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09/19/89 the People of the State of v. Jeffrey E. Dailey

September 19, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JEFFREY E. DAILEY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

544 N.E.2d 449, 188 Ill. App. 3d 683, 135 Ill. Dec. 953 1989.IL.1440

Appeal from the Circuit Court of Ford County; the Hon. William M. Roberts, Judge, presiding.

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. SPITZ and STEIGMANN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

On August 16, 1988, the circuit court of Ford County entered judgment on a jury verdict returned in case No. 88-CF-5 finding defendant Jeffrey E. Dailey guilty of the offense of battery. (Ill. Rev. Stat. 1987, ch. 38, par. 12-3.) On October 19, 1988, the court similarly entered judgment in case No. 88-CF-22 when the jury returned verdicts finding defendant guilty of the offenses of aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12-4(b)(6)), theft (Ill. Rev. Stat. 1987, ch. 38, par. 16-1(a)(1)), and resisting arrest (Ill. Rev. Stat. 1987, ch. 38, par. 31-1). The court later vacated the conviction for resisting arrest. Following a consolidated sentencing hearing in these cases, on November 29, 1988, the court sentenced defendant to a term of 364 days' imprisonment in case No. 88-CF-5 and to a term of 30 months' probation in case No. 88-CF-22, the latter sentence to be served consecutive to the sentence of imprisonment imposed in No. 88-CF-5.

Defendant now appeals in case No. 88--CF--5, contending: (1) he was denied his right to a fair trial when the court failed to give its own definitional instruction on self-defense after it had agreed to do so; and (2) the court committed reversible error in submitting its own issues instruction on battery which misstated the State's burden of proof for that offense.

Defendant also appeals in case No. 88--CF--22 (No. 4--89--0099). There, he claims the court erred in (1) refusing his instruction concerning self-defense; and (2) ordering his term of probation to be served consecutive to the term of incarceration imposed in No. 88--CF--5. We reverse both cases and remand them for a new trial.

In case No. 88--CF--5 (No. 4--89--0098), the evidence showed defendant approached a local bank president, Dennis Smith, in a bar in Piper City in order to discuss his dissatisfaction with the service he had been receiving from that bank. While several witnesses testified the conversation between the two men was not terribly heated at that time, Smith said he suggested to defendant it would be better if they had their Discussion at the bank at a later point in time.

Defendant left the bar first, and he and his brother-in-law "just rode around town." As Smith was leaving the bar later that evening, defendant passed by the bar and saw him. Defendant said he stopped his car and told Smith he needed to talk to him. Defendant claimed that, after some conversation, Smith tried to strike him in the face but missed him and hit him in the shoulder. Defendant said he then hit Smith three times in the face. Smith said defendant knocked him down and inflicted several blows to his face as he was getting out of his car. Smith said he did not "take any punches" at the defendant that evening.

During the instructions conference held following the presentation of the evidence, the defendant tendered the following self-defense instruction:

"A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force."

(See Illinois Pattern Jury Instructions, Criminal, No. 24--25.06 (2d ed. 1981) (IPI Criminal 2d).) The State indicated it had no objection with that instruction so long as the following language was added to it:

"However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent ...


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