APPEAL from the Circuit Court of McDonough County; the Hon.
CHARLES H. WILHELM, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
This is an appeal by defendant Randy Willey from his convictions for burglary, the unlawful use of weapons, criminal damage to property, aggravated assault, and battery following a jury trial. As a result of being found guilty on these charges, defendant was sentenced to a 3-year term of imprisonment for burglary and concurrent terms of 364 days for the other offenses.
Tried together with defendant was his brother, co-defendant Steven Willey, whose appeal has been addressed in a separate opinion. (People v. Willey (1980), 85 Ill. App.3d 734.) The facts pertinent to Steven's appeal are also relevant to this appeal.
When defendants were first charged by information, a public defender was appointed to represent them, but subsequently defendants retained private counsel, with one attorney to represent both defendants, and the public defender withdrew. As a result, the public defender was granted an order directing the circuit clerk to make payable to the public defender's reimbursement fund a check in the amount of $47.50, to be noted against Randy's bond, and $70, to be noted against Steven's bond.
Each defendant argues that the statute allowing for such reimbursement (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 110-7(g)) is unconstitutional for various reasons. Even though this statute has now been declared unconstitutional (People v. Cook (1980), 81 Ill.2d 176, 407 N.E.2d 56), reimbursement is required from these defendants on equitable grounds. In this case, the public defender was appointed for Steven on December 27, 1978, and for Randy on January 2, 1979, with these appointments based on an affidavit of indigency by each defendant. On January 4, 1979, the defendants appeared in court with privately retained counsel.
• 1 Based on the equitable doctrine of unjust enrichment, a quasicontract or a contract implied in law must here be found. By this contract, defendants are considered to have impliedly promised to compensate the county for legal services rendered by the public defenders when it appears from the facts that defendants were not indigent and could afford to retain private counsel. (See County of Champaign v. Hanks (1976), 41 Ill. App.3d 679, 353 N.E.2d 405.) Furthermore, such sum as may be required to be repaid pursuant to this implied contract may be satisfied from defendants' bail bond deposit. See People v. Nicholls (1978), 71 Ill.2d 166, 374 N.E.2d 194.
For the consideration of the remaining issues, it is necessary to summarize the evidence adduced at trial. Four occurrence witnesses testified for the State: Charles Simpson, the owner of Chick's Lounge; Maxine Games, the bartender; Donald Hainline; and Michael Johnson, a peace officer for the village of Blandinsville. Their testimony tended to establish that on the day in question at approximately 3 p.m., defendants entered Chick's Lounge. While Randy was having a friendly conversation with Simpson, Steven approached Maxine Games, the bartender, and was refused a drink. Steven then told Randy that they could not get a drink, and according to Simpson, Randy stated that if they could not get a drink they might as well tear the place up. Randy then proceeded to toss some bar stools, four or five of which became bent. No one observed Steven throw any chairs.
Simpson, who had been sitting out front, went behind the bar. Once there, he told Randy that Steven was barred because of something he had done a few weeks before, but only Steven was barred. According to Simpson, both Steven and Randy started calling everyone names and made physical threats. Randy then ran down the bar towards Hainline, who was talking to Steven and struck Hainline twice with his fist.
Hainline also testified that Randy struck him twice with his fists in the head area. As a result Hainline's glasses were bent. Hainline also received a small cut on the corner of his eye and a black eye. Hainline indicated that he never touched Randy, that after Randy threw some chairs, Hainline attempted to calm him down because they were friends, and that he then told Games to "get on the phone" because he could not talk to Randy. It was after this statement that Randy struck him. Games indicated that she saw Randy shove Hainline around, but did not see Randy strike any blows.
According to Hainline and Simpson, after Randy struck Hainline, Officer Michael Johnson entered the lounge. Johnson was not in uniform and did not show a badge or other identification. He had a gun in his belt but had no holster. According to Simpson, Johnson identified himself as a peace officer, told Steven he was under arrest, Steven replied that Johnson was not going to arrest him, and then they started wrestling. Games also testified that Steven stated to Johnson that Johnson was not going to arrest him.
Johnson testified that he told Steven he was under arrest for disorderly conduct and, "You know that I'm a police officer." Steven then began to move away, and Johnson told him that if he resisted, he would be charged with resisting arrest. Steven then turned to Randy and stated, "Randy, I'm going with him." At that point Randy started throwing bar stools. After Johnson approached Randy and informed him that he too was under arrest, Steven told Randy, "Let's take him." Steven and Johnson then began wrestling. At one point, Steven yelled, "Kill him Randy, kill him." Randy replied that he was going to get his gun from his car and kill everyone and then left the tavern. Feeling he had to act quickly, Johnson struck Steven sharply with his flashlight three times in the back. This immobilized Steven, and Johnson put him in a deadlock between his legs.
Johnson saw Randy return through the door holding a shotgun at hip level. Johnson yelled three times to Randy to drop the gun, but Randy did not make any effort to drop the gun. Randy turned and pointed the gun at Johnson. At least three other persons were in the line of fire. Johnson then fired three shots in rapid succession from his .38 automatic. The shotgun was never fired.
Simpson, Hainline and Games tended to corroborate Johnson's accounts of the struggle and Randy's exit and return, although Simpson did not see Randy point the shotgun.
After Randy was shot, Johnson handcuffed Steven and administered first aid to Randy. Johnson indicated that the shotgun fell beside Randy when he was shot. He identified the shotgun as a .12-gauge riot Smith and Wesson slide-action pump gun which was issued to him by the city ...