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03/26/87 the People of the State of v. Joseph Katalinich

March 26, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOSEPH KATALINICH, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

506 N.E.2d 356, 153 Ill. App. 3d 778, 106 Ill. Dec. 649 1987.IL.375

Appeal from the Circuit Court of Sangamon County; the Hon. Jerry S. Rhodes, Judge, presiding.

APPELLATE Judges:

Presiding Justice Spitz delivered the opinion of the court. Lund and Knecht, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

Joseph Katalinich was charged with three counts of aggravated battery (Ill. Rev. Stat. 1983, ch. 38, par. 12-4(b)(1)) in regard to an incident which occurred on October 2, 1984. The first count was based on an alleged stabbing incident between Katalinich and Timothy Thornhill. Amended counts II and III alleged that Katalinich knowingly struck two police officers.

On the first day of trial, Thornhill testified that he was in J.W.'s Lounge in Springfield, Illinois, on October 2, 1984, when defendant entered the bar and took a seat at the bar next to him. An argument soon developed between the two, and the argument erupted into a scuffle. Thornhill received a wound to his left side. Witnesses testified that defendant stabbed Thornhill, causing this injury.

Police Officer Robert Mullinix testified that as he was fingerprinting Katalinich, Katalinich struck him in the face. Correctional Officer Gary Burge testified that he was kicked by Katalinich.

On the second and final day of trial, the trial Judge and the two attorneys agreed that six sets of verdict forms would be given, the first three in regard to the initial counts of aggravated battery, and the last three in regard to the included offenses of battery. These six sets of verdict forms were given to the jury, and the jury retired to deliberate.

The jury subsequently returned to the courtroom, and the trial court asked the foreman whether the jury had reached a verdict. The foreman answered that they had. The jury found Katalinich guilty of two counts of battery regarding the two peace officers, not guilty of aggravated battery regarding Thornhill, not guilty of battery regarding Thornhill, and made no finding as to the two counts of aggravated battery regarding the two police officers. The trial Judge then removed the jury from the courtroom and, over defense counsel's objection, decided that the jury must be brought back in and instructed the jury to make a finding regarding the two counts of aggravated battery. Over defense counsel's objection, the trial Judge instructed the jury:

"Ladies and Gentlemen of the jury, the court is instructing you that you must return back to the jury room and return two more verdicts. I'm going to give you back your original jury instructions, plus four verdict forms and you must find the defendant either guilty or not guilty of aggravated battery as to Gary Burge [the first police officer], guilty or not guilty of the offense of aggravated battery as to Robert Mullinix [the second police officer]. You will have these four forms to take back in with you."

After a short recess, the jury returned with a verdict of guilty of two counts of aggravated battery regarding the two police officers.

On February 28, 1986, defendant was sentenced to one year's probation. Defendant's late notice of appeal was allowed by this court on August 8, 1986.

The first and principal issue in this case concerns the trial court's instruction to the jury that it must return to the jury room and that it must return two additional verdict forms regarding the aggravated-battery charges that were allegedly committed against the two police officers. We believe ...


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