People v. Holman

Illinois Official Reports
Appellate Court
People v. Holman, 2014 IL App (3d) 120905Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption EXULAM HOLMAN, Defendant-Appellant.
District & No. Third District
Docket No. 3-12-0905
Filed October 8, 2014
Rehearing denied November 10, 2014
Held The appellate court affirmed defendant’s conviction for aggravated
(Note: This syllabus domestic battery and his sentence to the maximum term of 14 years in
constitutes no part of the prison based on an incident in which he fought with his uncle and
opinion of the court but pressed his thumbs into his uncle’s eyes, causing his uncle to have one
has been prepared by the eye removed and to basically lose his sight in the other eye, since the
Reporter of Decisions uncle was much smaller and older than defendant, and even if the
for the convenience of uncle started the fight, defendant’s response was so excessive and
the reader.) deadly that it could not be a legally justified use of force in
self-defense, the gouging of the uncle’s eyes was exceptionally brutal
or heinous behavior indicative of wanton cruelty that would qualify
defendant for an extended term, and the extent of the great bodily
harm and permanent disability inflicted on the uncle went beyond
what was necessary to sustain a conviction for aggravated domestic
battery; furthermore, the trial court did not consider an improper factor
when it considered the harm inflicted in imposing a sentence and there
was no indication the trial court ignored any mitigating factors in
making its sentencing decision.
Decision Under Appeal from the Circuit Court of Will County, No. 12-CF-29; the
Review Hon. Amy Bertani-Tomczak, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier and Emily E. Filpi (argued), both of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
James Glasgow, State’s Attorney, of Joliet (Robert M. Hansen
(argued), of State’s Attorneys Appellate Prosecutor’s Office, of
counsel), for the People.
Panel JUSTICE CARTER delivered the judgment of the court, with opinion.
Justices O’Brien and Wright concurred in the judgment and opinion.
OPINION
¶1 After a jury trial, defendant, Exulam Holman, was convicted of aggravated domestic
battery (720 ILCS 5/12-3.2(a)(1), 12-3.3(a) (West 2010)) and was sentenced to 14 years in
prison. Defendant appeals, challenging both his conviction and his sentence. We affirm the
trial court’s judgment.
¶2 FACTS
¶3 On December 31, 2011, defendant was arrested and charged with one count of aggravated
domestic battery and one count of aggravated battery for allegedly pressing his thumbs into his
uncle’s eye sockets during a fight between the two on New Year’s Eve. Defendant’s uncle was
severely injured as a result of the incident, had to have one of his eyes removed, and lost most
of the vision in his other eye. Defendant’s case proceeded to a jury trial in August 2012. The
evidence presented at trial can be summarized as follows.
¶4 Defendant’s uncle, Clifford Melvin, testified for the State (and later as a defense witness)
that he was born in April 1949 and was 63 years old as of the date of trial. Melvin was in the
Army from 1967 to 1970 and saw active duty in both Korea and Vietnam. As part of his early
Army combat training, Melvin was trained in the use of judo and was taught how to use his
hands and feet as weapons. Melvin was proud of his Army service and his family knew that he
had served in the military. In 1995, Melvin was hit by a car and sustained numerous injuries.
As a result of that accident, Melvin was left with no strength in his right hand or his right side.
In December 2011, Melvin was living in the basement of his sister’s residence on McKay
Street (the McKay Street residence) in Joliet, Illinois. Also living at the residence was
Melvin’s sister, Nannetta Johnson; her husband, Michael; defendant, who was Nannetta’s son
and Melvin’s nephew; two of Melvin’s great nieces; and one of Melvin’s great nephews.
Melvin was about 5 feet 3 inches tall and weighed about 147 pounds, and defendant was about
5 feet 9 inches or 5 feet 10 inches tall and weighed considerably more than Melvin. 1
1
The presentence investigation report that was filed in this case indicates that defendant was 5 feet
7 inches tall and that he weighed 280 pounds. Although that specific information was not before the
jury, the jury would have been able to see defendant’s physical characteristics at trial.
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¶5 On the evening of December 31, 2011, New Year’s Eve, Melvin went to one of the
gambling boats in Joliet at about 8:15 p.m. to meet a friend. That person did not show up, but
Melvin ran into another friend at the boat. Melvin and his friend walked around for a while and
had something to eat. Melvin had some drinks that day but was careful about what he drank
because he was on medications and because he had been told by his doctors not to drink
excessively since he had a prior history of blacking out when he did so. According to Melvin,
the doctor had told him that it was permissible for him to have a shot or a beer after 3 p.m.,
even though he was on daily medications. Melvin had not, however, taken his daily medicines
on New Year’s Eve or the day before because he knew that he was going to be drinking a little
bit and he did not want to put extra stress on his liver. Melvin had a shot and a beer at noon that
day at a friend’s house and had another shot and a beer at about 8:30 p.m. at the gambling boat,
while he was waiting for his friend to arrive. According to Melvin, he was not intoxicated
when he was at the boat. Melvin left the boat at about 10 p.m., and his friend gave him a ride
home.
¶6 When Melvin got to the residence, there were other people there, celebrating the holiday.
Melvin went into the house through the side door. Inside that door was a landing with two
flights of stairs. One flight went down to the basement; the other went up to the kitchen.
Melvin went down the stairs to his bedroom in the basement. As he was getting ready for bed,
Melvin heard defendant upstairs in the kitchen. Melvin went upstairs to “get on” defendant
because he thought that defendant had taken the remote control for his DVD player. Melvin
was going to tell defendant that he wanted the remote control back or that he was going to call
the police.
¶7 When Melvin walked into the kitchen, defendant was seated at the table with Michael’s
son, Corinthian Baker, and two of Melvin’s nieces, Kadijah and Charolyn Holman. Melvin’s
sister, Nannetta Johnson, was not home at the time. Melvin’s brother-in-law, Michael, was
home, but he was intoxicated. Melvin confronted defendant about the missing remote control
and, as he did so, Charolyn left the kitchen and ran into the front room. The other two stayed in
the kitchen. Defendant got up, told Melvin to shut up, shoved Melvin down the stairs, and
slammed the door. Melvin fell backwards down the stairs and hit the wall at the landing.
¶8 Melvin was angry and came back up the stairs. He tried to go through the door into the
kitchen, but the table and chair had been pushed up against the door blocking it. Melvin was
able to push the door open and squeeze through. Melvin could not get around the table, so he
tried to go over the table to get to defendant because he was mad at defendant. As Melvin went
over the table, defendant flipped the table over, and Melvin fell to the floor on his back.
Defendant straddled Melvin, pinned Melvin’s arms down with his knees, and pressed his
thumbs into Melvin’s eyes as he stood up with all of his weight. With his thumbs still in
Melvin’s eyes, defendant stated, “there’s only one king,” and got off of Melvin.
¶9 Melvin eyes were bleeding, he could not see, and he was in a lot of pain. He reached for the
phone on the wall to call the police, but defendant grabbed the phone out of his hand and
prevented him from getting any closer to the phone. Melvin felt his way down the steps to his
bedroom in the basement where his cell phone was located and called 9-1-1. At some point,
Melvin passed out. The police arrived, took Melvin upstairs, and asked Melvin to explain to
them what had happened.
¶ 10 Melvin was later taken to Silver Cross hospital in the area and was eventually taken to the
University of Illinois Hospital in Chicago. He was in and out of consciousness and did not
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remember arriving at either hospital. Melvin had two surgeries on his eyes at the hospital in
Chicago and a third surgery at the Veterans Administration hospital. Unfortunately, the
doctors were unable to save Melvin’s left eye and that eye had to be removed. In addition, the
sight in Melvin’s right eye was limited and he had no depth perception in that eye. At trial,
Melvin testified that he could only see out of his right eye if he used the special glasses that had
been made for him, and that without the glasses, the vision out of his right eye was blurred, like
looking through water. Photographs that were taken in the middle of January 2012 of the
condition of Melvin’s eyes were admitted into evidence, without objection.
¶ 11 Melvin testified further that he was certain that he was not intoxicated on the night in
question and that although he might have smelled of alcohol, he was not slurring his words.
Melvin acknowledged that he was uncooperative at the hospital and stated that he was in pain
and was trying to get help, but the people at the hospital kept asking him different questions.
Eventually, Melvin blacked out at the hospital, not because of the alcohol that he had drank
earlier, but because of the medicine he was given to kill the pain. Melvin denied that he ever
punched or hit defendant during the confrontation and stated that before he even reached
defendant, defendant flipped the table over, and he was on his back. Melvin did not ask
Corinthian, Kadijah, or Charolyn for help and did not yell for anyone else in the house to help
him. According to Melvin, Corinthian did not try to break up the fight and Melvin never yelled
at Corinthian to stay out of it.
¶ 12 Will County Sheriff’s Deputy Thomas Omiecinski testified for the State that on December
31, 2011, at about 10:06 p.m., he and Deputy Todd were dispatched to a call at the McKay
Street residence. Omiecinski and Todd were in police uniform and were driving marked squad
cars at the time. Upon their arrival at the residence a few moments later, the deputies were
allowed to enter through the front door. There were multiple people inside the residence and it
appeared that there was a New Year’s Eve Party in progress. When the deputies asked those
present what had happened and why the police were called to the residence, some of the people
responded that nothing happened and others simply did not respond.
¶ 13 As the deputies made their way to the kitchen area, Omiecinski heard a person moaning
from the basement. Omiecinski started down toward the basement and saw Melvin trying to
make his way up the stairs with his hands stretched out in front of him as if for guidance.
Melvin asked Omiecinski to help him and told Omiecinski that he could not see. Omiecinski
noticed that Melvin’s eyes were red, bleeding, and swollen, and that there was blood pouring
from Melvin’s eyes down onto his cheeks. It appeared to Omiecinski that Melvin’s eyes had
sustained a major injury as they were protruding about a quarter inch from the sockets.
Omiecinski helped Melvin into the kitchen, and Melvin told him what had happened.
Omiecinski saw that Melvin needed immediate medical attention and asked for the paramedics
to come into the residence right away. The paramedics took Melvin to the hospital.
¶ 14 After Melvin left with the paramedics, the deputies tried to make contact with defendant by
going to defendant’s bedroom on the second floor. They deputies knocked on defendant’s
bedroom door and announced that they were police officers and that they needed to speak to
defendant. Defendant did not answer the door immediately. After several moments, defendant
opened the door. Omiecinski asked defendant what had happened, and defendant responded
with, “[n]othing, n***,” and “s*** happened.” Omiecinski did not notice any injuries on
defendant and when Omiecinski asked defendant, defendant stated that he was not injured.
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Omiecinski and Todd eventually placed defendant under arrest. Because of defendant’s large
size, the deputies had to use two sets of handcuffs; one was not sufficient.
¶ 15 As Omiecinski and Todd walked through the house, they asked some of the 10 or 15 other
people who were present what had happened. Only one person was cooperative. Omiecinski
saw that there was a remote control on the floor in the living room, which was near the kitchen.
The plastic casing on the remote control had been smashed into several pieces and was lying on
the floor. Upon being asked, a household member told Omiecinski that the remote was for the
television in the living room.
¶ 16 As a police officer, Omiecinski had been trained in alcohol detection for the purpose of
determining if a person was intoxicated or had been drinking. Omiecinski did not notice any
smell of alcohol on Melvin or any slurred speech. According to Omiecinski, Melvin was
cooperative in answering questions and did not appear to be intoxicated in any way.
¶ 17 Will County Sheriff’s Deputy Richard Todd testified for the State and provided a similar
account of what had occurred at the McKay Street residence that evening. Todd testified
further that he went to the hospital after he left the scene and tried to talk to Melvin. By that
time, Melvin had already received some treatment and his eyes were bandaged. Melvin
appeared to be in a lot of pain and although he was trying to answer Todd’s questions, his
responses were inaudible and he was moaning when he was trying to speak. Todd did not,
however, notice Melvin lose consciousness or black out at the hospital.
¶ 18 Firefighter/paramedic Matt Bowles testified for the State that on December 31, 2011, he
and his partner, Louis Helis, were dispatched to the McKay Street residence at about 10:07
p.m. They arrived at the residence about five minutes later. Upon arrival, after the scene was
cleared by the sheriff’s deputies, the paramedics went into the house into the kitchen area
where the patient, Melvin, was located. As they walked to the kitchen area, the paramedics
noticed that there were about 10 or 15 people in the living room of the house, near the kitchen,
watching television.
¶ 19 Melvin was sitting at the kitchen table facing the paramedics. He had heavy blood coming
from both of his eyes. Melvin’s left eye was protruding quite a bit and his right eye was very
sunken into his skull. The paramedics checked to make sure that Melvin was alert, conscious,
and breathing, and then started wound care. Melvin’s head and eyes were wrapped in gauze to
keep them sterile and to protect them. After getting Melvin’s baseline vital readings, the
paramedics put Melvin into the back of the ambulance for transport. As the paramedics were
treating Melvin, Bowles did not notice any signs that Melvin was intoxicated. Bowles
described Melvin’s demeanor as calm and cooperative. When the paramedics got Melvin into
the ambulance, they asked him if he had any pain anywhere else besides his eyes, and Melvin
responded that he did not have pain elsewhere, but he did fall down the stairs. According to
Bowles, Melvin remained conscious the entire time Bowles was with him and did not have any
blackouts or losses of consciousness.
¶ 20 Bowles’s partner, firefighter/paramedic Louis Helis, provided similar testimony for the
State regarding the paramedics’ response to the call at the McKay Street residence that
evening. Helis described the condition of Melvin’s eyes at the scene as severely bleeding and
very swollen. Like Bowles, Helis stated that he did not observe any signs that Melvin was
intoxicated and did not report to the hospital staff that Melvin had been drinking or that Melvin
appeared to be intoxicated.
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¶ 21 Dr. Kristin Baier testified for the State that she worked at the University of Illinois Hospital
in Chicago as a resident physician in family medicine. Baier was involved in certain aspects of
Melvin’s treatment at the hospital, including the secondary diagnoses of tobacco and alcohol
abuse. Baier saw Melvin at the hospital on January 2 and January 4, 2012. According to Baier,
Melvin had a complete loss of vision in his left eye, was only able to detect light in his right
eye, and had a fractured cheekbone. During the course of treatment, Baier asked Melvin if he
had any alcohol on the day of the incident. Melvin was unable to specify how much alcohol he
had drunk but told Baier that he usually did not drink more than one or two drinks at a time and
that he was not drunk when the incident occurred. When asked how he sustained the injuries,
Melvin told Baier that his nephew pushed him down a flight of stairs and tried to gouge his
eyes out.
¶ 22 Dr. Silvio Morales testified for the defense that he was the chairman and medical director
of the emergency department at Silver Cross Hospital. Morales performed an examination of
Melvin when Melvin was brought into the hospital’s emergency department on New Year’s
Eve. According to Morales, Melvin’s cooperation with the examination was limited due to
Melvin being intoxicated. Morales’s determination that Melvin was intoxicated was based
upon his observations of Melvin–that Melvin smelled of alcohol, was unable to fully cooperate
with the exam, and had slurred speech–and was not based upon the results of any type of
laboratory value. Morales acknowledged during his testimony, however, that he had no direct
memory of Melvin and that he could only go by what was contained in his report.
¶ 23 Charolyn Holman testified for the defense that she was Nannetta Johnson’s daughter and
defendant’s sister. During the evening of December 31, 2011, Charolyn was at the McKay
Street residence. Charolyn had not been drinking, although she planned to have a drink at
midnight to celebrate the new year. Present at the house along with Charolyn was defendant
(Charolyn’s brother); Melvin (Charolyn’s uncle); Kadijah Holman (Charolyn’s niece);
Montiana (Charolyn’s niece); Darzell (Charolyn’s nephew); Dominique (Charolyn’s
step-nephew); Corinthian Baker (Charolyn’s stepbrother); Michael Johnson (Charolyn’s
stepfather); and Charolyn’s son. Charolyn’s stepfather, Michael, was asleep when the incident
in this case occurred.
¶ 24 At some point after about 10 p.m., Charolyn heard Melvin come in through the back door.
Charolyn and Melvin had a conversation and then Melvin went downstairs and took his coat
off. Melvin came back upstairs, and he and defendant started having words in the kitchen.
Charolyn was in the living room, which was down the hall from the kitchen, and could hear a
commotion. Melvin and defendant were cussing at each other. Charolyn could see into the
kitchen from where she was seated in the living room on the love seat. Charolyn got up and
went to the entrance of the kitchen area. Melvin and defendant were still cussing back and forth
at each other. Dominique, Corinthian, and Montiana were already in the kitchen, so Charolyn
turned around and went back to the living room and sat back down on the love seat. When
Charolyn looked back into the kitchen, she saw that defendant was on the floor with Melvin
straddling him and that Melvin was striking defendant in the face. Corinthian was trying to
break up the fight, but Melvin told him that it had nothing to do with him.
¶ 25 Charolyn stayed in the living room until she heard the kitchen table go across the floor. At
that point, she got up and went back to the kitchen and saw that the previous positions had
reversed–now Melvin was on his back on the floor, defendant was lying flat on his stomach on
top of Melvin, and they were both under the table. Charolyn did not know what Melvin and
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defendant were doing under the table and could not see defendant’s hands but could hear
Melvin and defendant cussing back and forth at each other. Charolyn left the kitchen again and
went back to the living room and sat back down on the love seat as Corinthian was again trying
to break Melvin and defendant apart.
¶ 26 The squabble continued for a few more seconds and then was done. Charolyn went back to
the kitchen and saw Melvin lying on the floor by the refrigerator. Both of his eyes were
bleeding, but he was talking. Defendant was standing up. His lip was bleeding and he had
blood in his mouth and on his teeth. Defendant tried to talk to Charolyn, but Charolyn told
defendant to go wash his mouth out. Although the physical fight was over, defendant and
Melvin were still cussing at each other. Charolyn did not think it was necessary to call the
police at that time because Melvin eventually got up and went back downstairs and because she
did not know the severity of the situation until afterwards when the paramedics came to the
house. Charolyn did not at any time see defendant push Melvin down the stairs or push the
table over to block Melvin from coming back upstairs.
¶ 27 Defendant had gotten his dog and had gone up to his bedroom to go to sleep. Charolyn did
not speak to the paramedics and did not give a statement to the police about what had occurred.
At some point, Charolyn went upstairs and talked to defendant through the bedroom door
because the police were saying that they were going to kick the door down, if defendant did not
open it up. Eventually defendant opened the door, and the police brought him downstairs.
¶ 28 Charolyn spoke to a defense investigator in February 2012 and gave a statement about
what she saw on the night of the incident. During her trial testimony, Charolyn denied that she
had told the defense investigator that she had never gone into the kitchen during the incident
that evening. Charolyn also denied that she had told the investigator that she had glanced away
and was not looking into the kitchen until she had heard something.
¶ 29 Charolyn testified further that she did not think that defendant was in danger of losing a
limb or of suffering a serious injury during the scuffle. Charolyn was at no point in fear for
defendant’s life or limbs and never called the police that evening.
¶ 30 Seventeen-year-old Kadijah Holman testified for the defense that on December 31, 2011,
she was at the McKay Street residence, her grandmother’s house, for New Year’s Eve. There
were several other relatives present at the residence that evening, including defendant, who
was her uncle. At about 10 p.m., Kadijah was sitting in the living room watching television,
with her aunt, Charolyn, and her cousin, Montiana, when she saw Melvin attack defendant in
the kitchen. According to Kadijah, while defendant was sitting in a chair at the kitchen table,
Melvin punched defendant multiple times in the face. Defendant fell out of the chair and onto
the floor. Melvin picked up the chair and tried to hit defendant with it, but defendant blocked
the chair from hitting him. One of Kadijah’s other uncles, Corinthian, tried to break up the
fight, but Melvin told him to stay out of it and that it had nothing to do with him. Melvin put the
chair down, got on top of defendant, and started punching him again. At that point, Kadijah
was in the hallway near the entrance to the kitchen.
¶ 31 Melvin and defendant started “tussling.” Defendant ended up on top of Melvin and they
were exchanging words. The fight moved from the kitchen table to over by the refrigerator.
Corinthian tried to break up the fight again, but Melvin told him to get back. Melvin was on the
ground on his back, defendant was lying on top of him with his head matched up with
Melvin’s, and they were rolling around on the ground. Kadijah did not see where defendant’s
hands or knees were at that point. Corinthian tried to break up the fight again and he and
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Kadijah tried to pull defendant up. Defendant got up on his own and at that point, they just saw
blood. Kadijah saw blood coming from defendant’s mouth first. Then, when defendant got up
and left the area, Kadijah saw that there was still blood on the floor and that it was coming from
Melvin’s eyes. Kadijah went and told her aunt Charolyn what happened, but Charolyn did not
get involved, so Kadijah and some of the others handled it. One of the others brought towels
into the kitchen to clean up the blood, and defendant went outside, got his dog, and went
upstairs to his bedroom.
¶ 32 At some point later, the police came to the house. Kadijah did not call the police that
evening and did not do so because she did not know how serious “it” was. She also did not
speak to the police when they got there.
¶ 33 About five days later, Kadijah agreed to make a videotaped statement to the police about
the incident, after some detectives had come to her grandmother’s house. Kadijah told the
police that defendant was trying to hug Melvin, but Melvin did not want to be hugged and went
downstairs. When Melvin came back upstairs, he and defendant were arguing back and forth,
and defendant called Melvin a “b***.” Melvin left to go back downstairs and defendant shut
the basement door. As defendant was going down the stairs, defendant called Melvin a “b***”
again. At that point, Melvin started punching defendant in the face. Defendant fell on the floor,
and Melvin grabbed the chair and tried to hit defendant with it, but defendant blocked the chair.
Kadijah never told the police that Melvin got on top of defendant. According to Kadijah,
Melvin was on top of defendant at one point during the fight, but she forgot to tell the police
that information. Kadijah did tell police, however, that defendant got on top of Melvin and that
it looked like defendant was choking Melvin.
¶ 34 Kadijah made another statement to defense investigators in February 2012. In that
statement, Kadijah told the investigator that Melvin was on top of defendant punching him.
Kadijah also told the investigator that some of her previous statement to the police was
inaccurate.
¶ 35 Kadijah stated initially in her trial testimony that she thought defendant was in danger of
getting hurt badly during the fight because of Melvin’s background. The punches that Kadijah
saw Melvin inflict on defendant were serious. Kadijah did not, however, think that defendant
was in danger of losing his life or limbs. Further in her testimony, Kadijah stated that she was
not afraid that defendant or Melvin was going to get hurt during the fight and that she did not
really think it was a serious fight.
¶ 36 Corinthian Baker testified that on December 31, 2011, he was at the McKay Street
residence, his father’s house, visiting for the holidays. Prior to 10 p.m., Corinthian had one
drink, to celebrate New Year’s Eve. At about 10 p.m., Corinthian was in the living room, when
a fight broke out in the kitchen. When Corinthian got to the kitchen, he saw defendant sitting
down and Melvin standing over him, asking defendant to “call him another b***.” Defendant
did so, and Melvin threw three or four punches at defendant’s face. Defendant put his arm up
and leaned out of the chair to block the punches and to move out of the way and fell out of the
chair onto the floor. Melvin picked up the chair and tried to hit defendant with it. Corinthian
got between them and tried to break up the fight, but Melvin told him to “get the f*** back”
and that it had nothing to do with him.
¶ 37 Corinthian left the kitchen for about five minutes to try to find some help and went to his
father’s room, but his father was not there. When Corinthian returned to the kitchen, defendant
and Melvin were “tussling.” Melvin was on the ground, and defendant was on top of Melvin,
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straddling him, and was trying to hold Melvin’s hands down with his own hands. Corinthian
tried to break the fight up again and tried to pull defendant off of Melvin. After that point,
Corinthian left the kitchen again, this time for a few seconds, and again tried to find more help.
When Corinthian got back to the kitchen, the fight was over. Melvin was holding his face,
which had blood on it. Corinthian did not see any blood on defendant.
¶ 38 Corinthian stated further during his trial testimony that at the time he saw defendant on top
of Melvin, straddling him, Melvin was not a threat to defendant and defendant was not in
danger of losing his life. The only time defendant “could have” been in danger of serious injury
was when Melvin was threatening to hit defendant with the chair. When the police came to the
residence, Corinthian told the police that he did not know what had started the fight. Corinthian
denied during his testimony that he told the police that he did not see who had initiated contact
between defendant and Melvin.
¶ 39 Michelle Palaro, called as a rebuttal witness for the State, testified that she was an
investigator for the defense. In February 2012, Palaro interviewed Charolyn Holman regarding
this case. During that interview, Charolyn told Palaro that she had never entered the kitchen
during the incident. Charolyn also told Palaro that while she was sitting in the living room that
evening, she had looked away from the kitchen until she had heard something in that direction.
Charolyn did not indicate, however, how long she had looked away.
¶ 40 After the evidence had concluded and the attorneys had made their closing statements, the
jury was instructed on the law. Among other things, the jury was instructed on self-defense and
on the definitions of the terms “brutal,” “heinous,” and “wanton cruelty.” When the jury
instructions were completed, the jury began its deliberations. The jury later returned with its
verdict, finding defendant guilty of both aggravated domestic battery and aggravated battery,
and also finding that the State had proven that when defendant committed the offenses, the
offenses were accompanied with exceptionally brutal or heinous behavior indicative of wanton
cruelty. A presentence investigation report (PSI) was ordered and the case was continued for
sentencing.
¶ 41 The PSI indicated that defendant was 33 years old at the time of sentencing and was a high
school graduate. Defendant had a sporadic work history, was divorced, and had two children.
Defendant was unemployed at the time of the offense and had been collecting social security
income. Defendant was allegedly molested as a child and had a rough time growing up. He had
a history of alcohol and drug abuse and had used alcohol, phencyclidine (PCP), and cocaine on
the date of the incident. Despite his substance abuse problems and his prior involvement with
the justice system, defendant had never completed a formal substance or alcohol abuse
treatment program. Defendant also had a history of mental health issues and had been
hospitalized for them in the past. Defendant had most recently been diagnosed as
“Schizo-Affective” and had been prescribed medication for that condition.
¶ 42 Defendant had a prior criminal history as both a juvenile and as an adult and had previously
received sentences of supervision, conditional discharge, probation, intensive probation,
county jail, and prison. Most notably, as an adult, defendant was convicted of a Class 1 felony
drug offense in 1995 and was initially sentenced to four years of probation. His probation was
later revoked in 1996 and he was resentenced to four years in prison concurrent with another
offense. Also in 1996, defendant was convicted of unlawful possession or use of a weapon by a
felon, a Class 3 felony, and was sentenced to three years in prison concurrent with the prison
sentence imposed on his 1995 drug case. In 2000, defendant was charged with aggravated
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battery of a peace officer, a Class 3 felony. He was convicted of that offense and was sentenced
in 2001 to 30 months of intensive probation, concurrent with another case. Also in 2001,
defendant was convicted of another aggravated battery of a police officer, a Class 3 felony, and
was sentenced to 30 months of intensive probation, concurrent with the sentence in his 2000
aggravated battery case. In 2005, defendant was charged with domestic battery, a Class A
misdemeanor. He was convicted of that offense and was sentenced in 2006 to 18 months of
conditional discharge and 60 days in county jail and was ordered to obtain an alcohol
evaluation and domestic violence counseling. Also in 2006, defendant was charged with
resisting a peace officer, a Class A misdemeanor. He was convicted of that offense and was
sentenced in 2007 to 12 months of conditional discharge and 76 days in county jail. In 2010,
defendant was charged with aggravated assault of a peace officer, a Class A misdemeanor. He
was convicted of that offense and was sentenced in April 2011 to 12 months of conditional
discharge and 90 days in county jail.
¶ 43 Prior to the sentencing hearing, defendant filed a motion for new trial. In the motion,
defendant alleged, among other things, that he was not proven guilty beyond a reasonable
doubt of either offense. Defendant’s motion was subsequently denied.
¶ 44 At the sentencing hearing, the State presented the testimony of three witnesses. Will
County Sheriff’s Deputy Daniel Jungles testified that in November 2005, he and another
officer were dispatched to the McKay Street residence. Upon arrival, the officers were told by
Nannetta and Mikah Johnson that defendant was drunk and belligerent and was tearing up the
house. 2 The officers went into the house to try to speak to defendant, who was seated in the
kitchen. When defendant saw the officers, he stood up and said “who called the mother f***
cops.” Defendant then grabbed Mikah Johnson by the throat and started choking him, right in
front of the officers. Jungles and the other officer had to restrain defendant and had to
physically pry defendant’s fingers off of Mikah Johnson’s throat.
¶ 45 Will County Sheriff’s Deputy Andrew Schwartz testified for the State at the sentencing
hearing that in April 2011, he was on patrol in the area of Arthur and Woodruff in Joliet when
he made a traffic stop on a tan Buick for not having a registration light. As Schwartz started to
get out of his vehicle, defendant, who was standing in a driveway right next to where the
offending vehicle had pulled over, approached the vehicle. Schwartz called for backup and
ordered defendant to back away from the vehicle for safety concerns because he did not know
what defendant was doing there. Defendant told Schwartz that he “could go f*** [himself],”
that he was next to defendant’s driveway, and that defendant would do what he wanted to do.
Schwartz again ordered defendant away from the vehicle. Defendant stepped back a little bit
and then began to approach the vehicle again. Schwartz ordered defendant away from the
vehicle one or two more times. Defendant began approaching Schwartz or his vehicle in an
aggressive manner and then stepped away. Defendant again told Schwartz that he “could go
f*** [himself],” and that defendant would do what he wanted to do. Defendant began to circle
around the front of the vehicle that Schwartz had stopped. Defendant also began reaching in his
pockets and stated that “shots were going to fly” and that he was “going to f*** [Schwartz]
up.” Schwartz felt threatened at that point and believed that defendant had a gun in his pocket
or in his pants. Schwartz drew his service weapon toward defendant and ordered defendant to
2
It is unclear from the record before us whether Mikah Johnson was Nannetta’s husband, Michael
Johnson, or someone else.
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take his hands out of his pockets and to put them into the air. Defendant did not comply.
Defendant refused to comply with Schwartz’s order two or three more times before a backup
officer arrived. After a physical struggle during which defendant was taken to the ground,
Schwartz and the other officer were eventually able to handcuff defendant. During the
struggle, defendant refused to comply with Schwartz’s commands and kept putting his hands
underneath his body. Schwartz did not know what defendant was reaching for and assumed
that defendant had a weapon. Defendant tried to spit on the officers once or twice. When the
officers would try to stand defendant up to take him to the squad car, defendant would make his
body go limp. Defendant stated that his head hurt from being taken to the ground, so an
ambulance was called.
¶ 46 Defendant’s demeanor was the same at the hospital. Defendant threatened the officers and
the hospital staff and stated that he was “going to f*** everybody up.” When the officers tried
to transport defendant from the hospital to the county jail, defendant again made his body go
limp and the officers had to pick defendant up and put him in the police vehicle. Schwartz’s
reason for stopping the vehicle that night had nothing to do with defendant, and the occupants
of the vehicle stated that they had no idea who defendant was. Schwartz noticed during the
encounter that defendant was aggressive and that there was a smell of alcohol coming off of
defendant’s breath.
¶ 47 Will County Sheriff’s Deputy Brian Monahan testified for the State at the sentencing
hearing that in February 2009, he was dispatched to the McKay Street residence regarding a
hang-up to a 9-1-1 call. Upon arrival at the residence, Monahan spoke to Sherylyn Holman, the
person who had dialed 9-1-1. 3 Sherylyn told Monahan that she was in a domestic altercation
with defendant, who was her brother, over a set of car keys and over defendant’s ability to
drive Sherylyn’s minivan. Monahan went inside the residence to determine the location of the
car keys and to verify that everyone was safe. Monahan was told that defendant was upstairs in
his bedroom with a 15-year-old family member. Monahan and another officer knocked on
defendant’s bedroom door, and a voice behind the door stated, “get the f*** away from the
door.” Upon Monahan’s request, the person behind the door identified himself as defendant.
The person behind the door told Monahan that if Monahan touched the door, he was going to
shoot him through it. Monahan asked the person behind the door if he would shoot a police
officer and the person began screaming, “shots fired, shots fired,” and “shots going to be
fired,” and began making siren noises. The officers moved back to a safe location and called
for a tactical unit and a trained hostage negotiator to come in. Using a bullet-proof shield for
protection, the hostage negotiator spoke through the door to the person behind it. After an
unknown amount of time, defendant came out of the bedroom with a 15-year-old boy.
¶ 48 Defendant’s mother, Nannetta Johnson, was called by the defense at the sentencing hearing
to testify on defendant’s behalf. Johnson testified that defendant completed high school and
that defendant was responsible for, and took care of, his own mental health issues. According
to Johnson, defendant was very responsible in that regard. Johnson testified further that her
brother, Clifford Melvin, moved in with her several years ago after he had been put out of his
residence. Melvin was only supposed to live with Johnson for a few months, but it ended up
being for 10 years. When asked if defendant and Melvin got along, Johnson stated that Melvin
3
It is unclear from the record before us whether Sherylyn Holman was defendant’s sister, Charolyn,
or another sister of defendant.
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was not the type of person you got along with; that Melvin just kept to himself and did not talk
much; and that when Melvin did say something, it was always with a growl or a snarl. Johnson
had seen defendant try to be nice to Melvin in the past, but Melvin was cold-hearted and would
always tell defendant to get away from him. In response to a question from the defense,
Johnson stated that she wanted the court to know that defendant was not a criminal or an angel,
that defendant had his faults, that defendant was not stupid, that defendant had a spiritual side,
and that defendant had an alcohol problem. According to Johnson, defendant had a prior run-in
with police officers in which he was beaten and eventually won a settlement from that incident.
Ever since that time, defendant had been afraid of police officers.
¶ 49 As part of the sentencing hearing, the trial court heard Melvin’s victim impact statement. In
the statement, Melvin told the court about the devastating effect the injury he sustained had on
his ability to function in life without assistance and on his ability to enjoy life in general.
Melvin stated further that defendant was a danger to everyone around him, especially his
family.
¶ 50 After the attorneys made their sentencing recommendations, the trial court heard
defendant’s statement in allocution. Defendant told the trial court that he was sorry that “this”
ever happened and that it would not have happened if he had been taking his medications and
not using drugs and alcohol. Defendant stated further that a pattern had developed that when he
was off his medications and using drugs and alcohol, he would end up doing and saying a lot of
ignorant things that he was not proud of and would wind up in jail. According to defendant, his
mind had not been right ever since he had been the victim of police brutality. Defendant asked
for help in overcoming the obstacles in his life, told the court that he was just a person who had
made a lot of mistakes, and asked the trial court to have mercy on him.
¶ 51 When defendant had finished his statement in allocution, the trial court announced its
sentencing decision. The following was stated:
“THE COURT: *** The law requires me to take into consideration the factors in
aggravation and mitigation, whether a sentence that I impose is necessary to deter other
similar offenses, whether it is brutal and heinous indicative of want of [sic] cruelty, if
you have any prior record, a little bit about your family. I see you have two children.
About your prior record, you have been in the system for quite a while, Mr. Holman,
starting with juvenile cases, a criminal trespass, aggravated batteries, stolen vehicle,
and then I’m not sure if this is delivery or possession with intent Class 1 felony in ’95.
A UUW in ’96, aggravated battery to a police officer, in 2000. Aggravated battery to a
police officer 2001 and a series of misdemeanors that I do note that some of them are
domestic batteries or aggravated batteries or batteries. In other words, aggressive
behavior on your behalf.
The jury made a specific finding that this was brutal and heinous conduct on your
part. The jury totally disregarded any self-defense evidence that was presented to them.
I mean, what you did here is you went way over – even if what you say is true and with
the testimony where the defense was that Mr. Clifford Melvin was the aggressor, what
the jury disregarded was that the fact that even if he was the aggressor, your response to
that aggression was according to Mr. Clifford Melvin sitting on him, your knees on his
shoulders and pushing his eye sockets into his eyes until they came – kind of came out
of his face. So the jury looked at all of that and rejected it. You are now 33?
THE DEFENDANT: Yes, ma’am.
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THE COURT: You have had these drug and alcohol and mental health issues for
quite a while.
THE DEFENDANT: Yes, ma’am.
THE COURT: All right. I mean, you are a grown man. So I don’t know. I guess my
thought is that you are a grown man and you should be able to take care of these
yourself as opposed to having your mother do it for you or anybody else. I appreciate
the fact that you took the opportunity while you have been incarcerated to address some
of these issues and have medication and take classes to prevent future criminal
behavior but at the same time I have to take a look at what you did and your criminal
history.
***
THE COURT: *** Mr. Holman, I have been doing this for almost 19 years and I
very rarely sentence somebody to the maximum. I will sentence you to the maximum
for 14 years based upon the nature of the crime, the permanent effects of what
happened that day to Mr. Melvin and he will never be able to overcome and that is at 85
percent.”
¶ 52 Defendant filed a motion to reconsider his sentence, alleging that his sentence was
excessive in light of his plea for help with his chemical dependencies and mental health issues
and that he was more likely to be rehabilitated through a shorter prison sentence combined with
mental health and substance abuse treatment. The trial court denied the motion, stating that in
making its decision, it had taken into consideration all of the factors in aggravation and
mitigation, a letter defendant had written to the court, and defendant’s statement in allocution.
This appeal followed.
¶ 53 ANALYSIS
¶ 54 As his first point of contention on appeal, defendant argues that he was not proven guilty
beyond a reasonable doubt of aggravated domestic battery. Defendant asserts that the State
failed to prove that he was not justifiably acting in self-defense when he pressed his thumbs
into Melvin’s eye sockets. In support of that assertion, defendant claims that the testimony of
all three eyewitnesses (Charolyn, Kadijah, and Corinthian) contradicted Melvin’s testimony
and established that: (1) Melvin was the initial aggressor and repeatedly punched defendant;
(2) defendant’s actions were not premeditated but, rather, took place in the middle of a heated,
rapidly escalating physical altercation; and (3) defendant’s belief as to the need for
self-defense was reasonable under the circumstances and based upon defendant’s knowledge
that Melvin had been trained in the military to fight with his hands and feet and had fought in
two wars. Defendant asserts, therefore, that all of the elements of self-defense were satisfied
and that his conviction of aggravated domestic battery should be reversed.
¶ 55 The State argues that defendant’s conviction was proper and should be upheld. The State
asserts that when the trial evidence is viewed in the light most favorable to the State, the State
easily proved beyond a reasonable doubt that defendant did not justifiably act in self-defense
when he injured Melvin. In support of that assertion, the State contends that: (1) defendant
could not have reasonably thought, when he was on top of the smaller and older Melvin, that it
was necessary to attempt to gouge out Melvin’s eyes in order to protect himself from Melvin;
(2) defendant chose to maim or blind Melvin rather than to reasonably resist him; (3)
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defendant’s comment, “there’s only one king,” shows that defendant was acting as an attacker
during the incident and was not acting in self-defense; (4) defendant’s self-defense claim was
further refuted by Melvin’s account of what had occurred and by the evidence that defendant
was belligerent at the scene to the police officers, that defendant was larger in size than Melvin,
and that Melvin was still suffering from the permanent effects of a prior injury that resulted in
loss of strength to his right side; (5) the jury could have found that all three eyewitnesses were
not credible because the witnesses did not speak significantly to the police officers at the scene
and because some of the trial testimony of the witnesses was inconsistent with prior statements
they had made or was contradicted by the testimony of Melvin; (6) even if the testimony of the
three eyewitnesses was credible, it did not support a claim of self-defense as all three
eyewitnesses testified that defendant was on top of Melvin, straddling him, before gouging out
Melvin’s eyes and that Melvin was not a significant threat to defendant; (7) the fact that Melvin
had judo training in the Army in 1967 did not support defendant’s claim of self-defense, since
Melvin had suffered a subsequent injury that resulted in a loss of strength on his right side; and
(8) self-defense does not justify an act of retaliation or revenge, such as the one in the present
case. The State asks, therefore, that we affirm defendant’s conviction.
¶ 56 Pursuant to the Collins standard (People v. Collins, 106 Ill. 2d 237, 261 (1985)), a
reviewing court faced with a challenge to the sufficiency of the evidence must view the
evidence in the light most favorable to the prosecution and determine whether any rational trier
of fact could have found the elements of the crime proven beyond a reasonable doubt. People
v. Jackson, 232 Ill. 2d 246, 280 (2009). Under that standard, “a reviewing court must allow all
reasonable inferences from the record in favor of the prosecution.” People v. Bush, 214 Ill. 2d
318, 326 (2005). The reviewing court will not retry the defendant. People v. Austin M., 2012 IL
111194, ¶ 107. Determinations of witness credibility, the weight to be given testimony, and the
reasonable inferences to be drawn from the evidence are responsibilities of the trier of fact, not
the reviewing court. People v. Jimerson, 127 Ill. 2d 12, 43 (1989). Thus, the Collins standard
of review gives “ ‘full play to the responsibility of the trier of fact fairly to resolve conflicts in
the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts.’ ” Jackson, 232 Ill. 2d at 281 (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). This same standard of review is applied by the reviewing court regardless of whether
the evidence is direct or circumstantial, or whether defendant received a bench or a jury trial,
and circumstantial evidence meeting this standard is sufficient to sustain a criminal conviction.
Jackson, 232 Ill. 2d at 281; People v. Kotlarz, 193 Ill. 2d 272, 298 (2000). In applying the
Collins standard, a reviewing court will not reverse a conviction unless the evidence is so
improbable, unsatisfactory, or inconclusive that it leaves a reasonable doubt of the defendant=s
guilt. Austin M., 2012 IL 111194, ¶ 107.
¶ 57 Section 7-1 of the Criminal Code of 1961 provides, in pertinent part, that “[a] person is
justified in the use of force against another when and to the extent that he reasonably believes
that such conduct is necessary to defend himself [(self-defense)] or another against such
other’s imminent use of unlawful force.” 720 ILCS 5/7-1(a) (West 2010). Self-defense is an
affirmative defense–once it has been raised by the defendant, the State bears the burden of
proving beyond a reasonable doubt that the defendant did not act in self-defense, in addition to
proving the elements of the charged offense. 720 ILCS 5/7-14 (West 2010); People v. Lee, 213
Ill. 2d 218, 224 (2004). To establish a claim of self-defense, the defendant must present some
evidence as to each of the following six elements: (1) that unlawful force was threatened
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against him; (2) that he was not the aggressor; (3) that the danger of harm was imminent; (4)
that the use of force was necessary; (5) that he actually and subjectively believed a danger
existed that required the use of the amount of force applied; and (6) that his beliefs in that
regard were objectively reasonable. See 720 ILCS 5/7-1 (West 2010); Lee, 213 Ill. 2d at 225;
People v. Montes, 263 Ill. App. 3d 680, 690 (1994). If the State negates any of those elements,
the defendant’s claim of self-defense must be rejected. Lee, 213 Ill. 2d at 225.
¶ 58 A person acting in self-defense “is justified in the use of force which is intended or likely to
cause death or great bodily harm [(deadly force)] only if he reasonably believes that such force
is necessary to prevent imminent death or great bodily harm to himself or another, or the
commission of a forcible felony.” 720 ILCS 5/7-1(a) (West 2010). The determination of
whether deadly force is legally justifiable is dependent upon the circumstances involved. See
People v. Woods, 81 Ill. 2d 537, 542 (1980). The decisive question is whether the defendant’s
belief that it was necessary to use deadly force was reasonable under the circumstances. See
Montes, 263 Ill. App. 3d at 690. A person who is thrust into a life-endangering situation is not
required to use infallible judgment in deciding whether or how to act to defend himself. See
People v. White, 87 Ill. App. 3d 321, 323 (1980). Such a requirement would be unreasonable to
impose upon a decision that must be made very quickly by a person who is fearful and under
great stress. Id. The right of self-defense, however, may not be used to justify an act of
retaliation or revenge. Woods, 81 Ill. 2d at 543. “The self-defense concept is to protect person,
not pride.” Id. If the defendant responds to a confrontation with such excessive force that he is
no longer acting in self-defense but in retaliation, the excessive use of force renders the
defendant the aggressor, even if the other person involved actually started the confrontation.
People v. Belpedio, 212 Ill. App. 3d 155, 161 (1991).
¶ 59 In the instant case, after having considered the evidence presented at trial in the light most
favorable to the State (see Austin M., 2012 IL 111194, ¶ 107; Collins, 106 Ill. 2d at 261), we
conclude that defendant’s use of deadly force was not objectively reasonable under the
circumstances involved. See 720 ILCS 5/7-1 (West 2010); Lee, 213 Ill. 2d at 224; Montes, 263
Ill. App. 3d at 690; Belpedio, 212 Ill. App. 3d at 161. Even if we took as true the testimony of
all three eyewitnesses, as defendant would have us do, defendant’s use of force was so
excessive, at a time when defendant had the much smaller and much older Melvin down on the
ground, that it can only be considered an act of revenge, rather than a legally justifiable use of
force in self-defense. See Woods, 81 Ill. 2d at 543; Belpedio, 212 Ill. App. 3d at 161. At the
time that the act was committed, none of the three eyewitnesses felt that defendant was in
danger of serious injury to life or limb. Although defendant was not required to have perfect
judgment when he was thrust into that situation, his decision as to how to respond to Melvin’s
aggression went well beyond the bounds of reasonable judgment, regardless of whether
Melvin was the initial aggressor. See id. Therefore, we find defendant’s argument on this issue
to be without merit. In reaching that conclusion, we note that the jury was not obligated to
accept the three eyewitnesses’ version of events over that of Melvin (see People v.
Washington, 2012 IL 110283, ¶ 36 (it is the function of the jury to determine whether the
subjective belief in the need to use force in self-defense existed and whether it was objectively
reasonable or unreasonable)), as we did for the sake of argument here, and that Melvin’s
version certainly refuted any possible claim of self-defense.
¶ 60 As his second point of contention on appeal, defendant argues that the State failed to prove
beyond a reasonable doubt that the aggravated domestic battery in this case was accompanied
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by exceptionally brutal or heinous behavior indicative of wanton cruelty as was required to
make defendant eligible for an extended-term sentence. Defendant asserts that while his
conduct was repugnant or reprehensible and possibly even brutal and heinous, it did not rise to
the level of being so exceptionally brutal or heinous that it was indicative of wanton cruelty
because: (1) there was no evidence that defendant’s conduct was premeditated; (2) there was
no evidence presented as to the amount of force that was necessary to cause Melvin’s eye
injuries or the length of time that amount of force would have to be applied; (3) Melvin’s injury
occurred during the course of a physical altercation; and (4) there was no evidence of torture,
sadism, threats, or gratuitous violence. In making that assertion, defendant claims that the
severity of Melvin’s injuries cannot be used to form the basis of a finding of exceptionally
brutal or heinous behavior indicative of wanton cruelty because the infliction of great bodily
harm was an inherent element of the aggravated domestic battery charge of which defendant
was convicted. Defendant asks, therefore, that we vacate his extended-term sentence and that
we remand this case for defendant to be resentenced within the nonextended Class 2 felony
sentencing range.
¶ 61 The State argues that it proved beyond a reasonable doubt that the offense in this case was
accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. The
State asserts that when the evidence in this case is viewed in the light most favorable to the
State, it shows that the younger, larger defendant straddled Melvin, who was on the ground on
his back, pinned Melvin’s arms down, pressed his thumbs into Melvin’s eye sockets with all
his weight, exclaimed triumphantly that “there’s only one king,” and prevented Melvin from
using the phone upstairs to call for aid after the eye injury had been inflicted. The State asserts
further that those facts speak for themselves on this issue and claims that expert medical
testimony was not required to establish that defendant’s conduct was likely to cause significant
or catastrophic injury to Melvin’s eyes. For those reasons, the State asks that we reject
defendant’s argument on this issue and that we allow defendant’s extended-term sentence to
stand.
¶ 62 The maximum prison sentence for aggravated domestic battery, a Class 2 felony, is
normally seven years. 730 ILCS 5/5-4.5-35(a) (West 2010). However, if the offense was
accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty (the
finding of exceptionally brutal or heinous behavior), the trial court may impose an
extended-term sentence of up to 14 years in prison. 730 ILCS 5/5-5-3.2(b)(2) (West 2010).
Other than the fact of a prior conviction, any factual finding that increases a defendant’s
sentence beyond the statutory nonextended-term maximum, such as the finding of
exceptionally brutal or heinous behavior, must be proven to a jury beyond a reasonable doubt.
See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); People v. Swift, 202 Ill. 2d 378, 392
(2002); People v. Smith, 362 Ill. App. 3d 1062, 1087 (2005). In addition, similar to the
previous issue raised in this appeal, when the sufficiency of the evidence for a finding of
exceptionally brutal or heinous behavior is challenged on appeal, the reviewing court must
view the evidence in the light most favorable to the prosecution and determine whether any
rational trier of fact could have concluded that the finding was proven beyond a reasonable
doubt. Austin M., 2012 IL 111194, ¶ 107; Collins, 106 Ill. 2d at 261; People v. Callahan, 334
Ill. App. 3d 636, 649 (2002) (the appellate court treated the finding of exceptionally brutal or
heinous behavior as an element of the offense that had to be alleged in the charging instrument
and proven to the jury beyond a reasonable doubt).
- 16 -
¶ 63 To qualify for a finding of exceptionally brutal or heinous behavior, the defendant’s
conduct must be both: (1) exceptionally brutal or heinous; and (2) indicative of wanton cruelty.
See People v. Nielson, 187 Ill. 2d 271, 298-99 (1999); People v. Nitz, 219 Ill. 2d 400, 418
(2006). When applicable, all three terms, “brutal,” “heinous,” and “wanton cruelty” are to be
defined according to their ordinary and popular meaning. Nitz, 219 Ill. 2d at 418. The term
“brutal” is defined as cruel and cold-blooded, grossly ruthless, or devoid of mercy or
compassion; the term “heinous” is defined as enormously and flagrantly criminal, hatefully or
shockingly evil, or grossly bad; and the term “wanton cruelty” is defined as consciously
seeking to inflict pain and suffering on the victim of the offense. Illinois Pattern Jury
Instructions, Criminal, No. 28.03 (4th ed. Supp. 2011); Nielson, 187 Ill. 2d at 298-99; Nitz, 219
Ill. 2d at 418. “A single act that causes death or injury may be sufficient to demonstrate the
existence of wanton cruelty [citation]; however, the extended-term provision was not intended
to convert every offense into an extraordinary offense subject to an extended-term sentence
[citation].” People v. Pugh, 325 Ill. App. 3d 336, 346 (2001). When assessing the brutality and
heinousness of a crime, the trier of fact must consider all of the facts surrounding the incident
in question, and each case must be decided on its own facts. Smith, 362 Ill. App. 3d at 1087-89;
Pugh, 325 Ill. App. 3d at 346. Some of the factors that the courts have considered in
determining whether behavior is exceptionally brutal or heinous and indicative of wanton
cruelty include whether the offense was premeditated, whether the defendant was provoked to
act, the senseless nature of the act, the number of wounds inflicted, the danger created by the
act, the extent of the injury inflicted, whether the defendant exhibited remorse, whether the
defendant inflicted prolonged pain or torture, whether defendant shot the victim at close range,
and whether defendant inflicted mental suffering on the victim. Id. In addition, although cases
in which exceptionally brutal or heinous behavior has been found to be present have generally
involved prolonged pain, torture, or premeditation, the presence of such conduct is not
required for a finding of exceptionally brutal or heinous behavior to be made. Nitz, 219 Ill. 2d
at 418; Smith, 362 Ill. App. 3d at 1090.
¶ 64 In the present case, the evidence, viewed in the light most favorable to the State, showed
that during an altercation, while defendant had Melvin pinned down and under control,
defendant took his thumbs and pressed them with all of his weight into Melvin’s eye sockets
and told Melvin that “there’s only one king.” Defendant’s conduct, a senseless act of gratuitous
violence, caused severe injury to Melvin and resulted in Melvin losing one eye and having only
limited vision in the other. At the time the injury was inflicted, defendant, who was
substantially younger and larger than Melvin, had Melvin under control and was not in any
serious danger of being harmed by Melvin. Just after the incident, defendant showed no
remorse or concern for what he had done, did not call for an ambulance for Melvin, and
prevented Melvin from doing so. 4 Based upon all of the evidence presented, we conclude that
a rational trier of fact could have found that the aggravated domestic battery in the instant case
was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.
See Austin M., 2012 IL 111194, & 107; Collins, 106 Ill. 2d at 261; Callahan, 334 Ill. App. 3d at
4
It is unclear under the law how defendant’s alleged expression of remorse at sentencing would
factor into the determination of whether defendant’s conduct was exceptionally brutal or heinous. The
jury in this case would not have heard defendant’s later expression of remorse at sentencing, and it
would have been for the trial court to determine whether that expression was truly sincere.
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649. Although there was no torture or premeditation in the present case and this incident
arguably did not involve prolonged pain, that type of conduct, as noted above, was not required
for a finding of exceptionally brutal or heinous behavior to be made. See Nitz, 219 Ill. 2d at
418; Smith, 362 Ill. App. 3d at 1090. Moreover, while we recognize that the infliction of great
bodily harm or permanent disability was inherent in the charge against defendant, “[s]ome
behavior is so much more brutal or heinous and so clearly indicative of wanton cruelty that it
qualifies a defendant for extended term even if it is the predicate act of the offense.” People v.
Yarbrough, 156 Ill. App. 3d 643, 648 (1987) (the defendant’s actions of dragging the
82-year-old victim around by the hair while she had a broken hip that he had caused and
refusing to permit the other victim to rinse his face after the defendant had thrown a caustic
substance into that victim’s face and eyes were not inherent in the home invasion and heinous
battery charges against the defendant and were sufficient to make the defendant eligible for
extended-term sentences on those charges). We, therefore, uphold the jury’s finding that the
aggravated domestic battery in this case was accompanied by exceptionally brutal or heinous
behavior indicative of wanton cruelty. See Austin M., 2012 IL 111194, ¶ 107; Collins, 106 Ill.
2d at 261; Callahan, 334 Ill. App. 3d at 649.
¶ 65 As his third point of contention on appeal, defendant argues that the trial court committed
an abuse of discretion in sentencing him by focusing on an improper factor in aggravation–that
defendant’s conduct resulted in great bodily harm or permanent disability to Melvin, a factor
that was inherent in the aggravated domestic battery charge and could not be used to further
enhance the sentence imposed. 5 Defendant claims that the trial court’s comments at
sentencing show that it imposed a harsher sentence on defendant based upon its consideration
of that improper factor. Defendant asks, therefore, that we either reduce his sentence on appeal
to seven years in prison, the maximum nonextended-term sentence for the offense (730 ILCS
5/5-4.5-35(a) (West 2010)), or that we vacate defendant’s improper sentence and remand for
resentencing.
¶ 66 The State argues that the trial court did not consider an improper factor in sentencing
defendant. The State asserts that the trial court’s comments merely indicated that it considered
the nature and circumstances of the instant offense–most notably, that the great bodily harm or
permanent disability that the defendant caused Melvin in the instant case was exceptionally or
extremely great in nature and was much more than was required under the statute to obtain a
conviction. The State asks, therefore, that we affirm defendant’s sentence and that we deny
defendant’s request to reduce the sentence on appeal or to remand for resentencing.
¶ 67 A trial court’s sentencing decisions are entitled to great deference and weight and will not
be altered on appeal absent an abuse of discretion. People v. Streit, 142 Ill. 2d 13, 18-19
(1991); People v. Alexander, 239 Ill. 2d 205, 212-13 (2010). One of the ways that an abuse of
discretion may occur in sentencing is if the trial court improperly relied in aggravation on a
factor that was inherent in the underlying offense. See People v. Conover, 84 Ill. 2d 400,
404-05 (1981). In determining whether the trial court based its sentencing decision on proper
5
Recognizing that this issue has potentially been forfeited on appeal because it was not properly
preserved in the trial court, defendant argues in his appellate brief that we should reach the merits of this
issue, regardless of any forfeiture, as a matter of plain error or because the failure to preserve the issue
was the result of ineffective assistance of trial counsel. However, since the State has not asserted
forfeiture here, we need not address that aspect of this issue and will proceed directly to the merits.
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aggravating and mitigating factors, a court of review must consider the record as a whole and
must not merely focus upon a few words or statements that were made by the trial court.
People v. Dowding, 388 Ill. App. 3d 936, 943 (2009). A strong presumption exists that the trial
court’s sentencing decision was based upon proper legal reasoning. Id. at 942-43. It is
defendant’s burden to affirmatively establish that the sentence imposed was based upon
improper considerations. Id. at 943.
¶ 68 In general, a factor implicit in the offense of which the defendant has been convicted
cannot be used as an aggravating factor in sentencing for that offense. People v. Phelps, 211 Ill.
2d 1, 11 (2004). In other words, a single factor cannot be used as both an element of the offense
and as a basis for imposing a harsher sentence than might otherwise have been imposed upon
the defendant because to do so would constitute an impermissible double enhancement. Id. at
11-12. The rule against double enhancement is based upon the assumption that, in designating
the appropriate range of punishment for a criminal offense, the legislature necessarily
considered the factors inherent in that offense. Id. at 12.
¶ 69 In People v. Saldivar, 113 Ill. 2d 256, 268-69 (1986), our supreme court addressed the
specific aspect of double enhancement that is present in the instant case, stating:
“Although Conover stands for the proposition on which the defendant relies, this
court did not intend a rigid application of the rule, thereby restricting the function of a
sentencing judge by forcing him to ignore factors relevant to the imposition of
sentence. The Illinois Constitution provides that ‘[a]ll penalties shall be determined
both according to the seriousness of the offense and with the objective of restoring the
offender to useful citizenship.’ [Citation.] A reasoned judgment as to the proper
penalty to be imposed must therefore be based upon the particular circumstances of
each individual case. [Citations.] Such a judgment depends upon many relevant
factors, including the defendant’s demeanor, habits, age, mentality, credibility, general
moral character, and social environment [citations], as well as the nature and
circumstances of the offense, including the nature and extent of each element of the
offense as committed by the defendant. [Citations.]
Sound public policy demands that a defendant’s sentence be varied in accordance
with the particular circumstances of the criminal offense committed. Certain criminal
conduct may warrant a harsher penalty than other conduct, even though both are
technically punishable under the same statute. Likewise, the commission of any
offense, regardless of whether the offense itself deals with harm, can have varying
degrees of harm or threatened harm. The legislature clearly and unequivocally intended
that this varying quantum of harm may constitute an aggravating factor. While the
classification of a crime determines the sentencing range, the severity of the sentence
depends upon the degree of harm caused to the victim and as such may be considered
as an aggravating factor in determining the exact length of a particular sentence, even in
cases where serious bodily harm is arguably implicit in the offense for which a
defendant is convicted. [Citations.]” (Emphases in original and omitted.) (Internal
quotation marks omitted.) Saldivar, 113 Ill. 2d at 268-69.
Despite those statements of the law in this area, the supreme court in Saldivar nevertheless
went on to find that the trial court had considered an improper factor in aggravation when
sentencing the defendant, stating:
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“[T]he record demonstrates that the circuit court focused primarily on the end result of
the defendant’s conduct, i.e., the death of the victim, a factor which is implicit in the
offense of voluntary manslaughter and which, under this court’s reasoning in
[Conover], cannot be considered in aggravation.” Saldivar, 113 Ill. 2d at 272.
¶ 70 Focusing on different aspects of the Saldivar decision, each side in this appeal argues that
the ruling in Saldivar favors that particular side’s position. However, when we consider the
sentencing hearing as a whole and the entire comments of the trial court in context, we find that
the trial court did not rely on a factor inherent in the offense in sentencing defendant to the
maximum extended term. Unlike the voluntary manslaughter in Saldivar, which had only one
end result–the death of the victim–the aggravated domestic battery in the present case
encompassed a wide range of possible end results, all falling under the category of great bodily
harm or permanent disability. In determining the sentence that was warranted in this case, the
trial court was required to consider the extent of great bodily harm or permanent disability
inflicted on Melvin and the manner in which it was inflicted. As the evidence clearly showed,
the extent of the great bodily harm or permanent disability inflicted in the instant case went far
beyond what was necessary under the statute to obtain a conviction for aggravated domestic
battery. Thus, under the circumstances of the present case, we find that the trial court did not
consider an improper factor in sentencing defendant, even though the trial court made a
specific comment about the permanent nature of Melvin’s injuries. See People v. Rader, 272
Ill. App. 3d 796, 808 (1995) (in a case in which the defendant was convicted of aggravated
battery of a child, the appellate court rejected the defendant’s claim that the trial court had
improperly considered the degree of harm to the victim, a factor inherent in the offense, as a
factor in aggravation at sentencing and noted that despite the inherent factor, the trial court was
still free to consider at sentencing the nature and circumstances of the offense, including the
nature and extent of each element of the offense as committed by the defendant).
¶ 71 As his final point of contention on appeal, defendant argues that the trial court committed
an abuse of discretion in sentencing defendant to 14 years in prison, the maximum
extended-term sentence available for the offense in the instant case. Defendant asserts that the
maximum extended-term sentence was excessive in light of the circumstances of this case in
which the offense occurred as part of a physical altercation between Melvin and defendant and
in light of the significant mitigation that was presented in favor of defendant, most notably,
defendant’s belief that he needed to defend himself from Melvin; defendant’s substance abuse
problems; defendant’s mental health issues; defendant’s history of being sexually abused as a
child; defendant’s criminal history, which consisted mostly of nonviolent offenses;
defendant’s expression of remorse; and defendant’s strong rehabilitation potential and
willingness to seek treatment for his addiction and mental health issues. Defendant asks,
therefore, that we reduce his sentence on appeal or remand the matter for resentencing.
¶ 72 The State argues that the trial court’s sentencing decision was proper and should be
affirmed. The State asserts that the maximum extended-term sentence was warranted based
upon defendant’s history of violent behavior, defendant’s extensive criminal record, the
devastating effect of Melvin’s injuries; and defendant’s lack of sincere remorse or personal
responsibility for the offense.
¶ 73 As noted above, a trial court’s sentencing decisions will not be altered on appeal absent an
abuse of discretion. Streit, 142 Ill. 2d at 19; Alexander, 239 Ill. 2d at 212-13. The trial court’s
sentencing decisions are given great deference and weight on appeal because the trial court is
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in a far better position than the reviewing court to fashion an appropriate sentence based upon
the trial court’s firsthand consideration of such factors as the defendant’s credibility,
demeanor, general moral character, mentality, social environment, habits, and age; whereas the
reviewing court has to rely entirely on the record. Id. A sentence will be deemed an abuse of
discretion if it is “greatly at variance with the spirit and purpose of the law, or manifestly
disproportionate to the nature of the offense.” People v. Stacey, 193 Ill. 2d 203, 210 (2000)
(citing People v. Fern, 189 Ill. 2d 48, 54 (1999)). In determining the appropriate sentence, the
trial court is not obligated to recite and assign value to each fact presented at the sentencing
hearing. People v. Meeks, 81 Ill. 2d 524, 534 (1980). It is presumed that the trial court
considered any mitigating evidence, absent some indication in the record to the contrary.
People v. Franks, 292 Ill. App. 3d 776, 779 (1997). Although a sentencing judge must consider
a defendant’s rehabilitative potential, he need not give it greater weight than the seriousness of
the offense. People v. Jones, 297 Ill. App. 3d 688, 693 (1998). Rehabilitation, therefore, will
not necessarily outweigh other persuasive factors that warrant a severe sentence. Id.¶ 74 Nonetheless, the discretion of a trial court in making sentencing decisions is not totally
unbridled, and a reviewing court is empowered under Illinois Supreme Court Rule 615(b)(4) to
reduce a sentence. Streit, 142 Ill. 2d at 19; Alexander, 239 Ill. 2d at 212. However, when a
reviewing court examines the propriety of a sentence imposed by the trial court, it should
proceed with great caution and care and should not substitute its judgment for that of the
sentencing court merely because it would have weighed the factors differently. Id.¶ 75 In the instant case, all of the mitigating factors were present before the trial court at the time
of sentencing and there is no indication in the record that the trial court ignored those factors.
Contrary to defendant’s assertion on appeal, the trial court was not required to view
defendant’s history of mental health issues and substance abuse problems or defendant’s
troubled childhood as mitigating in nature. See People v. Ballard, 206 Ill. 2d 151, 189-90
(2002) (analysis of aggravating and mitigating factors in context of whether death penalty
should have been imposed). The trial court was also not obligated to give great weight to
defendant’s counseling efforts and good behavior while in jail. See id. at 189. As the trial court
pointed out in announcing its sentencing decision, defendant had an extensive criminal history
as both a juvenile and as an adult and had developed a troubling pattern of violent behavior. In
addition, defendant had been given numerous previous chances at rehabilitation with his prior
sentences of probation, intensive probation, county jail time, and imprisonment. Defendant
had also been struggling with his substance abuse problems and mental health issues for
several years, as the trial court noted, and still had not been able to get his problems under
control. When we consider those factors with the extent of great bodily harm or permanent
disability or disfigurement that was inflicted in the instant case and the lack of other mitigating
factors, we find that the trial court did not commit an abuse of discretion in sentencing
defendant to the maximum extended-term sentence available. See Streit, 142 Ill. 2d at 18-21;
Alexander, 239 Ill. 2d at 212.
¶ 76 CONCLUSION
¶ 77 For the foregoing reasons, we affirm the judgment of the circuit court of Will County.
¶ 78 Affirmed.
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