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12/01/88 the People of the State of v. Wardell Montgomery

December 1, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

WARDELL MONTGOMERY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

531 N.E.2d 177, 176 Ill. App. 3d 367, 126 Ill. Dec. 44 1988.IL.1740

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

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Following a jury trial, defendant Wardell Montgomery was convicted of two counts of aggravated battery in violation of section 12-4(b)(6) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 12-4(b)(6)). The circuit court of Livingston County sentenced defendant on one count only to an extended term of seven years' imprisonment, which term was to be served consecutively to his current term of imprisonment. Defendant appeals his conviction and sentence. We affirm.

On appeal, defendant contends the following errors occurred: (1) the trial court erred in refusing to give the jury an instruction on self-defense when defendant produced evidence at trial that would support the instruction; (2) defendant was denied a fair trial because of comments made by the prosecutor in opening and closing arguments; and (3) the trial court considered improper factors in aggravation as a basis for imposing an extended term of imprisonment upon defendant.

The instant case revolves around an incident which occurred on June 29, 1987, at the Pontiac Correctional Center. Defendant is an inmate serving a 25-year term for murder. On August 21, 1987, an indictment was filed charging defendant with two counts of aggravated battery against Gerald Hornstein, a correctional officer. Count I charged defendant with inflicting bodily harm upon the officer, who was acting within the scope of his official duties. Count II charged defendant with making physical contact of an insulting or provoking nature against the correctional officer. Defendant's motion for change of venue was granted, and the trial was moved to McLean County.

The State filed a pretrial motion for discovery on September 14, 1987. The motion requested defendant to state any defenses, affirmative or nonaffirmative, which he intended to assert at trial. The court ordered the parties to complete discovery by October 14, 1987. Defendant filed his discovery answer on Friday, January 29, 1988. The answer stated that defendant might call Anthony Dixon, another inmate, as a witness. The answer did not assert any defenses. The late answer precluded the State from obtaining certified copies of Dixon's conviction for impeachment purposes.

Defendant's trial began on Monday, February 1, 1988, and lasted two days. Gerald Hornstein, the complaining witness and a correctional officer at Pontiac Correctional Center, testified that on June 29, 1987, he was on duty as security guard at the front door of the Lincoln College Complex at the prison. The front door was kept locked. It was only opened to allow inmates in who had permission to be there, or to allow inmates out for their noon meal. Hornstein kept a log of which inmates were in the building at all times. He explained that a call-line pass is a slip of paper issued to residents to travel to a certain destination. The time of issuance is put on the pass, and the inmate has 15 minutes to get to his destination. Shortly after 11 a.m., defendant came to Hornstein's door with a call-line pass. Defendant handed the pass through the door's porthole. Defendant said he was there to take a makeup test, but his pass had been issued at 10 a.m. At the time, there were no instructors in the building, the only instructor having left for lunch. There had been only one class that day, an industrial maintenance class, and the inmates were beginning to finish their morning tasks in order to leave for the noon meal. Hornstein knew most of the 11 inmates in that class, and defendant was not in the class. Hornstein had no idea of a test being given that day. The day before, the head of the college had told him that there would only be one class that day. No other residents were to be in the building except for certain individuals who were part of the maintenance staff. Hornstein refused to allow defendant into the college, telling him he could not possibly be there for a makeup test, as there was no instructor in the building. He told defendant to have the captain who issued the pass call him.

Defendant got angry at being refused permission to enter and began to kick and pound on the steel double door. According to Hornstein, defendant kept pounding on the door and telling Hornstein that the guard would have to open the door sometime, and defendant would get to him then. Hornstein called the tower guard and asked the officer there, Officer Albert Dodge, to have defendant removed from the door. Dodge got a megaphone and asked defendant to leave the area. Defendant cursed at the tower officer and refused to leave. After a minute or so, defendant disappeared from Hornstein's view. Hornstein then began the process of lining up the student inmates for them to go to lunch. He finished this process and waited for clearance from another tower for the inmates to leave for the dining area. The call came through about 11:20 a.m. Hornstein opened the door to run the 11 inmates out. About three men had left when defendant barged in the door, confronted Hornstein, and told him to touch defendant and see what would happen. Hornstein was scared and did not touch defendant. Hornstein was the only officer in the immediate area, was not armed, and had no radio. Defendant started coming at Hornstein, telling him to touch him. Hornstein tried to calm defendant down. Also, inmate Anthony Dixon pulled on defendant's arms and tried to calm defendant. Defendant pushed Dixon back and hit Hornstein in the face. Hornstein tried to get out of the building so the tower officer could see what was going on, but defendant blocked him and continued to hit him. Defendant hit Hornstein four times in the face and twice in the ribs. Hornstein stated he was knocked to the ground three times and had a tooth knocked out. At this point, Hornstein, who was bleeding, slid underneath defendant and out the door. He testified that he did not strike or punch defendant during the melee. Hornstein eventually required dental treatment to have the missing tooth replaced. In addition, he suffered bruised ribs. He was off from work for two weeks because of his injuries. Hornstein admitted on cross-examination that it would not have been proper for him to make physical contact with an inmate unless the inmate physically assaulted him. If defendant had walked in and simply refused to leave, Hornstein was to notify a supervisor.

Officer Dodge testified that he was in the tower nearest the college at the time of the incident. Dodge remembered the call from Hornstein about an inmate who would not leave and who was banging on the door to the college building. Dodge testified that he yelled at defendant to move away from the door, and defendant moved some 15 to 20 feet. Dodge thought he was leaving and did not pay any attention after that.

A captain at the prison, Jack Durham, testified that defendant had requested a call-line pass to go to the college for a makeup test. Durham called the college to verify that defendant was authorized to go there, but he received no answer. Although he should not have done so, he issued a pass to defendant because he knew defendant and trusted him. Durham put 10 a.m. on the pass. The college was approximately 150 to 200 yards from where Durham issued the pass. It should only have taken defendant a few minutes to get to the college. The State then rested its case.

Anthony Dixon testified for defendant. He stated that he had prior convictions for rape, deviate sexual assault, armed robbery, and aggravated battery. He had known defendant for four years. Defendant and Dixon lived in the same cell house, had class together, and used the same dining room. Dixon testified as an eyewitness to the incident in which Hornstein was injured. Dixon stated that Hornstein and defendant got into a heated argument through the locked door about the defendant's pass. They shouted at each other for 5 or 10 minutes. Defendant was kicking the door. The argument seemed to end when it was time to start the lunch line. Dixon did not hear the tower guard yell over the megaphone, although he stated he was by the door during the entire incident. When Hornstein opened the door, defendant rushed in and confronted Hornstein about the pass. According to Dixon, defendant stated to Hornstein: "I had a call pass, you didn't have to act the fool keeping me from coming in the complex." Dixon stated that Hornstein "immediately reacted," and grabbed defendant by the collar. Defendant then hit Hornstein, and they ...


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