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05/05/88 the People of the State of v. Donald Tackett

May 5, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DONALD TACKETT, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

523 N.E.2d 647, 169 Ill. App. 3d 397, 119 Ill. Dec. 891 1988.IL.685

Appeal from the Circuit Court of Livingston County; the Hon. Charles E. Glennon, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

The defendant, Donald Tackett, an inmate at the Pontiac Correctional Center, was indicted for unlawful use of a weapon by a felon (Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1). Following jury trial, the defendant was convicted of the charge and was subsequently sentenced to a six-year term of imprisonment to be served consecutive to his prior sentence. From this conviction and sentence, the defendant appeals.

The defendant raises three issues for our consideration: (1) whether the court erred in refusing to instruct the jury on the affirmative defense of necessity; (2) whether the defendant was denied the effective assistance of counsel; and (3) whether the court properly considered the defendant's prior felony convictions in sentencing.

We affirm the defendant's conviction and sentence.

On December 4, 1986, the defendant was indicted on a charge of unlawful use of a weapon by a felon (Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1). The offense allegedly occurred on September 9, 1986, when the defendant, who was incarcerated at the Pontiac Correctional Center, was found in possession of a shank. On March 9, 1987, the defendant filed a motion for change of venue which was subsequently granted.

Prior to trial, the State filed a motion in limine to prevent the defendant from raising the affirmative defense of necessity. The court denied the motion, specifically noting that "raising the necessity defense is one in which there is a certain threshold of evidence that the defendant is required to raise before the issue can go to the jury." Consequently, the court indicated it would determine whether or not to instruct the jury on the necessity defense at the close of the evidence.

At trial, the State presented the testimony of four correctional officers who were directly involved in the incident. Charles Hurt stated that he was working at the cell house tower on the evening of September 9, 1986. Hurt explained that he could see into the cells from the tower. At approximately 8 p.m. he observed an inmate in cell 321 displaying a small homemade shank. Hurt immediately contacted his shift commander, who indicated he would investigate. Hurt then witnessed a black inmate exit cell 321 and the defendant enter the cell.

According to Hurt, the defendant remained in the cell for a brief time and then left. As the defendant proceeded down the gallery, he was met by correctional officers William Cox, Larry Crosiar, and John Finney. The officers stopped the defendant and patted him down. They removed a shank from the defendant's waistband. The defendant was then handcuffed and taken to his cell, where he was placed under deadlock. Officers Cox and Crosiar both testified that the defendant was an inmate of the Pontiac Correctional Center when the shank was recovered.

The correctional officers all testified to the general safety conditions at Pontiac. They indicated that guards were unarmed when working among the inmates, but that it was not uncommon for inmates to possess dangerous weapons. They described how inmates made weapons and the problems resulting therefrom. The State additionally presented Officer Theodore Staley, who described the procedure for recording and storing confiscated weapons. Staley indicated he signed a receipt for the weapon recovered from the defendant. Finally, the State introduced a certified copy of the defendant's previous convictions for murder, armed robbery, and home invasion.

The defense called William Duncan, an inmate, who stated he was a friend of the defendant. Shortly after Duncan met the defendant in May of 1985, he saw the defendant with bruises on his face. The defendant informed Duncan he had been beaten by the gangs. Duncan further explained that whites constitute an extreme minority at Pontiac, and as a result, most whites pay the gangs to insure their physical safety. These payments, however, do not insure complete safety. According to Duncan, protective custody is not a safe alternative and provides no protection from the gangs. On cross-examination, however, he admitted ...


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