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06/30/94 PEOPLE STATE ILLINOIS v. MICHAEL WYDRA

June 30, 1994

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MICHAEL WYDRA, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE GERALD T. ROHRER AND JOAN M. CORBOY, JUDGES PRESIDING.

Gordon, Murray, Cousins, Jr.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

Nature of the Case

After a jury trial in the circuit court of Cook County, defendant, Michael Wydra, was found guilty of aggravated battery and four traffic offenses (speeding, improper passing at an intersection, driving in the wrong direction, and fleeing and eluding a police officer). The jury found defendant not guilty of criminal damage to property and resisting arrest. The trial court sentenced defendant to 24 months' probation for the aggravated battery conviction. Regarding the traffic violations, the trial court entered judgment without further fine or penalty on the speeding and driving in the wrong direction convictions. The trial court did not enter judgment, but entered an order of supervision satisfied as to the improper passing and fleeing and eluding violations. Defendant appeals his convictions for aggravated battery, speeding, and driving in the wrong direction.

Facts

This case arose from an encounter on November 17, 1989, between defendant and two uniformed Morton Grove police officers, Matthew Pankow and Edward Mahnke. According to the testimony of both officers, they were sitting in their police cars at a gas station at Lincoln Avenue and Austin Boulevard at 1:40 a.m. when Officer Mahnke called Officer Pankow's attention to defendant's car which was traveling west on Lincoln toward Austin at a high speed. Officer Pankow testified that at this point he activated his radar unit and recorded defendant's speed as 50 m.p.h. Officer Mahnke testified that his attention was on defendant's car at this moment, so he did not see Officer Pankow activate his radar. Officer Mahnke estimated that defendant was traveling at 15 to 20 m.p.h. over the posted limit of 30 m.p.h.

Both officers testified that as defendant's car approached the intersection, it went into an eastbound lane, going around a car which was stopped in the left-hand westbound lane at the intersection. Officer Pankow activated the siren and the emergency lights atop his marked squad car, then pulled out of the gas station in pursuit of defendant, Officer Mahnke following close behind in his unmarked police car with the emergency lights activated. According to the officers, defendant's car continued west in the eastbound lane of Lincoln Avenue for two blocks, then turned left for one block, then east on Elm Street which is a dead end. After turning on Elm Street, defendant stopped his car in the middle of the street. Officer Pankow, who had activated his car's spotlight when defendant turned off Lincoln, brought his squad car to a stop behind defendant's car. As he did so, defendant got out and ran along the side of the home at 6045 Elm, which the officers later learned was where defendant lived. Officer Mahnke arrived as defendant ran from his car.

Officer Pankow testified that he left his vehicle and ran to look into an industrial park which was behind the backyard, at which time he heard a noise near the house. He turned to see defendant trying to open a door at the rear of the house. Although it was dark, there was an outside light near the door, and there were lights in the industrial park.

Officer Pankow further testified that he announced himself as "Police" and shined his flashlight across the yard at defendant who was thirty or forty feet away. Defendant then charged at him, yelling, "Shoot me, you f////--a////--. Kill me." Defendant attempted to get the officer's service revolver from its holster. As Officer Pankow tried to cover the holster with his hands, defendant hit him and scratched at the officer's hands. Officer Pankow pushed the emergency button on his radio which sent a signal that the officer needed assistance. The two men wrestled to the ground. Pankow stayed on the ground, leaning to the side to keep defendant from getting his service weapon.

Officer Pankow stated that at this point he saw defendant's parents standing in the yard. Officer Mahnke arrived and distracted defendant. Officer Pankow was then able to get up. Defendant again charged at Pankow, and Officer Mahnke pulled defendant to the ground. The two officers then handcuffed defendant. Officer Pankow stated that during the entire incident he was wearing his navy blue police uniform, his polished metal star and name tag, and his navy blue police jacket, which had a yellow and light blue insignia patch and which defendant tore during the scuffle.

Defendant and Officer Pankow were transported by ambulance to a hospital where Officer Pankow was treated for scratches on his hands and chin. Pankow also had a bruised shoulder and arm. Defendant was transferred to a different hospital where he remained for psychiatric care for the next eight days.

On cross-examination, Officer Pankow admitted that his reportindicated that defendant was traveling at 60 m.p.h. and it did not mention use of radar. Neither did his report note that he was injured by defendant. He had suggested that defendant be taken to the hospital for defendant's own safety because he appeared upset, irritated and irrational.

Officer Pankow also testified on cross-examination that he completed and signed the complaints (the tickets) for the four traffic offenses. He admitted, however, that, although the tickets included a certification that they were subscribed and sworn to in the presence of a deputy clerk whose signature also appears on them, Officer Pankow did not, in fact, swear to the information in those complaints. He stated that it was police department policy not to do so.

Officer Mahnke testified that while pursuing defendant, he shined his spotlight toward the driver's side of defendant's car. After reaching the house, Officer Mahnke headed for the industrial park, but returned when he heard the radio message that Officer Pankow needed assistance.

As he arrived in defendant's backyard, he heard yelling, so he shined his flashlight. He saw defendant standing over Officer Pankow who was on the ground, his hands covering his gun, his shoes off, and his feet in a defensive position. Defendant was yelling, "Shoot me, kill me. I want to die." Officer Mahnke grabbed defendant and wrestled him to the ground. As Officer Pankow told him defendant had tried to get his gun, Officer Mahnke felt defendant reach for his gun. The two officers managed to overcome defendant and handcuff him.

On cross-examination, Officer Mahnke stated that, while he did not see defendant hit Officer Pankow with his fists and Officer Pankow did not complain to him of any injuries, he did see defendant hit Pankow with an open hand and grab his shoulder. Officer Mahnke observed that defendant was angry and behaving violently, attempting to injure himself and the officers. He thought defendant should be taken to the hospital for his own protection. Officer Mahnke also admitted that it was very dark in the back yard and speculated that it might have been difficult for a person in a navy blue clothing at the rear of the yard to be distinguished by someone standing at the doorway.

Morton Grove police officer David Jennetten testified for the defense. He lived nearby and was a social acquaintance of defendant. He had spoken with defendant earlier that evening at a bowling alley. Later, he went to defendant's backyard after hearing the police radio call. He testified that the overhead lights of Officer Pankow's police car were on when he arrived, as was the small light by the back door. There were no lights in the backyard, but the industrial park behind it was lit and he had no trouble seeing anyone in the yard.

As he went into the yard, he saw the two officers handcuffing defendant as defendant's father stood nearby. Defendant asked Jennetten for his gun so that he could kill himself. Jennetten noticed there were scratch marks on Officer Pankow's hands. Later, he saw Officer Pankow treated at the hospital.

Officer Jennetten also testified that defendant has a reputation as a peaceful person. On cross-examination, he was asked, "Did you know that some time just before then that Mr. Wydra had been arrested for a battery?" Defense counsel objected. After a sidebar Discussion in which the State made an offer of proof, the trial court sustained the objection and instructed the jury to disregard the question.

Officer Jennetten also stated on cross-examination that defendant had a couple of drinks in his presence at the bowling alley and was still there an hour and a half later when Jennetten left.

Defendant's mother, Rita Wydra, also testified for the defense. On the night of November 17, 1989 she was awakened by the sound of her back doorbell. She went to the enclosed porch and looked out. She thought she saw her son and the silhouette of another person in the backyard. She heard her son say, "Go ahead and shoot me. I want to die." She went to get her husband, then put on a coat and shoes and went out to the backyard. There she saw two officers near the door. Defendant was lying on the ground in the middle of the yard. She testified that she went to him, turned him over onto his back and brushed dirt and grass from his face, then tried to calm him down, as he was "grumbling and wiggling."

Ms. Wydra also testified that, prior to this incident, defendant had been depressed over the breakup of a relationship with a girl friend, Lori Johnson. Ms. Wydra was allowed to testify over the State's objection that defendant was afraid of the Lori's father who had threatened to kill him. She was also allowed to testify that, shortly after this occurrence and defendant's return from the hospital, defendant woke her late one night to say goodbye, then left the house. She and defendant's father went after him, finding him straddling a railing above the expressway. He ran from them to the next overpass, where police apprehended him.

On cross-examination, the State asked Ms. Wydra if defendant had "bothered" his former girl friend at her place of employment. She answered "I don't think so." Defendant's objection to this question was sustained. The State also asked Ms. Wydra when defendantfirst told her that Lori's father, Mr. Johnson, had threatened to kill him. She answered that it was on the night Mr. Johnson was arrested for attacking defendant's friends. The State then asked, "And wasn't that after Mr. Johnson's house had been set on fire?" Defense counsel objected. After a Discussion in chambers and voir dire of Ms. Wydra, the court sustained the objection, but ruled that the State could ask Ms. Wydra whether defendant told her why Mr. Johnson threatened to kill him. However, when cross-examination resumed, the State did not pursue that line of questioning any further.

Defendant's father, John Wydra, testified that on the night of November 17, 1989, he was awakened by the sounds of the doorbell, a knocking at the back door, and his wife calling to him. He put on his robe, slippers, and glasses and went onto the enclosed porch and looked into the yard. There he saw two silhouettes, but could not distinguish who they were because there was very little light from the industrial park behind the yard, and no light shed on the yard by the street light in front of the house. He went outside, walking about 30 to 35 feet into the yard at which point he recognized one of the men as his son. He heard no conversation or altercation of any kind, so he went back into the house to dress. When he returned, defendant was on the ground in the yard, handcuffed, with a police officer holding down his legs. There were a number of people standing nearby, two of whom he noticed wore Morton Grove police department uniforms.

John Wydra testified that later that night he told a doctor that defendant had been depressed before the incident, and he and his wife signed papers afterwards to admit defendant to the hospital.

Dr. Song Ling Chang treated defendant at the emergency room of Lutheran General Hospital on the night of November 17, 1989. He testified that defendant was upset because of a girl friend and threatened to commit suicide. Defendant had difficulty understanding what was happening. Dr. Chang diagnosed defendant's condition as major depression disorder and concluded that defendant was dangerous to himself and should be hospitalized. On cross-examination, Dr. Chang stated that ...


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