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April 13, 1994


Appeal from Circuit Court of McLean County. No. 92CF298. Honorable Wayne C. Townley, Jr., Judge Presiding.

Released for Publication June 1, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Honorable Carl A. Lund, J., Honorable John T. McCULLOUGH, P.j., Honorable Robert J. Steigmann, J.

The opinion of the court was delivered by: Lund

JUSTICE LUND delivered the opinion of the court:

Following a jury trial in the circuit court of McLean County, defendant James Stack was convicted of aggravated battery (Ill. Rev. Stat. 1991, ch. 38, par. 12-4(b)(6)) and sentenced to a term of five years' imprisonment, to be served consecutively to a prison term he was currently serving for another offense. He now appeals, claiming a new trial is necessary because the trial court erroneously believed it was required to strike his claim of self-defense as a sanction for his counsel's failure to comply with discovery rules. He also argues remand is necessary because the court failed to make proper inquiries in response to defendant's statements at his sentencing hearing that his counsel had ineffectively represented him.

Defendant was charged by indictment with biting McLean County correctional officer Robert Stevens on the wrist (knowing that he was a correctional officer executing his official duties) while several officers attempted to restrain defendant in the county jail.

Defendant was represented by an attorney from the county public defender's office. Before trial, defendant advised the trial court he was not ready to proceed. He complained his counsel had not fully investigated the case and had not subpoenaed two witnesses, correctional officer Doris Woods and former jail inmate Mike Gullo, for testimony. Defense counsel indicated he had spoken with Woods and did not believe her testimony was beneficial. Defendant indicated Gullo was in the "holding" cell and had seen defendant being carried to the "intox holding cell area." Although unable to question him fully, defendant said Gullo would testify that he did not hear defendant threaten the officers and that defendant, to Gullo's knowledge, did not resist the officers. The trial court suggested that defendant and the State stipulate that Gullo would testify to those facts. Defendant refused, stating he wanted Gullo to testify in the event he remembered anything defendant did not have an opportunity to ask him. The court insisted the trial continue as scheduled, reasoning that defense counsel had interviewed several potential witnesses andthere was no reason Gullo could not have been interviewed and subpoenaed if he had useful information.

Robert Stevens testified that during the morning of April 6, 1992, he was wearing his uniform and on duty at the county jail when he was called to the recreation room. Defendant was asked to leave, he refused, and Stevens and three other officers carried him from the room to his cell in the male intox area of the jail. When they arrived at defendant's cell, the officers laid him on the floor on his right side and started to back away. He saw defendant clench his fist and make a sudden movement toward one of the other officers. They again restrained defendant and scuffled with him on the floor of the cell. Stevens was attempting to restrain defendant's upper body by holding his shoulders. His arm was caught between defendant's head and the floor, and defendant started biting him on the left wrist. Stevens started yelling that defendant was biting him. He held the bite for about 30 seconds, until Stevens asked for the stun gun, at which time defendant released his bite on Stevens' wrist. The officers then placed defendant in handcuffs and leg irons. Stevens' wrist was purple and the skin was broken, causing bleeding, which forced him to seek emergency room treatment.

On cross-examination, Stevens testified that defendant did not struggle with the officers carrying him from the recreation room, make any threats to them, or attempt to strike anyone. The sudden movement defendant made toward one of the officers in his cell was as if to strike the officer. Stevens attempted to find a pressure point behind defendant's jawbone to get him to release the bite and, in doing so, his index finger could have poked defendant in the eye. He heard one of the other officers say, "don't even do it," as he saw defendant clench his fist. The only people in the cell during the altercation were defendant and the four officers.

Russell Stevens, another correctional officer present at the time, testified that he was called into the recreation room because defendant refused to leave. When they all arrived, defendant was asked to leave several times, but refused. The officers then carried him to his cell by his arms and legs. After they laid him on the floor of the cell, defendant make a gesture as if to swing at one of the officers, but Stevens could not see defendant's fist. He told defendant not to think about doing it; all the officers then restrained him and Officer Robert Stevens yelled that defendant was biting him.

On cross-examination, Russell Stevens testified that defendant did not threaten, try to strike, or struggle with any of the officers while being carried. When defendant was carried into his cell, the officers sat him on the floor in an upright position.

Officer Ray Donald testified he was on duty in the recreation room when defendant entered. Inmates are not allowed to turn up the volume or change channels on the television. Defendant turned up the volume, and Donald warned him about it. Defendant became angry and began cursing at him, and Donald threatened to send defendant back to his cell if his behavior continued. Defendant continued to curse and got up from his chair, at which time Donald called for assistance. After defendant insisted he should be able to turn up the television volume, the sergeant told defendant he would have to go back to his cell. Defendant refused to go. After the officers returned him to his cell, defendant lunged at one of them and they wrestled him to the floor. He then began biting Robert Stevens, which lasted approximately 90 seconds.

On cross-examination, Donald testified that when the officers initially put defendant in his cell he was standing up. When he lunged at them, they put him on the floor. Rules do not allow inmates to touch the television set. If they want the volume or channel changed, they must ask the officer on duty to do it. When he told defendant not to touch the television, defendant replied that the rule applied only to televisions in the "pods," not the recreation room. Donald told him that inmates were not allowed to touch the one in the recreation room. Donald identified a rule book given to all inmates when they first enter the jail. He conceded the rule in the book regarding television sets mentions only the pods, but he insisted it applied to the recreation room as well.

Officer Curtis Anders testified that he assisted in carrying defendant from the recreation room and placing him on the floor of his cell. One of the officers said, "Don't do it," or, "Don't go for it," then defendant made a sudden move and the officers restrained him. When Robert Stevens tried to grab ...

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