{ "id": 2468702, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. C.A. DEVINE, Defendant-Appellant", "name_abbreviation": "People v. Devine", "decision_date": "1990-07-13", "docket_number": "No. 3\u201489\u20140598", "first_page": "1032", "last_page": "1039", "citations": [ { "type": "official", "cite": "199 Ill. App. 3d 1032" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "368 N.E.2d 882", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "523 N.E.2d 1249", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "169 Ill. App. 3d 1036", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3552241 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/1036-01" ] }, { "cite": "448 N.E.2d 910", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "114 Ill. App. 3d 242", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3590228 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0242-01" ] }, { "cite": "216 N.E.2d 805", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "34 Ill. 2d 530", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2878788 ], "opinion_index": 0, "case_paths": [ "/ill-2d/34/0530-01" ] }, { "cite": "528 N.E.2d 648", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "658" } ], "opinion_index": 0 }, { "cite": "123 Ill. 2d 387", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550620 ], "weight": 4, "pin_cites": [ { "page": "408" }, { "page": "408" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0387-01" ] }, { "cite": "470 N.E.2d 1018", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill. 2d 194", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147022 ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0194-01" ] }, { "cite": "498 N.E.2d 732", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "736" } ], "opinion_index": 0 }, { "cite": "147 Ill. App. 3d 621", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3604118 ], "weight": 4, "pin_cites": [ { "page": "625" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/147/0621-01" ] }, { "cite": "268 N.E.2d 695", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903225 ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0510-01" ] } ], "analysis": { "cardinality": 781, "char_count": 16501, "ocr_confidence": 0.771, "pagerank": { "raw": 9.471906837432211e-08, "percentile": 0.5177759398327856 }, "sha256": "d16f6b866a58b2be40d29d0930b48b18d35eb328ca3d74ddf97a06098def5216", "simhash": "1:ae42f3eafb67c5f5", "word_count": 2709 }, "last_updated": "2023-07-14T15:10:12.040900+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. C.A. DEVINE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE STOUDER\ndelivered the opinion of the court:\nFollowing a jury trial in the circuit court of Peoria County, the defendant, C.A. Devine, was found guilty of murder and sentenced to a term of 60 years\u2019 imprisonment in the Department of Corrections. The defendant appeals.\nOn appeal, the defendant argues that the trial court erred: (1) by allowing the prosecution to present evidence of the defendant\u2019s prior misdemeanor convictions, (2) in not granting a mistrial after a prosecution witness alluded to the defendant\u2019s earlier trial, (3) by improperly allowing a prosecution witness to testify as to hearsay statements, and (4) by giving the defendant an excessive sentence.\nThe record reveals that on February 27, 1986, the defendant and Essie Morris, the victim, had a fight. Morris was the defendant\u2019s live-in girlfriend. Morris died as a result of that fight. The defendant was charged with murder and was convicted. The defendant\u2019s original conviction was reversed by this court in an unpublished decision No. 3\u2014 86 \u2014 0626 based on improper jury instructions. This is an appeal of the retrial.\nAt trial, Peoria city police officer Jack Baize testified that at approximately 7 p.m. on the date of the murder he was the first to arrive at the defendant\u2019s residence. The defendant met Baize at the door. The defendant informed him that \u201ca lady was in bed, and she would not wake up.\u201d The defendant led Baize to the bedroom where Baize found the victim lying in bed, covered with clothes and with her arms folded. Baize took the victim\u2019s vital signs and determined that she was dead. After examining the residence, Baize spoke with the defendant, who informed him that there had been a fight that evening. Baize then gave the defendant his Miranda warnings and turned the questioning over to Officer Pat Rabe, who had since arrived at the scene.\nThe defendant told Rabe that he and the victim argued over a gun the victim had allegedly stolen from the defendant\u2019s friend \u201cFrog\u201d and that it \u201cgot deeper and deeper as the day went on.\u201d The defendant told Rabe that the victim pointed the gun at him and said she was going to kill him. The defendant told Rabe that he took a broomstick and struck the victim in an attempt to defend himself. The defendant stated that he later went to see how the victim was doing and found her motionless in bed whereupon he called the police.\nDr. David Demick, the Peoria County coroner\u2019s physician, testified regarding the autopsy he performed on the victim. Dr. Demick testified that the victim suffered a large bruise and deep laceration in the back of her head caused by a blow from the back. That blow to the head caused some hemorrhaging on the surface of the victim\u2019s brain. The victim was also covered with a pair of bruises running parallel on her shoulders and buttocks. The bruises indicate that she was struck with a rod-like instrument. An ulcerated area on her buttocks established that a portion of her flesh had been tom away. Tiny splinters of wood were found in this ulcerated area. In addition, the kitchen garbage can contained pieces of a broken broomstick. Dr. Demick also noted that the victim had small lacerations in the whites of her eyes from constriction of the veins in her neck, consistent with strangulation.\nAccording to Dr. Demick, the victim also suffered massive internal injuries. These injuries included three broken ribs, a bruised heart, and a liver that was broken apart. Dr. Demick stated that considerable force was necessary for these injuries, and he noted that the liver injury was of the type usually associated with an automobile accident. Dr. Demick also testified that the victim\u2019s stomach and pancreas were bleeding and disrupted. Dr. Demick determined that the primary cause of death was manual strangulation. Dr. Demick came to this conclusion because he found the victim\u2019s larynx fractured and the soft tissue surrounding the larynx to be hemorrhaging.\nThe prosecution also presented the testimony of Cassandra Tyler, the victim\u2019s daughter. Tyler testified, over defense counsel\u2019s objection, that she had observed her mother with a bruised lip in December of 1985 and that her mother said the defendant had struck her, causing the bruise.\nThe defendant testified that he and the victim had lived together since September 1985. He stated that he had seen the victim carrying a gun on occasion and that she became violent when on cocaine. He also commented that the victim had once shot at an old boyfriend.\nWith respect to the incident here, the defendant testified that in the morning the two talked about why the victim had allegedly robbed the defendant\u2019s friend \u201cFrog.\u201d The victim told the defendant that she was going to kill the defendant. She then produced a gun and the two wrestled. The defendant eventually took the gun from the victim.\nThereafter, the victim somehow retrieved the gun a second time and threatened to kill the defendant. The defendant stated that they started fighting and he used a broom to get her away. When they stopped fighting, the victim went back to bed. After periodically checking on her condition, the defendant found the victim unresponsive. He then called the police.\nIn addition, as rebuttal evidence the prosecution offered, over the objection of defense counsel, certified copies of the defendant\u2019s two prior misdemeanor battery convictions. The trial court admitted both convictions and published the same to the jury.\nWe first address the issue whether the trial court erred in admitting evidence of the defendant\u2019s prior misdemeanor convictions for battery. The defendant argues that since both convictions are misdemeanors and do not involve dishonesty, they were improperly used for impeachment purposes under People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.\nThe supreme court in Montgomery was faced with the impeachment of a witness by evidence of a prior conviction. There, the court adopted proposed Federal Rule of Evidence 609: a prior misdemeanor not involving dishonesty or false statement may not be used to attack the credibility of a witness.\nIn the instant case, however, the defendant\u2019s prior convictions were not introduced for general impeachment. Rather, the defendant\u2019s prior convictions were used as refutational evidence to show his propensity to violence and therefrom infer that the defendant was the initial aggressor. The defendant\u2019s reliance on Montgomery is, therefore, misplaced.\nSubject to well-defined limitations, evidence regarding the character of a defendant or a victim is relevant and admissible. (R. Ruebner, Illinois Criminal Trial Evidence 34 (1986).) When a theory of self-defense is raised in a battery or homicide case, evidence of the peaceful or violent character of either party is relevant as circumstantial evidence to show whether the complainant or the accused was the initial aggressor. (People v. Randle (1986), 147 Ill. App. 3d 621, 498 N.E.2d 732.) However, while such character evidence is always relevant, it may not always be admissible. (People v. Randle (1986), 147 Ill. App. 3d 621, 498 N.E.2d 732.) Because of the inflammatory nature of such evidence, it must first be determined whether the danger of undue prejudice outweighs the relevance of the evidence. People v. Lynch (1984), 104 Ill. 2d 194, 470 N.E.2d 1018.\nAs the court in Randle noted:\n\u201cUnder this balancing test, character evidence offered by the accused to show the complainant\u2019s propensity to violence is admissible because the danger of undue prejudice to the accused lies in not admitting such evidence. [Citation.] On the other hand, similar character evidence offered by the prosecution to show the accused\u2019s propensity to violence is generally inadmissible because the danger of unfair prejudice to the defendant in being portrayed as a \u2018bad man\u2019 substantially outweighs the probative value of the evidence. [Citation.] Such evidence of bad character may be introduced by the prosecution only if the defendant first opens the door by introducing evidence of good character to show that he is a quiet and peaceful person.\u201d People v. Randle (1986), 147 Ill. App. 3d 621, 625, 498 N.E.2d 732, 736.\nIn the instant case, in support of his claim of self-defense, the defendant testified that the altercation between himself and the victim began when he argued with her over her alleged theft of money, cocaine, and a gun from the defendant\u2019s friend \u201cFrog.\u201d The defendant testified that the victim usually carried a Derringer and that she allegedly told him that she once shot at an old boyfriend. The defendant further testified that the victim was high on cocaine on the night of this incident and that she was violent when on cocaine. The defendant also testified that he was a peaceful person. As a result of this testimony, the trial court later permitted the prosecution to introduce the defendant\u2019s prior misdemeanor convictions for battery.\nIn addition, the defendant introduced evidence of the victim\u2019s prior misdemeanor conviction for unlawful use of weapons and several other alleged acts of violence in order to establish that she had a violent character. The defendant hoped to establish that it would be more likely for the victim to be the aggressor because of her alleged violent character. By introducing this evidence, however, the defendant opened the door for the prosecution to introduce evidence of the defendant\u2019s bad character. The only question relevant here is whether the prejudice to the defendant in introducing the prosecution\u2019s evidence substantially outweighs the probative value of the evidence.\nThe prosecution may not initially introduce evidence of bad character against a defendant because it is feared that the jury will be swayed to convict based not on a defendant\u2019s actual guilt of the offense charged, but because the defendant is a bad person. (People v. Randle (1986), 147 Ill. App. 3d 621, 498 N.E.2d 732.) However, where, as here, the defendant initially introduces evidence that the victim had a violent character and that he was a peaceful person, the interests of fairness require that the prosecution be allowed to rebut this portrayal by the defendant. Here, we find that the probative value from such character evidence outweighs any prejudice to the defendant, and, therefore, we hold that the trial court did not err in admitting the defendant\u2019s prior misdemeanor convictions.\nThe defendant next argues that the trial court erred in denying the defense motion for a mistrial made after a prosecution witness alluded to the defendant\u2019s earlier trial on this charge. The remark complained of came during Dr. Demick\u2019s testimony. Dr. Demick performed an autopsy on the victim and testified for the prosecution at the first trial in 1986. During the first trial, Dr. Demick used and testified from a human form chart. Dr. Demick used the same chart at the second trial. Asked to identify the chart at the second trial, Dr. Demick replied that \u201cthis is the chart I marked myself with red ink during the last trial of this defendant.\u201d The defense counsel requested a sidebar and, outside the jury\u2019s presence, moved for a mistrial. The trial court denied the motion. The trial court found that the prosecution had not intended to elicit that particular response from the witness. The trial court also suggested that the jury might not have heard the witness. The trial court then instructed the jury to disregard the witness\u2019 statement \u201cduring the last trial of this defendant.\u201d\nThe defendant in the instant case contends that the prejudicial effect of the statement continued throughout the trial. The defendant suggests that the jury could reasonably conclude that the defendant had been tried on this charge before resulting in a conviction with a reversal (as actually happened) or a jury was unable to reach a verdict resulting in a mistrial.\nThe prosecution counters by citing People v. Jones (1988), 123 Ill. 2d 387, 528 N.E.2d 648, wherein the Illinois Supreme Court was confronted with a similar issue. In Jones, a prosecution witness called to testify concerning the chain of custody was asked when she had seen certain tubes of blood. The witness answered \u201cJust at the last trial.\u201d (123 Ill. 2d at 408.) The trial court, there, refused the defense motion for a mistrial and instructed the jury to disregard the comment. The supreme court, in affirming the trial court, noted that the jurors did not learn of the outcome of the earlier trial and were not told the identities of the parties at the earlier trial. Moreover, the supreme court emphasized that the trial court admonished the jurors to disregard the witness\u2019 answer. People v. Jones (1988), 123 Ill. 2d 387, 408, 528 N.E.2d 648, 658.\nSimilarly, in the instant case, the jurors did not learn the outcome of the earlier trial and the trial court admonished them to disregard the witness\u2019 answer. Based on Jones, therefore, we conclude that the brief reference to the earlier trial did not prejudice the defendant or otherwise impair his right to a fair trial. People v. Jones (1988), 123 Ill. 2d 387, 528 N.E.2d 648.\nThe defendant next argues that the trial court erred in permitting the victim\u2019s daughter to testify that she observed her mother with a bruised lip in December of 1985, and that the victim told her that the defendant struck her. Generally, evidence of the commission of other crimes by an accused, in addition to that for which he is on trial, is inadmissible unless its relevancy in placing a defendant in proximity to the time and place, aiding or establishing identity, or tending to prove design, motive or knowledge is so closely connected with the main issue as to justify admission. (People v. Gage (1966), 34 Ill. 2d 530, 216 N.E.2d 805.) In the instant case, the evidence presented of the defendant\u2019s alleged prior striking of the victim two months before her death has no relevancy to proximity to time and place, does not go to identity and does not constitute evidence to prove design, plan, or motive. Furthermore, the evidence constitutes hearsay without an applicable exception. We find, therefore, that the trial court erred in admitting this evidence.\nOur review of the record, however, indicates that the admission of this evidence, while erroneous, was also harmless. Testimony relating to other offenses does not per se constitute grounds for reversal. (People v. Wallace (1983), 114 Ill. App. 3d 242, 448 N.E.2d 910.) Where every element of the crime charged has been established by properly admitted evidence and that evidence is so overwhelming that there is no reasonable probability that the defendant would have been acquitted if the inadmissible evidence had been excluded, the error is harmless. People v. Wadley (1988), 169 Ill. App. 3d 1036, 523 N.E.2d 1249.\nIn the instant case, the defendant admitted that he struck the victim. The defendant argues, however, that he was merely acting in self-defense. The evidence presented indicates that the victim was struck repeatedly and killed in a savage manner. The extent of the victim\u2019s injuries was so great that no reasonable juror could have found them to be inflicted by a person acting in self-defense. Therefore, it is extremely unlikely that the jury would have acquitted the defendant had the testimony been omitted from the trial. Accordingly, we find this evidence did not so prejudice the defendant as to deny him a fair trial.\nThe defendant finally argues that the trial court abused its discretion in sentencing him to a 60-year term of imprisonment. The trial court based its decision on the particularly brutal and heinous circumstances surrounding the victim\u2019s murder. As detailed earlier, the offense committed here was accompanied by exceptionally brutal and heinous behavior. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005\u20145\u20143.2(b)(2).) We, therefore, cannot conclude that the trial court abused its discretion in imposing the sentence. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.\nFor these reasons the judgment of the circuit court of Peoria County is affirmed.\nAffirmed.\nHEIPLE, P.J., and GORMAN, J., concur.", "type": "majority", "author": "JUSTICE STOUDER" } ], "attorneys": [ "Gregory L. Barnes, of Gregory L. Barnes, Ltd., of Decatur, for appellant.", "Robert D. Gaubas, of Robert D. Gaubas, Ltd., of Peoria (Terry A. Mertel, 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. C.A. DEVINE, Defendant-Appellant.\nThird District\nNo. 3\u201489\u20140598\nOpinion filed July 13, 1990.\nGregory L. Barnes, of Gregory L. Barnes, Ltd., of Decatur, for appellant.\nRobert D. Gaubas, of Robert D. Gaubas, Ltd., of Peoria (Terry A. Mertel, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1032-01", "first_page_order": 1060, "last_page_order": 1067 }