People v. Majka

849 N.E.2d 428, 365 Ill. App. 3d 362, 302 Ill. Dec. 636, 2006 Ill. App. LEXIS 407
CourtAppellate Court of Illinois
DecidedMay 17, 2006
Docket2-04-0434
StatusPublished
Cited by14 cases

This text of 849 N.E.2d 428 (People v. Majka) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Majka, 849 N.E.2d 428, 365 Ill. App. 3d 362, 302 Ill. Dec. 636, 2006 Ill. App. LEXIS 407 (Ill. Ct. App. 2006).

Opinion

PRESIDING JUSTICE GROMETER

delivered the opinion of the court:

Defendant, Mark S. Majka, appeals from his conviction of violation of an order of protection (720 ILCS 5/12 — 30 (West 2002)). He contends that the State failed to prove him guilty beyond a reasonable doubt because (1) the testimony of the complainant, Cherie Majka (Cherie), should not have been credited and (2) he was entitled to an inference that certain potential evidence, absent from the State’s case because the police did not investigate, would have been favorable to him. He also contends that a comment by the State at voir dire that “ 'it doesn’t have to prove its case 100%’ ” was reversible error. Further, in response to the State’s assertion that we must resolve against him certain questions arising from the purported incompleteness of his bystander’s report, defendant argues that the court violated his equal protection rights when it refused to provide him with a court reporter for the trial. Finally, he asserts that he was entitled to a $5-a-day credit against a fine for two days he spent in jail before the trial.

We do not resolve the issue of whether defendant had an equal protection right to a court reporter. However, for the sake of argument, we assume that a defendant has a right to a complete transcript unless the State can show that the defendant will have as effective an appeal with a substitute such as a bystander’s report as would a defendant who could pay for a court reporter. We therefore place the burden on the State of showing that defendant’s bystander’s report is sufficient to allow us to properly consider the issues defendant raises. We conclude that the bystander’s report is sufficient to allow full review of each issue. We hold that nothing in Cherie’s testimony made it inherently incredible, that defendant was not entitled to an inference that uninvestigated potential evidence would have supported his position, and that the State’s comments regarding the burden of proof were not plain error. We thus affirm defendant’s conviction. Moreover, because neither the law nor the facts are in dispute regarding defendant’s entitlement to a $5-a-day credit, we order that he be awarded a credit of $10 against his fine.

I. BACKGROUND

The State charged defendant with a violation of an order of protection (720 ILCS 5/12 — 30 (West 2002)) and criminal damage to property (720 ILCS 5/21 — 1(1)(a) (West 2002)), both misdemeanors. According to a bystander’s report prepared by defense counsel and approved by the court, defendant moved at the start of his trial to have a court reporter transcribe the proceedings. The court denied the motion because the chief judge advised it that court reporters would not be assigned to misdemeanor trials. We therefore take this summary of facts from the bystander’s report.

Defendant demanded a jury trial. During voir dire, the State commented to the panel that “ ‘it doesn’t have to prove its case 100%.’ ” Defendant objected on the grounds that the State was trying to diminish its burden of proof, but the court overruled the objection. The bystander’s report does not give other details of voir dire. In particular, it does not say whether defendant challenged any venire members for cause or used any of his peremptory challenges.

Cheri Majka, defendant’s estranged wife, testified for the State. She identified an order of protection that barred defendant from entering her house. On May 23, 2003, at around 1:15 p.m., she was upstairs in her house when she heard a beeping that she recognized as the sound defendant’s van made while in reverse. Looking out, she saw defendant’s van. She went downstairs and saw defendant through a window in the front door. They spoke. She then called 911. She went to the kitchen and was there when someone, whom she assumed to be defendant, kicked down the front door. She called 911 again while the door was being kicked in. She next saw defendant in the foyer. He grabbed a mirror and walked out of the house. She estimated that defendant was outside the door for about five minutes and in the house for about one minute. Cherie identified two digital photographs of the door and its frame as accurately showing their condition after defendant left. The photographs showed the doorframe splintered and shoe prints on the door.

On cross-examination, Cherie testified that she had filed for divorce against defendant and that custody of the couple’s children was in dispute. Further, she stated that she had called the police to report defendant violating the order of protection more than once before. She asserted that she did not know whether defendant’s being found guilty would aid her in her custody battle.

Officer Gerald Moisa, an Aurora police officer who responded to Cherie’s 911 call, also testified. He spoke with Cherie and, based on her deportment, he judged that she was afraid, nervous, and angry. He examined the door that Cherie said that defendant had kicked down. The jamb was splintered, and the door would not close fully or lock. On cross-examination, Moisa admitted that he had noticed potential witnesses to the events Cherie described, men who were near the house doing landscaping work, but, when he discovered that the men spoke only Spanish, he did not question them further. Moisa said that Batavia police officers had arrested defendant, who lived in that town. To the best of Moisa’s knowledge, they did not look for the mirror in defendant’s van. On redirect, Moisa explained that the Batavia officers arrested defendant five or six minutes after Moisa contacted dispatch; he estimated that it is eight or nine miles from Cherie’s house to Batavia.

Defendant testified that he had been a federally licenced firearms dealer for 18 years and had lost his business when he had to give up possession of his firearms because of the order of protection. He testified that the Batavia police had arrested him about 500 feet from the door of his apartment and that it was 16 to 20 miles from his apartment in Batavia to Cherie’s house. He denied being at Cherie’s house on May 23. Further, he had been in an automobile accident sometime before his arrest, was in constant pain from his injuries, and needed a cane because of equilibrium problems. Cherie, called as a rebuttal witness, said that she was aware of defendant’s accident. She said that defendant “did not drive after the accident.”

The bystander’s report does not describe the instructions given the jury, but the record contains copies of the jury instructions, including standard instructions to the effect that the State has the burden of proving a defendant’s guilt beyond a reasonable doubt. The jury found defendant guilty of violating the order of protection, and the court sentenced him to a year of supervision and a fine of $240. (The record shows that the State nol-prossed the criminal damage to property charge.) Defendant appealed. The record does not include any post-trial motion.

On appeal, defendant asserts that Cherie’s testimony was incredible because of her bias against him, because her claim that he kicked down the door was inconsistent with his physical condition, and because it was not plausible that he smashed down a door and then only took a mirror.

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Bluebook (online)
849 N.E.2d 428, 365 Ill. App. 3d 362, 302 Ill. Dec. 636, 2006 Ill. App. LEXIS 407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-majka-illappct-2006.