NO. 5-01-0324

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

______________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,	) Appeal from the

							) Circuit Court of

	Plaintiff-Appellee,				) St. Clair County.

							)

v.							) No. 99-CF-863

							)

BRETT RODGERS,				) Honorable

							) Robert P. LeChien,

	Defendant-Appellant.			) Judge, presiding.

______________________________________________________________________

	JUSTICE KUEHN delivered the opinion of the court:

	When darkness falls over the town of East St. Louis, Illinois, and the moon glistens

on the black waters of the Mississippi, a riverfront hangout known as Affirmation East comes

to life.  Bartenders pour drinks, "Oatmeal" Gines spins records, and patrons make merry on

a strobe-lighted dance floor.  People can literally stay there all night long and, if they choose,

dance until dawn.  

	The Affirmation East boasts two things that a lot of other nightclubs scattered around

East St. Louis do not offer.  First of all, it works very hard at making the club a safe place

to be.  Management insists upon a high level of security.  Most of its patrons do not mind

passing through its metal detector or complying with a routine request to search before being

allowed to enter.  Security is strictly enforced by a fleet of unarmed security guards.  Even

police officers are denied admittance if carrying a service revolver.

	In addition to its reputation for providing a safe environment for patrons, Affirmation

East is known for its famed fried chicken.  The club features it nightly and makes sure that

there is always plenty on hand to satisfy early morning appetites.

	  On July 25, 1999, at approximately 4 a.m., Brett Rodgers steered a drunken path to

the Affirmation East, intent on satisfying a sudden hunger for its prized cuisine. 

Unfortunately, he arrived with more of an appetite for trouble than poultry, and when

security personnel tried to block his admission, things really turned fowul.  

	Five years earlier, Rodgers came home to East St. Louis after a stint in the navy and

a combat tour of duty in the Middle East.  He went to school, graduated, and got a job

fighting a different kind of enemy.  He became a lawman.  His patrol of East St. Louis haunts

and byways brought him in contact with more than a few drunk drivers and gun-toting

bullies. 

	July 25, 1999, was the day that Brett Rodgers' law enforcement career ended.  On his trip to the Affirmation East, he traded his time in a police uniform for time in a prison

jumpsuit.  He lost his badge, and he lost his freedom, when, in a fit of drunken anger, he shot

a security guard in the leg for trying to block his admittance.  A St. Clair County jury

dismissed his claim that he was too intoxicated to know what he was doing.  He currently

serves an eight-year prison term for driving under the influence of alcohol and committing

an aggravated battery with a firearm. 

	Rodgers asks us to overturn his aggravated-battery-with-a-firearm conviction.  He

maintains that the evidence belies the jury's verdict.  He wants us to overrule the trial judge's

denial of a motion for a judgment of acquittal notwithstanding that verdict.  The facts of the

case are clear and uncontradicted.   

	At around 4 a.m. on the morning of July 25, 1999, Carlos Johnson and Sanchez Sylvester, two Affirmation East security guards, saw Rodgers pull up in front of the club. 

Rodgers got out of his vehicle and moved several orange cones that served as a barrier to

parking in front of the club.  The area was reserved for use only by very important patrons. 

Johnson and Sylvester did not think that Rodgers was so qualified.  As Rodgers pulled into his newly created parking spot in front of the club, Johnson and Sylvester left their posts to

inform him that his Suburban would have to be moved from the reserved area.  

	Rodgers had enough alcohol in his system to incapacitate most men.  His blood would

later test out at a .268 blood-alcohol concentration.  The state of inebriation no doubt fueled

a belligerent attitude over the security guards' request that he find another parking spot. 

Rodgers told them, "You've got to be kidding," and defiantly exited his vehicle.  Johnson saw

Rodgers take his service revolver from the passenger seat where it rested, reach behind

himself, and tuck it down the small of his back into his pants.  

	Sylvester remained unaware of the fact that Rodgers was armed.  He told Rodgers that

he could not enter the club in tennis shoes.  As Rodgers approached the club's entrance, he

announced that he was an East St. Louis police officer and explained that it was a status that

afforded him certain license.  Even though the club might not want him to park where he did

or come into the club with tennis shoes on, he could park wherever he pleased and wear

whatever he wanted.  As Rodgers succinctly defined the license of his office, "I can do what

the fuck I want to do."

	Rodgers was about to take this proclamation of authority to disobey parking

restrictions and nightclub dress codes to a greater height.   

	 As Sylvester stood between him and the door, Rodgers clenched his fists and

advanced for a fight.  Sylvester sent him to the ground with a right to the jaw.  It is

unfortunate for Johnson, and for Rodgers, that it was not a knockout punch.   

	Rodgers rose to renew the encounter.  This time he approached with something to

better his position.  Service revolver in hand, he again made his way to the club's entrance. 

Sylvester wisely withdrew as fast as his feet would carry him.  Anticipating trouble, Johnson

had already run into the club.  He yelled at the bartenders to summon the police and warned

patrons to back away.  

	Rodgers entered the club, holding his revolver in a manner designed to take steady,

dead aim.  His arms were outstretched and both hands held the weapon.  He wielded it back

and forth, as he slowly walked toward Johnson.  Patrons hastily parted to create a path as

Rodgers trained his weapon upon Johnson and commanded Johnson to approach him. 

Johnson thrust his hands into the air and froze.  Rodgers grabbed him, shoved him back,

altered his aim, and fired a point-blank round into Johnson's left leg.  

	Although Rodgers was only trying to maim and not trying to kill, Johnson could easily

have perished from the wound.  The bullet shattered Johnson's left femur and severed the

femoral artery.  Johnson fell to the ground.  His stirred heart pumped rapidly, and with each

beat, a large gush of Johnson's lifeblood was lost.  

	After shooting Johnson, Rodgers spun around, gun in hand, and yelled for everyone

in the club to "get down."  Everyone complied.  Consequently, no one saw what happened

next.

	As Johnson lay on the ground, trying to hold back the streams of blood flowing from

his wound, he heard two more shots, followed by the exclamation, "Oh, shit!"  Johnson was

suddenly joined on the ground by Rodgers, who fell at Johnson's side with a gaping wound

to the face.  He had somehow managed to shoot himself.  It is uncertain whether he did so

intentionally or not.  

	Johnson and Rodgers were taken to the emergency room and treated.  When the

hospital performed blood tests on Rodgers, they revealed a blood-alcohol concentration of

.268, more than three times the amount at which the law presumes physical and mental

impairment.  

	The foregoing facts were presented through numerous witnesses and were really never

placed in dispute.  Although the defendant certified the affirmative defense of self-defense,

he never put forth a version of events upon which to base such a defense.  His brief explains why.  Appellate counsel writes:

		"As a result of Dr. Ullah's expert witness testimony and opinions regarding the

meaning of the Defendant's level of intoxication as it related to the Defendant's

perception and judgment, the Defendant asserted the defense of voluntary

intoxication, abandoned the former defense of self-defense[,] and chose not to testify

in his own defense."	

	Dr. Sara Ullah, the physician who treated Rodgers, testified for the State.  Her

testimony was offered to help prove the driving-under-the-influence charge.  However, the

prosecutors did not limit their inquiry of Dr. Ullah to her test results and her observations of

intoxication.  They asked her opinion about what Rodgers' high level of blood-alcohol

concentration meant in terms of his impairment.  Her answer is the linchpin of Rodgers'

argument that the evidence was legally insufficient to refute the defense of voluntary

intoxication.  He maintains that "the record is devoid of any evidence of the requisite intent"

to commit the crime of aggravated battery.  

	The critical passage of trial testimony reads as follows:

		"Q.  Okay.  And a person with more than three times the legal limit, would that

affect someone's ability to perceive things? 

		A.  Definitely.

		Q.  Would it affect an individual's judgment?

		A.  It will."  

	At the close of the State's case, defense counsel moved for an acquittal on the

aggravated battery charge, arguing that the expert testimony tendered by the State had raised

the intoxication defense and established in uncontradicted fashion that Rodgers lacked the

capacity to exercise judgment or perceive the significance of events.  After the trial judge

denied the motion, defense counsel argued the intoxication defense to the jury.  Counsel told the jury that the State's own expert witness had testified that, with a .268 blood-alcohol

concentration, "definitely, definitely one's judgment would be suspended."  After closing

arguments were completed, the jury was instructed on the voluntary intoxication defense.  

	No one ever questioned how the defense of voluntary intoxication could be raised to

excuse guilt for a general-intent crime like aggravated battery with a firearm.1  Given the fact that a wealth of witnesses saw Rodgers shoot Johnson in the leg while Johnson assumed a

posture of surrender, it is understandable that defense counsel would want to abandon a

defense that claimed the right to use deadly force in self-defense.  However, the defense

fashioned around Dr. Ullah's opinion about impairment was completely lacking in legal

efficacy.  Defense counsel was fortunate to receive a voluntary intoxication instruction, the

State having registered no objection to it.  

	It is well-settled that the defense of voluntary intoxication may be employed only

when the offense charged requires the proof of a specific intent as one of the elements of the

crime.  It is not a defense to general-intent crimes.  People v. Harkey, 69 Ill. App. 3d 94, 96, 386 N.E.2d 1151, 1153 (1979).  Aggravated battery is "a crime of general, not specific,

intent."  People v. Leppert, 105 Ill. App. 3d 514, 516, 434 N.E.2d 21, 23 (1982).  Thus, defense counsel argued, and, the jury weighed, a theory of innocence that does not exist

under the law.  The trial judge's refusal to enter a judgment of acquittal based upon a

nonexistent defense was decidedly correct.  

	Were we inclined to pay heed to counsel's continued reliance upon voluntary

intoxication as a means to innocence, we would strongly disagree with the contention that

the record is devoid of evidence to establish that Rodgers knew what he was doing.  All of

the evidence in this case supports an opposite conclusion.  

	We are sure that alcohol played a significant role in the commission of this crime.  It

no doubt rested enough brain cells to remove normal inhibitions and diminish any sense of

human decency, something we are certain Rodgers must possess.  We would like to believe

that the behavior exhibited would not have occurred if he was in a sober condition.  That

being said, everything that Rodgers did points to deliberate and purposeful behavior

indicative of the fact that he knew what he was doing.  Upon his arrival at the club, he

procured a choice parking spot.  He did not drive through the cones that marked the reserved

parking area.  He stopped his Suburban and left it running.  He removed enough of the cones

to provide a path for him to travel, after which he proceeded to park his vehicle.  When his

actions drew a confrontation with security guards, he defiantly exited his vehicle, but not

before he reached for his service revolver and carefully concealed it in the small of his back. 

He tried to assert his station in life to pull rank over the parking restrictions and dress code. 

When that did not work, he showed an aggressive bent to use force in order to get his way. 

After being sent to the pavement by a hard right hand, he immediately armed himself for a

renewed encounter.  He entered the club with a posture that telegraphed everyone that he was

ready for gunplay.  Because Sylvester ran from sight, he singled out Johnson, the other

security guard, as his prey for retaliation.  When he vented his drunken anger by shooting

Johnson, he did not shoot randomly.  With both hands on his pistol to steady his aim, he

targeted the left leg.  He clearly wanted to inflict pain rather than kill.  While his sodden

brain certainly lacked any conscience, it still harbored the capacity to act consciously. 

Rodgers knew what he was doing.  He knew that it was wrong.  Because of the alcohol in his system, he simply did not care about the consequences. 

	The expert testimony that defense counsel employed merely stated an obvious truth

that anyone on the jury could understand without expert opinion.  The consumption of

alcohol in large quantities will definitely affect a person's perception and judgment.  In all

probability, that is why this crime occurred.  It is why a lot of crimes occur.  However, it

never has excused and it never will excuse shooting someone in the leg.

	In a related argument, Rodgers asks us to grant a new trial based upon the prosecutor's

improper closing argument.  Since the prosecutor's remarks tried to dissuade the jury from

accepting the notion that Rodgers should be acquitted because of his voluntary intoxication,

Rodgers' argument on appeal must fail.  While the prosecutor's closing argument may have

diminished the chance of an acquittal because of intoxication, it could not possibly have

prejudiced Rodgers from achieving a just result.  An acquittal based upon voluntary

intoxication would have been a miscarriage of justice, the result being contrary to the law

of this state.  

	To whatever extent a defendant is entitled to fair argument over a question of guilt or

innocence that lacks legal efficacy, the prosecutor's argument was fair enough.  Defense

counsel argued that Dr. Ullah had concluded that Rodgers' judgment was "definitely

suspended."  The prosecutor rebutted with an argument that Dr. Ullah had concluded that

Rodgers' judgment was "possibly suspended."  Dr. Ullah did not reach either conclusion. 

She merely acknowledged that given the level of Rodgers' blood-alcohol concentration, his

perception and judgment would definitely be affected.  She also testified that many variables

would enter into a measure of mental impairment.  Of the two misstatements, the State's

version is closer to the message that her testimony actually conveyed.  Moreover, the jurors

were instructed about closing arguments, any misstatements of the evidence made during

them, and their responsibility to determine what the evidence presented.  No error occurred. 

	For the reasons stated, we affirm.  

	Affirmed.

	WELCH and GOLDENHERSH, JJ., concur.

	NO. 5-01-0324

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,	) Appeal from the

							) Circuit Court of

	Plaintiff-Appellee,				) St. Clair County.

							)

v.							) No. 99-CF-863

							)

BRETT RODGERS,				) Honorable

							) Robert P. LeChien,

	Defendant-Appellant.			) Judge, presiding.

___________________________________________________________________________

Opinion Filed:	November 19, 2002

___________________________________________________________________________

Justices:	Honorable Clyde L. Kuehn, J.

	Honorable Thomas M. Welch, J., and

	Honorable Richard P. Goldenhersh, J.,

	Concur

___________________________________________________________________________

Attorneys	Jack Strellis, Strellis, Faulbaum, Walsh & Field, Chartered, 115 East 

for	Mill Street, Waterloo, IL  62298; Stephen C. Buser, Law Office of 

Appellant	Stephen C. Buser, Ltd., 108 Edelweiss Drive, P.O. Box 797, Columbia,

	IL  62236

___________________________________________________________________________

Attorneys	Hon. Robert Haida, State's Attorney, St. Clair County, 10 Public 

for	Square, Belleville, IL  62220; Norbert J. Goetten, Director, Stephen

Appellee	E. Norris, Deputy Director, Trent M. Marshall, Staff Attorney, Office

	of the State's Attorneys Appellate Prosecutor, Route 15 East, P.O. Box

	2249, Mt. Vernon, IL  62864

___________________________________________________________________________