Find Legal Information

No. 1-03-3529

Following a bench trial, the defendant, Tavares Burdine, wasfound guilty of aggravated battery. 720 ILCS 5/12-4(b)(6)(West2002). The victim was a paramedic for the Chicago firedepartment engaged in the execution of his official duties. Defendant was sentenced to 18 months' probation. The circuitcourt also ordered the defendant to submit a biological samplefor genetic marker testing pursuant to section 5-4-3 of theUnified Code of Corrections (Code of Corrections) (730 ILCS 5/5-4-3 (West 2002)).

On appeal, defendant contends that: (1) his convictionshould be reversed because the State failed to prove him guiltyof the allegations in the indictment beyond a reasonable doubt;(2) he was denied a fair trial because the judge relied on factsoutside the record and was biased against him; (3) the trialcourt failed to admonish him regarding his appeal rights asrequired by Supreme Court Rule 605(a) (Official Reports AdvanceSheet No. 21 (October 17, 2001), R. 605(a), eff. October 1,2001.) and the case should be remanded for proper admonishments;and (4) section 5-4-3 of the Code of Corrections isunconstitutional as applied because it constitutes anunreasonable search. For the reasons that follow, we affirm thedecision of the trial court.

I. BACKGROUND

At approximately 4:20 a.m. on April 1, 2001, members ofdefendant's family called the paramedics because they believeddefendant was ill or having a seizure. Chicago fire departmentparamedics Robert Ertl and Katherine Giblin responded to thecall. Ertl testified that on this date he was dressed in asweatshirt with the official Chicago fire department insigniawhile Giblin was dressed in uniform with Chicago fire departmentand ambulance patches.

Upon their arrival, Ertl and Giblin entered through the rearof the home. Defendant's mother, Letha Burdine, identifiedherself to Ertl and Giblin and took them to a guest bedroom offthe kitchen where they found defendant lying on the floorunresponsive. Ertl testified that Letha insisted the paramedicsexamine defendant and take him to the hospital.

The paramedics attempted to rouse defendant by kicking hisfoot, calling his name, and shaking his shoulders, but wereunable to wake him. Defendant's eyelids fluttered during theseattempts to rouse him, so the paramedics administered additionalfield tests to determine if defendant was unconscious. Based onthese tests, the information provided to them, and defendant'spresenting an odor of alcohol and intoxicated appearance, theparamedics believed that defendant was intoxicated and feigningunconsciousness.

At or around this time, two police officers from the Chicagopolice department arrived on the scene on a routine call. Thepolice officers came and oversaw the activities in and around thebedroom where the paramedics were tending to defendant. Thepolice did not assist the paramedics at this time.

The paramedics were then able to raise defendant from thefloor and he awoke. Letha told defendant that the people therewere paramedics and encouraged defendant to cooperate and go tothe hospital with them. The paramedics next began attempts topick defendant up and move him to a collapsible chair in theroom. Defendant however protested and was uncooperative. Lethatestified that at this time the police officer "caught anattitude" and she began requesting the paramedics and policeofficers leave.

However, Ertl testified that it was Chicago fire departmentpolicy that intoxicated individuals may not refuse care and areto be transported to the hospital. Ertl then got behinddefendant, wrapped his arms under defendant's armpits andattempted to grab defendant's wrists to prop him up. At thistime, defendant became even more combative and bit Ertl's leftforearm.

Defendant did not break the skin of Ertl's arm with hisbite; however, Ertl felt pain and immediately pushed defendantaway from his arm. Ertl testified that at or around the timedefendant bit him, he believed the defendant also punched him,kicked him, and kicked his mobile recording system. However,Ertl could not definitively state that defendant punched orkicked him.

At or around the time Ertl pushed defendant away, a meleebroke out between the police, paramedics and partygoers at thehouse. Eventually the melee was brought under control by thepolice. Defendant was placed under arrest, handcuffed, carriedout to a squad car and taken by the police to the hospital. Ertlhad his arm examined at this time. The skin was not broken, buthis arm was red and swollen in the area that defendant bit him.

At the close of the evidence, the trial court found Burdineguilty beyond a reasonable doubt of aggravated battery of aparamedic. Defendant subsequently filed a motion for judgment ofacquittal or a new trial. Following argument and a review of thetranscript of the trial, the court denied the motion.

At the sentencing hearing, the State offered no aggravatingfactors. Defendant offered factors in mitigation and suggestedthat probation would be an appropriate sentence. On November 6,2003, defendant was sentenced to 18 months' probation and,pursuant to section 5-4-3, ordered to submit blood specimens tothe Illinois Department of State Police, Division of ForensicServices and Identification. On November 16, 2003, defendanttimely filed his notice of appeal. Defendant did not file aposttrial motion contesting his sentence of probation.

II. ANALYSIS

A. Conformance of Evidence With the Indictment

Defendant first claims that the State failed to presentevidence at trial in conformance with the indictment. Therefore,defendant claims, he was not proven guilty beyond a reasonabledoubt and his conviction must be reversed.

A battery is committed when one intentionally or knowinglycauses bodily harm to another without legal justification. 720ILCS 5/12-3 (West 2002). The aggravated battery statute providesthat a person commits aggravated battery when he commits batteryon an individual known to be a fireman engaged in the officialexecution of his duties. 720 ILCS 5/12-4(b)(6) (West 2002). Theevidence presented clearly proved defendant guilty of aggravatedbattery. Defendant knowingly bit an on-duty fireman on the armcausing him bodily harm. Defendant, however, claims thisevidence does not conform to the indictment.

Defendant's indictment states, in pertinent part, "TavaresBurdine committed the offense of aggravated battery in that he,in committing a battery, other than by the discharge of afirearm, intentionally or knowingly caused bodily harm to RobertErtl, to wit: Tavares Burdine struck Robert Ertl about the body,knowing Robert Ertl to be a fireman ***." Defendant claims thatbecause it was not proven that he hit Ertl with a fist or kickedErtl, but rather bit him, the State did not prove each element ascharged.

In order for a variance between an indictment and proof attrial to be fatal, the difference must be material and of such acharacter as to mislead defendant in his defense or expose him todouble jeopardy. People v. Williams, 299 Ill. App. 3d 143, 151(1998), citing People v. Rothermel, 88 Ill. 2d 541 (1982). Defendant does not present such a variance in this case.

First, defendant is not at risk of double jeopardy. Theindictment clearly identifies the victim, the nature of theincident, and the date and place of the incident. The judgmentcould be presented to bar subsequent prosecution for the sameconduct, preventing the risk of double jeopardy. See People v.DiLorenzo, 169 Ill. 2d 318 (1996).

Second, and more importantly, this court does not find avariance between the indictment and the evidence at trial. Theindictment simply states that defendant "struck Robert Ertl aboutthe body." One may strike another with a foreign object or, asin this case, with their body. A strike may result from a punch,a kick, an elbow, a knee, or a bite. When a crime can becommitted by several acts, as in this case, a variance betweenthe act named in the indictment and the act proved will not befatal. People v. Taylor, 84 Ill. App. 3d 467, 470 (1980), citingPeople v. Simpkins, 48 Ill. 2d 106 (1971); People v. Nelson, 33Ill. 2d 48 (1965), cert. denied, 383 U.S. 918, 15 L. Ed. 2d 671,86 S. Ct. 911 (1966).

Furthermore, even if one accepted defendant's argument thatthe indictment was not specific, this issue of semantics is notso material as to have misled the defense in this case. Thearrest report narrative states that defendant was arrested foraggravated battery based on the bodily harm to Ertl's leftforearm caused by defendant's bite. Defendant knew what happenedand why he was arrested.

The indictment apprised defendant of the offense charged andspecifically enough to present his defense. It was proved beyonda reasonable doubt that defendant struck Ertl with his mouth,causing pain to Ertl and redness and swelling of his arm. Accordingly, the argument that the distinction between "struck"and "bit" is a fatal error is, in and of itself, fatal.

B. Fair Trial and Fair Hearing

Defendant next claims that the trial court relied on factsoutside the record in entering judgment and sentencing. Defendant claims a new trial is required because the trial judgerevealed a bias against him during trial and the sentencinghearing. Alternatively, defendant maintains that this lack of afair trial and fair sentencing hearing requires a reduction ofhis sentence of 18 months' probation.

Defendant bases these arguments on the trial court'sstatements both at judgment and sentencing in this case. TheState counters that these issues have been waived because theywere not raised in a posttrial motion by defendant. However, asdiscussed fully below, defendant was not properly admonished ofhis appeal rights by the trial court. Thus, he has not waivedthese arguments and we review them now.

It is assumed that for a bench trial, the trial judge willrely only on competent evidence in making a finding. People v.Kolzow, 301 Ill. App. 3d 1, 8 (1998). The defendant may overcomethis assumption only if the record affirmatively demonstrates thecontrary. 301 Ill. App. 3d at 8. A review of the record in thiscase indicates that the trial judge relied solely on the evidencepresented at trial for judgment and on proper factors forsentencing defendant.

First, defendant has mischaracterized the testimonypresented in this case. Several witnesses testified that backupof paramedic calls is a routine call for the police. In fact,the police were present at the scene of the incident as backup tothe paramedics in this case. While no policy of police escortsfor paramedics was established, several witnesses corroboratedthat such escorts indeed were routine.

In making his rulings in this case, the trial judge madeobservations on the fact that police escorts for paramedics areroutine. The court also interjected that defendant's actionsprecipitating the melee were a shame and that similar actions byother parties were just the sort of action that require policebackup. All evidence had already been presented againstdefendant and the court was making its ruling based on theevidence. The court highlighted the severity of defendant'scrime by alluding to the police backup of paramedic calls.

Defendant claims that these comments are based on extra-record evidence and demonstrate a bias against defendant. Acomplete review of the trial court's comments argues to thecontrary. First, testimony on the record outlined abovecorroborated the fact this was routine activity for the police. Further, the court explicitly stated that no matter what occurredafter defendant's bite, the evidence showed beyond a reasonabledoubt that defendant did knowingly bite a Chicago fire departmentparamedic causing him bodily harm. The court stated that, atthat point, defendant had committed a crime and the police had aright to arrest him for aggravated battery. The record clearlydemonstrates that the trial court properly relied on the facts inthe case in finding defendant guilty and not some bias againstdefendant.

With respect to sentencing, the burden is on the defendantto demonstrate the sentence was in error to overcome therebuttable presumption that the trial court's ruling was proper. People v. Lindsay, 263 Ill. App. 3d 523, 533 (1994). A trialcourt's sentencing decision is entitled to great deference andwill not be disturbed absent a clear abuse of discretion. Kolzow, 301 Ill. App. 3d at 8. As noted above, the fact thatsome personal observations are added to the hearing by the trialcourt does not necessarily result in error. 301 Ill. App. 3d at9.

In this case, following arguments by counsel in aggravationand mitigation, the trial court reiterated the same concerns todefendant. Next, the court specifically cited the mitigatingfactors argued by defendant and entered a sentence of 18 months'probation. While the trial court's observations are not favoredby the law, the fact remains that the proper sentencing factorswere reviewed and the court did not abuse its discretion byentering a sentence well within the statutory guidelines. SeePeople v. Steppan, 105 Ill. 2d 310 (1985).

We must defer to the trial court's determination of sentenceas it is well within the statutory guidelines. Kolzow, 301 Ill.App. 3d at 9. The statutes allow a sentencing range of probationto up to five years' imprisonment for aggravated battery. Ostensibly, the sentence of probation was not disproportionate tothe crime. Further, given the trial court's explicit recitationof factors that it considered and the fact that defendant arguedfor probation, we do not see evidence of bias in the sentence ofprobation. It is clear to this court that the trial judgeconsidered the proper evidence and factors in his judgments anddefendant did not suffer an unfair trial.

C. Rule 605(a) Admonishments

Defendant's third claim is that this case should be remandedbecause the trial court failed to properly admonish him pursuantto Rule 605(a) regarding his appeal rights and the stepsnecessary to challenge his sentence both at the trial andappellate courts.

Subsection (a)(3) of Rule 605 provides:

"(3) At the time of imposing sentence or modifying theconditions of the sentence, the trial court shall alsoadvise the defendant as follows: A. that the right to appeal the judgment of conviction,excluding the sentence imposed or modified, will bepreserved only if a notice of appeal is filed in the trialcourt within thirty (30) days from the date on whichsentence is imposed;

B. that prior to taking an appeal, if the defendantseeks to challenge the correctness of the sentence, or anyaspect of the sentencing hearing, the defendant must file inthe trial court within 30 days of the date on which sentenceis imposed a written motion asking to have the trial courtreconsider the sentence imposed, or consider any challengesto the sentencing hearing, setting forth in the motion allissues or claims of error regarding the sentence imposed orthe sentencing hearing;

C. that any issue or claim of error regarding thesentence imposed or any aspect of the sentencing hearing notraised in the written motion shall be deemed waived; and

D. that in order to preserve the right to appealfollowing the disposition of the motion to reconsidersentence, or any challenges regarding the sentencinghearing, the defendant must file a notice of appeal in thetrial court within 30 days from the entry of the orderdisposing of the defendant's motion to reconsider sentenceor order disposing of any challenges to the sentencinghearing." Official Reports Advance Sheet No. 21 (October17, 2001), R. 605(a)(3), eff. October 1, 2001.

"And I would advise you you do have the right within thirtydays from today's date to file a notice of appeal so theAppellate Court can review both the findings and sentencethat I've imposed. If you cannot afford private counsel,I'll be glad to appoint counsel for you free of charge. Also, be glad to supply a free copy of the transcript theCourt Reporter to the right has been taking down. Theimportant thing is that you do nothing for more than thirtydays you forevermore give up those rights."

The trial court did not properly admonish defendant of hisrights as required by Rule 605(a). Defendant cites several caseswhere this court has ordered a case be remanded when a defendanthas not been properly advised that a written postsentencingmotion is required to preserve an appeal. See People v. Mazar,333 Ill. App. 3d 244, 254-59 (2002); People v. Bagnell, 348 Ill.App. 3d 322, 327 (2004); People v. Glenn, 345 Ill. App. 3d 974,984-85 (2004); People v. Taylor, 345 Ill. App. 3d 1064, 1082-83(2004). Defendant also argues that the conflicting opinionscited by the State require remandment. People v. Polk, 349 Ill.App. 3d 760 (2004); People v. Elders, 349 Ill. App. 3d 573(2004).

While the State admits to the improper admonishment, itargues that this case need not be remanded for properadmonishment. The State argues that Mazar has been overruled andthat remand is required only where defendant has been prejudicedor had his rights violated by the incomplete admonishment. SeePeople v Breedlove, 213 Ill. 2d 509 (2004); People v. Williams,344 Ill. App. 3d 334 (2003). Further, the State argues thiscourt could review defendant's sentencing appeal rather thanunnecessarily remand the case. See People v. Davis, 145 Ill. 2d240 (1991); People v. Garner, 347 Ill. App. 3d 578, 586 (2004).

We agree with the State. Defendant relies principally uponMazar for his position. However, the State properly notes thatMazar was overruled by the Illinois Supreme Court and that strictadherence to Rule 605(a) is not necessarily required. See Peoplev. Henderson, No. 98887, slip op. at 12 (August 18, 2005), citingPeople v Breedlove, 213 Ill. 2d 509 (2004). Accordingly,defendant's reliance on Mazar is misplaced. Henderson, slip op.at 12.

In Henderson, the court considered a trial court's failureto properly admonish a criminal defendant that a written motionto reconsider sentence was required to preserve that issue forappeal. Henderson, slip op. at 3. The defendant did not filesuch a motion, nor did he raise any actual sentencing issues inhis appeal. Rather, the only issue raised was that he was notproperly admonished by the trial court with respect to appealinghis sentence. Henderson, slip op. at 3.

The court found the appellate court's decision in People v.Williams instructive in denying defendant's request for remand. Henderson, slip op. at 15-16, citing Williams, 344 Ill. App. 3dat 338-39. The court affirmed the proposition in Williams thatremand for improper Rule 605(a) admonishments is not requiredunless a showing of prejudice or denial of real justice is madeby defendant. Henderson, slip op. at 16; see also People v.Radford, 359 Ill. App. 3d 410, 421-22 (2005). Further, in dicta,the court noted that, in the event an incomplete admonishment isgiven, the appellate court could hear challenges to the sentencerather than remand the case. Henderson, slip op. at 15.

In Garner, defendant filed a posttrial motion challenginghis sentence, but he claimed that remand was necessary due to animproper admonishment by the trial court under Rule 605(a). Garner, 347 Ill. App. 3d at 583. Defendant did not raise anyissues that he could bring before the trial court and not theappellate court. The court found that Rule 605(a) does notrequire strict adherence and, in the interests of justice, absenta denial of real justice or showing of prejudice by defendant,appellate review is proper. Garner, 347 Ill. App. 3d at 586.

In this case, defendant's request for remand for properadmonishments is based solely on a strict interpretation of therule. This argument rests on the overruled decision in Mazar,and remand is not necessary on that ground. However, defendant'sargument above claiming that the trial court was biased and didnot review the proper evidence could be applied to this claim aswell. Accordingly, we review the effect of the improperadmonishment with respect to that claim.

We review questions concerning the applicability of supremecourt rules de novo. Garner, 347 Ill. App. 3d at 583. In thiscase, defendant was not properly admonished, and, like thedefendant in Henderson, he did not file a posttrial motionattacking his sentence. As in Garner, defendant does not raiseany issues that he could bring before the trial court and not theappellate court. We find this case is similar to Garner andexactly the type of case the Henderson court referred to in dictaand should be reviewed here.

Although the trial court did not strictly comply with therequirements of Rule 605(a), this case need not be remanded to " 'elevate form over substance without serving the ends of realjustice.' " Henderson, slip op. at 16, quoting Williams, 344Ill. App. 3d at 339. Defendant raises issues with respect to hissentencing before this court that would be no different if heraised them before the trial court. Further, as detailed above,defendant's contentions regarding sentencing are intertwined withhis claims that he did not receive a fair trial. It would be anexercise in futility to decide that issue and remand so defendantcould raise the same issue before the trial court.

As noted in detail above, the record clearly shows that thetrial court properly reviewed the facts and mitigating factors infavor of defendant. The sentence handed down by the trial courtfalls well within the guidelines for aggravated battery of afireman. Defendant did not receive an excessive sentence. Infact, the sentence is exactly that which defendant argued forduring the sentencing hearing. Given these facts, we do not feelthe trial court's comments evidence a bias. Defendant's claimshave been reviewed here and he has not been prejudiced or deniedreal justice. Defendant was properly sentenced and remand isunnecessary.

D. Constitutionality of Section 5-4-3

Finally, defendant contends that the compulsory extractionand storage of his DNA violates his constitutionally protectedrights. The trial court, pursuant to section 5-4-3 of theUnified Code of Corrections, ordered defendant give a bloodsample for DNA analysis. Defendant claims this violates hisright to be free from unreasonable searches and seizuresguaranteed by the fourth amendment of the United StatesConstitution and article I, section 6 of the IllinoisConstitution. U.S. Const., amend. IV: Const. 1970, art. I,