People v. Owens

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People v. Owens

State: Illinois

Court: 4th District Appellate

Docket No: 4-05-0531 Rel

Case Date: 04/13/2007

Preview:NO. 4-05-0531 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM LEROY OWENS, Defendant-Appellant.

Filed 4/13/07

) Appeal from ) Circuit Court of ) McLean County ) No. 04CF65 ) ) Honorable ) Ronald C. Dozier, ) Judge Presiding. _________________________________________________________________ PRESIDING JUSTICE STEIGMANN delivered the opinion of the court: In January 2005, a jury convicted defendant, William Leroy Owens, of attempt (first degree murder) of Mary Griffin (720 ILCS 5/8-4(a), 9-1 (West 2004)), and the trial court later sentenced him to 24 years in prison. Defendant appeals, arguing only that the State improperly elicited the victims' opinions that defendant intended to kill Griffin and another victim. We affirm.

I. BACKGROUND In January 2004, the State charged defendant with attempt (first degree murder) of Griffin (720 ILCS 5/8-4(a), 9-1 (West 2004)) (count I); attempt (first degree murder) of Griffin's daughter, Kourtney Davis (720 ILCS 5/8-4(a), 9-1 (West 2004)) (count II); domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2004)) (count III); and unlawful use of a weapon by a felon

(720 ILCS 5/24-1.1(a) (West 2004)) (count IV).

The attempt

counts charged defendant with taking a substantial step toward commission of the offense of first degree murder in that he poured gasoline on Griffin and Davis and attempted to ignite the gasoline with a lighter. Following a November 2004 trial, a jury convicted defendant of counts III and IV. However, the jury could not

reach a verdict on either attempt count. Defendant's second jury trial on the attempt (first degree murder) charges occurred in January 2005. Because defen-

dant does not challenge the sufficiency of the evidence, we review it only to the extent necessary to place defendant's argument in context. Griffin testified that on January 16, 2004, she was living with Davis (who was then 12 years old) and defendant in a townhome. Neither Griffin nor defendant smoked. In the early

evening, Griffin and defendant ran some errands together and got gas for Griffin's car. Griffin then dropped defendant off at

their residence and went to visit some friends. When Griffin returned home close to midnight, Davis was there, but defendant was not. for bed. Griffin went upstairs and prepared Davis

As she did so, the doorbell rang downstairs.

went downstairs, opened the door, and saw defendant standing there. (This was unusual because he had a key to the residence.) - 2 -

Defendant told Davis to tell Griffin to come downstairs.

Davis

did so, but Griffin did not want to go downstairs because she was tired. She then heard defendant say, in a harsh and angry tone Griffin yelled from

of voice, "Tell her to come down right now."

the top of the stairs to defendant, "What are you talking about?" Defendant responded, "I am tired of this shit, I am tired of you punking me. We are going to settle this now." What

Griffin then said, "What are you talking about? is going on?"

Defendant responded, "So, you want to involve your That caught Griffin's attention, but she At the time,

daughter in this?"

still had no idea what defendant was talking about. Davis was in the kitchen.

Griffin told defendant that he should

come upstairs so they could talk. Defendant then ran upstairs, and Griffin saw him reach down toward his left side. Things happened quickly at that

point, and the next thing Griffin remembered was Davis saying, "Don't hit my mom like that." head and face. Griffin then felt liquid on her

She did not know what it was until she smelled Defendant was facing her and "just At this

that it was gasoline.

pouring" the gasoline on her as if he "had a hose."

point, Griffin saw defendant throw gasoline on Davis, who was then standing next to them. Griffin then heard a "click, click, and [she looked] up and [defendant] had, in his hand, a lighter, a blue lighter." - 3 -

When Griffin heard it clicking and saw sparks, she panicked. All of these events happened in a matter of seconds as defendant stood just a few feet away from Griffin. Griffin

grabbed the collar of defendant's coat and pulled it toward her. Defendant then dropped the container and the lighter, and Griffin told Davis to run. hand. The prosecutor then (without objection) asked Griffin what her physical condition was at that point during the incident and what she was then thinking. Griffin responded as follows: Davis ran outside with a phone in her

"I am thinking this man had every intention of trying to set me on fire. He comes in the house with gasoline, runs upstairs[,]

and douses me with it and douses my daughter[,] and I see a lighter in his hand flicking it." Griffin also testified that she and defendant then struggled, and he began to choke her. and knocked his glasses off. The prosecutor then (again, without objection) asked Griffin, "What did you think he was doing when he was trying to get his hands around your throat?" to kill me. She responded, "He was trying She struck him in the face

He couldn't do it with the lighter and the fluid,

now he was going to try to do it with his hands." Griffin further testified that after she struck defendant, he ran toward the bedroom, paused there, and then ran back - 4 -

at her. again.

He pushed her "real hard," and then started to choke her As she was fighting him off, she heard police sirens.

Defendant then stopped choking her and got up off the floor. Griffin ran outside where she saw Davis in the parking lot with some people who were protecting her. thereafter and arrested defendant. Davis testified consistently with Griffin's testimony. At one point, the prosecutor asked Davis, "When you were in the kitchen with your mom and the defendant and he was flicking gas and flicking the lighter[,] what did you think he was trying to do?" She answered, "Kill us." The State called several other witnesses, including four police officers and a fireman. Griffin's testimony. They all corroborated The police arrived shortly

Other evidence established that defendant

had purchased gasoline earlier that same evening from a gas station not far from Griffin's residence. Defendant pumped the

gasoline into a milk jug until the clerk of the gas station noticed, shut the pump off, and offered him a gas can instead. The trial court also admitted in evidence a videotaped statement defendant made to the police on the night of the incident. During that statement, defendant said that after

Griffin left to visit friends, he decided to buy more gasoline for Griffin's car. He took a milk container to the gas station He paid for the gasoline and other - 5 -

and put gasoline in it.

items, including a lighter.

As he walked home, the cap came off He admitted

the milk jug, and he spilled some on himself.

arguing with Griffin at the top of the stairs but explained that he spilled gasoline on Griffin and Davis only because he waved the jug around as they argued. He denied removing the lighter

from his pocket or touching Griffin. The trial court advised defendant of his right to testify, and he declined to do so. On this evidence, the jury

convicted defendant of attempt (first degree murder) of Griffin but acquitted him of attempt (first degree murder) of Davis. In March 2005, the trial court sentenced defendant to (1) 24 years in prison for attempt (first degree murder), (2) 5 years in prison for unlawful use of a weapon, and (3) 364 days in jail for domestic battery, with those sentences to run concurrently. This appeal followed. II. DEFENDANT'S CLAIM THAT THE STATE IMPROPERLY ELICITED THE VICTIMS' OPINIONS THAT HE INTENDED TO KILL THEM Defendant argues that the State improperly elicited the opinion testimony of Griffin and Davis that defendant intended to kill them. Specifically, he contends that Griffin and Davis were

laywitnesses, not experts, and "[l]aywitness testimony is especially improper when it goes to the ultimate question of fact that is to be decided by the jury. People v. McClellen, 216 Ill. In support of

App. 3d 1007, [1013,] 576 N.E.2d 481, 486 (1991)." - 6 -

this argument, defendant also cites People v. Crump, 319 Ill. App. 3d 538, 542-43, 745 N.E.2d 692, 696-97 (2001), in which the appellate court, citing McClellen approvingly, reversed the defendant's conviction because a police officer was permitted to state his opinion "about the ultimate disputed fact [of] the case." In response, the State argues that defendant has forfeited this issue on appeal because he did not object when either Griffin or Davis so testified nor did he raise this issue in his posttrial motion. In response to the State, defendant

contends that his procedural default may be excused as plain error. However, before addressing whether the complained-of

testimony constitutes plain error, we will first determine whether it constitutes any error at all. See People v. Sims, 192

Ill. 2d 592, 621, 736 N.E.2d 1048, 1063 (2000) ("Before invoking the plain[-]error exception, however, 'it is appropriate to determine whether error occurred at all.' People v. Wade, 131 Ill. 2d 370, 376[, 546 N.E.2d 553, 555] (1989)"). A. The Discredited "Ultimate Fact" Doctrine Regarding Opinion Testimony As stated above, defendant's primary contention regarding the testimony of Griffin and Davis that defendant intended to kill them is that, in accordance with McClellen, it constituted lay opinion testimony that "is especially improper when it goes to the ultimate question of fact that is to be decided by the - 7 -

jury."

However, decisions rendered by the Supreme Court of

Illinois since McClellen make clear that the above holding is no longer good law. In Zavala v. Powermatic, Inc., 167 Ill. 2d 542, 544, 658 N.E.2d 371, 373 (1995), the supreme court wrote the following: "It has been settled for some time that expert opinion testimony on an ultimate fact or issue does not impermissibly intrude on the fact finder's role. [Citation.] That notion

applies in both civil and criminal contexts in this State so long as all other requirements for the admission of expert testimony are met. [Citations.] The reason: the

trier of fact is not required to accept the expert's conclusion." In People v. Terrell, 185 Ill. 2d 467, 496, 708 N.E.2d 309, 324 (1998), the defendant argued on appeal that the trial court abused its discretion by permitting a police detective to testify that he had never before seen injuries like those suffered by the victim. Specifically, the defendant contended that

because the trial court erred by determining that the detective was an expert witness, the detective was improperly permitted to testify to his opinion of an ultimate issue of fact--namely, the - 8 -

exceptionally brutal or heinous nature of the crime.

The supreme

court rejected defendant's argument, explaining as follows: "Initially, we note that it is now well settled that a witness, whether expert or lay, may provide an opinion on the ultimate issue in a case. [Citation.] This is so because

the trier of fact is not required to accept the witness' conclusion and, therefore, such testimony cannot be said to usurp the province of the jury." (Emphasis added.)

Terrell, 185 Ill. 2d at 496-97, 708 N.E.2d at 324. In People v. Raines, 354 Ill. App. 3d 209, 220, 820 N.E.2d 592, 601 (2004), this court cited approvingly Terrell's holding that a witness, whether expert or lay, may provide an opinion as to the ultimate issue in the case. See also People v.

Reatherford, 345 Ill. App. 3d 327, 341, 802 N.E.2d 340, 353 (2003) (also citing Terrell approvingly). Further, in his treatise on Illinois evidence law, Professor Michael H. Graham notes that the "modern trend is firmly in accord" with the supreme court decisions in Zavala and Terrell. Graham also notes that "Wigmore dismissed the common[-]

law ultimate[-]issue rule as 'a mere bit of empty rhetoric.'" Graham, Cleary & Graham's Handbook of Illinois Evidence

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