APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
546 N.E.2d 29, 190 Ill. App. 3d 540, 137 Ill. Dec. 405 1989.IL.1661
Appeal from the Circuit Court of Du Page County; the Hon. C. Andrew Hayton, Judge, presiding.
PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court. REINHARD and WOODWARD, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT
Defendant, Christopher Lyda, was charged by complaint in the circuit court of Du Page County, with battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-3(a)(1)) and resisting a police officer (Ill. Rev. Stat. 1985, ch. 38, par. 31-1). Following a jury trial, defendant was found not guilty of battery, guilty of resisting a police officer, and sentenced to six months' incarceration in the county jail. On appeal, defendant contends that it was error for the trial court to refuse defendant's tendered jury instruction regarding the affirmative defense of justifiable use of force in the defense of another (Illinois Pattern Jury Instructions, Criminal, No. 24-25.06 (2d ed. 1981) (hereinafter IPI Criminal 2d)). Since we agree that there was sufficient evidence adduced at trial to raise this affirmative defense, we reverse the judgment of conviction and remand the cause for a new trial.
The charges in this case stemmed from an altercation that took place in the neighborhood of Harwarden and Wood Streets in Wheaton, Illinois, on the evening of June 11, 1986. Officer McGinley responded to the call. When he arrived, he saw a crowd of about 30 people milling around. He also saw Officer Meeger placing Gary Lyda under arrest. Gary, a large, muscular man, was resisting the arrest. As other police officers arrived, McGinley assisted Meeger. McGinley testified that Gary was handcuffed but was still kicking and thrashing. The officers placed Gary into the squad car head first with his feet facing the left rear door. They then shut the door and turned to disperse the crowd. Inside the car, Gary began kicking the door and window "so hard that it appeared the window or door was going to bust open," according to McGinley. The officers returned to the car, opened the rear door, removed Gary, and placed him on the ground to place restraints on his legs.
Officer Volpe testified that, when he arrived at the scene, he observed two officers attempting to arrest Gary Lyda. Gary's brother, Chris, was in the crowd watching the arrest. Volpe observed Chris approaching the scene and attempted to stop Chris from becoming involved in the situation. Volpe then assisted Officers Meeger and McGinley in placing Gary in the back of the squad car. Gary kicked the door of the squad car, whereupon several officers took Gary out of the squad car. He observed Chris become more agitated at the officers who were trying to restrain Gary. Chris was yelling, "You [obscenity] don't have any right to be here. Get the [obscenity] out of here. Leave my brother alone. He didn't do anything wrong." Volpe placed himself between Chris and the activities involving Gary. McGinley was shoulder to shoulder next to Volpe. The officers were facing Chris, who was watching his brother's arrest behind them.
Gary was thrashing about, kicking, and yelling obscenities at the officers. Chris became very agitated and elbowed Volpe as he tried to push between Volpe and McGinley. Chris said "This ain't [obscenity] right" as he pushed past Volpe. Volpe informed Chris that he was under arrest, but Chris continued to struggle with the officers to get to the area where Gary was. Using force, Volpe eventually handcuffed Chris and placed him in the squad car. The struggle took two to three minutes. Gary was taken to the hospital following his arrest because of the abrasions to his wrists and ankles.
Officer Sandkam testified that Gary resisted having his legs restrained. Several officers were attempting to hold him down on the ground. Gary was kicking, yelling and thrashing about. Sandkam testified that he attempted to apply a "chokehold" on Gary; he had read about the procedure in various police materials. The hold blocks off the arteries of the neck, cutting off blood circulation. On cross-examination, Sandkam testified that the intended effect of this maneuver is to cause the subject to pass out. Sandkam tried the maneuver for about 10 seconds, and it did not work. He went to his squad car and got a flexcuff to secure Gary's ankles together. He got some rope and tied Gary's ankles to his wrists behind him. Gary was then put into the squad car.
According to the testimony of Officer Hackert, Gary was on his stomach, and the ropes were used to tie his wrists and legs together in a "hog-tie formation." According to Hackert, Gary's arrest was a difficult and tense one.
Alfred Tinsley, a commercial account clerk for Commonwealth Edison and neighborhood resident, testified for the defense. When he arrived on the scene, he observed an argument taking place between Gary Lyda and Greg Freeman concerning some money that Greg owed Gary. Tinsley estimated that there were 11 police cars at the scene. The police put Gary into a chokehold. Gary tried to move away. The officers grabbed him and threw him down on the ground into a puddle of water. They handcuffed his hands behind his back and were "standing in the middle of his back." They then grabbed him by the handcuffs, picked him up, and carried him to the police car. Gary kept yelling, "What are you arresting me for?" The police replied, "Shut the [obscenity] up. We'll think of the charge later, but now get in the damn car." They threw him head first into the backseat of the car. Tinsley heard Gary's head hit the other side of the car. Gary then yelled and began to kick the door of the squad car. The police ran to the car and pulled Gary out by the feet. Gary's face and chest hit the concrete street; he could not break his fall since his hands were tied behind him. Tinsley then heard Chris yelling, "Why did you do that? You didn't have to do that." The police then got some rope, pulled Gary's cuffs up into a "chicken wing position," bringing his feet up to the cuffs, and they "bowed" him. He was yelling at the time and was in considerable pain. They put a second set of cuffs on him. Blood began to run down Gary's wrists. Then they started "hog-tying" him with the rope.
According to Tinsley, Chris then approached his brother, put his hands on his neck and said "Calm down, man. Don't fight it. There's nothing you can do by it." Gary replied, "It's hurting. It's hurting." Chris asked the police, "Why are you doing this?" He was told, "Shut up and get out of here." Chris yelled, "You shouldn't be doing that to my brother. You're hurting him. You have no reason to do that." At that point, the police threw Chris on the ground and arrested him.
William Simmons, a detective with the Du Page County sheriff's office, testified that he stopped at the scene on his way home. He was talking to Gary when Chris approached to try to calm Gary down. According to Simmons, Chris told Gary to cooperate with the police. Detective Simmons said he did not see Chris interfere with Gary's arrest. Simmons characterized the scene as ...