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02/21/89 the People of the State of v. Richard Baczkowski

February 21, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

RICHARD BACZKOWSKI, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

535 N.E.2d 484, 180 Ill. App. 3d 17, 128 Ill. Dec. 973 1989.IL.203

Appeal from the Circuit Court of Lake County; the Hon. Henry C. Tonigan, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. REINHARD and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

The defendant, Richard Baczkowski, was convicted of battery (Ill. Rev. Stat. 1987, ch. 38, par. 12-3(a)(2)) and was sentenced to six months in the Lake County jail, one year of supervised probation, alcohol abuse evaluation and treatment in an outpatient program, and attendance at Alcoholics Anonymous meetings for 90 days. He appeals, contending: (1) that the trial court erred in giving the jury a non-Illinois Pattern Jury Instruction, which misstated the law and conflicted with other given instructions; and (2) that he was denied the effective assistance of counsel in that the public defender presenting his case failed to properly introduce expert testimony in order to adequately advise the jury of the defendant's voluntary intoxication defense.

We agree with the defendant's initial contention and reverse the conviction. In light of this holding, we do not consider the defendant's second contention.

On August 11, 1986, the defendant was admitted to the emergency room of Good Shepherd Hospital in Barrington, Illinois, exhibiting signs of intoxication. He was brought into the hospital by a rescue squad and was lying, restrained, on a stretcher. During his stay in the emergency room, the defendant flailed and thrashed about on the stretcher, spitting and verbally abusing the emergency room staff in general, and the individual medical personnel who treated him in particular. Dr. Ronald Tanowye examined the defendant and ordered various blood tests. Emergency room nurse Annette Ray attempted to draw the blood for these tests, and while she was so engaged, the defendant reached through the bars of the emergency room stretcher and pinched the nurse on her left buttock. Nurse Ray sought the assistance of hospital security personnel to subdue the defendant; ultimately she was successful in withdrawing blood for the laboratory tests. The defendant received intravenous fluid treatments, ordered by Dr. Tanowye for the purpose of lowering the defendant's blood-alcohol level, for approximately 2 1/2 hours, at which time the defendant was led out of the emergency room in a standing position by Lake County sheriff's police. He was charged with battery with regard to his pinching of Nurse Ray.

The defendant was represented by a public defender in a jury trial on March 31, April 1 and 2, 1987. The State elicited testimony from Nurse Ray and Mr. Ray Grimes, the security guard who assisted Nurse Ray in the emergency room. The defendant offered his testimony, as well as that of Dr. Tanowye and Linda Gaasrud, the medical technologist at Good Shepherd Hospital who performed the laboratory tests on the defendant's blood samples. The defendant also offered the testimony of Alison Oliver, an alcoholism and substance abuse counselor, for the purpose of her expert testimony regarding the effects of varying blood-alcohol levels on human behavior. This testimony was ruled out of order as it was offered prior to the admission of the blood-test results, and Ms. Oliver was never recalled.

Nurse Ray, Mr. Grimes and Dr. Tanowye all testified that the defendant was clearly intoxicated during his stay in the emergency room; however, their testimony conflicted as to the degree of the defendant's intoxication. Nurse Ray stated that the defendant's speech was slightly slurred and somewhat rambling and that the defendant spit so much that "the curtain [enclosing his cubicle in the emergency room] was laundered . . . when he left because it was so wet." Nurse Ray further testified that she did not believe the defendant was so intoxicated that he did not know what he was doing.

Mr. Grimes stated that the defendant's speech was quite clear, that the defendant was thrashing around, and that he was "pretty obnoxious."

Dr. Tanowye testified that the defendant was spitting and thrashing around and that the defendant was severely intoxicated. The doctor also stated that he believed the defendant was acutely intoxicated and that his opinion regarding the defendant's intoxication was based upon his experience as an emergency room physician, his observation of the defendant in the emergency room, and the defendant's blood-alcohol level as indicated by the blood-test result.

Ms. Gaasrud testified that she had performed a laboratory analysis upon the defendant's blood sample which indicated his blood-alcohol level to be 394 milligrams per deciliter.

The defendant testified that he was a chronic alcoholic and had been arrested 50 or 60 times in the past, always while he was intoxicated. He further testified that he had no recollection of the events leading up to his admission to the Good Shepherd Hospital on the day in question, nor did he recall any of the events which took place there, including his alleged pinching of Nurse Ray. He did state that he remembered being led out of the hospital by the sheriff's police.

At the close of evidence, both parties offered jury instructions. People's instruction No. 7 stated:

"A person commits the offense of battery when he, knowingly without legal justification and by any means makes physical contact of an ...


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