People v. Shoultz

NO. 4-96-0311

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
TONY E. SHOULTZ, ) No. 94CF319
Defendant-Appellant. )
) Honorable
) Joseph P. Koval,
) Judge Presiding.
_________________________________________________________________

JUSTICE McCULLOUGH delivered the opinion of the court:
Following a jury trial, defendant, Tony E. Shoultz, was
convicted of first degree murder (720 ILCS 5/9-1(a)(1) (West
1994)) and intentional homicide of an unborn child (feticide)
(720 ILCS 5/9-1.2 (West 1994)) and sentenced to natural life im-
prisonment. Defendant appeals, alleging (1) the feticide statute
violates the proportionate penalties clause of the Illinois Con-
stitution because it imposes greater penalties than does the
Illinois Abortion Law of 1975 (Abortion Law) (720 ILCS 510/1 et
seq. (West 1994)); (2) evidence he had been told the victim was
pregnant was improperly admitted hearsay; (3) the court erred in
failing to suppress his confession based on his intoxication; and
(4) he was improperly sentenced to natural life imprisonment. We
affirm.
The facts will be referred to only as they deal with
the issues on appeal. On June 9, 1994, the victim, Jennifer
Florence, was shot and killed while seated in a motor vehicle at
12th and Jackson Streets in Springfield, Illinois.  The obstetrician who had examined Jennifer on June 4,
1994, and administered a sonogram on June 6, 1994, stated that
the fetus had then been alive and 11 or 12 weeks in gestational
age. The coroner performing the autopsy testified that the fetus
was in the late third month of the first trimester but was not
viable in the sense it could have survived outside the womb. He
also testified that Jennifer sustained three gunshot wounds, one
of which penetrated her heart.
Defendant first argues that because the feticide stat-
ute imposes greater penalties for offenses than does the Abortion
Law, it violates the proportionate penalties clause of the Illi-
nois Constitution (Ill. Const. 1970, art. I, 11). Defendant
contends (1) offenses under the feticide statute and the Abortion
Law are "identical"; and (2) even if not identical, under certain
circumstances, exactly the same criminal act can constitute a
violation of both statutes. As to the second contention, that
the offenses need not be identical, defendant cites People v.
Wisslead, 94 Ill. 2d 190, 446 N.E.2d 512 (1983), a case that is
wholly distinguishable. In Wisslead, the court compared two
predicate offenses carrying unequal penalties, which were dis-
proportionately enhanced by common aggravating acts, resulting in
the elevation of the lesser predicate offense to the graver.
Wisslead, 94 Ill. 2d at 195-96, 446 N.E.2d at 514-15.
There are in this case no common aggravating acts that
disproportionately elevate the punishment for any predicate of-
fenses. In addition, defendant presents a contorted argument
based on a hypothetical scenario of a physician performing an
abortion affecting a viable fetus and being held criminally lia-
ble under both statutes. Since defendant was not a physician
performing an abortion on a viable fetus, he lacks standing to
raise this claim.
As to defendant's claim that offenses under the feti-
cide statute and the Abortion Law are "identical," even a cursory
comparison reveals the fallacy of this conclusion. The feticide
statute defines the offense as (1) an intent to cause death or
great bodily harm to the woman or the fetus, or knowledge that
acts create a strong probability of death or great bodily harm,
and (2) knowledge the woman is pregnant, with an express exemp-
tion for any acts committed during an abortion. 720 ILCS 5/9-1.2
(West 1994). Section 6 of the Abortion Law mandates that (1)
when a physician performing an intentional abortion judges that
there is a reasonable possibility of sustained survival of a
viable fetus, (2) he utilize the abortion method most likely to
preserve the life and health of the fetus. 720 ILCS 510/6 (West
1994). The Abortion Law does not penalize abortions, but a fail-
ure to utilize abortion methods or medical care most likely to
preserve the life or health of a viable fetus. The persons and
acts subject to penalty under each statute, as well as the poten-
tial victims, are entirely different. Since defendant was not a
physician performing an abortion on a viable fetus, he could not
be liable under the Abortion Law; any physician performing an
abortion is excepted from prosecution under the feticide statute.
The availability of different penalties for offenses
that are related but not identical does not violate the consti-
tutional prohibition against disproportionate penalties. People
v. Parker, 277 Ill. App. 3d 585, 591, 660 N.E.2d 1296, 1300
(1996). Despite defendant's contention that both statutes pro-
fess to protect the unborn, the statutory schemes are not even
similar.
Defendant next contends the testimony by Jennifer's
caseworker, Jodi Grant, that she heard Jennifer tell the defen-
dant she was pregnant, was improperly admitted hearsay used by
the State to establish substantive evidence of an element of the
offense of feticide. Grant testified she went to the victim's
residence on June 7 to take Jennifer to Sojourn House. While
waiting, Jennifer received two phone calls from the defendant, to
whom Grant also spoke. The court first gave the jury a limiting
instruction, and Grant then testified that she heard Jennifer
mention she was pregnant. Over defendant's objection, the trial
court admitted the testimony "for the purpose of showing that the
victim advised the defendant she was pregnant, not that it's
proof that she was." Hearsay testimony is an out-of-court state-
ment offered to prove the truth of the matter asserted and is
dependent on the credibility of the out-of-court declarant.
People v. Rogers, 81 Ill. 2d 571, 577, 411 N.E.2d 223, 226
(1980). Where an out-of-court statement is offered for some
purpose other than to establish the truth of the matter asserted,
the statement is not hearsay and is admissible. People v. Al-
banese, 102 Ill. 2d 54, 70, 464 N.E.2d 206, 214 (1984). Testi-
mony of out-of-court statements used other than to establish the
truth of the matter asserted does not rest for its value on the
credibility of the out-of-court declarant but, rather, on the
credibility of the witness, who was present in court and subject
to cross-examination. People v. Smith, 236 Ill. App. 3d 812,
819, 602 N.E.2d 946, 952 (1992). The State argues that the tes-
timony was not offered for its truth, i.e., that Jennifer was
pregnant, because this was established by Jennifer's treating
physician and the coroner, but only to show that the conversation
had occurred and the defendant had knowledge of the pregnancy.
We agree.
A statement that is offered to prove that a listener
had notice of the information contained therein, rather than to
prove the truth of the matter asserted, is not hearsay. See
Kochan v. Owens-Corning Fiberglass Corp., 242 Ill. App. 3d 781,
806, 610 N.E.2d 683, 699 (1993). A statement is not hearsay
"when offered for the purpose of showing that the listener was
placed on notice or had knowledge. *** [T]he fact that the
statement was made is relevant for its effect on the listener
without regard to the truth of the matter asserted." M. Graham,
Cleary & Graham's Handbook of Illinois Evidence 801.5, at 648
(6th ed. 1994). The statement by Grant was not offered for its
truth, that Jennifer was pregnant, but solely to show defendant
had knowledge of the pregnancy, and the jury was instructed to
consider the testimony for this limited purpose. The testimony
was not hearsay and was properly admitted.
Defendant next argues his gross intoxication rendered
him unable to knowingly waive his Miranda rights and the court
erred in not granting his motion to suppress. In support, defen-
dant points to (1) statements made by Detective Oney to Grant
that defendant was "drunker than 18 Indians" or "falling down
drunk" at the time of the offense; (2) the testimony of Oney, De-
tective Ross, and arresting officer Schober that they noted an
odor of alcohol on the defendant's breath and his glassy eyes;
and (3) defendant's statements that he had been drinking heavily
on the day prior to the offense and into the early morning hours
on June 9. The defendant claims that Oney's and Ross' statements
that they did not believe the defendant was intoxicated at the
time of interrogation were "clearly unreasonable" and that this
is a standard of review promulgated in People v. Clark, 92 Ill. 2d 96, 440 N.E.2d 869 (1982), as an exception to the deference
normally accorded the trial court.
The trial court is in the best position to determine
the credibility of witnesses at a suppression hearing and to
resolve any conflicts in the evidence, and its decision will not
be reversed on review unless contrary to the manifest weight of
the evidence. People v. Rogers, 123 Ill. 2d 487, 495, 528 N.E.2d 667, 671 (1988). The fact that the defendant was under the in-
fluence of alcohol does not render his statements inadmissible
unless the evidence clearly establishes that he was so grossly
intoxicated he no longer had the capacity to waive his rights.
People v. Feagans, 134 Ill. App. 3d 252, 259, 480 N.E.2d 153,
158-59 (1985).
In Clark, the supreme court upheld the trial court's
denial of a motion to suppress, stating that the trial court's
decision would not be disturbed unless clearly erroneous. It
then noted that although the trial court failed to state its
reasons for denial of the motion to suppress, the trial court ap-
parently found testimony of the officers more credible than that
of the defendant, and the supreme court could find no ground on
which to find the officer's testimony clearly unreasonable.
Clark, 92 Ill. 2d at 99, 440 N.E.2d at 871. Contrary to defen-
dant's interpretation, the Clark court at no time indicated it
was announcing a new standard of review according less deference
to the trial court. Its comments were merely a characterization
of the absence of evidence supporting defendant's contention.
In this case the arresting officer testified that de-
fendant did not display any difficulty walking up the church
steps with his hands behind his head, or when he was handcuffed
and walked to the patrol car, and his speech was normal and co-
herent. Both Officers Oney and Ross testified that the
defendant's speech was not impaired and that he understood the
questions put to him during the interview.
As to Oney's statement to Grant, that defendant was
"drunker than 18 Indians" at the time of the offense, the trial
court determined that Oney expressed an opinion, not based on
personal observation or knowledge, but based on information of
alcohol consumption supplied by defendant and a witness who had
been drinking with defendant during the morning hours of June 9.
Since there was considerable evidence to support the trial
court's denial of suppression of the defendant's statements, we
find its determination not against the manifest weight of the
evidence.
Defendant last argues that the trial court erred in
finding him subject to mandatory natural life sentences under
section 5-8-1(a)(1)(c)(ii) of the Unified Code of Corrections
(Code) (730 ILCS 5/5-8-1(a)(1)(c)(ii) (West Supp. 1995)) for com-
mission of first degree murder and feticide, contending that
natural life sentences are mandatory only when both offenses are
"murder," a classification to which the feticide statute does not
belong. The feticide statute provides that the "sentence for
intentional homicide of an unborn child shall be the same as for
first degree murder, except that the death penalty may not be
imposed." 720 ILCS 5/9-1.2(d) (West 1994). The sentencing pro-
visions for first degree murder in relevant part provide "the
court shall sentence the defendant to a term of natural life
imprisonment when the death penalty is not imposed if the defen-
dant *** is found guilty of murdering more than one victim[.]"
730 ILCS 5/5-8-1(a)(1)(c)(ii) (West Supp. 1995).
This court's primary objective when construing the
meaning of a disputed statute is to ascertain and give effect to
the intent of the legislature, and the most reliable indicator of
legislative intent is the language of the statute itself. People
v. Tucker, 167 Ill. 2d 431, 435, 657 N.E.2d 1009, 1011 (1995).
Criminal or penal statutes must be strictly construed and may not
be extended in their application to cases that do not, by the
strictest construction, come under their provisions. People v.
Parvin, 125 Ill. 2d 519, 525, 533 N.E.2d 813, 815 (1988). Gener-
ally, any ambiguities in a criminal statute must be resolved in
favor of the defendant. People v. Robinson, 172 Ill. 2d 452,
457, 667 N.E.2d 1305, 1307 (1996).
In People v. Magnus, 262 Ill. App. 3d 362, 633 N.E.2d 869 (1994), the reviewing court sua sponte raised the question of
whether a defendant convicted of one count of first degree murder
and one count of second degree murder was subject to mandatory
natural life sentences pursuant to a precursor but similar sec-
tion of the Code. The court found the phrase "murdering more
than one victim" ambiguous in that it could either apply only to
multiple first degree murders or to all classes of murder of
either first or second degree. Magnus, 262 Ill. App. 3d at 366,
633 N.E.2d at 873. The court construed the statute as applying
only to multiple first degree murders, reasoning that (1) when
section 5-8-1(a)(1)(c) was adopted, there was only one category
of murder because second degree murder was designated voluntary
manslaughter; and (2) rules of statutory construction mandate
that ambiguities in penal sentences be resolved in favor of the
defendant. Magnus, 262 Ill. App. 3d at 366-67, 633 N.E.2d at
873-74.
Even though the Magnus court found an ambiguity within
the first degree murder sentencing statute as to whether it en-
compassed second degree murder, there is no express direction
within the second degree murder statute--as there is in the feti-
cide statute--directing sentencing to be imposed "the same as for
first degree murder." 720 ILCS 5/9-1.2(d) (West 1994). Since
the feticide statute mandates application of the first degree
murder penal scheme, we find no ambiguity under that statute's
natural life imprisonment penalty merely because it references
"murder." If the legislature did not contemplate that the clause
"found guilty of murdering more than one victim" in the sentenc-
ing provisions for first degree murder would encompass feticide,
there would have been no reason for it to expressly exempt the
death penalty, since provisions authorizing imposition of the
death penalty also apply when "the defendant has been convicted
of murdering two or more individuals." 720 ILCS 5/9-1(b)(3)
(West 1994). Both clauses reference "murder," yet the legisla-
ture chose to except only the death penalty, and not mandatory
natural life imprisonment, as sentencing options applicable to
the feticide statute. Where a statute is unambiguous, the court
may not read into it exceptions other than those provided by the
legislature. Buckellew v. Board of Education of Georgetown-Ridge
Farm Community Unit School District No. 4, 215 Ill. App. 3d 506,
511, 575 N.E.2d 556, 559 (1991). The legislature provided only
one exception, the death penalty, to the sentencing provisions
applicable to feticide, and this court can add no other.
Defendant's convictions and sentences are affirmed.
Affirmed.
GARMAN and KNECHT, JJ., concur.