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Everly v. Chicago Police Board

OPINION FILED NOVEMBER 23, 1983.

FREDERIC H. EVERLY, APPELLANT,

v.

CHICAGO POLICE BOARD ET AL., APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Appellant, Frederic H. Everly, filed a complaint for administrative review of the Chicago Police Board (Board) decision to discharge him from the police department. The circuit court confirmed the decision of the Board. Everly raises the following issues for review: (1) whether the findings and decision of the Board were against the manifest weight of the evidence; (2) whether his due process right to a fair and impartial hearing was violated by the destruction of material evidence; (3) whether the Board proceedings should have been dismissed based upon conflict of interest of the corporation counsel; (4) whether police department rules 2 and 38 violate due process as void for vagueness; (5) whether the actions taken by the Board constitute a denial of equal protection; and (6) whether his acquittal of the criminal charges filed against him mandates dismissal of the police Board proceedings. We affirm.

On October 20, 1977, Tyrone Neal was shot during a police stop. Everly, a Chicago policeman, was charged with involuntary manslaughter but was acquitted after a jury trial. The transcript of the criminal proceedings was the only evidence submitted at the disciplinary hearing in which Everly was charged with misconduct.

Testimony at the criminal trial established that Isaac Coulter, a Chicago policeman, was working with his partner, Frederic Everly, on October 20, 1977. They drove to 64th and Woodlawn Avenue, in Chicago, and talked to Michael Griggs and Sharon Hodges. Griggs had been beaten and robbed by four or five persons. One of his assailants had worn orange clothes, another was fat, and a third was thin or of medium build. The police drove Griggs and Hodges around to see whether they could find the offenders. At 63rd and Greenwood Avenue, the officers saw three young men, each of whom was about 5 feet 6 inches in height and weighed about 145 pounds. None of the individuals wore orange clothing. The officers told the suspects to stop. They lined up against the wall and Coulter frisked them. Everly was 1 or 1 1/2 feet behind Coulter. Coulter did not know whether Everly had his gun drawn. After searching all three suspects and finding no weapons, Coulter went back to the police car to see whether Griggs could identify any of the suspects. He heard a shot, then turned around. Coulter did not see a weapon in Everly's hands. One of the suspects, Tyrone Neal, slowly fell to the ground.

Reginald Nunley testified that on the evening of October 20, 1977, he was on his way to a boy's club when he met 14-year-old Tyrone Neal and Andre Holiday. When they were in the vicinity of 63rd and Greenwood, a police car approached. Officer Everly, who had been driving and who had a gun in his hand, told them to put their hands against the wall. The suspects faced the wall spread-eagled with their hands up. Coulter searched Holiday, then Nunley, then Neal. He did not remove anything from the suspects. Everly stood behind Neal. After the search, Everly asked for identification. He said he would blow the head off anyone who did not have identification. Holiday gave Everly a bus card; Nunley gave him a driver's permit. Neal said he did not have any identification and turned slightly to his left. Everly raised his hand from his waist to the back of Neal's head. Everly fired and Neal fell. On cross-examination, defense counsel impeached Nunley with a prior burglary conviction.

Andre Holiday, 18 years old, saw Neal on October 20, 1977, at a boy's club. After they left the club, they met Nunley. At 63rd and Greenwood, a police car stopped and two uniformed officers got out of the car. One officer told them to stand against the wall. Coulter searched them, then Everly asked for identification. Neal said he had no identification and turned his head. His hands were over his head and on the wall. Holiday heard a gun fire and Neal fell.

Elvira Irons testified that on October 20, 1977, she lived at 6318 South Greenwood Avenue in a third-floor apartment. At about 8:30 p.m., she was sitting by her window and looking toward 63rd Street. She saw three youths on the corner. A police car approached and the youths began walking. When two officers got out of the car, the youths went to the side of a wall. The driver of the car had a gun in his hand. The other officer searched the youths and then walked toward the squad car. The driver stepped back; the third youth tilted his head slightly to the left. Irons heard the gun fire, and the youth fell.

Gregory Dune testified that on October 20, 1977, he was employed by an ambulance company. At about 7:30 p.m., he received a call. As the ambulance turned at 63rd and Greenwood, he observed three or four youths lined up against the wall and two uniformed policemen. One was searching the youths while the other held a gun to the head of one of the young men. As the ambulance proceeded down Greenwood Avenue, Dune heard a gunshot. The ambulance returned to the scene, and Dune observed one of the young men lying on the ground. They put him in the ambulance and took him to the hospital. On cross-examination, defense counsel impeached Dune with several prior convictions.

John York, a Chicago policeman, testified that on October 24, 1977, he inventoried a gun and five cartridges. They were destroyed after two months — December 20, 1977. The owner was notified that unless he picked up his property within 30 days, it would be disposed of.

Lamar Blount, a Chicago policeman, received a .38-caliber revolver from Everly at about 10:30 p.m. on October 20, 1977, and inventoried it. He told Everly that he could get his weapon back within 30 days.

Michael Griggs testified that on October 20, 1977, he was robbed and beaten near 61st and University Avenue by two men, one of whom was tall and thin and wore an orange jacket and pants; the other was short and flabby. After the incident, Griggs gave a description of the offenders to Everly. Griggs and Sharon Hodges, his common law wife, rode around the neighborhood in the police car with Everly and Coulter. On Greenwood Avenue, they saw three youths who did not fit the description of Grigg's assailants. Everly asked Griggs whether the three youths were the offenders; Griggs said, "No." Everly said the youths looked suspicious anyway and he was going to "check them out."

Everly jumped out of the car with his revolver drawn. The youths placed their hands on the wall. While Griggs talked with Hodges, he heard a gunshot. Everly had a gun in his hand and a youth fell to the ground. Everly approached the squad car and asked Griggs if he would testify that one of the young men had robbed him. Later that evening, Griggs gave a statement at the police station regarding the shooting. When Everly drove Griggs home, he told Griggs he should not have repeated what he (Everly) had said. On cross-examination, defense counsel impeached Griggs with prior convictions.

Sharon Hodges testified that on October 20, 1977, she and Griggs lived at 6400 South Woodlawn Avenue. Griggs came home around 8:30 p.m. He had been beaten. The police were called and they arrived within a few minutes. Griggs did not want to go to the hospital but agreed to go in the police car to see whether they could find the offenders. After the officer stopped the three youths at 63rd and Greenwood, Hodges heard a gunshot. Everly put his gun in its holster and asked Griggs if he would say that the youths had robbed him. When Everly drove them home later that evening, he told Griggs that he did not have to repeat the statement he (Everly) made immediately after the shooting.

Edward Ganz, a neurosurgeon, was qualified as an expert. On October 20, 1977, he was on call at Billings Hospital, in Chicago. He examined Neal, who was in a coma and had two gunshot wounds in the back of his head. Neal died on ...


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