2021 IL App (2d) 190378-U No. 2-19-0378 Order filed July 6, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 18-CF-1983 ) WALTER MALONE, ) Honorable ) Donald M. Tegeler, Jr., Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court. Justices Schostok and Birkett concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion in denying defendant’s request for a bill of particulars, nor or in refusing his non-IPI instruction on weighing the identification of a witness.
¶2 The jury found defendant, Walter Malone, guilty of two counts of aggravated battery in a
place of public accommodation (720 ILCS 5/12-30.5(c) (West 2018)) and two counts of domestic
battery (720 ILCS 5/12-3,2(a)(1), (a)(2) (West 2018)). The trial court merged the convictions into
a single conviction of aggravated battery and sentenced defendant to 4½ years of imprisonment.
Defendant appeals from the trial court’s judgment, arguing that the court abused its discretion (1) 2021 IL App (2d) 190378-U
when it denied his request for a bill of particulars as to the domestic battery charges and (2) when
it refused his non-Illinois Pattern Jury Instruction. For the reasons that follow, we affirm.
¶3 I. BACKGROUND
¶4 In the early evening of October 5, 2018, defendant’s girlfriend of a year, Annel Melchor,
drove him home from her house. Defendant and Melchor had been drinking and argued during the
drive and continued arguing when they arrived at the parking lot to defendant’s apartment.
Defendant was angry because Melchor had rejected his sexual advances and would not take him
to another location. She did not want him to have her keys, because her children were in the car.
¶5 The parking lot was shared with or adjacent to a Dollar General parking lot. A physical
altercation occurred, resulting in defendant’s biting or scratching Melchor’s upper lip. Melchor
fled to the Dollar General store and asked the cashier to call 911. Defendant followed Melchor into
the store, where a shopper, Yesenia Deltoro, witnessed him force Melchor to the floor and try to
drag her out. Deltoro yelled at defendant not to touch Melchor. The attack lasted less than a minute,
and defendant left the store and returned twice before finally exiting. The store’s surveillance
system captured the struggle, as well as the cashier’s making a phone call.
¶6 When patrol officer Coleman arrived on the scene, Sergeant Corrigan was already there
and speaking to defendant. Coleman located Melchor, who was with Deltoro. Coleman noted fresh
bleeding from a scratch above Melchor’s swollen lip. Coleman photographed the lip injury.
Defendant’s physical contact left Melchor with a scar on her upper lip and bruises on her arms.
¶7 Coleman also spoke to Deltoro, who described defendant and then saw him, unhandcuffed,
as he spoke with Corrigan about 100 feet from the store. She identified him as the person she saw
both inside and outside the store.
-2- 2021 IL App (2d) 190378-U
¶8 After speaking with the cashier at the Dollar General, Coleman spoke to defendant.
Defendant appeared to be intoxicated, although Melchor had not appeared to be. Because this was
a domestic incident, Coleman did not find fingerprints or DNA to be relevant. Defendant was
placed in custody.
¶9 The grand jury charged defendant by indictment with two counts of aggravated battery in
a place of public accommodation (720 ILCS 5/12-30.5(c) (West 2018)) and two counts of domestic
battery (720 ILCS 5/12-3,2(a)(1), (a)(2) (West 2018. Following a trial, the jury convicted
defendant of all four counts. The court denied defendant’s posttrial motion but, following a
sentencing hearing, merged the convictions into a single conviction of aggravated battery and
sentenced defendant to 4½ years of imprisonment.
¶ 10 II. ANALYSIS
¶ 11 Defendant first argues that the trial court erred when it denied his request for a bill of
particulars as to the domestic battery charges. Defendant contends that the domestic-battery counts
in the indictment “simply alleged that [he] ‘struck’ Melchor ‘on or about the body’ *** , without
specifying where the alleged strike occurred or what it involved.” According to defendant, a bill
of particulars would have clarified that he was charged with only his conduct inside the Dollar
General and then he could have moved to suppress evidence of the alleged bite in the car as a
prejudicial other crime.
“The purpose of a bill of particulars is to give the defendant notice of the charge
and to inform the defendant of the particular transactions in question, thus enabling
preparation of a defense. [Citation.] There is no need for a bill of particulars when the
indictment sufficiently informs the defendant of the charged offense. [Citation.] A trial
court’s decision on a motion for a bill of particulars is reviewed for abuse of discretion.
-3- 2021 IL App (2d) 190378-U
[Citation.] An abuse of discretion will be found only when the trial court’s decision is
arbitrary and no reasonable person would adopt the view of the court. [Citation.]” People
v. Woodrum, 223 Ill. 2d 286, 301-02 (2006).
¶ 12 In his motion for a bill of particulars, defendant stated that the allegations in discovery and
the grand jury transcript alleged “two distinct domestic batteries”: (1) defendant bit Melchor and
pulled her hair in her vehicle; and (2) after Melchor ran into the Dollar General, defendant followed
her, punched her in the face, and tried to drag her out of the store. Defendant sought clarification
as to whether the State was prosecuting him for the battery in the car in the parking lot or inside
the store. Additionally, because the indictment did not mention a “bite,” defendant asked the court
to conduct a balancing test and deny the admission of the prior uncharged bad act at trial.
¶ 13 At the hearing on defendant’s motion, the State argued that the batteries were a continuous,
ongoing incident that began with the physical contact in the car and continued into the store. See
People v. Adkins, 239 Ill.2d 1, 32 (2010) (evidence of a defendant’s other bad acts is admissible
where those acts, even if uncharged, are part of the “continuing narrative which concern the
circumstances attending the entire transaction and *** do not concern separate, distinct and
disconnected crimes.” (Internal quotation marks omitted.)). The trial court found that the domestic
battery charges could be continuing. It further determined that since the State’s continuing-act
theory included a biting in the car, and defendant’s theory was that the biting never occurred,
Free access — add to your briefcase to read the full text and ask questions with AI
2021 IL App (2d) 190378-U No. 2-19-0378 Order filed July 6, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 18-CF-1983 ) WALTER MALONE, ) Honorable ) Donald M. Tegeler, Jr., Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court. Justices Schostok and Birkett concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion in denying defendant’s request for a bill of particulars, nor or in refusing his non-IPI instruction on weighing the identification of a witness.
¶2 The jury found defendant, Walter Malone, guilty of two counts of aggravated battery in a
place of public accommodation (720 ILCS 5/12-30.5(c) (West 2018)) and two counts of domestic
battery (720 ILCS 5/12-3,2(a)(1), (a)(2) (West 2018)). The trial court merged the convictions into
a single conviction of aggravated battery and sentenced defendant to 4½ years of imprisonment.
Defendant appeals from the trial court’s judgment, arguing that the court abused its discretion (1) 2021 IL App (2d) 190378-U
when it denied his request for a bill of particulars as to the domestic battery charges and (2) when
it refused his non-Illinois Pattern Jury Instruction. For the reasons that follow, we affirm.
¶3 I. BACKGROUND
¶4 In the early evening of October 5, 2018, defendant’s girlfriend of a year, Annel Melchor,
drove him home from her house. Defendant and Melchor had been drinking and argued during the
drive and continued arguing when they arrived at the parking lot to defendant’s apartment.
Defendant was angry because Melchor had rejected his sexual advances and would not take him
to another location. She did not want him to have her keys, because her children were in the car.
¶5 The parking lot was shared with or adjacent to a Dollar General parking lot. A physical
altercation occurred, resulting in defendant’s biting or scratching Melchor’s upper lip. Melchor
fled to the Dollar General store and asked the cashier to call 911. Defendant followed Melchor into
the store, where a shopper, Yesenia Deltoro, witnessed him force Melchor to the floor and try to
drag her out. Deltoro yelled at defendant not to touch Melchor. The attack lasted less than a minute,
and defendant left the store and returned twice before finally exiting. The store’s surveillance
system captured the struggle, as well as the cashier’s making a phone call.
¶6 When patrol officer Coleman arrived on the scene, Sergeant Corrigan was already there
and speaking to defendant. Coleman located Melchor, who was with Deltoro. Coleman noted fresh
bleeding from a scratch above Melchor’s swollen lip. Coleman photographed the lip injury.
Defendant’s physical contact left Melchor with a scar on her upper lip and bruises on her arms.
¶7 Coleman also spoke to Deltoro, who described defendant and then saw him, unhandcuffed,
as he spoke with Corrigan about 100 feet from the store. She identified him as the person she saw
both inside and outside the store.
-2- 2021 IL App (2d) 190378-U
¶8 After speaking with the cashier at the Dollar General, Coleman spoke to defendant.
Defendant appeared to be intoxicated, although Melchor had not appeared to be. Because this was
a domestic incident, Coleman did not find fingerprints or DNA to be relevant. Defendant was
placed in custody.
¶9 The grand jury charged defendant by indictment with two counts of aggravated battery in
a place of public accommodation (720 ILCS 5/12-30.5(c) (West 2018)) and two counts of domestic
battery (720 ILCS 5/12-3,2(a)(1), (a)(2) (West 2018. Following a trial, the jury convicted
defendant of all four counts. The court denied defendant’s posttrial motion but, following a
sentencing hearing, merged the convictions into a single conviction of aggravated battery and
sentenced defendant to 4½ years of imprisonment.
¶ 10 II. ANALYSIS
¶ 11 Defendant first argues that the trial court erred when it denied his request for a bill of
particulars as to the domestic battery charges. Defendant contends that the domestic-battery counts
in the indictment “simply alleged that [he] ‘struck’ Melchor ‘on or about the body’ *** , without
specifying where the alleged strike occurred or what it involved.” According to defendant, a bill
of particulars would have clarified that he was charged with only his conduct inside the Dollar
General and then he could have moved to suppress evidence of the alleged bite in the car as a
prejudicial other crime.
“The purpose of a bill of particulars is to give the defendant notice of the charge
and to inform the defendant of the particular transactions in question, thus enabling
preparation of a defense. [Citation.] There is no need for a bill of particulars when the
indictment sufficiently informs the defendant of the charged offense. [Citation.] A trial
court’s decision on a motion for a bill of particulars is reviewed for abuse of discretion.
-3- 2021 IL App (2d) 190378-U
[Citation.] An abuse of discretion will be found only when the trial court’s decision is
arbitrary and no reasonable person would adopt the view of the court. [Citation.]” People
v. Woodrum, 223 Ill. 2d 286, 301-02 (2006).
¶ 12 In his motion for a bill of particulars, defendant stated that the allegations in discovery and
the grand jury transcript alleged “two distinct domestic batteries”: (1) defendant bit Melchor and
pulled her hair in her vehicle; and (2) after Melchor ran into the Dollar General, defendant followed
her, punched her in the face, and tried to drag her out of the store. Defendant sought clarification
as to whether the State was prosecuting him for the battery in the car in the parking lot or inside
the store. Additionally, because the indictment did not mention a “bite,” defendant asked the court
to conduct a balancing test and deny the admission of the prior uncharged bad act at trial.
¶ 13 At the hearing on defendant’s motion, the State argued that the batteries were a continuous,
ongoing incident that began with the physical contact in the car and continued into the store. See
People v. Adkins, 239 Ill.2d 1, 32 (2010) (evidence of a defendant’s other bad acts is admissible
where those acts, even if uncharged, are part of the “continuing narrative which concern the
circumstances attending the entire transaction and *** do not concern separate, distinct and
disconnected crimes.” (Internal quotation marks omitted.)). The trial court found that the domestic
battery charges could be continuing. It further determined that since the State’s continuing-act
theory included a biting in the car, and defendant’s theory was that the biting never occurred,
defendant was on notice to defend against the allegations of domestic battery in the car as well as
in the store. Defendant ultimately agreed with the court. Accordingly, defendant was sufficiently
informed of the charged offense, and we cannot say the court abused its discretion in denying
defendant’s request for a bill of particulars.
-4- 2021 IL App (2d) 190378-U
¶ 14 Defendant further argues that the jury was confused by the wording of the indictment in
light of the State’s repeated references to defendant’s having bitten Melchor. Defendant cites as
proof of jury confusion the fact that during deliberations the jury inquired “[c]an the battery that
happened in the store satisfy all charges?”
¶ 15 With respect to domestic battery, the jury had been instructed that a person commits
domestic battery “when he knowingly and by any means causes bodily harm to or makes physical
contact of an insulting or provoking nature.” The court’s reply to the inquiry indicated that the jury
had heard all the evidence and been given the applicable law, that it was for them to determine
whether the State met its burden of proof, and that they should continue to deliberate. Defendant
approved the court’s reply, and the jury then found defendant guilty of all four counts. We are not
persuaded that the jury was confused.
¶ 16 Finally, we note that at the sentencing hearing, the court agreed with defendant that under
one-act, one-crime principles, he should have been convicted of only the first count of aggravated
battery. See People v. Jimerson, 404 Ill. App. 3d 621, 635 (2010) (“Under the one-act, one-crime
rule, a defendant may be convicted for one crime resulting from a single act.”). Accordingly, the
court merged counts II through IV into count I, sentencing defendant only on one count of
aggravated battery—bodily harm. This merger was consistent with the court’s finding that the
evidence of a bite was part of a continuing battery. Defendant does not challenge the court’s
sentencing decision on appeal.
¶ 17 Defendant’s second issue on appeal is whether the court erred in refusing his modified
version of Illinois Pattern Jury Instruction (IPI) 3.15A (Illinois Pattern Jury Instructions, Criminal,
No. 3.15 (4th ed. 2000) (hereinafter IPI Criminal 4th)).
-5- 2021 IL App (2d) 190378-U
“The purpose of jury instructions is to provide the jurors with the legal principles
that apply to the evidence so they can reach a correct verdict. Jury instructions should not
be misleading or confusing. There must be sufficient evidence in the record to support an
instruction, lest the jury be confused by issues improperly before it.” (Citations and internal
quotation marks omitted.) People v. Rodriguez, 2014 IL App (2d) 130148, ¶ 77.
The decision to give or refuse a non-IPI instruction should not be disturbed absent an abuse of
discretion; whether the court has abused its discretion in giving a particular instruction “will
depend on whether it was an accurate, simple, brief, impartial, and nonargumentative statement of
the applicable law.” Rodriguez, 2014 IL App (2d) 130148, ¶ 78 (citing Ill. S.Ct. R. 451(a) (eff.
April 8, 2013)).
¶ 18 According to defendant, his non-IPI instruction would have assisted the jury in determining
what weight to give eyewitness Deltoro’s identification of him as the perpetrator. IPI 3.15A
advises the jury that it has evidence before it that a witness made an identification of the defendant
following a live or photographic “lineup conducted by [a] law enforcement [(agency) (agencies)]
relating to the offense(s) charged in this case.” Defendant’s modified instruction states that the
jury has evidence before it that a witness made an identification of the defendant “following a live
show-up conducted by a law enforcement agency relating to the offenses charged in this case.” A
“showup” is “a procedure in which a suspected perpetrator is presented to the eyewitness at, or
near, a crime scene for the purpose of obtaining an immediate identification.” 725 ILCS 5/107A-
0.1 (West 2018). Both versions of the instruction direct the jury, in determining the weight to be
given this evidence, to “consider all of the circumstances under which the identification was made,
including, but not limited to, the procedures used or not used” by the law enforcement agency.
-6- 2021 IL App (2d) 190378-U
¶ 19 The problem with defendant’s instruction is that the evidence does not support it. Deltoro
did not make an identification of defendant following a live show-up conducted by the police.
Rather, defendant saw defendant in the store and engaged with him, yelling at him not to touch
Melchor. Immediately thereafter, she described him as a black man with braids. Two to three
minutes later, she saw defendant again, in conversation with Sergeant Corrigan about 50 to 100
feet from the store. This sighting occurred while she was speaking with Officer Coleman. Coleman
testified that during their conversation, Deltoro pointed out defendant and said, “That’s him.” The
facts show that the police did not present defendant to Deltoro for identification. Defendant’s non-
IPI instruction would have encouraged the jury to consider a distorted version of the evidence
when assessing the credibility of Deltoro’s identification.
¶ 20 Defendant also proffered IPI 3.15, which was given. IPI 3.15 states:
“When you weigh the identification testimony of a witness, you should consider all
the facts and circumstances in evidence, including, but not limited to, the following:
[1] The opportunity the witness had to view the offender at the time of the offense.
[2] The witness’s degree of attention at the time of the offense.
[3] The witness’s earlier description of the offender.
[4] The level of certainty shown by the witness when confronting the defendant.
[5] The length of time between the offense and the identification confrontation.”
IPI Criminal 4th No. 3.15.
¶ 21 We believe that IPI 3.15 adequately instructed the jury on the weighing of Deltoro’s
identification. See People v. Bannister, 232 Ill. 2d 52, 81 (2008) (“If IPI instructions contain an
applicable instruction on a subject about which the trial court determines the jury should be
instructed, the trial court must use that instruction, unless the court determines that the instruction
-7- 2021 IL App (2d) 190378-U
does not accurately state the law.” (citing Ill. S. Ct. R. 451(a) (eff. Apr. 8, 2013)). The trial court’s
determination that IPI 3.15 accurately stated the law was correct. See People v. Polk, 407 Ill. App.
3d 80, 109 (2010) (quoting People v. Piatkowski, 225 Ill. 2d 551, 567 (2007)) (“the five factors
listed in the instruction are an accurate statement of the law ‘for assessing the reliability of
identification testimony.’ ”). We find no abuse of discretion in refusing defendant’s modified
version of IPI 3.15A.
¶ 22 III. CONCLUSION
¶ 23 The judgment of the circuit court of Kane County is affirmed.
¶ 24 Affirmed.
-8-