{ "id": 2893965, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS R. SELLER, Defendant-Appellant", "name_abbreviation": "People v. Seller", "decision_date": "1977-02-10", "docket_number": "No. 75-543", "first_page": "816", "last_page": "819", "citations": [ { "type": "official", "cite": "45 Ill. App. 3d 816" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "17 Ill. App. 3d 1043", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2511166 ], "year": 1974, "pin_cites": [ { "page": "1049" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/1043-01" ] }, { "cite": "38 Ill. 2d 115", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2859650 ], "year": 1967, "pin_cites": [ { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/38/0115-01" ] }, { "cite": "55 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2937684 ], "year": 1973, "pin_cites": [ { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0172-01" ] }, { "cite": "2 Ill. App. 3d 471", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2754659 ], "year": 1971, "pin_cites": [ { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/2/0471-01" ] }, { "cite": "5 Ill. App. 3d 358", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2526383 ], "year": 1972, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/5/0358-01" ] }, { "cite": "49 Ill. 2d 118", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2909419 ], "year": 1971, "pin_cites": [ { "page": "121, 122" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/49/0118-01" ] }, { "cite": "396 Ill. 619", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2467267 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/ill/396/0619-01" ] }, { "cite": "397 Ill. 620", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2463142 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/ill/397/0620-01" ] } ], "analysis": { "cardinality": 496, "char_count": 8298, "ocr_confidence": 0.874, "pagerank": { "raw": 1.0189641752386648e-07, "percentile": 0.5444035540295978 }, "sha256": "9726213fe5ad2fb8bbfe720ff6d46ae3a9bbe6efba3cc68bbfcc95650b95898d", "simhash": "1:aa0e4937538ef2d5", "word_count": 1368 }, "last_updated": "2023-07-14T17:15:00.202505+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. DENNIS R. SELLER, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE SEIDENFELD\ndelivered the opinion of the court:\nDefendant was convicted of battery (Ill. Rev. Stat. 1973, ch. 38, par. 12 \u2014 3(a)) after a jury trial and sentenced to a term of 2 years probation with the condition that he serve 6 months in the county jail on work release. Defendant appeals, contending that the trial court committed reversible error in admitting over objection volunteered opinion testimony of a police officer that when the defendant committed the acts allegedly constituting a battery he did so knowingly.\nDefendant, in the early morning hours of August 10,1975, entered the house of Virginia Krueger and encountered Ms. Krueger in the house. Ms. Krueger was able to call the police. Subsequently defendant assaulted her, attempting to molest her sexually. The authorities arrived and defendant was apprehended. Evidence submitted by defendant indicated that he had consumed a substantial number of beers on August 9,1975. Evidence submitted by the State\u2019s witnesses indicated that he was in a somewhat intoxicated condition at the time he was apprehended in the early morning hours of August 10, 1975. At trial defendant\u2019s defense was that his intoxicated state prevented his having the specific intent to commit a battery.\nOn the issue of whether defendant knowingly committed the battery the State offered the testimony of a Lake County deputy sheriff, Ralph Connard:\n\u201cQ In your capacity as a deputy sheriff have you seen people under the influence before?\nA Yes.\nQ And in your social life have you seen people under the influence of intoxicating liquor?\nA Yes, sir.\nQ Could you make an opinion as to the degree of the defendant\u2019s intoxication?\nMR. ROUX: I would have to object to this question as to a proper foundation and phrasing of that particular question.\nTHE COURT: We\u2019ll allow the answer.\nTHE WITNESS: I detected an obvious strong odor of an alcoholic beverage on the defendant\u2019s breath. The effect appeared to be obvious. However, in my opinion, from previous experiences I believe he knew what he was doing.\nMR. ROUX: Object to that and ask it be stricken.\nTHE COURT: We\u2019ll deny the motion.\u201d (Emphasis added.)\nIn asserting that the trial court erred defendant first argues that People v. Cozzie, 397 Ill. 620 (1947), indicates that the Illinois Supreme Court does not approve of the use of opinion testimony to indicate a person\u2019s state of mind. In Cozzie, a police officer was testifying as to defendant\u2019s intoxicated condition and counsel sought to question the officer \u201cas to what degree of drunkenness existed between stone sobriety and any intoxication.\u201d The trial court refused to permit the question. The supreme court concluded that the trial court had not erred, noting that the answer to the question would have been a \u201cconclusion or a comparison of states of mind, known only to the witness.\u201d The People argue that Cozzie is not applicable to this case. We agree. The supreme court\u2019s rejection of defendant\u2019s contention in Cozzie went to the form and timing of the question put to the witness rather than to the fact that opinion testimony as to mental capacity may have been involved.\nThe defendant also contends that the testimony of the police officer should have been disallowed because it permitted an invasion of the jury\u2019s province in that the witness offered an opinion on an ultimate question of fact which by its nature was a jury question. In support of this argument defendant cites Gillette v. City of Chicago, 396 Ill. 619 (1947). The People correctly point out that the rule of Gillette was implicitiy overruled in Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co., 49 Ill. 2d 118, 121, 122 (1971). There the supreme court approved the use of expert testimony on the ultimate issue in a case, noting that the trier of fact was not required to accept the opinion of an expert. See also McCormick on Evidence \u00a712, at 26-29 (2d ed. 1971).\nIn our view the opinion testimony of Officer Connard to the effect that defendant understood what he was doing is best characterized as nonexpert rather than expert testimony in view of the fact that lay persons are familiar generally with states of intoxication. The record indicates that Officer Connard was with defendant for a substantial period of time following his arrival at the Krueger residence. He had adequate opportunity to observe defendant\u2019s condition and described this condition in detail at trial.\nLaymen may express opinions on the question of intoxication based on their personal observation and experience without invading the province of the jury. (City of Crystal Lake v. Nelson, 5 Ill. App. 3d 358, 362 (1972); People v. Reeder, 2 Ill. App. 3d 471,475 (1971).) Qualified lay witnesses may similarly give their opinion on the ultimate issue of sanity. People v. Smothers, 55 Ill. 2d 172,174 (1973); People v. Williams, 38 Ill. 2d 115, 123 (1967); People v. Arnold, 17 Ill. App. 3d 1043, 1049 (1974).\nThe more particular question in this case is whether a lay witness may give opinion evidence based upon personal observation as to defendant\u2019s mental capacity related to the formation of intent, given evidence of intoxication. We conclude that he may. There would seem to be no reason to apply a different rule as to nonexpert testimony relating to criminal responsibility and capacity as affected by intoxication rather than by insanity or other mental states which may avoid responsibility for one\u2019s conduct. Article 6 of the Criminal Code of 1961 deals with matters of criminal responsibility and capacity as affected by infancy, mental disorder and intoxication. (Ill. Rev. Stat. 1973, ch. 38, pars. 6 \u2014 1 (infancy), 6 \u2014 2 (insanity), 6 \u2014 3 (intoxicated or drugged condition).) Each of these \u00e1ffirmative defenses to a charge of criminality relates to a mental state or capacity which, if proved, will avoid criminal responsibility for the acts of an accused. See also 31 Am. Jur. 2d Expert and Opinion Evidence \u00a790, at 606-08 (1967).\nThe testimony offered by Officer Connard in this case was to the effect that defendant\u2019s will could control his actions. \u201c[A]n inquiry whether [defendant] knew the difference between right and wrong, or whether his will could control his actions, would be proper.\u201d VII Wigmore on Evidence \u00a71958(2), at 93 (3d ed. 1940). See also 4 Callaghan\u2019s Illinois Evidence \u00a77.27, at 250-254 (1964).\nWhile it is true that the testimony offered by Officer Connard pertained to the ultimate question as to state of mind (\u201cintentional\u201d and \u201cknowing\u201d) which was considered by the jury in this case, that testimony is admissible as a reflection of the witness\u2019 personal observation which the jury was entitled to consider. The rule applicable in this case is in essence the same rule governing lay witness opinion testimony as to sanity. Officer Connard, as a person who had adequate opportunity to observe defendant, was entitled to offer an opinion as to defendant\u2019s mental capacity to knowingly commit a battery at the time he observed him.\nThe judgment of the circuit court of Lake County is affirmed.\nJudgment affirmed.\nRECHENMACHER, P. J., and GUILD, J., concur.\nThe statute provides:\n\u201cA person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.\u201d\nUnder the Criminal Code a person acts with knowledge of the nature or attendant circumstances of his conduct proscribed in the statute defining the offense \u201cwhen he is consciously aware that his conduct is of such nature or that such circumstances exist.\u201d (Ill. Rev. Stat. 1973, ch. 38, par. 4 \u2014 5). Also in the Criminal Code a person acts intentionally to accomplish a result or engage in conduct proscribed by the statute \u201cwhen his conscious objective or purpose is to accomplish that result or engage in that conduct.\u201d Ill. Rev. Stat. 1973, ch. 38, par. 4 \u2014 4.", "type": "majority", "author": "Mr. JUSTICE SEIDENFELD" } ], "attorneys": [ "Smythe & Lee, of Waukegan, for appellant.", "Jack Hoogasian, State\u2019s Attorney, of Waukegan (Phyllis J. Perko, of Illinois State\u2019s Attorneys Association, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS R. SELLER, Defendant-Appellant.\nSecond District (1st Division)\nNo. 75-543\nOpinion filed February 10, 1977.\nSmythe & Lee, of Waukegan, for appellant.\nJack Hoogasian, State\u2019s Attorney, of Waukegan (Phyllis J. Perko, of Illinois State\u2019s Attorneys Association, of counsel), for the People." }, "file_name": "0816-01", "first_page_order": 846, "last_page_order": 849 }