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People v. Duda





Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Sangamon County, the Hon. Charles J. Ryan, Judge, presiding.


In a bench trial in the circuit court of Sangamon County, defendants, Donald W. Duda, Daniel James Norris, Timothy Kiser, Paul Evan Haynes and Peter K. Callahan, were convicted of the offense of criminal trespass to State-supported land (Ill. Rev. Stat. 1977, ch. 38, par. 21-5) and sentenced to the Sangamon County jail for two days. The appellate court reversed (82 Ill. App.3d 525), and we allowed the People's petition for leave to appeal.

The facts are adequately stated in the appellate court opinion and will be reviewed here only to the extent necessary to discuss the issues. The complaints by which defendants were charged alleged that on September 3, 1978, each defendant "committed the offense of criminal trespass to state supported land in violation of Section 21-5 of chapter 38 of the Illinois Revised Statutes, in that the said defendant entered upon land, the grounds of the State House of the State of Illinois, located in Springfield, Sangamon County, Illinois, and remained upon the land after receiving notice from [a named] representative of the Secretary of State of the State of Illinois, and thereby interfered with the Illinois Secretary of State's lawful use of such land, to-wit: His legal duty to take charge of and preserve from waste and keep in repair such land, which land is supported in part with State of Illinois funds."

At trial, testimony showed that defendant Duda had sought permission to hold a demonstration on the Capitol grounds on September 3, 1978, advocating repeal of marijuana laws. Notwithstanding a denial of permission, beginning at about 11:30 a.m., a crowd of 250 to 300 demonstrators gathered on the Capitol grounds. A number of witnesses testified for the People as to the conduct of the demonstrators and the events leading up to the arrest of defendants. At about 11:30 a.m. two males were observed striking the Capitol's replica of the Liberty Bell with wood and metal objects. They were told to desist and did so. With the exception of this incident, it appears that the demonstration remained orderly until sometime after 1 p.m. Thereafter, consumption of alcoholic beverages and some drunkenness became evident. One witness observed 16 demonstrators sitting in a tree. This was confirmed by other witnesses, and there was testimony concerning broken tree branches resulting from the incident. In general, the demonstration became "noisy," some signs were torn down, and the Capitol grounds became littered with beverage containers, paper sacks, and other debris.

At 2 p.m. officials from the Secretary of State's office conferred and determined that the demonstration should end at 3 p.m. Defendant Duda and other demonstrators were advised of this decision and Duda, using a megaphone, informed the crowd. Officials of the Secretary of State's office also announced the termination of the demonstration and informed the crowd that refusal to leave could result in arrest. At approximately 3:30 p.m. a crowd-control team of 150 officers was called onto the grounds. The crowd was twice advised to leave the area. Officers then moved in to disperse the demonstration. At this time, after refusing to depart, defendants Duda, Norris, Callahan, and Kiser were arrested. At approximately 4:45 p.m. some demonstrators returned to the Capitol grounds. They were asked to leave several times, then a second sweep of the grounds was conducted, at which time defendant Haynes, after refusing to depart, was arrested. Lance Charlson, a lieutenant with the Division of Investigation, Secretary of State's office, testified that defendant Duda, in addition to passing on to the crowd the official directive to disperse, asked the crowd "Should we leave or should we stay? Should we sit down for our rights and stay here," whereupon the crowd began to chant. Lieutenant Charlson also testified that defendants Norris and Callahan, just prior to being arrested, locked arms with nearby demonstrators. With regard to defendant Norris, Lieutenant Charlson testified that he "encouraged other persons around him to hold onto him, intertwine arms and sit down on the ground." He testified that defendant Callahan "encouraged other participants in the area to detract from our efforts to remove him from the crowd * * *."

Section 21-5 of the Criminal Code of 1961 provides, in pertinent part:

"(a) Whoever enters upon land supported in whole or in part with State funds, or Federal funds administered or granted through State agencies or any building on such land, after receiving, immediately prior to such entry, notice from the State or its representative that such entry is forbidden, or remains upon such land or in such building after receiving notice from the State or its representative to depart, and who thereby interferes with another person's lawful use or enjoyment of such building or land, commits a Class A misdemeanor." Ill. Rev. Stat. 1977, ch. 38, par. 21-5(a).

Defendants concede that the evidence proves the first two elements of the offense of criminal trespass to State supported land: that they received proper notice to depart and that they remained after such notice. The question presented is whether the People have proved beyond a reasonable doubt that each defendant "thereby interfer[ed] with another person's lawful use or enjoyment of such building or land."

The People contend that defendants' "refusal to depart resulted in a continuance of temporary damage to the grounds, thereby interfering with the statutory duty of the Secretary of State to preserve the area from physical damage." Citing the duties imposed upon the Secretary of State by section 5 of the Secretary of State act (Ill. Rev. Stat. 1977, ch. 124, par. 5(7)), the People argue that "Defendant's conduct in refusing to depart the grounds and in encouraging others to remain in their places, while the crowd continued to scar the Liberty Bell replica, and threaten further damage by virtue of their increased alcohol consumption, interfered with the Secretary's use and enjoyment of the grounds."

In rejecting this contention the appellate court said:

"We cannot agree. Simply stated, we do not feel that this is the type of interference that the legislature had in mind when it drafted the statute. The words `lawful use or enjoyment,' given their plain meaning, are clearly not broad enough to encompass the duty to maintain." 82 Ill. App.3d 525, 529.

We need not and do not decide whether the appellate court correctly construed the statute for the reason that, even if the interpretation for which the People argue is correct, the evidence is insufficient to sustain defendants' convictions.

Citing Washington Mobilization Committee v. Cullinane (D.C. Cir. 1977), 566 F.2d 107, the People contend that defendants' refusal to leave the State House grounds after receiving notice to leave is sufficient to sustain the convictions under section 21-5. Cullinane involved a challenge to a section of the District of Columbia Code providing for punishment for refusal to depart an area when ordered to do so by police. The court of appeals upheld the validity of ...

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