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Simmons v. City of Chicago

OPINION FILED OCTOBER 3, 1983.

VERLENA SIMMONS, ADM'R OF THE ESTATE OF HAROLD SIMMONS, PLAINTIFF-APPELLANT,

v.

THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. John J. Crown, Judge, presiding.

JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Verlena Simmons, as administrator of the estate of Harold Simmons, deceased (plaintiff), brought this action against the city of Chicago and Casey Hawkins (defendant), for injuries sustained by Harold Simmons (decedent), after decedent was shot by defendant while defendant was on duty as a Chicago police officer. Decedent, 16 years old, survived his injuries but died in an unrelated incident. A jury entered a verdict in favor of the city and defendant. The jury returned an affirmative answer to a special interrogatory which asked if defendant reasonably believed the force used by him was necessary to prevent decedent's escape and defendant reasonably believed decedent had committed or attempted to commit a forcible felony. Plaintiff appeals.

Clifton Russel testified that on May 13, 1977, he left a currency exchange in Chicago after cashing his pay check. Decedent and another "boy" came up to him and stated "this is a stickup." Decedent reached into the witness' pocket. The witness slapped decedent's hand. Decedent made a motion with his hand "indicating he had a gun. But he didn't pull no gun up." The witness ran into a delivery truck which was parked nearby. The assailants followed the witness onto the truck. They accused the witness of having a watch belonging to one of the boys. Decedent said, "Give it up or we're going to blow your brains out." Decedent then reached into the witness' pocket and took some change and bus tokens. He saw the boys accost another person, Joe Lewis, in front of the currency exchange. The witness told defendant, "Them boys are the ones that stuck me up and they're doing it to Joe Lewis." The witness saw defendant chase the boys.

Joe Lewis testified decedent and two other men accosted him in front of the currency exchange after he had cashed his check. One stated, "This is a stickup." This man "had his hand in his bosom." Decedent reached into the witness' pocket and took some money. The witness ran into the street and screamed "robbery" three or four times. Defendant chased the boys. Defendant yelled "Halt" three times before he fired his weapon. Decedent continued to run after defendant yelled at him. The defendant returned to the witness a $20 bill and a single dollar which were held by decedent.

On cross-examination the witness stated he had not told defendant decedent robbed him prior to the shooting. The witness also stated defendant fired a total of three shots. The first two were "warning shots." On redirect examination the witness stated decedent was "running fast."

Plaintiff called defendant to testify as an adverse witness. (Ill. Rev. Stat. 1981, ch. 110, par. 2-1102.) Clifton Russel told defendant Russel had just been accosted by three or four youths. One of them had his hand underneath his shirt and stated "give me your money or I will blow your head off." Russel told the defendant the youths had just robbed him and they presently had Joe Lewis "down on the ground." The defendant then saw three or four youths struggling with Joe Lewis in front of a currency exchange.

The defendant reported a "robbery in progress" on his police radio. He expected police cars to arrive "eventually." Defendant chased decedent into a vacant lot behind the currency exchange. The defendant thought decedent was running so fast that defendant did not believe he could catch the decedent. The defendant yelled for decedent to stop. Defendant did not yell that he was going to shoot. He yelled to decedent to stop again. Defendant then fired two warning shots into the ground. He then fired at decedent hitting him in the back. Police cars arrived shortly after decedent was shot. Decedent had a $20 bill and a $1 bill in his hand. Defendant testified he shot at decedent "because he didn't stop and I thought I would lose sight of him and his escape would be imminent."

Dr. Charles M. Sheaf testified he treated decedent for the instant gunshot wound. He performed surgery on decedent. After surgery, decedent complained of swelling in his right leg up to the knee. Decedent told the doctor he had such swelling since childhood. Decedent had "pitting edema" from his ankle to his knee on his right leg. The decedent told the doctor that this condition existed all of his life.

On cross-examination the doctor stated he did not know if decedent had edema in his leg on May 13, 1977. When asked whether the condition would affect decedent's ability to run, the doctor stated, "I cannot imagine that a person can run faster with a swollen leg." However, he could "absolutely" not say that the condition would prevent decedent from running. In fact the doctor stated, "I am sure he [decedent] could run."

Plaintiff testified she is the mother of decedent. She stated decedent "was never a very good runner" because "he had problems with his ankles." She had never taken decedent to a doctor for treatment of the condition.

Loretta Cato, decedent's sister, testified decedent ran slowly. Generally, somebody would have to break in new shoes for decedent.

I

• 1 Section 7-5 of the Illinois Criminal Code provides in part (Ill. Rev. Stat. 1977, ch. 38, par. 7-5(a)):

"However, he [peace officer] 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 to himself or such ...


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