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May 27, 1997



Rehearing Denied September 17, 1997. Released for Publication October 19, 1997.

Presiding Justice Campbell delivered the opinion of the court. Buckley, J., and Gallagher, J., concur.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

This appeal arises out of a jury verdict and judgment entered against defendants, Village of Crestwood Police Officers Charles Greinke and Christopher DiVirgilio f/k/a Christopher Rodriguez, and in favor of the plaintiff, Robert Rheinheimer, in connection with plaintiff's action against defendants for the use of excessive force inviolation of his civil rights pursuant to 42 U.S.C. Section 1983. On appeal, defendants contend that: (1) the jury verdict was contrary to the manifest weight of the evidence, and the trial court erred in failing to enter judgment notwithstanding the verdict; (2) they were denied a fair trial by cumulative trial errors; (3) the jury received improper instructions; and (4) the award was excessive. For the following reasons, we affirm the judgment of the trial court.

The record reveals the following relevant facts. On August 12, 1990, defendants Greinke and DiVirgilio, and a third co-defendant, Bryan Ott (Ott), arrested plaintiff after they stopped his vehicle on Cicero Avenue near Route 83 or "Cal-Sag." Subsequently, plaintiff filed an action against defendants, Ott, and the Village of Crestwood, claiming that defendants used excessive force during his arrest in violation of his constitutional rights and 42 U.S.C. Section 1983.

At trial, plaintiff testified that on August 11, 1990, at 10 p.m., he went to a nightclub called Cocomos, located at Route 83 and 127th Street in Crestwood. Plaintiff had a beer, followed by a mixed drink, and a shot of straight alcohol. Plaintiff danced with a girl, then had another beer and left Cocomos at approximately 2:30 to 3 a.m. on August 12. Plaintiff stated that altogether, he consumed four or five drinks over a four or five hour period, and that he did not feel intoxicated.

As he drove away from Cocomos on Cal-Sag, he noticed some police Mars lights in his rear view mirror. Plaintiff did not pull over immediately because the highway was one-lane wide, and there was a ditch in the gravel shoulder of the highway. Plaintiff waited to stop his car until the road divided into two lanes near Cicero, exited his car, and walked back toward the police vehicle which stopped behind him.

At that point, defendant DiVirgilio exited his police vehicle, walked toward plaintiff and said, "what the hell do you think you're doing." Plaintiff responded that he was trying to get home to his girl friend. DiVirgilio then grabbed plaintiff's left arm, spun him around, and threw him against the back of his car, causing plaintiff to hit his chin on his car. Plaintiff stood up and pushed himself off the car, at which point DiVirgilio pushed him from the back again, slamming plaintiff's head against the back windshield of plaintiff's car. Plaintiff stated that he was so scared that he urinated in his pants, and that DiVirgilio laughed at him. Plaintiff then put his arm over DiVirgilio's head and brought him into a headlock. Plaintiff did not remember anything that happened after that.

Plaintiff stated that the next thing he remembered is waking up in a jail cell in the Crestwood Police Department handcuffed to abench and bleeding from his chin. Plaintiff looked out of a small window in his jail cell and asked, "why did they do this to me." At around 7 or 8 a.m., DiVirgilio questioned plaintiff about his drinking the night before. Plaintiff was then allowed to make one telephone call for bail.

Plaintiff called his girl friend and told her that he was in jail, that he had been beaten up, and that he needed $100 for bail. Plaintiff was released from custody between 8 a.m. and 9 a.m. Plaintiff was treated at Christ Hospital in Oak Lawn, where he received five stitches on his chin.

Plaintiff stated that the police brought three battery charges against him for resisting arrest, and additional charges for driving under the influence, crossing the shoulder, and failure to yield to an emergency vehicle.

Plaintiff further stated that while he was in the jail cell handcuffed to the bench, he overheard a male voice outside the door say, "that's what's going to happen to you when you mess with a six-degree black belt."

On cross-examination, plaintiff admitted that prior to his vehicle stop, he was exceeding the speed limit, and that he thought the police vehicle was following him for speeding. Plaintiff stated that it was possible that he left his driving lane and hit some gravel in the shoulder area while he was driving, but did not recall crossing the center line. Plaintiff had no recollection of turning onto Cicero. After he was released from jail, plaintiff observed some blood on both the rear windshield and the trunk of his car, covering about a third of each area.

Plaintiff did not recall either refusing medical treatment or being uncooperative with emergency medical technicians at the police station. As a result of this incident, plaintiff's drivers license was suspended for six months.

When plaintiff testified as an adverse witness in the defendants' case, he admitted that during a prior deposition, he testified that did not recall urinating in his pants, and stated that no one brought it to his attention at the scene. Defendant explained the contradiction from his trial testimony by stating that at the deposition, he was embarrassed to admit that he had urinated in his pants.

Pam Barre testified on plaintiff's behalf that on August 11, 1990, she lived in Crestwood and was married to Leonard Barre. *fn1 At around midnight, Pam and a girl friend went to Cocomos for two to fourhours. Leonard arrived at Cocomos, Pam and Leonard got into a fight, Pam left Cocomos and began to walk home on Cal-Sag. Leonard followed Pam, and they started to push each other. Shortly thereafter, two police squad cars arrived.

Pam identified defendant Greinke as one of the officers who arrived on the scene. The officers questioned Pam and Leonard for about 15 to 20 minutes, and each of them got into a separate police car. Pam never saw a car speed past her while she was standing out on Cal-Sag.

Once in the police car, the officers got a radio call, and proceeded on Route 83 towards Cicero Avenue. At Cicero, the officers pulled up behind another squad car, got out, and three officers tried to hold down a guy whose hands and legs were "flying all over." The guy was sitting in his car with his legs hanging out of the car. Pam crawled over the front seat of the squad car and asked the officers if they needed assistance. It did not appear to Pam that the individual was attacking the officers, but just that he was resisting arrest. Pam could not identify plaintiff in court from that incident because she never saw his face at the scene. Later, Officer Greinke returned to the police car and said that the officers were fine and that the guy was "whacked out." The officers drove Pam to her home. After that evening, Greinke returned to Pam's house in uniform.

Leonard Barre then testified that in the early morning hours of August 12, 1990, he met Pam at Cocomos. A few weeks later, Greinke came to the Barre home dressed in his police uniform. Pam was present at the time. Greinke asked Leonard about the night of August 11, 1990, stated that there was going to be a trial regarding the incident, and wanted to know whether either Leonard or Pam could remember anything that would be helpful to him. Leonard stated that he did not remember anything pertinent. Pam stated that she did not remember much either.

About a month later, Greinke returned to the Barre home in civilian clothes, and again asked Leonard if he could remember anything helpful in order to testify. Pam was not present at that time. Greinke stated that if Leonard could not "remember you know, stuff, he [Greinke] may be able to help," refresh Leonard's recollection of "what went on that night." Leonard told Greinke outright that he did not want to testify because he did not want to miss work and did not know anything important. Greinke stated that he would be sure that Pam had a ride to court and back, and that Leonard would be "taken care of" for his time if he could remember anything, but did not mention anything in particular. Leonard told Greinke that he was not interested and felt uncomfortable, but that if heremembered anything important he would come forward. Leonard saw Greinke once more after that, right before trial, and gave Greinke Pam's address and telephone number.

Leonard then testified as a defense witness, pursuant to subpoena. Leonard testified to the same essential facts as Pam explaining how they came to be standing out on Cal-Sag ...

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