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08/28/87 the People of the State of v. Brent Fuller

August 28, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

BRENT FULLER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

512 N.E.2d 832, 159 Ill. App. 3d 441, 111 Ill. Dec. 443 1987.IL.1260

Appeal from the Circuit Court of Rock Island County; the Hon. Jeffrey W. O'Connor, Judge, presiding.

APPELLATE Judges:

JUSTICE WOMBACHER delivered the opinion of the court. SCOTT and STOUDER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

The defendant, Brent Fuller, was charged in a two-count complaint with battery and resisting arrest. (Ill. Rev. Stat. 1985, ch. 38, pars. 12-3(a)(1), 31-1.) A single-count information was also filed charging Fuller with a felony offense of trying to disarm a police officer. The State filed a motion for joinder of the charges, which was granted, and the defendant proceeded to a jury trial on all the charges on March 24, 1986. On March 27, 1986, defendant was found guilty of the two misdemeanor charges, battery and resisting arrest, and was found not guilty of the felony charge. Defendant was sentenced to one-year conditional discharge and costs with a term of the probation being 30 days' imprisonment in the Rock Island County jail. Defendant appeals.

The instant charges arose out of a demonstration which took place at the Rock Island Arsenal. During the early morning hours of October 21, 1985, the defendant along with several hundred protestors gathered to protest the manufacture and distribution of weapons through the Rock Island Arsenal.

At approximately 5:40 a.m., Officers James Pauley and James Wright of the Rock Island police department received a radio dispatch that there was a traffic problem on Route 92 being caused by some of the demonstrators. Several police cars arrived on the scene at about the same time. Officers Pauley and Wright saw individuals who were attempting to block traffic by placing objects in the street.

Officer Pauley testified at trial that he got out of his squad car and chased a female subject. In the process of trying to arrest this female, Officer Pauley struck the defendant, who was wearing a Halloween mask, on the forehead with his police flashlight. The defendant fell to the ground and Officer Pauley lost track of him.

Officer Wright testified that he got out of the squad car shortly after Officer Pauley. He stated that the defendant came running towards him and then stopped by a barricade. Wright chased the defendant 10 to 12 feet before he put his hands around the defendant's waist and the two fell to the ground. Officer Wright testified that while he straddled the defendant, three other subjects came up and began hitting and kicking him. Officer Wright testified that he felt a kick from behind as he straddled the defendant.

Officer Pauley further testified that he observed Officer Wright chase a subject 20 to 30 feet before catching him. The two fell to the ground and then others from the crowd converged upon Officer Wright and started kicking him and pulling him off the subject. Officer Pauley approached, assisted in handcuffing the subject, saw blood running down the subject's face and recognized the subject as the defendant.

The defendant testified that after he was hit with Officer Pauley's flashlight, he was stunned from the blow and he had trouble breathing. He stated that he began running, hit a barricade, and then was tackled from behind by a police officer. The defendant denied ever kicking or striking the officer who straddled and handcuffed him.

The defendant first argues that the trial court erred in granting the State's motion for joinder of the felony and misdemeanor charges. Defendant contends that the witnesses and the evidence were separate and distinct between the felony and the misdemeanor charges. Defendant claims that the testimony of an unrelated officer, Officer Pauley, who claimed that the defendant attempted to grab his gun, clearly prejudiced the jury with regard to the other charges he faced.

Joinder of criminal offenses at trial is permitted where the charges are based upon the same act or upon two or more acts which are part of the same comprehensive transaction. (Ill. Rev. Stat. 1985, ch. 38, pars. 111-4, 114-7; People v. Benka (1983), 117 Ill. App. 3d 221, 453 N.E.2d 71.) The trial court has substantial discretion in determining the propriety of joinder and its determination will not be reversed, absent a showing of abuse of that discretion. (People v. Harris (1986), 147 Ill. App. 3d 891, 498 N.E.2d 621.) Some of the factors to consider in deciding the question of joinder include: physical and temporal proximity of the acts charges, identity of evidence to be ...


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