial silence during cross-examination and in closing argument deprived the defendant of a fair trial?
Post-arrest silence after Miranda warnings may not be used to impeach exculpatory testimony first offered at trial.46 Pre-arrest silence or post-arrest silence not induced by Miranda warnings may be used, and no Doyle violation occurs when the trial court sustains objections and prevents any actual use of the silence.47
No. The defendant was successfully rehabilitated on redirect regarding his pre-arrest silence, and the trial court sustained all objections to questions concerning post-arrest silence after the lineup.4849 No completed question or argument concerning the post-arrest silence reached the jury, and the court instructed the jury to disregard questions to which objections were sustained.50 Under these circumstances no improper use of silence occurred.51
The State's references to the defendant's pretrial silence did not deprive the defendant of a fair trial.52
Whether the trial court erred in prohibiting defense counsel from arguing that the victim had a financial motive in securing a verdict and in telling the jury that financial motive was not in issue?
No. Mr. O'Connell, the person with the alleged financial interest arising from dental expenses, did not testify.5556 Demetrius Kereakas had no financial stake in the verdict, and no evidence showed that O'Connell influenced Kereakas's identification.57 The trial court therefore properly precluded the argument that sought to impute O'Connell's supposed bias to Kereakas.58
The trial court did not err in prohibiting the financial-motive argument.59