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People v. Smith





APPEAL from the Circuit Court of Menard County; the Hon. ROBERT L. WELCH, Judge, presiding.


Defendant appeals his convictions of aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12-4(b)(1)) upon each of two victims, Tobias and Ferguson, and a sentence of two years' probation and a fine of $750. The record and report of proceedings are voluminous, but upon the issues raised it appears that there was little dispute concerning the matters in evidence and we find no need to recite the testimony in detail. The defendant, a resident of Springfield, was employed as a part-time police officer in the city of Athens. He had entered upon such duties about six weeks prior to the date of the offense charged. The victims, Tobias and Ferguson, resided in the community.

Tobias had a prior conviction for burglary and Ferguson had been convicted of felony theft. A number of witnesses called by defendant testified that the reputation of each as being a peaceful and law-abiding citizen was bad.

The defendant does not deny that he fired his official shotgun twice at the victims, but contends that he was acting with a justified use of force in self-defense.

In the light of such contentions defendant tendered, and the court gave, Illinois Pattern Jury Instructions (hereinafter IPI), Criminal, No. 24.12, incorporating the provisions of section 7-5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 7-5), providing in paraphrase that a peace officer is justified in the use of any force which he reasonably believes to be necessary to effect the arrest or to defend himself from bodily harm but that he is justified in using force likely to cause death or great bodily harm only when he reasonably believes that such force is necessary to prevent death or great bodily harm or when he reasonably believes that such force is necessary to prevent resistance or escape and the person to be arrested has committed or attempted a forcible felony, or the person to be arrested is attempting to escape by use of a deadly weapon.

As a corollary, the prosecution tendered, and the court gave IPI Criminal No. 24.15, which incorporates the provisions of section 7-8 of the Code (Ill. Rev. Stat. 1977, ch. 38, par. 7-8) providing in paraphrase that force which is likely to cause death or great bodily harm includes the discharge of a firearm in the direction of a person to be arrested even though there is no intent to kill or inflict great bodily harm.

At about 8:15 p.m. on August 10, 1978, defendant was on duty as a police officer and using a city squad car. He observed Tobias operating a motorcycle with Ferguson as a passenger. While the police had received the report of a motorcycle stolen in Springfield and information that Tobias had been seen on such a vehicle, defendant testified that he attempted to stop them because the riders had no eye-protection and the cycle had no taillight. He first attempted to stop them by honking his horn, but as the riders appeared to speed away, he turned on the flashing lights of the squad car and pursued.

Weathington, a deputy sheriff, and Dodson, a State trooper, observed this opening action and followed, but apparently used differing routes because of highway conditions. The only persons observing the critical events were the defendant, Tobias and Ferguson. The cycle and defendant's squad car proceeded north at speed to Evers Road to its intersection with Johnson Road. The latter highway ran east and west and the intersection with Evers Road was a "T". Evers Road formed the vertical portion of the "T". The cycle crossed the intersection and proceeded north into a bean field for a distance of some 30 feet, where it and the riders fell. Defendant stopped his car in the intersection, and when he observed Tobias and Ferguson get up and lift the cycle he identified himself as a police officer and fired a warning shot. As the men attempted to mount the cycle defendant fired two or more shots from his shotgun.

Tobias and Ferguson testified that they were attempting to mount the cycle and to get away, while defendant testified that he fired the two shots toward them since the men mounted the cycle and drove towards him. The defendant's theory of self-defense was that he had reason to believe that the men were charging towards him with the motorcycle and that he needed to protect himself.

Other witnesses testified to the circumstances that the cycle and Ferguson were found lying at the edge of the bean field about two-tenths of a mile west of the "T" intersection and some distance north of Johnson Road. Tobias was not found in the vicinity but was later discovered in a hospital where he was being treated for certain wounds.

Weathington testified that he found Ferguson and the motorcycle, and when there was some discussion whether Ferguson had been shot, defendant was present and said that he had fired the shots.

Circumstantial evidence relevant to the issue of self-defense discloses that the wounds suffered by Tobias and Ferguson were received upon the back of their respective limbs and bodies. The record also contains testimony showing a single track of the cycle into the bean field from the "T" intersection, an area where the beans were flattened from the fall of the cycle and the men, and a single meandering track of the cycle from the flattened area of the bean field to the northwest where Ferguson and the cycle were found. No track of the cycle through the bean field from the place of the fall toward the defendant at the intersection could be found.

Defendant urges numerous errors arising when the trial court sustained objections to his cross-examination of Tobias and Ferguson, each of whom testified for the prosecution.

• 1 The trial court sustained objections to defendant's cross-examination of Ferguson concerning pending charges of aggravated battery arising from an altercation with a State police trooper. It is argued that such examination was proper and admissible upon the theory that it was relevant to showing a bias of Ferguson as a witness arising in a hope or promise of leniency, that defendant was raising the issue of self-defense and that the cross-examination was relevant to show defendant's state of mind, i.e., that Ferguson was a violent character and who might drive the cycle through the bean field to strike down or run over the plaintiff.

We agree that under People v. Mason (1963), 28 Ill.2d 396, 192 N.E.2d 835, and People v. Baptiste (1976), 37 Ill. App.3d 808, 347 N.E.2d 92, and kindred authority, that it was error to exclude such cross-examination of Ferguson. Upon the point of whether the trial court's ruling was reversible error, we find Mason and Baptiste to be distinguishable. In each, the issue of guilt depended solely upon the determination of the more credible witnesses by the trier of fact.

Defendant's theory of a justifiable use of force as a police officer is balanced entirely upon his statement that he believed that Ferguson, rather than Tobias, might be operating the cycle through the bean field toward him to run defendant down as the latter stood on Johnson Road, and that he fired the shotgun to halt that threat to his safety. It is logically and physically impossible to sustain defendant's hypothesis in the light of the uncontradicted evidence that the only wounds sustained by Tobias and Ferguson struck on the back surfaces of their bodies, and by the further evidence that the only track of the cycle was into and across the field away from defendant. Witnesses who examined the field testified that they observed no evidence of a track made by the cycle being driven toward the intersection of Johnson Road where defendant stood when he fired the shotgun. Thus, testimony of Ferguson and Tobias contradicting the claim of self-defense was not the only or sole evidence presented upon the issue, as was the fact in Mason. We find the error to be harmless beyond a reasonable doubt rather than an error requiring reversal. People v. Whitlow (1977), 48 Ill. App.3d 425, 363 N.E.2d 102; People v. Robinson (1977), 56 Ill. App.3d 832, 371 N.E.2d 1170.

• 2 Tobias and Ferguson each admitted his conviction of a felony during the testimony before the jury. Defendant argues that the trial court erred in refusing to permit introduction of the certified record of Ferguson's conviction. No authority supports the claim of error. Where a witness testifies to the fact of his conviction it is unnecessary to introduce the ...

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