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People v. Robinson

OPINION FILED DECEMBER 30, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

LARRY ROBINSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Madison County; the Hon. MOSES HARRISON, Judge, presiding.

MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

On August 16, 1976, an information was filed in the Circuit Court of Madison County charging defendant, Larry Robinson, with aggravated battery "in that said defendant did intentionally and without legal justification strike Robert Albrecht in the face, * * * knowing Robert Albrecht to be a peace officer engaged in the execution of his official duties." (Ill. Rev. Stat. 1975, ch. 38, par. 12-4(b)(6).) After a bench trial, defendant was convicted of the foregoing charge, placed on probation for a period of two years and fined $500. This appeal followed.

Defendant's defense at trial was to prove that he did not strike Robert Albrecht, and that Albrecht had charged him with doing so in order to conceal the truth, which was, according to defendant, that after stopping defendant for a traffic violation, Albrecht lost his temper and struck him. Defendant now contends that the trial court erred in refusing to admit evidence that the F.B.I. was investigating charges that Albrecht frequently used excessive force, especially against black individuals, in the course of his duties as a police officer, evidence of specific instances in which Albrecht had allegedly employed excessive force, and evidence that on November 23, 1976, Albrecht had been suspended from the Alton police force for conduct unbecoming a police officer.

Defendant's trial was commenced on December 20, 1976. In the course of his opening argument, defense counsel stated that, "the defendant intends to show that he has given a formal statement; his witness, Michael Everege, who was on the scene, have both given formal statements to the Federal Bureau of Investigation concerning this matter, and that, to the best of our knowledge, charges are pending in that regard." When the State objected to this statement, defense counsel further explained that "this officer has used excessive force against both white people and black people, but he has been particularly, notoriously bad in using force against black individuals and that has * * * become a subject matter of investigation." The State's objection was then sustained, the trial proceeded and the following evidence was adduced therein.

Robert Albrecht testified that he was employed by the City of Alton as a police officer and that on June 25, 1976, he was on routine patrol from 11 p.m. to 7 a.m. Albrecht said that at approximately 12:30 a.m. he proceeded to the 400 block of East Tenth Street in Alton after receiving a radio communication requesting a backup unit at that address. Upon reaching his destination, Albrecht saw that Officer Ronald Smith had stopped a black, two-door, 1973 Buick automobile and was standing near the Buick on the driver's side. The defendant and Michael Everege were also standing near the Buick, conversing with Officer Smith. According to Albrecht, Smith said that he was going to give defendant a traffic citation and then asked defendant for permission to search his car. Defendant replied "something to the effect to go ahead and look * * * and if you find anything, I'll kiss your * * *." Officer Smith then walked around defendant's car and began searching its interior through the door on the passenger's side. Albrecht walked to the driver's side door, squatted down, and also began searching the vehicle's interior.

Officer Albrecht further testified that as he and Officer Smith searched the car, defendant asked if they had a search warrant. When Smith replied that defendant had given them permission to search, defendant said that he had changed his mind. He then grabbed Albrecht by the shoulder and pulled him into an upright position, wedging him between the door and the frame of the car. Albrecht responded by pushing defendant toward the rear of the car. At this point, defendant began swinging at Albrecht with his fists, striking him several times in the head and face. Albrecht quickly ended the fracas by striking defendant on the head with his flashlight, knocking him to the ground. After subduing defendant, Albrecht searched him and found four "live rounds of thirty-eight caliber hollow points" in one of defendant's pants pockets.

Upon cross-examination, Officer Albrecht stated that he was 6 feet, 4 1/2 inches tall and weighed 218 pounds. He estimated that defendant was 5 foot 10 and weighed approximately 150 to 160 pounds. In explanation of his earlier testimony, Albrecht said that when defendant had grabbed his shoulder, Officer Smith had moved toward the driver's side of the car. Albrecht also stated that he and Smith struck defendant on the head simultaneously after defendant began swinging his fists. Defense counsel then asked Albrecht to explain his present status with the police force, but the State objected. When the State's objection was sustained, defense counsel elicited the following testimony as an offer of proof. Albrecht stated that on November 23, 1976, he had been suspended from the police force for conduct unbecoming a police officer; he was to be reinstated on December 23, 1976. Upon further questioning, Albrecht stated that he had been suspended for striking a motorist without justification. He then explained the incident which led to his suspension as follows. Albrecht, who was off duty, out of uniform and driving his personal automobile, began making a right turn, but was prevented from doing so when a motorist tried to pass him from the right side. Albrecht made his turn farther down the street, but the motorist followed and began "tailgating" him. Albrecht thereupon stopped his car in front of the motorist, walked back to the other vehicle, reached through its window and slapped the motorist twice in the face. At the conclusion of the foregoing testimony, defendant's offer of proof was rejected by the trial court.

Officer Ronald Smith testified that on the night in question he saw defendant miss a stop sign and continue driving 50 miles per hour in a 30-mile-per-hour zone. Because Smith was forced to chase defendant for about eight blocks before defendant pulled over, he requested a back-up unit over the police radio. Smith's testimony concerning the events which followed corroborated Officer Albrecht's version of the incident.

Officer John Clayton testified that he also answered Ronald Smith's request for a backup unit. Although he was present during the "scuffle" between defendant and Officer Albrecht, he did not see any punches thrown because he was watching Michael Everage to make sure that "he would not jump on Albrecht's back." Clayton did, however, see defendant grab Officer Albrecht by the shoulder and pull him up. He also saw Albrecht push defendant.

The first witness for the defense was Danny Cloninger. He said that at approximately 7:30 p.m. on November 19, 1976, he was driving to his apartment when a Datsun automobile veered sharply in front of him, preventing him from making a right turn. Cloninger turned right at the next intersection, still behind the Datsun. The person driving the Datsun slowed his vehicle several times, but refused to allow Cloninger to pass him. Eventually, the Datsun stopped, and Cloninger was forced to stop behind it. A man, identified as Robert Albrecht, got out of the Datsun, pulled back his coat, and pointed to a pistol strapped to his side. According to Cloninger, Albrecht said "don't you ever try to pass me on the wrong side of the road." He then reached into the car, grabbed Cloninger by the neck, and struck him twice in the left eye. Cloninger later went to the police station and reported the incident. At the station, a policeman asked Cloninger if he would change his story if he knew that the man driving the Datsun was a policeman, but Cloninger refused to do so. Cloninger concluded his testimony by saying that Albrecht had apologized to him outside the police station. After Cloninger was subjected to cross and redirect examination, the State moved to strike his testimony as irrelevant. The trial court ruled, however, that the State's motion was not timely.

Michael Everege testified that on June 25 he and defendant had driven to a gas station and were returning to defendant's home when they were stopped by a police car. According to Everage, Officer Albrecht was the first policeman to approach defendant's car and it was Albrecht who asked them to get out. Everege also said that he "guessed" that Albrecht found some empty bullet cartridges because Albrecht said something about a gun. Defendant then said that if Albrecht found a gun in the car he would "kiss his * * *." Albrecht replied that he was going to search defendant's car. As Albrecht conducted his search, defendant tapped him on the shoulder and told him to stop. Albrecht's response was to stand up, turn around, and strike defendant on the head with a flashlight. When Albrecht struck defendant a second time, defendant's glasses fell off. Everege said that he did not see defendant strike or swing at Albrecht. Everege further testified that two other police officers arrived at the scene as Albrecht began searching defendant's car.

Sergeant Donald Lovell, testifying for the defense, said that he arrived on the scene after defendant had been taken into custody. He also testified that he had heard a radio communication in which Ronald Smith indicated that he was going to stop defendant's car and requested a backup unit.

At the conclusion of Sergeant Lovell's testimony, defense counsel informed the trial court that he had intended to call eight witnesses, all of whom were identified by name and address, to testify concerning Officer Albrecht's "unwarranted use of force, acting beyond the scope of a police officer." However, "in view of the court's rejection of the defendant's offer of proof this morning on the subject matter," defense counsel did not call the witnesses and merely stated that they "would all testify as to situations where they have been mistreated physically by officer Albrecht in an unprovoked manner." Defense counsel then described in detail what one of the witnesses would have said if allowed to testify. Defendant's offer of proof as to that single witness was denied.

The defendant, testifying in his own behalf, said that he knew Robert Albrecht because they had attended junior high school together. His version of the incident in question was virtually identical to Michael Everege's. He denied striking or swinging at Officer Albrecht. During redirect examination, defendant was asked if he had testified concerning his case on any previous occasions. Defendant replied that, "I talked to an F.B.I. agent. I never testified. He came to my house and I talked to him." The State objected and asked that defendant's answer be stricken as irrelevant to any issue presented in the case. This objection was sustained despite defense counsel's argument that proof that the F.B.I. was investigating Officer Albrecht's conduct was relevant to demonstrate that Albrecht had a motive to testify falsely. In explaining the ...


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