{ "id": 2497960, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY P. PTAK, Defendant-Appellant", "name_abbreviation": "People v. Ptak", "decision_date": "1990-02-09", "docket_number": "No. 2\u201488\u20141174", "first_page": "782", "last_page": "794", "citations": [ { "type": "official", "cite": "193 Ill. App. 3d 782" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "121 Ill. 2d 537", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3202119 ], "pin_cites": [ { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0537-01" ] }, { "cite": "169 Ill. App. 3d 883", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3550343 ], "pin_cites": [ { "page": "900" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/0883-01" ] }, { "cite": "177 Ill. App. 3d 602", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3621483 ], "year": 1988, "pin_cites": [ { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0602-01" ] }, { "cite": "103 Ill. 2d 472", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152531 ], "weight": 4, "pin_cites": [ { "page": "477" }, { "page": "477" }, { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0472-01" ] }, { "cite": "105 S. Ct. 2061", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "85 L. Ed. 2d 335", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "471 U.S. 1044", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6286048, 6286335 ], "opinion_index": 0, "case_paths": [ "/us/471/1044-01", "/us/471/1044-02" ] }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "year": 1985, "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "year": 1984, "pin_cites": [ { "page": "687-88" }, { "page": "693" }, { "page": "2064-65" }, { "page": "690" }, { "page": "695" }, { "page": "2066" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "442 U.S. 510", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531962 ], "weight": 12, "pin_cites": [ { "page": "521" }, { "page": "49" }, { "page": "2458" }, { "page": "524" }, { "page": "51" }, { "page": "2459" }, { "page": "513-14" }, { "page": "44-45" }, { "page": "2453-54" } ], "opinion_index": 0, "case_paths": [ "/us/442/0510-01" ] }, { "cite": "14 Ill. App. 3d 879", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2685090 ], "pin_cites": [ { "page": "888" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/0879-01" ] }, { "cite": "129 Ill. App. 3d 966", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3490428 ], "pin_cites": [ { "page": "969" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/0966-01" ] }, { "cite": "145 Ill. App. 3d 669", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3535996 ], "weight": 3, "pin_cites": [ { "page": "671" }, { "page": "671-72" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/0669-01" ] }, { "cite": "169 Ill. App. 3d 59", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3550319 ], "pin_cites": [ { "page": "61-62" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/0059-01" ] }, { "cite": "99 Ill. App. 3d 541", "category": "reporters:state", "reporter": "Ill. App. 3d", "weight": 2, "pin_cites": [ { "page": "574" } ], "opinion_index": 0 }, { "cite": "154 Ill. App. 3d 706", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3646440 ], "weight": 5, "pin_cites": [ { "page": "712" }, { "page": "712" }, { "page": "712" }, { "page": "713-14" }, { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/154/0706-01" ] }, { "cite": "324 Ill. 363", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2444575 ], "opinion_index": 1, "case_paths": [ "/ill/324/0363-01" ] }, { "cite": "83 Ill. 2d 58", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5472604 ], "weight": 2, "pin_cites": [ { "page": "66" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/83/0058-01" ] }, { "cite": "94 Ill. App. 3d 749", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3125240 ], "year": 1981, "pin_cites": [ { "page": "753", "parenthetical": "hereinafter IPI Criminal 2d" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/94/0749-01" ] }, { "cite": "101 Ill. App. 3d 1073", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3082889 ], "year": 1981, "pin_cites": [ { "page": "1075" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/101/1073-01" ] }, { "cite": "99 Ill. App. 3d 571", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3101466 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/99/0571-01" ] }, { "cite": "85 Ill. 2d 261", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5470220 ], "pin_cites": [ { "page": "268" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/85/0261-01" ] }, { "cite": "97 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5515833 ], "year": 1981, "pin_cites": [ { "page": "509" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/97/0502-01" ] }, { "cite": "91 Ill. 2d 164", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3091996 ], "pin_cites": [ { "page": "168" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/91/0164-01" ] }, { "cite": "14 Ill. App. 3d 879", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2685090 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/14/0879-01" ] }, { "cite": "129 Ill. App. 3d 966", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3490428 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/129/0966-01" ] }, { "cite": "145 Ill. App. 3d 669", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3535996 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/145/0669-01" ] }, { "cite": "169 Ill. App. 3d 59", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3550319 ], "weight": 3, "pin_cites": [ { "page": "61-62" }, { "page": "61" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/169/0059-01" ] }, { "cite": "154 Ill. App. 3d 706", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3646440 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/154/0706-01" ] } ], "analysis": { "cardinality": 1068, "char_count": 29075, "ocr_confidence": 0.766, "pagerank": { "raw": 1.1834216063166594e-07, "percentile": 0.5891822264541292 }, "sha256": "c159a1ee3f77a4d12b973b3243addb194636d3e7889023165718d150a9af6b52", "simhash": "1:ef3ed8327b25f575", "word_count": 5011 }, "last_updated": "2023-07-14T21:36:46.192510+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY P. PTAK, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE INGLIS\ndelivered the opinion of the court:\nDefendant, Anthony Ptak, was charged by indictment with aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12 \u2014 4(a)), armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A \u2014 2), and attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8 \u2014 4, 9 \u2014 1(a)(1)). Following a jury trial, defendant was acquitted of the offense of attempted murder, but was found guilty of armed violence and aggravated battery, and was sentenced to six years\u2019 imprisonment. On appeal, defendant contends that (1) the trial court improperly instructed the jury that a broken glass bottle was a dangerous weapon as a matter of law; and (2) he was denied effective assistance of counsel. We affirm.\nAt trial, Dennis Lindsey testified that on September 18, 1987, he was living in an apartment with his pregnant girlfriend, Vicky Grissette, and defendant. Lindsey stated that he, Grissette, and two friends were cleaning the apartment when defendant arrived around 4 a.m. Defendant was very angry when he entered the apartment and began arguing with Grissette. Lindsey heard the argument, entered the room, and pushed defendant onto the couch. Lindsey told defendant to leave Grissette alone and began to walk towards the kitchen to get a beer. At that time, defendant hit Lindsey in the head with a beer bottle. The beer bottle broke, and defendant began stabbing Lindsey with the jagged edges of the broken bottle. Lindsey stated that he was stabbed in the left arm, back, and chest. Grisette then got Lindsey out of the apartment and to a hospital. Lindsey stated that he was in the hospital for nearly one week following the attack.\nVicky Grissette testified that defendant arrived at the apartment around 3 a.m. and began drinking beer with Lindsey and a friend in the kitchen. Shortly thereafter, defendant began arguing with Grissette and pushed her once in the chest. Grissette stated that Lindsey and defendant then began their altercation, with Lindsey ending up on the kitchen floor after being cut by defendant\u2019s broken beer bottle. Grissette was able to get Lindsey out of the apartment and into his car, and a friend drove them to the hospital.\nOfficer James Kaplan of the Addison police department testified that defendant walked into the police station on September 18, 1987. Officer Kaplan stated that defendant \u201cappeared quite disorderly\u201d and had dried blood on his face, hands, and clothing. Defendant told Officer Kaplan that he was involved in a fight with Lindsey and that he stabbed Lindsey with a broken bottle. Officer Kaplan further testified that paramedics were called to the police station to treat a bump on defendant\u2019s forehead.\nDr. Raymond Dieter, a surgeon associated with Elmhurst Hospital, testified that he saw Dennis Lindsey in the emergency room. Dr. Dieter stated that Lindsey had a severe laceration on his left arm, along with smaller cuts on his back, side, and hands. The lacerations resulted in Lindsey losing approximately one-half of his blood. Dr. Dieter stated that without medical treatment, the injuries to Lindsey would be life-threatening.\nThe State rested its case after Dr. Dieter\u2019s testimony. Defendant\u2019s motion for a directed verdict was denied, and defendant called two witnesses to testify. Defendant did not testify at trail. Following closing arguments, the jury found defendant guilty of armed violence and aggravated battery. Defendant filed a timely notice of appeal.\nDefendant\u2019s first contention on appeal is that the trial court improperly instructed the jury that a broken glass bottle was a dangerous weapon as a matter of law. Defendant argues that whether he was armed with a dangerous weapon was an element of the offense which the State was required to prove beyond a reasonable doubt. Defendant contends that instructing the jury in this manner effectively curtailed the jury\u2019s freedom, as the trier of fact, to make an independent assessment of the evidence.\nThe State disagrees, arguing instead that a broken beer bottle is a per se dangerous weapon in that it is capable of serious bodily harm and has \u201cno ascertainable legitimate use.\u201d As such, the State contends that the jury was properly instructed in this case.\nA person is guilty of the offense of armed violence if he or she commits any felony while armed with a dangerous weapon. (Ill. Rev. Stat. 1985, ch. 38, par. 33A \u2014 2.) A person is considered \u201carmed with a dangerous weapon\u201d if:\n\u201che carries on or about his person or is otherwise armed with a category I or category II weapon, (b) A category I weapon is a pistol, revolver, rifle, shotgun, spring gun, or any other firearm, sawed-off shotgun, a stun gun or taser as defined in paragraph (a) of Section 24 \u2014 1 of this Code, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, or any other deadly or dangerous weapon or instrument of like character.\u201d Ill. Rev. Stat. 1985, ch. 38, par. 33A \u2014 1.\nAny weapon specifically listed in the definition is considered to be a per se dangerous weapon. (People v. Weger (1987), 154 Ill. App. 3d 706, 712.) A broken glass bottle is not specifically listed in the definition. However, a weapon not listed in the definition can become a dangerous weapon when it is used in a manner dangerous to the well-being of the person threatened and is also of \u201clike character.\u201d (Weger, 154 Ill. App. 3d at 712.) In Weger, the appellate court determined that the trial court erred in holding that a straight-blade razor was a per se dangerous weapon. (154 Ill. App. 3d at 712.) The court noted that even though the razor was easy to conceal and contained a sharp edge, it did have a legitimate use as a shaving device. (154 Ill. App. 3d at 713-14.) As such the State was required to show that the defendant used the razor as a weapon, which the State was unable to do. 154 Ill. App. 3d at 174.\nThe Weger court specifically relied on City of Pekin v. Shindledecker (1981), 99 Ill. App. 3d 541, in reaching its decision. In Shindledecker, the court had to decide if a device not specifically listed in section 24 \u2014 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 24 \u2014 1) was dangerous weapon. The court stated:\n\u201cCommon sense must be the guide. Such an approach acknowledges the character of the device and its potential for harm, while not being oblivious to the article\u2019s everyday use, the circumstances of its discovery, and in certain cases, the person\u2019s explanation as to its presence or possession. If it were otherwise, a baseball bat, rolling pin, and perhaps a golf club could qualify as bludgeons if a strict definition of that word is employed (See Webster\u2019s Third New International Dictionary 240 (unabr. ed. 1976)). This would lead to obviously absurd results.\u201d Shindledecker, 99 Ill. App. 3d at 574.\nThe State argues that, applying Weger and Shindledecker to the present case, the trial court properly considered the broken bottle to be a dangerous weapon as a matter of law. We agree.\nIn the case at bar, defendant used a broken beer bottle to inflict serious injuries upon the victim, using the bottle in a manner similar to a knife or dagger. Furthermore, unlike the straight-blade razor used in Weger, the broken bottle had no ascertainable legitimate use. Since the character of the weapon was such as to support only one conclusion, namely, that the weapon was dangerous, had no legitimate use and was used in a manner similar to a knife or dagger, the trial court properly determined that the weapon was a category I weapon. See People v. Westefer (1988), 169 Ill. App. 3d 59, 61-62.\nWe are also aware of other court decisions which support our determination that a broken bottle is a dangerous weapon as a matter of law. In People v. Thornton (1986), 145 Ill. App. 3d 669, the trial court, in a bench trial, found that a broken beer bottle, which was used to slice the victim\u2019s ear and neck, was clearly a dangerous weapon for purposes of the armed violence statute. (Thornton, 145 Ill. App. 3d at 671.) The appellate court affirmed the defendant\u2019s conviction, often referring to the broken bottle as a \u201cdeadly\u201d or \u201cdangerous\u201d weapon. 145 Ill. App. 3d at 671-72; see also People v. Samier (1985), 129 Ill. App. 3d 966, 969 (knife with blade of less than three inches was a deadly weapon given that knife was used to threaten life of victim on two occasions); People v. Hunter (1973), 14 Ill. App. 3d 879, 888 (jury properly inferred that broken bottle was used as a deadly weapon when the victim\u2019s daughter testified that she swept up broken glass from a beer or pop bottle in area where her father was attacked).\nDefendant also contends that the trial court\u2019s instruction to the jury that the broken bottle was a dangerous weapon constituted an improper conclusive presumption. To support his argument, defendant cites Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450. In Sandstrom, the Supreme Court determined that it was improper to give a jury instruction which in effect shifted the burden of proof to the defendant to prove that he did not intend to commit an act. (442 U.S. at 521, 61 L. Ed. 2d at 49, 99 S. Ct. at 2458.) The Court noted that the instruction could constitute either a burden-shifting or a conclusive presumption, with either interpretation violating the defendant\u2019s due process rights. 442 U.S. at 524, 61 L. Ed. 2d at 51, 99 S. Ct. at 2459.\nWe believe that the case at bar is factually distinguishable from Sandstrom. In Sandstrom, the jury instruction related to the element of intent, an element of the offense that the State was required to prove beyond a reasonable doubt. However, the jury instruction given by the trial court effectively removed this element from the State\u2019s burden of proof, which the Supreme Court determined to be erroneous. (Sandstrom, 442 U.S. at 513-14, 61 L. Ed. 2d at 44-45, 99 S. Ct. at 2453-54.) In the present case, the trial court merely determined that the weapon used, the broken bottle, was a dangerous weapon as a matter of law. This determination did not relieve the State of its burden of proof with respect to the charge of armed violence. In addition, there is an inherent difference between the element of intent (as in Sandstrom), which is an element of an offense that the State must prove beyond a reasonable doubt, and a determination that a physical object (as with the broken beer bottle in the present case) is dangerous as a matter of law. As such, it is our opinion that the broken beer bottle used in the case at bar had no legitimate ascertainable use and was a dangerous weapon as a matter of law. Thus, we disagree with defendant\u2019s contention that the trial court improperly invaded the province of the jury as the trier of fact under the specific circumstances present in this case.\nDefendant next contends that he was denied the effective assistance of counsel by his attorney\u2019s failure to have the jury instructed, during voir dire, that his failure to testify could not be considered against him. In order to demonstrate ineffective assistance of counsel, a defendant must show that (1) his attorney\u2019s conduct was professionally deficient; and (2) but for the deficiency, there is a reasonable probability that the result of the trial would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064-65.) Our supreme court has adopted the Strickland standard when dealing with a claim of ineffective assistance of counsel. People v. Albanese (1984), 104 Ill. 2d 504, 526, cert. denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061.\nDefendant cites People v. Zehr (1984), 103 Ill. 2d 472, to support his position that he was denied effective assistance of counsel. In Zehr, our supreme court determined that it was essential for jurors to know that a defendant is presumed innocent, that he is not required to offer any evidence in his own behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to testify cannot be held against him. ()Zehr, 103 Ill. 2d at 477.) The court noted that if a juror has a prejudice against any of these guarantees, a jury instruction given at the end of the trial \u201cwill have little curative effect.\u201d 103 Ill. 2d at 477.\nDefendant asserts that the two-prong test in Strickland is satisfied given that his attorney did not question the potential jurors\u2019 attitudes regarding defendant not testifying at trial, with the result being that defendant did not receive a fair trial. We disagree.\nA review of the record indicates that the trial court, on numerous occasions, specifically questioned the prospective jurors concerning possible prejudice or bias that may result from the possibility that' defendant may exercise his constitutional right to refrain from testifying. At the beginning of the voir dire, the trial court informed the prospective jurors that they should listen carefully to the questions posed to each juror because the questions asked of each juror also applied to the rest of them. The trial court informed the first prospective juror that \u201cthe Defendant of course since his is presumed to be innocent doesn\u2019t have to present any evidence, they don\u2019t have to call any witnesses but I anticipate they probably will and so you have to listen to both sides of the case, both State side and defense side and then decide who is telling the truth.\u201d Defense counsel also specifically questioned one prospective juror concerning defendant\u2019s failure to testify as follows:\n\u201cQ. And what is your attitude or feelings rather about Tony [defendant] testifying or not testifying, would you hold that against him?-\nA. Would I hold it against him?\nQ. If he did not?\nA. If he did not testify.\nA. I guess I don\u2019t know.\nQ. Do you feel \u2014 [?]\nA. I guess I wouldn\u2019t hold it against him.\nQ. Do you feel he should testify?\nA. Yes.\nQ. And in the portion of the trial if he chooses not to, would that adversely affect you in the hearing on the trial?\nA. I don\u2019t think so.\nQ. You don\u2019t think so?\nA. No.\u201d\nIn addition, defense counsel also asked another prospective juror:\n\u201cQ. What if Tony doesn\u2019t take the stand, will you hold that against us?\nA. No, I don\u2019t believe so.\nQ. You hesitated for a second.\nA. Just that I was thinking, no, I won\u2019t.\nQ. So you don\u2019t demand that Tony testify in order to find him innocent?\nA. No, I don\u2019t think I can demand anything.\nQ. Well, you are the people that decide the facts, not me, not the Judge, the Judge only makes decisions of law and decides what can be presented and admitted into evidence. You have got the duty to decide guilt or innocence.\nA. I guess my opinion is I always would like to hear his side of the story from him but I won\u2019t hold it against him if he didn\u2019t [sic] testify.\nQ. But you do understand that the State must prove beyond a reasonable doubt \u2014 [?]\nA. Oh, right.\u201d\nFurthermore, defense counsel asked two other prospective jurors similar questions, with both jurors positively stating that they would not hold defendant\u2019s failure to testify at trial against him.\nA review of the extensive remarks and questions made by the trial court and defense attorney to the prospective jurors during voir dire leads us to the conclusion that the concerns expressed in Zehr were satisfied in this case. As the Zehr court noted, the questions need not be asked in any particular form as long as the subject matter of the questions is covered during voir dire. (Zehr, 103 Ill. 2d at 477; see People v. Fox (1988), 177 Ill. App. 3d 602, 610.) The trial court properly exercised its broad discretion in controlling the manner and scope of voir dire, and there is no showing that the procedure utilized was insufficient for discovering impartiality or prejudice. See People v. Jones (1988), 169 Ill. App. 3d 883, 900.\nIt is our opinion that defendant has failed to satisfy either prong of the Strickland test in this case. Defense counsel\u2019s decision to forego a specific voir dire question concerning the effect of defendant\u2019s failure to testify at trial was not an example of professionally deficient conduct, especially when such a decision may have been a matter of trial strategy. Matters of trial strategy are entitled to great deference on review. (Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.) This is so because \u201cno two defense attorneys will necessarily agree on the same strategy for a particular case.\u201d (People v. Hillenbrand (1988), 121 Ill. 2d 537, 548.) While we believe that defense counsel\u2019s questions during voir dire concerning defendant\u2019s constitutional right to not testify could have been stronger, they did not rise to such a level to constitute professionally deficient representation. In any event, defendant has failed to demonstrate how he was prejudiced by the events which occurred during voir dire and thus cannot satisfy the Strickland requirement that the outcome of the trial would have been different.\nFor the above-stated reasons, the judgment of the circuit court of Du Page County is affirmed.\nAffirmed.\nMcLAREN, J., concurs.", "type": "majority", "author": "JUSTICE INGLIS" }, { "text": "JUSTICE REINHARD,\ndissenting:\nI respectfully dissent from the majority\u2019s holding that the issue of whether the broken glass bottle is a dangerous weapon as defined in section 33A \u2014 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 33A \u2014 1) is a question of law and that the trial court properly instructed the jury on this question. I further disagree with the majority\u2019s statement that, in determining whether the defendant is \u201carmed with a dangerous weapon\u201d under section 33A \u2014 1, it is proper to consider that the weapon had no legitimate use and how it was used.\nApproaching the latter problem first, it is important to recognize initially that we are here concerned with the crime of armed violence, which makes it a criminal offense to commit a felony while armed with a dangerous weapon. (Ill. Rev. Stat. 1987, ch. 38, par. 33A \u2014 2; People v. Donaldson (1982), 91 Ill. 2d 164, 168.) The term \u201carmed with a dangerous weapon\u201d for purposes of the armed violence statute is specifically defined as follows:\n\u201c\u00a733A \u2014 1. Definitions, (a) \u2018Armed with a dangerous weapon\u2019. A person is considered armed with a dangerous weapon for purposes of this Article, when he carries on or about his person or is otherwise armed with a category I or category II weapon, (b) A category I weapon is a pistol, revolver, rifle, shotgun, spring gun, or any other firearm, sawed-off shotgun, a stun gun or taser as defined in paragraph (a) of Section 24 \u2014 1 of this Code, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, or any other deadly or dangerous weapon or instrument of like character, (c) A category II weapon is a bludgeon, blackjack, slungshot, sand-bag, sand-club, metal knuckles, billy or other dangerous weapon of like character.\u201d (Ill. Rev. Stat. 1987, ch. 38, par. 33A \u2014 1.)\nThe prohibited weapons are specifically named and include \u201cany other deadly or dangerous weapon or instrument of like character.\u201d This inclusion of other such weapons of like character does not, in my opinion, warrant the conclusion drawn by the majority that it is proper to consider the use of the weapon to determine if it is deadly or dangerous.\nThe purpose of the armed violence statute and its severe Class X penalty is not only to punish the criminal and protect society from him, but also to deter his conduct \u2014 that of carrying the specified weapon while committing a felony. (People v. Alejos (1983), 97 Ill. 2d 502, 509.) It is clear that the legislature did not intend that the \u201cuse\u201d of the weapon in the commission of a felony was necessary to commit armed violence, as the mere physical presence of a weapon while a crime is being committed is a sufficient threat to warrant proscription. People v. Haron (1981), 85 Ill. 2d 261, 268.\nThe fundamental problem with the majority\u2019s reasoning in concluding that in a prosecution for armed violence it is permissible to consider whether the weapon had no legitimate use and how it was used in the particular case in determining if it is a dangerous weapon is that this approach and the cases relied on by the majority fail to observe the distinct statutory definition of \u201carmed with a dangerous weapon\u201d contained in section 33A \u2014 1 and its interrelationship with the purpose of the armed violence offense to punish and deter the carrying of a dangerous weapon while committing a felony. Consequently, People v. Weger (1987), 154 Ill. App. 3d 706, and City of Pekin v. Shindledecker (1981), 99 Ill. App. 3d 571, relied on by the majority, and cases cited in those opinions, which hold that a weapon not specifically listed in section 33A \u2014 1 can become a dangerous weapon when it is used in a manner dangerous to the well-being of the individual harmed, are incorrectly applying the dangerous weapons provisions in other sections of the Criminal Code, the armed robbery and unlawful use of weapons statutes, which are not relevant to the specific definition in section 33A \u2014 1.\nWhat constitutes a dangerous weapon for armed robbery does not necessarily constitute a dangerous weapon under the armed violence statute, wherein categories of dangerous weapons are specified. (People v. Myers (1981), 101 Ill. App. 3d 1073, 1075; People v. Watkins (1981), 94 Ill. App. 3d 749, 753.) I further observe that the committee note under the definition for dangerous weapon in Illinois Pattern Jury Instructions, Criminal, No. 4.17 (2d ed. 1981) (hereinafter IPI Criminal 2d) states that this instruction is not to be given, inter alia, in armed violence cases. In this instruction, the manner and use of the object or instrument may be considered in determining whether it is a dangerous weapon. Thus, there is authority that the specific definition of \u201carmed with a dangerous weapon\u201d in the armed violence statute is distinct from the definition and use of the term \u201cdangerous weapon\u201d in other provisions in the Criminal Code.\nFor the foregoing reasons, I do not agree that, for those weapons not specifically listed in section 33A \u2014 1 of the Criminal Code, a weapon still can become a dangerous weapon depending upon how it is used and whether it has any legitimate use. I would not follow People v. Weger, relied on by the majority.\nThe next issue to be addressed is whether, in a jury case, the court or the jury determines whether the broken glass bottle is a \u201cdeadly or dangerous weapon or instrument of like character\u201d to the category I weapons, applicable hereto, of a \u201cknife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, or stiletto.\u201d (See Ill. Rev. Stat. 1987, ch. 38, par. 33A \u2014 1(b).) The majority concludes that the question is one to be determined as a matter of law and is not to be submitted to the jury, as occurred here when the trial judge gave an instruction based on IPI Criminal 2d No. 11.19, as follows:\n\u201cA person commits armed violence when he commits the offense of aggravated battery while armed with a dangerous weapon.\nA person is considered armed with a dangerous weapon when he carries on or about his person or is otherwise armed with a broken glass bottle.\u201d\nDefendant objected to this instruction on the basis that whether the broken glass bottle was a dangerous weapon was a factual question for the jury. He did not offer an alternative instruction at trial, although it appears the trial judges believed he was correctly following IPI Criminal 2d No. 11.19 by inserting the words \u201cbroken glass bottle\u201d in the second blank provided for in IPI Criminal 2d No. 11.19.\nIPI Criminal 2d No. 11.19 provides as follows:\n\u201cA person commits armed violence when he commits the offense of_while armed with a dangerous weapon.\nA person is considered armed with a dangerous weapon when he carries on or about his person or is otherwise armed with a__\u201d\nThe committee note indicates that the name of the alleged dangerous weapon is to be inserted in the second blank. Thus, it would appear that the trial judge followed the direction of the IPI committee. The majority here concludes that a broken glass bottle is a dangerous weapon as a matter of law, citing three cases for this proposition. However, none of those cases involve the issue of how the jury should be instructed on the dangerous weapon question and state propositions of law premised either incorrectly on the use of the weapon (People v. Thornton (1986), 145 Ill. App. 3d 669; People v. Samier (1985), 129 Ill. App. 3d 966), or on an offense other than armed violence (People v. Hunter (1973), 14 Ill. App. 3d 879).\nIn my opinion, where the weapon in question in an armed violence prosecution is sought by the prosecution to be considered as a \u201cdeadly or dangerous weapon or instrument of like character,\u201d this becomes a factual question for the trier of fact. In this situation, the second blank in IPI Criminal 2d No. 11.19 should contain the words \u201cdeadly or dangerous weapon or instrument of like character.\u201d In this regard, the trial judge erred in inserting the words \u201cbroken glass bottle\u201d in the second blank as that, in effect, conclusively informed the jury that a broken glass bottle is a dangerous weapon. Further, the committee note for use of IPI Criminal 2d No. 11.19 is somewhat misleading as it states the name of the alleged dangerous weapon should be inserted. This comment is correct when the weapon is one specifically enumerated in section 33A \u2014 1 but is inaccurate where the weapon is asserted to be a dangerous weapon under the phrase \u201cother deadly or dangerous weapon or instrument of like character.\u201d Finally, under my analysis, the other deadly or dangerous weapon or instrument cannot just be any weapon but must be \u201cof like character\u201d as one of the weapons enumerated in section 33A \u2014 1.\nHaving concluded that the issue of whether a weapon not enumerated in section 33A\u2014 1 is a deadly or dangerous weapon of like character is one for the jury, I would also add that initially the judge may, in an appropriate case, have to determine whether, as a matter of law, the question should be submitted to the jury. That is to say that if the judge should conclude as a matter of law that the weapon is not a deadly or dangerous weapon or instrument of like character, there the issue would not be submitted to the jury, and, presumably, the judge would grant a defendant\u2019s motion for a directed verdict on the charge of armed violence. As defendant only raised the issue that the jury should determine if the broken glass bottle was a deadly or dangerous weapon or instrument of like character, I need not determine whether, as a matter of law, the broken bottle was not such a weapon. On this point, however, I wish to amplify on this court\u2019s decision in People v. Westefer (1988), 169 Ill. App. 3d 59, an armed robbery case, on which the State relies for the proposition that where the character of the weapon is such as to admit of only one conclusion, the question becomes one of law for the court. Westefer, 169 Ill. App. 3d at 61-62; see also People v. Skelton (1980), 83 Ill. 2d 58, 66.\nAs previously stated, a dangerous weapon in an armed robbery case is not the same as those classified in the armed violence statute. However, the citation to Westefer provides me with an opportunity to elaborate on what we stated therein. In Westefer, the narrow issue presented was whether a utility knife used in an armed robbery can be termed a dangerous weapon as a matter of law in the context of a request by defendant for an instruction on the lesser included offense of robbery. (Westefer, 169 Ill. App. 3d at 61.) In presenting the issue to this court, the parties focused only on the character of the weapon and the trial judge\u2019s opinion that it was a dangerous weapon. Both parties only argued whether the weapon was dangerous per se, citing People v. Skelton (1980), 83 Ill. 2d 58, and People v. Dwyer (1927), 324 Ill. 363, and did not raise the broader issue of whether the court could make the determination as a matter of law. That question was not before us.\nAs the trial judge did not properly instruct the jury, the judgment below must be reversed and the cause remanded for a new trial. I need.not address whether the act of picking up the bottle and breaking the bottle in the course of hitting the victim with it and then stabbing the victim with it is \u201ccarrying about his person or otherwise armed with a category I or category II weapon\u201d in order to fall within the meaning of the armed violence statute. Neither the defendant nor the majority raised or discussed this potential issue.", "type": "dissent", "author": "JUSTICE REINHARD," } ], "attorneys": [ "John F. Donahue and Joseph T. Bugos, both of Law Offices of Donahue, Sowa & Bugos, of Lisle, for appellant.", "James E. Ryan, State\u2019s Attorney, of Wheaton (William L. Browers and Colleen M. Griffin, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY P. PTAK, Defendant-Appellant.\nSecond District\nNo. 2\u201488\u20141174\nOpinion filed February 9, 1990.\nREINHARD, J., dissenting.\nJohn F. Donahue and Joseph T. Bugos, both of Law Offices of Donahue, Sowa & Bugos, of Lisle, for appellant.\nJames E. Ryan, State\u2019s Attorney, of Wheaton (William L. Browers and Colleen M. Griffin, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0782-01", "first_page_order": 804, "last_page_order": 816 }