APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
524 N.E.2d 1259, 170 Ill. App. 3d 638, 121 Ill. Dec. 211 1988.IL.934
Appeal from the Circuit Court of Tazewell County; the Hon. John A. Gorman, Judge, presiding.
PRESIDING JUSTICE STOUDER delivered the opinion of the court. WOMBACHER, J., concurs. JUSTICE HEIPLE, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER
At trial, three witnesses testified for the State. Jim Abner, a public safety officer at Illinois Central College, testified that on February 11, 1987, he was called to an on-campus incident between the defendant and several students. To clear up the incident, Abner began escorting the defendant and two of the students to a campus security office. Abner entered an elevator and requested the defendant to accompany him. The defendant instead shoved Abner into the elevator and began wrestling with him. During the struggle, Abner felt pain in his groin. The defendant then attempted to back out of the elevator, fell and kicked Abner again. According to Abner, another campus employee, Kevin Holt, ultimately subdued the defendant until the police arrived. On cross-examination, Abner affirmatively answered defense counsel's question of whether during the elevator scuffle the defendant was "wild and flailing about."
David Carr testified that he was one of the individuals both involved in the original incident with the defendant and escorted away by Officer Abner. When the group reached the elevator, Carr observed Abner enter the elevator and ask the defendant to follow. Instead of entering, the defendant fought with Abner, kneeing the officer in the groin at least once, perhaps twice. The defendant was then subdued by Abner and another man. On cross-examination, when defense counsel asked whether the defendant had been wild and flailing about during the time Abner was struck in the groin, Carr responded affirmatively.
Kevin Holt, a maintenance man at the college, testified that he aided Officer Abner in escorting individuals from the scene of the original scuffle to an elevator. At the elevator, Holt observed Abner place his hand on the defendant's arm to escort him into the elevator. At this point, the defendant broke Abner's hold and shoved Abner two or three times. Holt then grabbed the defendant and placed him in a full nelson hold to subdue him. The defendant attempted to escape Holt's hold and then kicked Abner twice in the groin. On cross-examination, when the defendant's attorney asked Holt whether the defendant had been wild and flailing about when Holt held the defendant in the full nelson hold, Holt responded that the defendant had been resisting his hold.
The State rested its case. The defendant presented no evidence. During the jury instructions conference, the defendant tendered an instruction for reckless conduct. The court refused the instruction.
On appeal, the defendant argues that there was evidence before the jury that his actions were reckless and wanton, not deliberate. The defendant notes both that Abner and Carr stated that the defendant was wild and "flailing about" when he struck Abner and that Holt saw the defendant kick Abner while trying to escape Holt's grasp. The defendant argues that, from that evidence, the jury could have found the defendant guilty of the lesser offense of reckless conduct and should have been so instructed.
The defendant notes two cases where the trial court erroneously refused jury instructions on reckless conduct. In People v. Perry (1974), 19 Ill. App. 3d 254, 311 N.E.2d 341, the victim testified that when her friend threw a bottle toward the defendant, a gun held by the defendant discharged and the shot hit the victim. The defendant testified that when he put up his shoulder to shield himself from the bottle, the gun came out of the waistband of his pants and went off. In People v. Sibley (1981), 101 Ill. App. 3d 953, 428 N.E.2d 1143, the father of the victim testified that the defendant was pointing a shotgun at him, demanding the return of some tools. The father then reached for the gun. The pair struggled and the defendant pulled the trigger, shooting the victim. The defendant testified that he was using what he thought to be an unloaded shotgun in order to scare the father into returning his tools. As the defendant lowered the weapon, the father grabbed the gun, they struggled and the gun went off. In both Sibley and Perry, the appellate court held that from the evidence the jury could have believed that the defendant's actions constituted reckless conduct.
The State counters that there was no evidence to establish that the defendant's kicking of Abner occurred when he was "wild and flailing about." The State argues that the defendant's conduct was deliberate and purposeful and it cites case law to support its position that the trial court acted correctly.
In People v. Smith (1980), 90 Ill. App. 3d 83, 412 N.E.2d 1102, for example, the victim testified that the defendant walked up to her, reached into his coat pocket and shot her in the abdomen. The defendant testified that the victim bumped into him and the gun in his pocket went off. In People v. Harris (1980), 90 Ill. App. 3d 703, 413 N.E.2d 499, the victim stated that after she gave the defendant the money in her store's cash register, the defendant shot her four times in the leg. The defendant testified that he thought that the gun was loaded with blanks and that he shot the victim only to intimidate her. In each case, the appellate court ...