{ "id": 2593517, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER ANDERSON, Defendant-Appellant", "name_abbreviation": "People v. Anderson", "decision_date": "1990-08-08", "docket_number": "No. 3-89-0423", "first_page": "75", "last_page": "81", "citations": [ { "type": "official", "cite": "201 Ill. App. 3d 75" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "87 Ill. 2d 77", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3031235 ], "pin_cites": [ { "page": "88-89" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/87/0077-01" ] }, { "cite": "132 Ill. 2d 451", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5589223 ], "weight": 2, "pin_cites": [ { "page": "465-66" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/132/0451-01" ] }, { "cite": "91 Ill. 2d 536", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3091828 ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0536-01" ] }, { "cite": "75 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2991135 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-2d/75/0001-01" ] }, { "cite": "108 Ill. 2d 54", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130811 ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0054-01" ] }, { "cite": "101 Ill. App. 3d 857", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3080395 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0857-01" ] }, { "cite": "169 Ill. App. 3d 289", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3550737 ], "weight": 4, "pin_cites": [ { "page": "300" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/0289-01" ] } ], "analysis": { "cardinality": 664, "char_count": 12950, "ocr_confidence": 0.769, "pagerank": { "raw": 9.262223983753678e-08, "percentile": 0.5114558802463001 }, "sha256": "462f41b68f94aeb31588be1edba1b73973f67b6db8a57250f7ca3bf3d6016b41", "simhash": "1:c806ff4c51f405d7", "word_count": 2070 }, "last_updated": "2023-07-14T22:48:55.467533+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. CHRISTOPHER ANDERSON, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE HEIPLE\ndelivered the opinion of the court:\nThe defendant, Christopher Anderson, was charged with murder following the shooting death of Vicki Scarabello. Anderson filed motions to quash his arrest and to suppress evidence which the trial court granted. Thereafter, the State brought an interlocutory appeal to contest the trial court rulings, and this court reversed and remanded for further proceedings. (People v. Anderson (1988), 169 Ill. App. 3d 289.) Following a jury trial, Anderson was convicted of murder and was sentenced to an extended term of 75 years\u2019 incarceration.\nOn appeal, the defendant raises three arguments: (1) this court should reconsider its previous holding that the defendant\u2019s fourth amendment rights were not violated; (2) the defendant was denied a fair trial when the trial judge gave Illinois Pattern Jury Instruction, Criminal, No. 26.01Q (2d ed. Supp. 1989) in its entirety (hereinafter IPI Criminal 2d No. 26.01Q (Supp. 1989)); and (3) the trial court erred in giving the defendant an extended-term sentence since none of the statutory extended-term eligibility factors applied to him. We affirm the defendant\u2019s murder conviction but reduce the defendant\u2019s 75-year extended-term sentence to 40 years, which is the maximum non-extended-term sentence permitted by section 5 \u2014 8\u20141(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 \u2014 8\u2014 1(a)(1)).\nGiven this court\u2019s disposition of the issues raised by this appeal, it is unnecessary to completely recite the facts, which are adequately set forth in our earlier opinion. (People v. Anderson (1988), 169 Ill. App. 3d 289.) The facts relevant to the questions presented by this appeal are as follows.\nOn November 20, 1986, Vicki Scarabello, 22 years old, was employed in the rental office of Oakwood Manor Apartments in Park Forrest, Illinois. Shortly before noon, Christopher Anderson entered Scarabello\u2019s office and inquired about renting an apartment. This was witnessed by Donald Rogers, an apartment maintenance man, who then left for lunch. According to the defendant\u2019s police statement, the defendant then returned to Scarabello\u2019s office because he wanted her to help him obtain a painting contract with the apartment complex and because he thought Scarabello was good looking and he wanted to try to date her. When the defendant tried to touch Scarabello around the waist, Scarabello pushed the defendant to the floor and a gun fell out of the defendant\u2019s coat pocket. The two then allegedly went for the gun and, as they struggled, Scarabello was shot twice in the neck. The defendant then fled from the rental office.\nPark Forrest detectives Carl Kuester and Patrick Fitzgerald obtained information that a man fitting Anderson\u2019s description was the last potential apartment lessee to speak with the victim before she was murdered. The detectives also learned that Anderson, who lived near the apartment complex, had a prior conviction for armed robbery and that his Illinois driver\u2019s license had been suspended. On November 22, 1986, the two detectives arrested the defendant for driving with a suspended license. The defendant was then taken to the Park Forrest police- department, where he gave the police permission to search his car. Several items were taken from the vehicle, including a small gun case, live rounds of ammunition, and proposal forms from the apartment complex where Scarabello had been employed. The police subsequently interrogated the defendant about his involvement in Scarabello\u2019s murder, and the defendant admitted that he was involved in the Scarabello shooting incident but that it was an accident.\nThe defendant first argues that this court should reconsider our previous decision in People v. Anderson (1988), 169 Ill. App. 3d 289, wherein we found that the defendant\u2019s fourth amendment rights were not violated when he was arrested for a traffic violation and was then interrogated about his involvement in Scarabello\u2019s homicide. Applying a standard of objective reasonableness, this court found that both the valid custodial arrest and the subsequent investigatory procedures were reasonably undertaken and that no fourth amendment violations occurred. (Anderson, 169 Ill. App. 3d at 300.) Without pinpointing any legal or factual errors in our earlier opinion, the defendant in the present action merely reasserts the identical fourth amendment argument already litigated before this court. Under the doctrine of law of the case, we are precluded from reconsidering the defendant\u2019s fourth amendment claim and are bound by the particular views expressed in our earlier opinion. People v. Weinger (1981), 101 Ill. App. 3d 857.\nThe defendant next argues that he was denied a fair trial because the last paragraph of jury instruction IPI Criminal 2d No. 26.01Q (Supp. 1989) conveyed to the jury the idea that the defendant could be found guilty of both murder and involuntary manslaughter. The last paragraph of IPI Criminal 2d No. 26.01Q (Supp. 1989) provided:\n\u201cIf you find the State has proved the defendant guilty of both [greater offense] and [lesser offense], you should select the verdict form finding the defendant guilty of [greater offense] and sign it as I have stated. Under these circumstances, do not sign the verdict form finding the defendant guilty of [lesser offense].\u201d\nThe defendant claims the instruction was erroneous since murder and involuntary manslaughter involve inconsistent mental states. We find that the defendant has waived any alleged error and that the inclusion of the last paragraph of IPI Criminal 2d No. 26.01Q (Supp. 1989) did not affect the fundamental fairness of the defendant\u2019s trial.\nIPI Criminal 2d No. 26.01Q (Supp. 1989) was a defense-tendered instruction that was given over the State\u2019s objection. The defendant, who was charged with the offense of murder, requested the instruction on involuntary manslaughter in order to give the jury the option of finding him guilty of the lesser offense. The defendant did not object to the last paragraph of IPI Criminal 2d No. 26.01Q (Supp. 1989) nor did the defendant proffer an alternate instruction. Under these circumstances, the defendant has waived any issue concerning the propriety of IPI Criminal 2d No. 26.01Q (Supp. 1989). (People v. Almo (1985), 108 Ill. 2d 54.) The waiver rule is designed so as not to permit a party failing to object to the complained-of erroneous instruction from gaining an advantage of obtaining a reversal premised upon his own failure to act. (People v. Roberts (1979), 75 Ill. 2d 1.) Consequently, we reject the defendant\u2019s untimely attempt to object to IPI Criminal 2d No. 26.01Q (Supp. 1989).\nAdditionally, we decline the defendant\u2019s request to apply Supreme Court Rule 451(c) in reviewing jury instruction IPI Criminal 2d No. 26.01Q (Supp. 1989). (134 Ill. 2d R. 451(c).) Supreme Court Rule 451(c) provides that substantial defects in jury instructions are not waived by the failure to make timely objections if the interests of justice require. (People v. Roberts (1979), 75 Ill. 2d 1.) This rule, however, only applies to correct grave errors, or to cases which are factually close and fundamental fairness requires that the jury be properly instructed. (People v. Huckstead (1982), 91 Ill. 2d 536.) In the instant case, the jury was properly instructed as to the essential elements of the offenses of murder and involuntary manslaughter. The jury subsequently returned a verdict of guilty of murder based on the overwhelming evidence presented at trial. Accordingly, the defendant was not substantially prejudiced by the inclusion of the last paragraph of IPI Criminal 2d No. 26.01Q (Supp. 1989) such that the interests of justice would require the relaxation of the waiver rule.\nFinally, the defendant contests his 75-year extended-term sentence since he argues that none of the statutory extended-term eligibility factors applied to him. Under section 5 \u2014 8\u20142 of the Unified Code of Corrections, a sentence for murder cannot exceed the maximum term of 40 years\u2019 imprisonment, as set out in section 5 \u2014 8\u20141, unless aggravating factors, as set out in section 5 \u2014 5\u20143.2(b), are found to be present by the trial judge. (Ill. Rev. Stat. 1985, ch. 38, pars. 1005 \u2014 8\u20142(a)(1), 1005-8-l(a)(l), 1005-5-3.2(b)(2).) Where specific aggravating factors are found, the term may be extended to 80 years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 \u2014 8\u20142(a)(1).) Here, the trial court, in sentencing the defendant to an extended term, characterized the shooting incident as a \u201ctragic killing\u201d and considered the following factors in aggravation: (1) the defendant\u2019s prior juvenile record, which indicated that the defendant had committed an armed robbery on a young female wherein the defendant forced the victim to disrobe and then fondled her breasts and pubic area; and (2) evidence which revealed that the motivating force behind the defendant\u2019s entry into the apartment complex was the defendant\u2019s sexual attraction to Scarabello. While these are not improper factors to be considered in sentencing the defendant to a nonextended-term, these factors do not make the defendant eligible for an extended-term sentence. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 5\u20143.2(b).) Nevertheless, the State argues that a review of the trial judge\u2019s sentencing determination adequately indicates the existence of one of the eligibility factors for the imposition of an extended term; that being that the murder of Scarabello was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 5\u2014 3.2(b)(2).) We disagree with the State\u2019s position for two reasons. First, the trial judge\u2019s comments during sentencing do not reflect that the court made the determination that the murder was exceptionally brutal and heinous. Second, we do not believe that the murder in this case was exceptionally brutal and heinous within the meaning of section 5 \u2014 5\u20143.2(b)(2).\nThe trial judge in instructing the jury defined \u201cmurder\u201d as follows:\n\u201cA person commits the offense of murder when he kills an individual if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual or another.\u201d\nFor most people, all murders, by definition, are brutal and heinous to some extent. Section 5 \u2014 5\u20143.2(b)(2), however, only permits trial courts to impose an extended-term sentence for murder if the murder is \u201cexceptionally\u201d brutal and heinous. The Illinois Supreme Court in People v. Andrews (1989), 132 Ill. 2d 451, recently examined whether the seemingly unnecessary fatal shooting of a defenseless victim as part of an armed robbery constituted exceptionally brutal or heinous behavior indicative of wanton cruelty. In Andrews, the 18-year-old victim died as a result of a gunshot wound to his right temple. In finding that the trial court abused its discretion in imposing an extended-term sentence, the supreme court stated:\n\u201cAlthough the victim was defenseless and the defendant could have achieved his goal of robbing the victim and the victim\u2019s girlfriend without killing the victim, every single murder is by nature unnecessary; section 5 \u2014 5\u20143.2(b)(2), however, requires that the murder be \u201cexceptionally\u201d brutal or heinous. All murders are brutal and heinous to a certain degree. Moreover, many murdered robbery victims are defenseless when killed. Section 5 \u2014 8\u20142, however, allowing for extended-term sentences, \u2018was not intended to convert every offense into an extraordinary offense subject to an extended-term sentence.\u2019 People v. Evans (1981), 87 Ill. 2d 77, 88-89.\u201d Andrews, 132 Ill. 2d at 465-66.\nSimilarly, the murder in the instant case did not rise to the higher level of cruelty so as to warrant the imposition of an extended-term sentence. In the case at hand, Scarabello was killed by two gunshot wounds to the neck, which were fired at close range and in rapid succession. If the extended-term sentence statute were applied to this killing, it would be difficult to conceive of a murder to which the extended-term sentence would not apply. Rather, the extended-term provision is meant for murders that go beyond the mere infliction of death.\nAccordingly, we vacate the defendant\u2019s 75-year extended-term sentence for murder and sentence the defendant to 40 years\u2019 imprisonment, which is the maximum nonextended-term sentence permitted by section 5 \u2014 8\u20141(a)(1) (Ill. Rev. Stat. 1985, ch. 38, par. 1005 \u2014 8\u2014 1(a)(1)).\nAffirmed in part; vacated in part.\nSCOTT and STOUDER, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE HEIPLE" } ], "attorneys": [ "Mark D. Fisher, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Edward Burmila, State\u2019s Attorney, of Joliet (John X. Breslin, 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. CHRISTOPHER ANDERSON, Defendant-Appellant.\nThird District\nNo. 3-89-0423\nOpinion filed August 8, 1990.\nMark D. Fisher, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nEdward Burmila, State\u2019s Attorney, of Joliet (John X. Breslin, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0075-01", "first_page_order": 95, "last_page_order": 101 }