People v. Varela

551 N.E.2d 323, 194 Ill. App. 3d 364, 141 Ill. Dec. 330, 1990 Ill. App. LEXIS 200
Procedural entryThis page is a short order in People v. Varela. Read the opinion of the Court — 194 Ill. App. 3d 357
Appellate Court of Illinois·Decided February 14, 1990·No. No. 3—89—0269·Published

Opinion

JUSTICE STOUDER

delivered the opinion of the court:

Following a jury trial, the defendant, Joel Varela, was convicted of two counts of aggravated battery and one count of armed violence. The jury acquitted the defendant of an attempted murder charge. At the sentencing hearing, the trial court vacated one of the defendant’s aggravated battery convictions, finding it formed the predicate felony for the armed violence conviction. The trial court sentenced the defendant to concurrent terms of imprisonment of nine years for armed violence and five years for aggravated battery. The court also imposed a $25 fine. The defendant appeals.

This case involves a fight between two brothers and an off-duty Onarga police officer. The relevant facts of this fight can be found in the companion opinion, People v. Varela (1990), 194 Ill. App. 3d 357. The defendant raises several issues on appeal.

The defendant first contends that because he came into the fight unarmed he cannot be convicted of armed violence. A person commits armed violence, when, while armed with a dangerous weapon, he commits a felony defined by Illinois law. (Ill. Rev. Stat. 1987, ch. 38, par. 33A— 2.) A person is considered armed with a dangerous weapon for purposes of the armed violence statute when he carries on or about his person or is otherwise armed with a category I or category II weapon. (Ill. Rev. Stat. 1987, ch. 38, par. 33A— 1(a).) As was stated in People v. Eure (1986), 140 Ill. App. 3d 387, 393-94, 488 N.E.2d 1267, 1272:

“The armed-violence statute must therefore be read as a strong statutory deterrent to carrying a dangerous or deadly weapon, the sanctions of which statute are activated when coupled with the commission of a felony.
The armed-violence statute, however, does not seek merely to penalize the commission of the underlying felony, although that certainly is an inevitable adjunct of an armed-violence conviction. Rather, it seeks to deter the use of weapons in the commission of the predicate felony. *** In short, the gravamen of the armed-violence statute focuses on the offender, and not on the results of the offense.”

Contrary to the defendant’s argument, there is no requirement the defendant be armed with a dangerous weapon before or at the inception of the commission of the felony; the only requirement is that the defendant be armed with the weapon while committing a felony. (See People v. Chrisos (1986), 142 Ill. App. 3d 747, 492 N.E.2d 216.) The crucial point in time is not when an accused arms himself; it is when the underlying offense is committed. People v. Eure (1986), 140 Ill. App. 3d 387, 488 N.E.2d 1267.

The record in the instant case reveals that at the fight’s inception the defendant was unarmed. After kicking Coleman in the head, however, the defendant grabbed the bottle and swung it at Coleman, inflicting serious wounds. We believe, after reviewing the record, the jury had ample evidence from which to conclude that the defendant’s arming himself with the bottle, a dangerous weapon as used, was premeditated.

We also find the defendant’s reliance on People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48, inapposite. Alejos stands for the proposition that voluntary manslaughter, as distinguished from armed violence by the complete absence of any premeditation or criminal intent, cannot be the predicate felony for armed violence. (People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 216.) In contrast, aggravated battery requires specific intent and lacks mitigating factors. (People v. Eure (1986), 140 Ill. App. 3d 387, 488 N.E.2d 1267.) Under the circumstances presented in the instant case, we believe Alejos is of little help to the defendant.

The defendant contends, as an ancillary argument, that the bottle, intact, is not a dangerous weapon under the armed violence statute. We note that in two recent cases, the appellate court has determined that a three-inch piece of glass was a per se deadly weapon (People v. Hall (1983), 117 Ill. App. 3d 788, 453 N.E.2d 1327), and that a two-inch piece of glass was a deadly weapon if it is used in a manner dangerous to the physical well-being of the victim (People v. Chrisos (1986), 142 Ill. App. 3d 747, 492 N.E.2d 216). In the instant case, the weapon was a whiskey bottle. The record indicates the bottle was used in a manner dangerous to Coleman’s physical well-being. Under the circumstances presented, there is no question the bottle, intact or broken, constituted a dangerous weapon under the armed violence statute. Accordingly, we believe a reasonable jury could have found the defendant guilty of armed violence.

The defendant next contends the trial court should have granted him a mistrial after Coleman testified at trial that the defendant stated “kill mother fucker” while brandishing the broken bottle. The defendant argues a mistrial should have been granted here because the statement had not been disclosed to the defense prior to trial and was so prejudicial that a mistrial should have been granted notwithstanding the trial court’s curative measures.

The trial court agreed the statement should have been disclosed, noting “it’s a serious omission and affects the strategy of the case.” Defense counsel, insisting that the prosecution intentionally withheld the evidence, sought a mistrial. The trial court, however, allowed defense counsel to question Coleman outside the presence of the jury. Following the interrogation, the trial court concluded there was no willful intent on the prosecution’s part to evade a discovery rule, and it ordered the statement stricken. The trial court then instructed the jury not to consider the statement in determining the outcome of the case.

The prosecution is obligated to disclose to the defense any statements made by the accused and is under a continuing duty to promptly disclose relevant information throughout trial. (See 107 Ill. 2d Rules 412(a)(ii), 415(b).) When presented with an undisclosed statement of the defendant at trial, a trial court may, under Supreme Court Rule 415, order disclosure of the material, grant a continuance, exclude the evidence, or enter such order as seems just under the circumstances. (107 Ill. 2d R. 415(g)(i); People v. Morgan (1986), 112 Ill. 2d 111, 492 N.E.2d 1303.) In Morgan, a prosecution witness testified to an inculpatory statement of the defendant which had not been previously disclosed during discovery. The trial court instructed the jury to disregard the testimony, granted the defendant’s motion to strike, and commented that the statement should have been disclosed during discovery. The supreme court, in finding that the trial court did not abuse its discretion, noted that a trial court can usually correct the error by sustaining an objection and instructing the jury to disregard the improper remark. People v. Morgan (1986), 112 Ill.

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People v. Varela, 551 N.E.2d 323, 194 Ill. App. 3d 364, 141 Ill. Dec. 330, 1990 Ill. App. LEXIS 200 (Ill. Ct. App. 1990).

551 N.E.2d 323 (People v. Varela) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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