APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION
545 N.E.2d 986, 190 Ill. App. 3d 115, 137 Ill. Dec. 225 1989.IL.1629
Appeal from the Circuit Court of Cook County; the Hon. Joseph J. Urso, Judge, presiding.
JUSTICE LaPORTA delivered the opinion of the court. EGAN, P.J., and McNAMARA, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LAPORTA
While investigating possible drug dealing in front of the Gayle Elementary School, Officers Fred Hattenberger and Jay Brunkella approached the defendant, Allison Jenkins, and another man. Although testimony conflicts as to what occurred, during a struggle between the defendant and Officer Hattenberger, Officer Hattenberger's gun discharged. The bullet struck Officer Brunkella in the chest, and he died 12 days later.
At trial, the defendant moved for a directed verdict at the close of the State's case, arguing that the State had not proven its case because it had not shown either that the defendant had the intent to commit the battery or that, if the defendant had committed the battery, the State had not proven that the battery was a direct cause of the felony murder. This motion was denied.
After the trial was completed, the jury found the defendant guilty of both the aggravated battery of Officer Hattenberger and the felony murder of Officer Brunkella. The defendant was sentenced to concurrent sentences of 5 and 20 years, respectively. The defendant appeals, raising the following issues: (1) Whether defendant's conviction was an unwarranted extension of the felony murder doctrine; (2) whether the non-Illinois pattern jury instructions for felony murder were so erroneous that a new trial is required; (3) whether the trial court made erroneous evidentiary rulings which deprived the defendant of a fair trial; (4) whether the defendant should be granted a new trial because of prosecutorial misconduct; (5) whether the State fulfilled its burden of proving the causation, intent, and bodily harm elements of aggravated battery and felony murder; (6) whether the defendant should be granted a new trial because of ineffective assistance of counsel; (7) whether the trial court failed to give a proper deadlocked jury instruction and therefore the defendant should be granted a new trial; and (8) whether the defendant's penalty for conviction for felony murder was unconstitutional.
The two primary witnesses to the incident were the defendant and Officer Hattenberger, who told very different stories on the witness stand. The only portion which can be agreed upon is that as the defendant and Officer Hattenberger struggled and fell, Officer Hattenberger's Colt .45 "secondary" weapon discharged, and the bullet struck Officer Brunkella in the chest, causing his death.
OFFICER HATTENBERGER'S TESTIMONY
According to Officer Hattenberger, on September 22, 1986, he and Officers Jay Brunkella, Tom Cotter, and Rick Myamotto were conducting a plainclothes surveillance of drug dealing in front of Gayle Elementary School, in the 1600 block of West Jonquil. Officers Hattenberger and Brunkella watched the area from the third floor of the school while Officers Cotter and Myamotto waited in a car nearby for Officers Hattenberger and Brunkella's radioed instructions to follow and stop any cars and question the occupants.
Shortly after arriving on the third floor, Officers Hattenberger and Brunkella saw a man identified as Michael Jones and two people in a car engage in what they believed to be a drug transaction. After a radio transmission to Officers Cotter and Myamotto to stop the car, they saw the defendant approach Jones. Officer Brunkella identified the newcomer to Officer Hattenberger as Jenkins, and Officer Hattenberger testified that he knew the newcomer as Allison Jenkins.
The officers watched Jenkins approach a vehicle and lean inside. They saw hand movement between Jenkins and the driver of the vehicle, although they could not see what the movements were. The vehicle departed, and the defendant crossed the street carrying a potato chip bag, which he placed underneath the fence in front of the school. Officer Hattenberger testified that, based upon his experience, this indicated to him that the defendant was stashing drugs in the potato chip bag beneath the fence.
The defendant approached Jones. Officers Hattenberger and Brunkella decided to approach the two men together. Officer Brunkella walked west to retrieve the potato chip bag while Officer Hattenberger walked east to confront the defendant and Jones. According to Officer Hattenberger, the defendant looked up, saw Officer Hattenberger, and denied having anything on him. Officer Hattenberger replied "Come here. Take it easy. I just want to talk to you." The defendant took two or three steps toward Officer Hattenberger, making hand movements near his waist, then turned and ran out into the street. Officer Hattenberger testified that he saw no weapon.
Officer Hattenberger chased the defendant, yelling at him to stop. When the defendant did not stop despite repeated shouts to do so, Officer Hattenberger drew his gun with his right hand. He chambered a bullet. Officer Hattenberger testified that he wanted to have his gun loaded and ready to use because the defendant's actions, coupled with information that he had heard from unidentified sources on the street that the defendant carried a gun, led him to believe that the defendant was armed.
Officer Hattenberger chased the defendant until the defendant abruptly stopped and turned to face him approximately 15 feet away. Officer Hattenberger approached the defendant, who was again making hand movements about his waist, until Officer Hattenberger was close enough to grab the defendant's right arm with his left hand. The defendant relaxed, then when Officer Hattenberger relaxed, the defendant elbowed him in the chest and tried to run east. Because the defendant ran straight into Officer Hattenberger's arm, the officer pulled the defendant in to his body, "to try to get a grip on him," although on cross-examination Officer Hattenberger said that "I didn't say I pulled him into me. I said I had a grip on his left arm across the front of his body."
Officer Hattenberger testified that the defendant sought to break free of the officer's grip by swinging his arms. They fell, and as they did so Officer Hattenberger wrapped his right arm around the defendant.
At this time, Officer Hattenberger's gun discharged. He testified that he was sure he tensed as he fell, and that the shot occurred as they fell. Officer Hattenberger also testified that the gun did not discharge when the defendant elbowed him in the chest, but discharged as they fell.
Just before the struggle began, Officer Hattenberger looked up and saw Officer Brunkella to the defendant's right and slightly behind him, appearing to stand between the defendant and himself. When the shot went off, Officer Brunkella said he had been hit, and Officer Hattenberger radioed for help. Officers Cotter and Myamotto arrived at the scene within minutes. Officer Cotter attended Officer Brunkella, while Officer Myamotto arrested and handcuffed the defendant. Officer Hattenberger recovered his gun, then went to the school yard fence and retrieved the potato chip bag.
Officer Hattenberger testified to photographs admitted into evidence of a bruise which appeared "[a]bove my belly button and below my chest" taken two days after the incident.
THE DEFENDANT'S TESTIMONY
The defendant testified that he was on the street in the 1600 block of West Jonquil on September 22, 1986, because he was on the way to a job cleaning carpets. A car stopped, and he spoke with two friends in the car, who gave him "a taste of potato chips," and as they drove off offered the defendant the remainder of the bag, which he finished and dropped the empty bag into the street. The defendant denied the prosecution's suggestion that there were any packets in the bottom of the bag.
The defendant testified that when he first saw Officer Hattenberger on September 22, 1986, he was entering the school yard with Officer Brunkella, whom the defendant knew because Officer Brunkella had previously arrested him. The defendant was standing on the street talking to Michael Jones and a second man on a bicycle. Officer Brunkella entered the school yard with a man carrying a gun in his right hand, whom the defendant identified at trial as Officer Hattenberger. Officer Hattenberger grabbed Michael Jones, who was closest to him; the man on the bicycle rode off, and the defendant started to back up. Then, according to the defendant, Officer Hattenberger "turned to me, point the gun at my chest and told me to run so he could shoot me." The defendant said that Officer Hattenberger did not say "come here," and that he told Officer Hattenberger that he would not run, that he had no reason to run, and that Officer Hattenberger should put his gun away.
The defendant kept backing up, with his hands raised to shoulder height and the palms pointing outward. He backed up into Officer Brunkella, who grabbed and held onto the defendant. Defendant testified that Officer Hattenberger released Jones and turned to the defendant, squatted, "[a]nd he told me to run so he could shoot me." The defendant testified that he was stopped by Officer Brunkella from backing up farther.
Defendant testified that while Officer Brunkella held him, Officer Hattenberger ran up to them, and the three struggled, with the defendant positioned between the officers. Officer Brunkella told Officer Hattenberger to put his gun away as Hattenberger ran up to them. Officer Hattenberger "slapped" the defendant on his back, at which time the gun discharged and Officer Brunkella fell to the ground. Defendant testified that, as the gun discharged, Officer Hattenberger ducked behind the defendant, and when Officer Brunkella fell he threw his gun to the ground and pushed the defendant down, where they stayed until the other officers arrived. The defendant denied striking, struggling against, or pushing Officer Hattenberger.
Officer Tom Cotter, Officer Brunkella's regular partner, testified about the plainclothes surveillance he and Officers Brunkella, Hattenberger, and Myamotto were engaged in on September 22, 1986. He testified that while he and Officer Myamotto were interrogating two men whose car they had stopped pursuant to a radio message from Officers Hattenberger and Brunkella, they received a radio message that an officer had been shot and they returned to the scene. They found Officer Brunkella lying on the ground with a chest wound, and Officer Hattenberger struggling with the defendant on the ground. Officer Cotter testified that he knew the defendant because he and Officer Brunkella had previously arrested the defendant for possession of marijuana, and that the defendant had not been armed at the time of the previous arrest.
Ricco Rodriguez, called as a prosecution witness, admitted that he was also known as Eric Charles and testified that he had been granted no deals or promises in return for his testimony. He testified that on September 22, 1986, he had been working in the 1600 block of West Jonquil Terrace and was returning from lunch when he saw the defendant walking down the street. In response to the State's questions at trial, Rodriguez testified that he observed Jenkins approach the driver's side of a beige car, saw the driver hand Jenkins a bag of potato chips, and saw Jenkins walk away from the car eating the chips and then throw the bag away. The State then questioned the witness about his testimony before the grand jury on October 9, 1986, and in an effort to impeach him, repeated questions and answers where Rodriguez testified that Jenkins showed the driver three bags of "reefer" (marijuana), the driver handed two bags and $10 back to Jenkins, and Jenkins put the other two bags inside a potato chip bag under a tree near the school. The witness testified that he lied before the grand jury because one of the police officers investigating the case put a .357 gun to his head and told him this testimony was what the officer wanted Rodriguez to say or "he would blow my brain."
In a sidebar, the State informed the court it was taken by surprise by the witness' testimony and stated he had become a hostile witness. When testimony resumed, the witness testified that he and Jenkins knew each other and for a month in March 1987 they were both on the same tier in jail.
Rodriguez denied speaking with defense counsel prior to trial, although he admitted he had shouted that he was "Eric Charles" when the defense attorney visited the defendant in jail. That day the defendant was moved off the tier. On cross-examination, defense counsel elicited from the witness that neither the defendant nor his attorney had ever offered him money to change his story. Rodriguez testified that he was telling the truth at trial, although he had consciously lied before the grand jury to save his life.
Harry Walker lived near the site of the incident and was unloading fishing equipment from his van on September 22, 1986. He vaguely knew the defendant from the neighborhood but did not know him personally.
Walker was called as a witness by the State. He testified that he heard a commotion nearby and went to look. He saw three people falling in the street. He could not tell if any were holding on to the others or if any of them hit another. As they fell he heard a shot. When Walker looked again, the three people were on the ground. He did not recognize any of the people from a distance, but when he approached the group he recognized the defendant and recognized the others as policemen but did not know their names. Walker could not tell that Officer Brunkella was shot, but saw him move slightly. Officer Hattenberger was lying on top of the defendant; he told Walker not to come near and refused his offer of help.
Firearms expert Burt Nielson testified as an expert witness for the defense. He said that he had tested Officer Hattenberger's Colt .45 and found it to have a lighter than normal pull on the trigger. He noted that all the safety devices on the weapon were functioning. He also testified that in his 30 to 31 years with the Chicago police department, he had carried a Colt as his "secondary" weapon.
Detective Carey Orr was called as the State's rebuttal witness. He testified that after the shooting he interviewed the defendant regarding the incident. The interview took place in a conference room with at least five other persons present, including Detective Orr's commanding officer, the head of the Felony Review Unit of the Cook County State's Attorney's office, and persons from the Office of Professional Standards. He gave the defendant his Miranda warnings before the questioning began, after which the defendant indicated that he would speak with them.
Detective Orr testified that he asked the defendant the names of the persons in the car and on the street with whom the defendant spoke, but that the defendant could not give him the names of those on the street. The defendant told him that he had known at the time of the incident that Officers Brunkella and Hattenberger were police officers.
Later, Detective Orr again questioned the defendant with Assistant State's Attorney Kevin Moore present and taking notes. Detective Orr testified that during this interview, the defendant did not say that he had received the potato chips from two friends who drove up in a car.
Assistant State's Attorney Moore was called by the defense as a surrebuttal witness. He testified that on September 23, 1986, he was called to Area 6 and interviewed several persons, including the defendant. Assistant State's Attorney Moore was present when Detective Orr gave the defendant his Miranda warnings and questioned the defendant. According to the memorandum of the questioning prepared by Assistant State's Attorney Moore, the defendant testified "that he just received a bag of potato chips from 2 friends who drove up to him." The memorandum did not indicate that Detective Orr asked the names of these friends. On cross-examination, Assistant State's Attorney Moore testified that the defendant was asked the names but did not provide them.
Evidence regarding primary and secondary weapons is presented in summary as follows: Officer Cotter defined a "secondary duty weapon" as "[a] weapon other than your primary duty weapon the department issues you."
Officer Hattenberger testified that he had his primary duty weapon in a holster on the other side of his body from his secondary duty weapon. His primary duty weapon is a .38 with hollow-point bullets and was functional at the time of the incident. All officers must carry their primary duty weapon when on duty, but the secondary duty weapon is optional, and the officer must be authorized to carry the weapon. Both his secondary duty weapon and the ammunition for it were authorized. Officer Hattenberger testified that he had selected a Colt .45 as his secondary duty weapon because it has more "stopping power" than the .38.
Officer Hattenberger testified that he knew of official policy that "the use of firearms in any case is a last resort measure," and "that police officers may resort to the lawful use of firearms only after all other reasonable means at their disposal to effect apprehension and control of an individual have been attempted without success." Officer Hattenberger stated he knew that "use of deadly force by a police officer is only appropriate where the officer reasonably believes that such force is necessary to prevent the arrest from being defeated by resistance or escape; and the person to be arrested has committed or attempted a forcible felony or is attempting to escape by use of a deadly weapon or otherwise indicates that he will endanger human life or inflict great bodily harm unless arrested without delay."
Officer Hattenberger also testified that while deadly force refers to the firing of a weapon, there is no directive detailing when ...