People v. Dibble

Case Date: 11/07/2000
Court: 5th District Appellate
Docket No: 5-99-0131 Rel

                         NOTICE
Decision filed 11/07/00.  The text of this decision may be changed or corrected prior to the filing of a Petition for Reheairng or the disposition of the same.

NO. 5-99-0131

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,

     Plaintiff-Appellee,

v.

TERRY DIBBLE,

     Defendant-Appellant.

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Appeal from the
Circuit Court of
St. Clair County.

No. 96-CF-392

Honorable
Jan V. Fiss,
Judge, presiding.

JUSTICE WELCH delivered the opinion of the court:

On April 26, 1996, in the circuit court of St. Clair County, Terry Dibble (defendant)was indicted for the offense of first-degree murder in violation of section 9-1(a)(3) of theCriminal Code of 1961 (Code) (720 ILCS 5/9-1(a)(3) (West 1994)), in that, on or about theninth day of November 1993, while committing the forcible felony of burglary, he, withoutlawful justification, shot Billy Barker in the head with a shotgun, causing the death of BillyBarker. Defendant was tried before a jury on May 19 through 21, 1998, and found guiltyof first-degree murder. On August 28, 1998, defendant was sentenced to 45 years in theIllinois Department of Corrections.

The evidence presented at defendant's trial can be summarized as follows. On theevening of November 9, 1993, defendant, Preston Arnsperger, and Christopher Mathistraveled together in an automobile driven by defendant to the home of the victim, BillyBarker. Defendant had been acquainted with Barker, had lived in Barker's rental house, andhad visited with Barker at Barker's residence. Defendant and Barker had engaged in two fistfights in the past and were not on the best of terms. Arnsperger and Mathis did not knowthe victim.

According to Arnsperger and Mathis, who testified at defendant's trial, their purposewas to break into Barker's home and steal marijuana and cocaine, which defendant had toldthem were always present in the home in large quantities. Defendant had told Arnspergerand Mathis that Barker would not be at home as he was always at a tavern during theevening hours. Nevertheless, according to Arnsperger and Mathis, defendant took a shotgunwith him into Barker's house.

Entry was gained through a window, and defendant directed Arnsperger and Mathisto search a bedroom for drugs. Defendant then proceeded to a different part of the house. While Arnsperger and Mathis were in the bedroom, they heard a male voice, not defendant's,say, "Freeze, I've got a .45," or words to that effect. They then heard defendant respond withsimilar words, immediately followed by a shotgun blast. Arnsperger and Mathisimmediately exited the house through the same window they had entered and returned to thecar. Shortly thereafter, defendant exited the house and returned to the car. They left thescene.

Barker was found the next evening, laying dead on the floor of his home. He hadbeen shot in the eye with a shotgun. Although marijuana and a large amount of cash werein plain view in the home, apparently nothing had been taken from the home.

Prior to defendant's trial, Arnsperger and Mathis both pleaded guilty to felonymurder. Pursuant to a negotiated plea, Arnsperger and Mathis agreed to testify atdefendant's trial in return for the State agreeing not to seek a sentence in excess of 60 years'imprisonment. Arnsperger was serving a 30-year prison sentence; Mathis was serving a 35-year prison sentence. Both were seriously impeached by prior inconsistent statements theyhad made to the police at the time the crime was being investigated. Mathis in particularadmitted that he had lied to the police in an attempt to minimize his responsibility for thecrime.

The murder weapon was never found, and no physical evidence linked defendant tothe crime. Defendant's conviction rested primarily on the testimony of Arnsperger andMathis. Defendant did not present any evidence at the trial and did not testify in his ownbehalf. His counsel did, however, engage in extensive cross-examination of the State'switnesses, particularly Arnsperger and Mathis.

Prior to defendant's trial, the State filed a notice of intent to submit instructions to thejury on multiple alternative theories of first-degree murder under sections 9-1(a)(1) and9-1(a)(2), in addition to section 9-1(a)(3) of the Code (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3)(West 1994)). Defendant made no objection to the State's proposed instructions. Accordingly, the jury was instructed that defendant could be found guilty of first-degreemurder if he, or one for whose conduct he was legally responsible, performed the acts thatcaused the death of Billy Barker and that he intended to kill or do great bodily harm toBarker, he knew that his acts would cause death to Barker, he knew that his acts created astrong probability of death or great bodily harm to Barker, or he was attempting to commitor committing the offense of burglary. The jury was further instructed that a person commitsthe offense of burglary when he, without authority, knowingly enters a building with theintent to commit therein the offense of theft. The jury was given only a general verdict form,so it is impossible to know on which theory of first-degree murder defendant was foundguilty.

This brings us to defendant's first argument on appeal. Defendant was charged with,and the jury was instructed on, felony murder based on burglary as defined in section 19-1of the Code (720 ILCS 5/19-1 (West 1992)). However, the evidence presented at the trialshowed beyond a reasonable doubt that defendant could not have been guilty of burglarybecause the "building" that he unlawfully entered was the victim's residence. Accordingly,defendant could only be guilty of residential burglary as defined in section 19-3 of the Code (720 ILCS 5/19-3 (West 1992)). Burglary and residential burglary are mutually exclusive:residential burglary can be committed only in a dwelling place, while simple burglary cannotoccur in a dwelling place. People v. Childress, 158 Ill. 2d 275, 302 (1994). However, thejury was not instructed that the term "building," as included in the definition of burglary,could not include a "dwelling place." The victim in the present case was killed in his owndwelling place, and thus, defendant could not have been guilty of burglary or felony murderbased on burglary. Nevertheless, the jury was instructed on this theory of first-degreemurder.

On appeal, defendant relies on the Stromberg rule to argue that the general verdictagainst him must be set aside where the jury was instructed that it could rely on two or moreindependent grounds and that one of those grounds, felony murder based on burglary, isinsufficient, because the verdict may have rested exclusively on the insufficient ground. SeeStromberg v. California, 283 U.S. 359, 367-68, 75 L. Ed. 1117, 1122, 51 S. Ct. 532, 535(1931). Defendant argues that the jury's general verdict against him may have restedexclusively on the improper felony murder ground and that such a charge, and theinstructions based thereon, are unconstitutional. While we agree that, under the juryinstructions given, the jury could have improperly found defendant guilty of felony murderbased on burglary because the jury was not instructed that a "building" could not include a"dwelling place," we do not agree with defendant that the charge or instructions wereunconstitutional. Instead, we agree with the State that the charge was not legally insufficientbut that it was factually insufficient. That is, the evidence produced at the trial did notsupport a finding of guilt of felony murder based on burglary because the evidence producedat the trial demonstrated beyond a reasonable doubt that the "building" that defendantunlawfully entered was a "dwelling place." A conviction for felony murder based onburglary is not supported by the evidence and cannot stand. However, the other theories offirst-degree murder were supported by the evidence, and convictions based on those theoriescan stand.

In Stromberg v. California, 283 U.S. 359, 75 L. Ed. 1117, 51 S. Ct. 532 (1931), thedefendant was convicted of a violation of section 403a of the California Penal Code for oneor more of the following acts: displaying a red flag or banner in a public place "as a sign,symbol[,] and emblem of opposition to organized government [or] as an invitation andstimulus to anarchistic action [or] as an aid to propaganda that is and was of a seditiouscharacter." Stromberg, 283 U.S. at 361, 75 L. Ed. 1117, 51 S. Ct. at 533. The jury wasinstructed that the defendant could be convicted if the flag was displayed for any one of thethree purposes named. However, the verdict was general and did not specify on whichground the defendant was convicted. A conviction upon the first clause, however, that theflag was displayed as a symbol of opposition to organized government, would violate thedefendant's first amendment right to free speech. Thus, this clause could not constitute alawful foundation for a criminal prosecution. Accordingly, because it could not bedetermined whether or not the defendant's conviction rested exclusively on this invalid andunconstitutional criminal charge, her conviction was set aside.

The instant case differs from Stromberg in the following way. The charge of felonymurder based on burglary is a valid and constitutional charge, and had the murder occurredin the victim's office building, rather than his dwelling, the conviction could stand. A chargeof felony murder based on burglary violates no constitutional provision and is not invalidas a matter of law. Accordingly, a conviction for felony murder based on burglary can standwhere it is adequately supported by the evidence. In Stromberg, the charge and conviction,even if supported by the evidence, could not stand because they were unconstitutional. Inthe instant case, the charge and conviction for felony murder based on burglary could standif they were supported by the evidence. In the case at bar they were not. We conclude thatthe Stromberg rule does not apply to the case at bar.

Instead, we conclude that the rule of Griffin v. United States, 502 U.S. 46, 116 L. Ed.2d 371, 112 S. Ct. 466 (1991), applies to the case at bar. In Griffin, the United StatesSupreme Court explained that its decision in Stromberg stands for nothing more than theprinciple that where a provision of the constitution forbids a conviction on a particularground, the constitutional guarantee is violated by a general verdict that may have rested onthat ground. 502 U.S. at 53, 116 L. Ed. 2d at 379, 112 S. Ct. at 471. The Griffin courtrefused to expand the holding of Stromberg to set aside a general verdict not because oneof the possible bases of conviction was unconstitutional but because one of the possiblebases of conviction was merely unsupported by sufficient evidence. 502 U.S. at 56, 116 L.Ed. 2d at 380, 112 S. Ct. at 472. Thus, a reversal of a general verdict is not required wherethe evidence is insufficient to support one of several alternative means of committing thesame crime, as set forth in the jury instructions. See People v. Griffin, 178 Ill. 2d 65, 83(1997).

" 'After Griffin, then, a general guilty verdict based on an instruction which includesdifferent methods of committing the same offense in the disjunctive is grounds forreversal only where one alternative is legally defective, i.e., fails to correctly state thelaw, and not where the flawed alternative is factually inadequate, i.e., where theevidence is insufficient to sustain that count.' " People v. Griffin, 178 Ill. 2d 65, 83-84 (1997) (citing People v. Griffin, 247 Ill. App. 3d 1, 16 (1993)).

In the instant case, the jury was instructed on three legally sufficient theories offirst-degree murder. The instructions in the instant case correctly state the law. The offenseof burglary was properly defined. However, there was insufficient proof of one of thetheories, felony murder premised on burglary. Defendant does not argue, however, thatthere was insufficient proof of the other theories of murder. Accordingly, we will assumethat the jury convicted the defendant under one or both of the theories of first-degree murderthat were supported by the evidence. Defendant's conviction can therefore stand.

We recognize that the jury in the instant case may have been misled by the juryinstructions relating to burglary, which defined burglary as the unauthorized entry into a"building" but failed to state that such a "building" did not include a dwelling place orresidence. Thus, the jury could have rested its conviction of defendant on the erroneousbelief that defendant did, indeed, commit burglary and, therefore, felony murder premisedon burglary. However, this is an error in the jury instructions and is a result of defendant'sfailure to object to the State's instructions or to tender appropriate instructions of his own. Defendant could have tendered an instruction explaining that a "building" did not includea residence, thus obviating any possible confusion. Had the defendant done so, and the juryreturned a general verdict of guilty, there would be no doubt that the jury had convicted onone of the alternative bases of murder and not on the basis of felony murder. On the otherhand, had the defendant tendered an appropriate instruction and the jury returned a specialverdict finding the defendant guilty of felony murder premised on burglary, the convictionwould have been overturned as not supported by sufficient evidence.

Finally, we note that defendant failed to object at any time to the State's instructionson felony murder premised on burglary, failed to point out that such an instruction was notsupported by the evidence, failed to object to the State's closing argument that defendant wasguilty of felony murder premised on burglary, and failed to tender an instruction definingthe term "building." Accordingly, finding that no substantial rights of defendant wereaffected by the alleged error and that the evidence is not closely balanced, we find it to bewaived. We turn now to defendant's other claims of error on appeal. We find that noneof them require extensive discussion, for defendant failed to raise them before the trial court,either by objection or by posttrial motion, thereby waiving them. Furthermore, none of theother claims of error affect the substantial rights of defendant or deprived him of a fair trial,allowing us to review them under the plain error doctrine. Finally, in the event that error didarise, it did not prejudice defendant and at worst constitutes harmless error. The evidencein this case was not closely balanced. Although there was no physical evidence linkingdefendant to the crime, the testimony of Arnsperger and Mathis, though impeached by priorinconsistent statements made to the police during the course of the investigation, wasunrebutted. The defense presented no evidence to rebut the testimony of Arnsperger andMathis, and it presented no evidence of any motive the witnesses might have had to lie orto falsely implicate defendant.

Defendant first argues that he was denied a fair trial by the prosecutor's use ofinadmissible prior consistent statements to rehabilitate Mathis. Assuming that priorconsistent statements were improperly used to bolster Mathis's credibility, a point the Statedoes not concede, the claimed error does not implicate a substantial right of defendant. SeePeople v. Keene, 169 Ill. 2d 1, 18 (1995). It does not constitute plain error and is waived.

Defendant next argues that he was denied a fair trial by the prosecutor's closingargument, which (1) falsely stated that the accomplices had no motive to lie since they werealready imprisoned when the failure to testify against defendant would have been groundsto rescind their plea agreements and (2) vouched for the prosecution witnesses by telling thejurors that the accomplices knew what happened and were not liars. Again, defendant didnot object to the prosecutor's closing argument and did not raise the issue in his posttrialmotion. Even if the prosecutor's closing argument was improper, again a point the Statedoes not concede, it does not affect a substantial right of defendant. It is waived.

Finally, defendant argues that he received the ineffective assistance of counsel at histrial with respect to 13 enumerated points, which include those claims of error alreadydiscussed herein. There is no doubt that defendant's trial counsel did make mistakes at histrial. However, in order to constitute the ineffective assistance of counsel, those mistakesmust be so prejudicial that there is a reasonable probability that, but for counsel's mistakes,the result of the proceeding would have been different. Strickland v. Washington, 466 U.S.668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068 (1984). A reasonable probabilityis a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. The mistakes of defendant's counsel, evenwhen viewed cumulatively, did not so prejudice defendant that there is a reasonableprobability that, but for those mistakes, the result of the trial would have been different. Wenote that many of the claimed mistakes by counsel were strategic decisions over whichcounsel has ultimate authority. See People v. Guest, 166 Ill. 2d 381, 394 (1995). Defendantwas not prejudiced by his counsel's alleged mistakes.

For the foregoing reasons, the judgment of the circuit court of St. Clair County isaffirmed.

Affirmed.

CHAPMAN and MAAG, JJ., concur.