APPEAL from the Circuit Court of Moultrie County; the Hon.
W.B. KRANZ, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
After trial by jury in the circuit court of Moultrie County, defendant, Raymond Scott Brown, was convicted on August 10, 1979, of committing on June 7, 1979, the offenses of resisting a peace officer and disobeying a stop sign in violation of section 31-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 31-1), and section 11-904 of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-904), respectively. Defendant was sentenced to 1 year's probation, fined $250, and sentenced to 10 days in jail. On appeal he asserts (1) the evidence was insufficient to prove beyond a reasonable doubt his guilt of resisting a peace officer, and (2) the court committed reversible error in admitting testimony as to his abusive behavior in the police station after his arrest.
At approximately 1 a.m. on June 7, 1979, defendant drove up to the Sullivan police station and talked to Officer Robert Minnis about purchasing some gasoline. The Sullivan police department apparently had a practice of selling for cash small quantities of gasoline to people who had run short during times when service stations would have been closed. Minnis told defendant of the cash requirement and because defendant was out of cash, he drove to a nearby tavern, borrowed some money and returned to the station. In the process of his return, he ran a stop sign. Moultrie County deputy sheriff Harold Morgan was, at that time, on duty standing in front of the police station and saw defendant run the stop sign. Upon defendant's return to the station, he was approached by Morgan, who asked to see his driver's license but did not then tell defendant why he wished to do so. Defendant refused and further words were spoken, the exact nature of which was in dispute, but one statement by defendant seemed to ask Morgan if he was also going to pull his gun on him or shoot him. Morgan testified that defendant then said Morgan was going to have to pull his gun in order to see the license.
The testimony concerning the subsequent conduct of Morgan and defendant was partially disputed. Morgan testified that after the conversation concerning the gun, defendant put the car in reverse gear and started to back away, whereupon Morgan told defendant that he, defendant, was under arrest and that defendant then stopped the car and made a lurid comment that Morgan did not need to see his license. Defendant testified that after the conversation concerning the gun, he was going to alight from the car but Morgan shut the car door so he backed up for about two feet and upon being told he was under arrest, stopped the car, refused a further request of Morgan to see his license, started to roll up the window, and put the car in parking gear.
Morgan testified that upon defendant's stopping, he then opened defendant's door and again told defendant he was under arrest. Morgan said that with the motor still running, defendant then turned in the driver's seat, grabbed the steering wheel and reached for the gearshift whereupon he grabbed defendant by the hair, pulled him out of the car and handcuffed him. Morgan explained that he grabbed defendant by the hair because he anticipated that he was going to move the car again. Defendant testified that he had put his hand on the gearshift when Morgan opened the door and pulled him out but spoke of the shift having been placed in the "park" position before he returned his hand to the gearshift. The testimony of Minnis and James Allen, a bystander who was a friend of Morgan, generally substantiated Morgan's testimony. Allen described defendant's conduct as indicating an intention to drive away.
Section 31-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 31-1) provides:
"A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer of any authorized act within his official capacity commits a Class A misdemeanor."
The information charging defendant with resisting alleges that defendant, knowing Harold Morgan to be a police officer engaged in official duties, refused to leave his vehicle and attempted to drive away after Morgan told him that he was under arrest.
In People v. Raby (1968), 40 Ill.2d 392, 240 N.E.2d 595, cert. denied (1969), 393 U.S. 1083, 21 L.Ed.2d 776, 89 S.Ct. 867, the Illinois Supreme Court adopted the standard for obstructing or resisting a peace officer as set out in Landry v. Daley (N.D. Ill. 1968), 280 F. Supp. 938, appeal dismissed (1968), 393 U.S. 220, 21 L.Ed.2d 392, 89 S.Ct. 455, rev'd on other grounds sub nom. Boyle v. Landry (1971), 401 U.S. 77, 27 L.Ed.2d 696, 91 S.Ct. 758. The Landry court, in upholding the constitutionality of section 31-1, construed it as follows:
"The gist of the offense is `resisting' or `obstructing' the valid acts of a peace officer. These terms convey commonly recognized meanings. `Resisting' or `resistance' means `withstanding the force or effect of' or the `exertion of oneself to counteract or defeat'. `Obstruct' means `to be or come in the way of.' These terms are alike in that they imply some physical act or exertion. Given a reasonable and natural construction, these terms do not proscribe mere argument with a policeman about the validity of an arrest or other police action, but proscribe only some physical act which imposes an obstacle which may impede, hinder, interrupt, prevent, or delay the performance of the officer's duties, such as going limp, forcefully resisting arrest or physically aiding a third party to avoid arrest." (280 F. Supp. 938, 959.)
Both Landry and Raby involved arrests during demonstrations. The defendant in Raby was held to have resisted arrest by "going limp," a physical act. 40 Ill.2d 392, 403, 240 N.E.2d 595.
It also has been held that flight is a physical act within the purview of section 31-1 (People v. Holdman (1978), 73 Ill.2d 213, 383 N.E.2d 155), as is struggling with or pulling away from a police officer. People v. Wilson (1973), 14 Ill. App.3d 1074, 303 N.E.2d 225 (abstract); People v. Fort (1968), 91 Ill. App.2d 212, 234 N.E.2d 384; see City of Joliet v. Schmidt (1976), 35 Ill. App.3d 978, 343 N.E.2d 40 (violation of Joliet city code, same wording as section 31-1).
While struggling and fleeing can easily be seen as physical acts that constitute resistance, some fact situations are more problematic.
For example, in People v. Weathington (1979), 76 Ill. App.3d 173, 394 N.E.2d 1059, this court concluded that defendant's refusal to answer booking questions did not constitute resisting. Mere silence was not a physical act by the Raby standard. In People v. Flannigan (1971), 131 Ill. App.2d 1059, 267 N.E.2d 739, relied upon by defendant and distinguished by the State, defendant was stopped and arrested for reckless driving. The evidence showed that defendant did not step immediately from the car. Rather he argued with the officer, using abusive language. He also refused to give the car keys to the officer, and he jerked his arm away from the officer when the officer tried to take him to the patrol car. The appellate court noted, however, that defendant neither attempted to escape nor refused to go with the ...