{ "id": 3073106, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CHARLES MASINI, Appellant", "name_abbreviation": "People v. Masini", "decision_date": "1979-12-03", "docket_number": "No. 51586", "first_page": "17", "last_page": "25", "citations": [ { "type": "official", "cite": "78 Ill. 2d 17" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "21 Ill. 2d 52", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2732931 ], "opinion_index": 0, "case_paths": [ "/ill-2d/21/0052-01" ] }, { "cite": "24 Ill. App. 2d 302", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5209119 ], "year": 1960, "pin_cites": [ { "page": "314" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/24/0302-01" ] }, { "cite": "26 Ill. App. 3d 767", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2788528 ], "year": 1960, "pin_cites": [ { "page": "769-70" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0767-01" ] }, { "cite": "251 Ill. 497", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3435039 ], "year": 1975, "pin_cites": [ { "page": "499-501" } ], "opinion_index": 0, "case_paths": [ "/ill/251/0497-01" ] }, { "cite": "36 Ill. 2d 336", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378707 ], "pin_cites": [ { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0336-01" ] }, { "cite": "65 Ill. App. 3d 1011", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3328132 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/1011-01" ] }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "weight": 2, "pin_cites": [ { "page": "154" }, { "page": "154" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "65 Ill. App. 3d 1011", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3328132 ], "pin_cites": [ { "page": "1018" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/65/1011-01" ] } ], "analysis": { "cardinality": 633, "char_count": 11311, "ocr_confidence": 0.845, "pagerank": { "raw": 1.4813514660032883e-07, "percentile": 0.6611742615109993 }, "sha256": "71fd8c4a9883b87b0f07bb435905fc6e247fe92176432958f6bba275f728feae", "simhash": "1:772ddf91ae37ceb4", "word_count": 1826 }, "last_updated": "2023-07-14T16:36:42.081030+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CHARLES MASINI, Appellant." ], "opinions": [ { "text": "MR. JUSTICE KLUCZYNSKI\ndelivered the opinion of the court:\nDefendant, Charles Masini, was found guilty by a jury of criminal damage to property of less than $150 in value. The circuit court of Lake County entered judgment thereon and sentenced defendant to 9 months\u2019 incarceration. The appellate court affirmed, one judge dissenting. (65 Ill. App. 3d 1011.) We allowed defendant\u2019s petition for leave to appeal.\nOn November 13, 1976, at approximately 1:30 p.m., defendant was clearing brush on a farm which he had leased. He was using what he referred to as a \u201cbrush axe.\u201d Also according to defendant, he and his barn were hit by buckshot which he believed had been fired by two \u201clight-headed\u201d gentlemen approximately 300 feet away. Defendant enlisted the support of four other individuals, and the five of them tracked down two 16-year-old youths, Charles August and David Grosskopf, approximately 45 minutes later. August was carrying a shotgun which his stepfather had either loaned or given to him.\nIn approaching the two youths, defendant held his axe \u201cat port arms.\u201d He then told August three times to put the gun down, and, after the third time, defendant lowered the axe \u201cto guard.\u201d When August hesitated, defendant held the axe \u201cout as a defensive measure.\u201d In his testimony, August said, \u201cHe had it in my gut.\u201d Grosskopf, too, testified that the axe was placed against August\u2019s stomach. August then relinquished control of the gun.\nDefendant then used the axe to lift August\u2019s lapels. He did so, he testified, \u201cto check for a concealed weapon.\u201d Grosskopf\u2019s account of this aspect of the confrontation was similar. He testified that defendant \u201clooked into Chuck\u2019s coat, pressing it against him, looking into his coat for \u2014 I don\u2019t know what he was looking for \u2014 probably a concealed weapon or something like that; I don\u2019t know.\u201d\nAugust added in his testimony that defendant asked, in reference to a pouch that August was carrying, \u201cWhat\u2019s in there?\u201d August produced a rabbit that he had shot and, according to August, defendant \u201cstarted hollering about shooting his bunnies.\u201d At trial, the youths admitted shooting at other rabbits, too, as well as a railroad light on tracks adjacent to defendant\u2019s property.\nAugust then picked up the gun and leaned it against a nearby fence. While it was leaning against the fence, defendant chopped the shotgun in half with his axe. In his testimony, defendant stated that he did so to protect against further threat to persons, wildlife, or property.\nFollowing the incident, the youths contacted the police, and defendant was thereafter charged with criminal damage to property of less than $150 in value, aggravated assault, and battery. He was convicted and sentenced to 9 months\u2019 imprisonment on the criminal damage charge but acquitted on the other charges. The appellate court affirmed, and this appeal followed. Our review is limited to the criminal damage conviction and sentence.\nDefendant first asks us to rule that the circuit court erred in instructing the jury. The Illinois Pattern Jury Instructions (1968) on battery and aggravated assault (IPI Criminal Nos. 11.04, 11.06) were given at defendant\u2019s trial and were modified, respectively, to include the phrases \u201cwithout legal justification\u201d and \u201cwithout lawful authority,\u201d thus allowing the jury to acquit defendant of these charges if it found that defendant was justified in his actions in confronting Charles August and David Grosskopf. The IPI criminal damage instruction (IPI Criminal No. 16.02) was also given, but it was not modified to include a reference to legal justification or to the use of lawful authority. Defendant maintains that the defenses of self-defense, defense of others, and defense of property were raised as to all offenses charged and that the circuit court therefore erred in failing to include the phrase \u201cwithout lawful authority\u201d in the criminal damage instruction. Defendant argues further that this defect in the criminal damage instruction was not cured merely because the circuit court gave a separate instruction on justifiable use of force in defense of property (IPI Criminal No. 24.08). The State questions defendant\u2019s right to raise this argument in this court, as well as the merit of the argument itself. As to the former, the State points out that defendant did not submit his own proposed criminal damage instruction (58 Ill. 2d R. 366(b)(2)(i)) or object to the instruction given. In rebuttal, defendant contends that the issue is preserved for review by virtue of Rule 451(c) (58 Ill. 2d R. 451(c)), which provides that, as to instructions, \u201csubstantial defects are not waived by failure to make timely objections thereto if the interests of justice require.\u201d Alternatively, defendant argues that the instruction desired is fundamental in nature and that the circuit court is obligated to give such an instruction regardless of whether one is requested by the parties. Pointing out that he appeared pro se in the circuit court, defendant argues that reviewing courts should be especially careful to ensure that the jury was properly instructed. He also brings to our attention the notation of the jury on its verdict form which states, \u201cDue to circumstances the jury unanimously recommends suspension of sentence on the criminal damage charge.\u201d This, the defendant argues, indicates that the jury would have acquitted defendant on the criminal damage charge if it had known that it could not influence sentencing.\nBecause we do not believe that defendant produced any evidence of justification for breaking the gun which would require the desired modification of the criminal damage instruction, we are unable to find a defect in the instruction, much less a \u201csubstantial defect,\u201d which would support an exception to the waiver rule under Rule 451(c). \u201c[W] e believe the jury could not reasonably have returned other than a guilty verdict, and therefore hold any error in this instruction has been waived.\u201d (People v. Lyons (1967), 36 Ill. 2d 336, 340.) For the same reason, we do not believe that the desired modification is fundamental in character. Defendant\u2019s argument pertaining to the instruction is therefore waived.\nWe do note that the trial judge, in recognition of his duty to protect the rights of a pro se defendant, did instruct the jury on such fundamental matters as the essential elements of the offenses charged, the State\u2019s burden of proof, and the presumption of innocence.\nDefendant\u2019s remaining argument is that his sentence of 9 months\u2019 incarceration is excessive. He points out that the jury recommended suspension of sentence and that the State made no sentencing recommendation; he also claims that his probation officer recommended probation. As a result, defendant argues, the circuit court abused its discretion in imposing a term of imprisonment.\nAs to the fact that the jury recommended suspension of sentence, we find no merit to the contention that the circuit court was thereby precluded from imposing a term of imprisonment. The jury\u2019s only function was to determine guilt or innocence; the circuit court could correctly disregard the jury\u2019s recommendation as surplusage. (.People v. Coleman (1911), 251 Ill. 497, 499-501; People v. Worsham (1975), 26 Ill. App. 3d 767, 769-70; People v. Jensen (1960), 24 Ill. App. 2d 302, 314, aff\u2019d (1960), 21 Ill. 2d 52.) So, too, the prosecution\u2019s failure to express an opinion on the subject does not preclude the circuit court from imposing what it believes to be a suitable sentence. We also find no basis for defendant\u2019s contention that his probation officer recommended probation. The officer\u2019s report states, \u201cConsidering the fact the defendant is presently on Federal Parole until 1980, probation does not seem to be a suitable alternative in this case. The defendant stated that if a period of incarceration is a necessary measure, it is probable his Federal Parole will be revoked. It is hopeful the Court will consider these factors in sentencing the defendant.\u201d Contrary to defendant\u2019s argument, we do not interpret this as a recommendation of probation. The officer\u2019s statement was noncommittal. We therefore need not decide whether and to what extent the circuit court was bound by the probation officer\u2019s report.\nFinally, we note that defendant does not claim that the circuit court considered improper sentencing factors or that it erred in considering his lengthy adult criminal record. The circuit court had before it materials which indicated extensive criminal activity on the part of the defendant, including Federal and State convictions. In light of this record, we could not say that the sentence of 9 months was excessive.\nThe judgment of the appellate court is accordingly affirmed.\nJudgment affirmed.", "type": "majority", "author": "MR. JUSTICE KLUCZYNSKI" }, { "text": "MR. JUSTICE CLARK,\ndissenting:\nThe jury\u2019s determination that the defendant was guilty of criminal damage to property of less than $150 is supported by the evidence, and I would affirm the conviction. The circuit court\u2019s sentence of 9 months\u2019 incarceration is excessive. A fine, suspended sentence or probation would have been just. As the dissent in the appellate court found, the criminal record of the defendant, who represented himself at trial, does not justify the sentence under the facts of this case (65 Ill. App. 3d 1011, 1018).\nThe defendant, and the barn on the property he was leasing, were pelted with buckshot while he was clearing brush. The complainant and his companion, while hunting, may or may not have been on his property; but one or both fired buckshot, which struck the defendant and his barn, on or onto the property, around which were signs indicating the property was a wildlife refuge. It does not surprise me that the defendant might have been fearful of possibly irresponsible shooting, or that he was angered that his \u201canimal refuge\u201d was being violated. Overreact he did. Anger, however, might have been justified. Certainly he did not engage in the threat to personal harm that he was subjected to by the complainant. Moreover, two matters, not binding on the trial court, I find significant. The jury recommended that defendant be given a suspended sentence, and his Federal probation officer testified that defendant had not caused problems during his supervision.\nIn People v. Perruquet (1977), 68 Ill. 2d 149, 154, this court determined that a reviewing court may not alter a trial court\u2019s sentence absent an abuse of judicial discretion. Such abuse exists here. Factors to be considered in sentencing arc \u201cdefendant\u2019s credibility, demeanor, general moral character, mentality, social environment, habits, and age\u201d (68 Ill. 2d 149, 154). The record is devoid of evidence, apropos of these factors, which dictates so harsh a sentence.\nI am puzzled that a sentence this harsh could be given for a crime of this character, a crime involving no injury to the person. Fairness demands a remand for resentencing. I therefore dissent.", "type": "dissent", "author": "MR. JUSTICE CLARK," } ], "attorneys": [ "Julius Lucius Echeles and George M. Zuganelis, of Chicago, for appellant.", "William J. Scott, Attorney General, of Springfield (Donald B. Mackay, Melbourne A. Noel, Jr., and Michael Vujovich, Assistant Attorneys General, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 51586.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CHARLES MASINI, Appellant.\nOpinion filed December 3, 1979.\nCLARK, J., dissenting.\nJulius Lucius Echeles and George M. Zuganelis, of Chicago, for appellant.\nWilliam J. Scott, Attorney General, of Springfield (Donald B. Mackay, Melbourne A. Noel, Jr., and Michael Vujovich, Assistant Attorneys General, of counsel), for the People." }, "file_name": "0017-01", "first_page_order": 51, "last_page_order": 59 }