APPEAL from the Circuit Court of Iroquois County; the Hon.
ROBERT L. DANNEHL, Judge, presiding.
JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
The defendant, Gregory Witanowski, appeals from his convictions for aggravated battery and unlawful possession of cannabis. He also appeals from the judgment of forfeiture on his automobile, based upon his conviction of the unlawful possession of cannabis (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 704(d)). Guilty verdicts on three counts of aggravated battery were returned by the jury, and the court entered a guilty verdict on the unlawful possession charge, the defendant having waived the jury on that charge. The defendant was then sentenced to two years' probation, fined $1,825, and ordered to make restitution to the police officers for their medical expenses, being $259.45. The defendant's automobile, found to have been knowingly used in the commission of the unlawful possession offense, was ordered forfeited. Three issues are raised on this appeal: (1) whether the court committed reversible error in giving Illinois Pattern Instructions, Criminal, No. 24.20 (1968) (hereinafter cited as IPI) over defendant's objection; (2) whether the trial court erred in denying the motion to suppress the cannabis; and (3) whether the State sufficiently proved chain of custody so as to allow the cannabis into evidence. We affirm.
In pertinent part, the record reveals that on December 30, 1979, the defendant was traveling on Interstate 57 in Iroquois County. State Trooper Buhrmester began following the defendant's auto, for the purpose of determining its speed. The trooper, who was in an unmarked auto, gauged the defendant's speed at 65 miles per hour. Both autos then passed another unmarked police vehicle. In that second police auto was Trooper Muensterman, who with his radar gun clocked the defendant's speed at 65 miles per hour. The police vehicles in pursuit then activated their red lights and attempted to stop the defendant's auto, for the purpose of arresting him for speeding. He did not respond or slow down. Buhrmester then pulled his auto alongside the defendant's and motioned for the defendant to stop. He did not. The trooper then again positioned his auto alongside the defendant's and pointed his service revolver at the defendant. The trooper was in uniform. The defendant thereupon accelerated to a speed of approximately 95 miles per hour and a chase ensued. Two police vehicles attempted to stop the defendant in his auto but were unsuccessful. On two occasions they managed to stop the vehicle, whereupon they exited their autos and began to approach the defendant's auto. Each time the defendant then maneuvered his auto around their stopped vehicles and pulled back onto the interstate at a high rate of speed. The chase continued after those unsuccessful attempts to stop the defendant and arrest him. It lasted for a number of miles along the interstate before the State troopers, through the use of a rolling roadblock, were able to finally stop the defendant's auto. The auto was stopped in a driving lane of southbound I-57. The police approached, in uniform, but the defendant refused to exit his locked auto. He unlocked the door only after the troopers approached with a crowbar for the purpose of prying open the door. The officers were attempting to remove the defendant from his auto when a struggle ensued. During the struggle both officers received bite wounds from the defendant, which later required emergency treatment. The defendant managed to break loose from the officers, and he ran across the median to approach a stopped auto. With the arrival of another squad car, the defendant permitted himself to be handcuffed. He was then placed in a police vehicle. Other officers had by that time arrived on the scene, and considerable bystanders had stopped to observe.
During the struggle, Officer Buhrmester was obliged to get into the auto of defendant to take it out of gear, for the auto was rolling backwards and was still in gear. The engine continued to run, and the auto remained in the lane of the interstate highway.
Buhrmester later returned to defendant's auto, after the defendant had been subdued, for the purpose of looking for any weapons or dangerous items and for the purpose of discovering evidence which might explain the defendant's bizarre and erratic behavior. He saw in plain view on the back floor a brown paper bag, open at the top, containing a clear plastic bag which contained a green, leafy material. Another officer, Trooper Luman, who had arrived at the scene, also observed from the outside of the vehicle a hand-rolled cigarette, partly burned, and a leafy material with seeds, in plain view within the auto. Buhrmester pointed out the brown bag to Luman who, after conferring with his supervisor, confiscated the hand-rolled cigarette and the brown bag from the defendant's auto. It was later established that the brown bag contained cannabis. The seizure of the brown bag and the partly burned, hand-rolled cigarette was without a warrant and without the defendant's consent. On the basis of the evidence, the court denied the defense motion to suppress the cannabis. In so finding, the court stressed that the defendant's behavior prior to arrest was bizarre and erratic and that the officers were justified in entering the vehicle for the purpose of removing it from the driving lane of a busy interstate highway. The court further relied upon various exceptions to the warrant requirement, including the plain-view doctrine, to sustain its denial of the suppression motion.
At the trial, evidence of a similar nature was admitted concerning the circumstances of the arrest. Numerous other officers also testified concerning the chain of custody of the cannabis, after its seizure. We need not detail that testimony at this time.
We also note that the defendant testified at trial. His version and explanation of the circumstances of the events on that day was that he did not know, initially, that his pursuers were police officers. He stated he was fearful when one of the officers brandished a gun and that he accelerated to get away from them. Though admitting to having seen their uniforms, the defendant testified he refused the officer's demands to exit his car until they provided proper identification. He also testified that the officers pulled him from his auto and began kicking him. He testified that he bit the officers in defense of his person, in response to the beating they administered. We would note that both the court, in its suppression denial order and opinion, and the jury, by its verdicts, adopted the officers' version of what transpired on the highway that day. Those findings are supported amply by the evidence in the record and we take them as true for the purposes of this appeal.
Following presentation of the evidence, a jury instructions conference was held. The defense objected to People's Instruction No. 10, which read:
"A person is not authorized to use force to resist an arrest which he knows is being made by a peace officer, even if he believes that the arrest is unlawful and the arrest in fact is unlawful."
This is pattern instruction No. 24.20, from IPI Criminal Instructions. It was given over defense objection. A defense attempt to modify 24.20 so as to inform the jury that a person is justified in using force to the extent necessary to defend himself against excessive force by a police officer was rejected by the trial court. However, the aggravated battery instruction (IPI Criminal No. 11.09) was modified at defense request to include an element that the jury must find that the defendant did not reasonably believe the force he used was necessary to protect himself from unreasonable force in order to convict. The instruction, as modified, was given.
The jury returned guilty verdicts on three counts of aggravated battery and the court, hearing the unlawful-possession-of-cannabis charge without a jury, returned a guilty verdict on that charge. Thereafter, the auto used in the possession-of-cannabis case was ordered forfeited.
• 1-3 The first issue raised by the defendant is whether the court committed reversible error in instructing the jury with IPI Criminal No. 24.20, set forth above. The defense argues that the evidence in the case did not support giving the instruction and that the instruction was highly prejudicial to the defendant. The defendant correctly notes that a private person does have a right to defend himself against a police officer who uses excessive force (People v. Athey (1976), 43 Ill. App.3d 261, 356 N.E.2d 1332). He then argues that the evidence in the case raised an issue of excessive force and that he was prejudiced in such defense by the use of IPI Criminal No. 24.20. We disagree. Of course, in addressing issues raised with respect to specific instructions, the reviewing courts> are obliged to examine the instructions as a whole, to determine whether the jury was adequately and properly instructed. In the instant case, the evidence presented warranted the use of IPI Criminal No. 24.20, for there was evidence that the defendant resisted arrest at a time when he knew the arrest was being made by a peace officer. The defendant was charged with aggravated battery, as a result of his resistance to the arresting officers. Under similar facts and circumstances, the use of this instruction was upheld by the court in People v. Paez (1977), 45 Ill. App.3d 349, 359 N.E.2d 1083. There, as here, the defendant's resistance came while the officers were attempting to make an arrest, and there, as here, the defendant claimed that the arresting officers overreacted so as to justify the defendant in defending himself. The court, in concluding no prejudicial error was committed by the use of the instruction, stated:
"A necessary element of the crime of aggravated assault against a police officer who is in the course of effecting an arrest is that the defendant act without legal justification. [Citation.] In a trial which involves the offense of aggravated battery against a peace officer attempting to effect an arrest it is not prejudicial error to instruct on the lack of legal justification for using force to resist the arrest when the instruction is relevant based on the facts adduced at the trial. [Citation.]" (45 Ill. App.3d 349, 351. See also People v. Taylor (1977), 53 Ill. App.3d 810, 818-19, 368 N.E.2d 950.)
We find that the facts in the instant case warranted the use of instruction No. 24.20, and that there was no reversible error in its use. The defense reliance upon People v. McCauley (1972), 2 Ill. App.3d 734, 277 N.E.2d 541, in which error was found in the giving of this instruction, is misplaced. In McCauley, as the court noted in Paez when distinguishing it, there was no ...