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03/30/89 the People of the State of v. Thomas Wesley Hoyt

March 30, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

THOMAS WESLEY HOYT, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

536 N.E.2d 472, 180 Ill. App. 3d 863, 129 Ill. Dec. 632 1989.IL.451

Appeal from the Circuit Court of Macon County; the Hon. John K. Greanias, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

This case comes to us on appeal from the defendant's conviction for armed violence in the circuit court of Macon County. Defendant argues the court improperly refused to give jury instructions on the defenses of compulsion and use of force in defense of a dwelling. We disagree and affirm the circuit court.

On April 14, 1988, the defendant was charged by information with the offenses of attempt (first degree murder), two counts of armed violence, and unlawful possession of Cannabis sativa plants. (Ill. Rev. Stat. 1987, ch. 38, pars. 8-4(c)(1), 33A-2; Ill. Rev. Stat. 1987, ch. 56 1/2, par. 708(c).) The defendant entered a not guilty plea to all counts.

On June 22, 1988, the defendant's jury trial began. The State and the defendant stipulated the plants confiscated from the defendant's home were Cannabis sativa plants. The State presented the testimony of police officers as to the events on the night of April 12, 1988.

On that night, defendant, his girlfriend Terri Collins, and her daughter were at their home. The daughter was in her upstairs bedroom, the defendant and Collins were in their first-floor bedroom at the back of the house. Collins was asleep and the defendant was lying in bed watching television. The entire house was dark except for the light from the television screen in the bedroom. The defendant had a loaded handgun in its case on the headboard of the bed.

After obtaining a search warrant, five officers of the Decatur police department arrived at defendant's house at about 11:15 p.m. Following a prearranged plan, three of the officers went to the front door and two secured the rear door. The officers at the front door knocked and announced they were police officers and had a search warrant. Receiving no response, the police broke down the outer door. At a second inner door the police once again knocked and announced they were the police and had a search warrant. Again receiving no response, they broke in the second door. They proceeded to the rear of the residence until one of the officers approached the doorway to the defendant's bedroom. At that point, the officer shined his flashlight into the bedroom and the defendant fired his pistol. The officer retreated and ordered the defendant to come out of the bedroom. The defendant came out of the bedroom, placed his pistol on the kitchen counter, and was taken into custody.

In the defense case, defendant's mother testified he had a serious hearing loss from the time of his early childhood. Dr. Joseph Velek, who had tested the defendant's hearing on two separate occasions, also testified. The doctor's testimony showed the defendant had a moderately severe hearing loss in both ears resulting in a 43% hearing disability.

The defendant testified in his own behalf. He stated on the evening of April 12, 1988, he was lying in his bedroom watching TV. He noticed two figures walking along the outside of his house and thought they were prowlers. He took his loaded pistol from the headboard of the bed and looked out through a small opening in the window curtains. He could see two figures directly outside his bedroom window, one of them with a gun in his hand. Defendant heard the sound of his front door being broken in. He testified he heard voices but could not make out what they were saying.

Defendant then saw a flashlight being shined into his bedroom. He testified he could not see the person who held the light and did not know it was a police officer. He stated as soon as he saw the flashlight his gun went off. The flashlight then disappeared and he heard voices from the front of the house. It was only at this point that Terri Collins told him it was the police who had entered the house.

At the close of evidence a jury instruction conference took place. The defendant offered instructions on use of force in defense of a dwelling and compulsion. (Illinois Pattern Jury Instructions, Criminal, Nos. 24 -- 25.07, 24 -- 25.21 (2d ed. 1981) (IPI Criminal 2d).) The State did not object to the defendant's instruction as to use of force in regard to the attempt (murder) count, but did object as to its use in regard to the armed violence counts. The State objected to the compulsion instruction as to all three counts. The trial court ...


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