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Brawner v. City of Chicago

March 17, 2003

LOUISE BRAWNER, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF EMMETT BLANTON, JR., DECEASED, PLAINTIFF-APPELLANT,
v.
CITY OF CHICAGO, A MUNICIPAL CORP. AND TIMOTHY COVELLI, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 96 L 10997 Honorable Jennifer Duncan-Brice, Judge Presiding.

The opinion of the court was delivered by: Justice Smith

UNPUBLISHED

Following the entry of judgment by the circuit court on a jury verdict in favor of defendants City of Chicago (City) and Chicago police officer Timothy Covelli in this wrongful death and survival action, plaintiff Louise Brawner, as the Independent Administrator of the Estate of Emmett Blanton, Jr. (Blanton), appeals. On appeal, plaintiff contends the court erred by allowing testimony concerning alleged hearsay statements and defense counsel violated in limine rulings concerning the use of such statements. Plaintiff contends defense counsel also improperly attempted to elicit undisclosed opinion testimony. Plaintiff further contends the court improperly admitted evidence of the decedent, Blanton's, cocaine intoxication at the time of his death and allowed defendants' toxicology expert to testify about Blanton's mental state during the incident. For the reasons that follow, we affirm.

Background

This action originated in September 1996, when Emmett Blanton, Sr., as special administrator of Blanton's estate, filed a complaint against the City alleging that Chicago police officers wilfully and wantonly shot and killed Blanton without probable cause on August 23, 1996. The incident in question began with Blanton's alleged unlawful restraint of a woman in his car, then involved a police pursuit of Blanton, during which Blanton drove recklessly, struck a building and several vehicles, endangered police officers and ultimately threatened officers who then shot him. Brawner, as the independent administrator of Blanton's estate, subsequently replaced Blanton, Sr., as plaintiff. A third amended complaint was filed in March 2000, in which plaintiff sought to recover damages under wrongful death and survival claims (740 ILCS 180/1, 755 ILCS 5/27-6 (West 1996)), and alleged that defendants and Chicago police officer Jeffrey Jablon wilfully and wantonly shot and killed Blanton.

In their answer, defendants denied plaintiff's material allegations and asserted affirmative defenses of, among other things, governmental immunity (745 ILCS 10/2-202 (West 1996)), justifiable use of force (745 ILCS 5/7-5, 720 ILCS 5/7-1 (West 1996)), and Blanton's own negligent, wilful and wanton, and intentional conduct. Defendants alleged that Blanton's own conduct, which consisted of committing several criminal offenses, attempting to flee the police, and acting under the influence of cocaine, was the cause of any injuries or damages that resulted. Motions in limine

In March 2000, the court heard the parties' motions in limine. Among other things, plaintiff apparently sought to bar reference to evidence of Blanton's "drug use," including the presence of cocaine in Blanton's system at the time of the incident. Defense counsel discussed the expected testimony of a pharmacology expert (O'Donnell) concerning the effects of cocaine on Blanton based on the autopsy toxicology report. The court found that cocaine was "definitely an issue in this case" and, noting that there was evidence of Blanton's use of drugs, denied plaintiff's motion.

Then the parties discussed at length plaintiff's motion concerning Blanton's "mental condition and state of mind," apparently seeking to bar O'Donnell's conclusions about Blanton's cocaine intoxication and paranoia. Over plaintiff's objection that O'Donnell was not qualified to render a psychiatric diagnosis regarding paranoia, the court allowed the defense to present O'Donnell's testimony as to the "manifestations" of cocaine intoxication. The court ruled that Blanton's drug use was relevant and, over plaintiff's objection that the police officers had no knowledge of the drug use, denied plaintiff's motion. Following the hearing, the court entered a written order in which, among other things, it denied plaintiff's "motions in limine regarding [Blanton's] mental condition and state of mind, [Blanton's] drug use and motion with respect to drug paraphernalia found at the scene."

Before trial in April 2000, the court heard additional motions in limine. At that hearing, argument centered on plaintiff's motion "to bar evidence and testimony regarding statements made by or attributed to Shadell Taylor," the alleged victim of unlawful restraint by Blanton. According to the parties, Taylor told police officers essentially that Blanton held her in his car against her will, threatened her by holding a screwdriver to her neck, and pushed her from his car. Defense counsel argued that the incident with Taylor was part of the "database" that both parties' experts, including plaintiff's police procedure expert (Johnson) and O'Donnell, had relied upon to form their opinions. Plaintiff's counsel conceded that the fact that Blanton was originally wanted for unlawful restraint was relevant, but objected to Taylor's statements about Blanton's use of the screwdriver to threaten her as hearsay. The court ruled that the "unlawful restraint will come in" and the witnesses could rely on Taylor's statements. In further discussion, the court clarified that the defense would not call Taylor as a witness because she could not be found. Defense counsel argued that plaintiff's expert Johnson relied on the alleged hearsay in his deposition and, because Blanton's use of the screwdriver was "specifically" mentioned in Johnson's notes, it was relevant as a basis for Johnson's opinions. The court ultimately denied plaintiff's motion concerning Taylor's statements.

The court then considered plaintiff's motion "to bar evidence and testimony regarding contents of notes found in decedent's vehicle." Defense counsel argued that O'Donnell relied on the notes in part, and the court ruled that, even if such material itself was not admissible, it could be relied upon by the witnesses. The court allowed the experts' conclusions based on the notes, specifying that O'Donnell could say Blanton was "depressed *** from reviewing these notes," but granted plaintiff's motion as to the notes themselves. Following the hearing, the court entered a written order, in which, among other things, it denied plaintiff's motion "to bar evidence and testimony regarding statements made by or attributed to Shadell Taylor." Trial: Plaintiff's Case

The following day the trial began and, in opening statement, defense counsel referred to the incident involving Shadell Taylor in Blanton's car. Plaintiff objected, and in a sidebar conference, the court ruled that Taylor's statements were admissible to show the officers' "mindset as they start off on this chase [of Blanton]," but not for the truth of the matter asserted. After the court further ruled that the statements should be prefaced with the phrase "told that" to the officers, plaintiff entered a continuing objection to such statements.

Plaintiff called several Chicago police officers to testify as adverse witnesses pursuant to section 2-1102 of the Code of Civil Procedure. 735 ILCS 5/2-1102 (West 2000). Officer Timothy Covelli testified that on August 23, 1996, he and his partner, Robert Balesh, first received an emergency flash message about a crime in progress when they were at the police station shortly after midnight. According to the message, Blanton tried to ram a police car head-on after crossing into the oncoming lanes in traffic. The officers were in their squadrol, with Officer Balesh driving, when they received a second message concerning Blanton around 12:25 a.m. That message conveyed that the police were chasing Blanton because there was a kidnapping involved. According to the message, Shadell Taylor told the police that Blanton "grabbed her off the street," tried to ram a police car, and, when the police car made chase, he shoved her out of the car. In response to the message, the officers went toward Halsted and Clark with their sirens and emergency lights activated. There, they saw Blanton's car and a few squad cars in pursuit, and they joined in the chase. On direct examination, Officer Covelli testified that, at that point, based on the emergency message, he believed Blanton was armed and dangerous. Plaintiff objected to testimony as to what Officer Covelli believed, and the court sustained the objection and struck the response.

Officer Covelli further testified that he and Officer Balesh pursued Blanton to the intersection of Clark, Diversey, and Broadway, where they saw Blanton's car crash into a store window on one corner, then back up. There were squad cars around Blanton and about six police officers on foot, with their guns drawn. Blanton's car came "flying back" off the curb by the store and, in an attempt to flee, Blanton "chased" a few officers out of the intersection, almost hitting them. Blanton chased one officer "way out of the way, like [he was] trying to run him down" and he smashed into other officers' squad cars. All the officers were yelling at Blanton, directing him to stop and show his hands, but Blanton failed to comply. Instead, Blanton began to drive forward and Officer Covelli heard one gunshot fired from the direction of Blanton's car. At the time, Officer Covelli did not know who fired the shot. Blanton's car then jumped the curb onto the sidewalk on Diversey, and Blanton drove eastbound at about 40 miles per hour on the sidewalk, causing police officers and pedestrians to run for cover and dive out of the way. Blanton returned his car to the street and continued driving east on Diversey, then turned south onto Pine Grove and struck a parked car at the "T-shaped" intersection at Wrightwood. The officers pulled up about eight feet behind Blanton's car, blocking Blanton from going north on Pine Grove, but without "wedg[ing]" him in the space, and activated a high-intensity light to shine into the rear of Blanton's car.

As soon as they stopped, Officer Covelli got out of the squadrol and, standing behind the open passenger door, he drew his gun and pointed it through the open passenger door window for cover. Officer Covelli had his gun out because he was afraid for his life. He considered Blanton to be "a very dangerous man" based on all of Blanton's conduct up to that point, including everything he had seen, the emergency messages he received, and the fact that Blanton was "behaving like a crazy person." Once Officer Covelli assumed the position of cover, he saw Blanton back up his car and ram into the front of the squadrol, hitting the bumper. From the time the squadrol had stopped, Officers Covelli and Balesh shouted warnings and instructions to Blanton, directing him to get out of his car. Other police units approached behind them, but Officer Covelli did not see them because his attention was focused on Blanton. Blanton did not attempt to go in either direction on Wrightwood. After backing into the squadrol, Blanton's car "bounced off" the squadrol and came to a stop.

According to further testimony, the next thing Officer Covelli saw was Blanton in his car, going down to his right and appearing to reach to the floor for something, disappearing completely from view. Then, in a single motion, Blanton "popped" up and turned toward Officer Covelli, swinging his right arm over the middle of the front seat of his car and holding a shiny object in his hand that he pointed at the officer. At that moment, Officer Covelli was "scared to death" and he fired his gun at Blanton because he believed that Blanton was pointing a gun at him and was going to shoot him. Officer Covelli fired six times, continuing to shoot until he thought the threat was over. Then, with other officers, Officer Covelli approached Blanton's car, but he stopped at the rear bumper because he was still "in shock" and scared.

Officer Covelli did not make an official statement at the scene, but he told a sergeant there that he had fired his gun and turned in the gun. Officer Covelli returned to the police station, where he made reports and spoke with police personnel. When he learned that no gun was found in Blanton's car, Officer Covelli still thought there was a gun that had not yet been found. Officer Covelli filled out a weapon discharge report and a statement to his commanding officer within hours of the incident; those reports were accurate, but were only summaries. About two or three months later, Officer Covelli made an official written statement in which he mentioned the shiny object that Blanton held.

Officer Jeffrey Jablon testified that at the time in question, he was on duty alone in an unmarked vehicle when he received a radio message about Blanton and the police pursuit. After receiving a second emergency message, Officer Jablon activated his emergency equipment and joined in the chase. Officer Jablon testified substantially consistent with Officer Covelli as to the incident at the store at Clark and Diversey. The officer heard a shot when Blanton pulled away from the store and did not know who had fired, but thought there was a "50/50 chance" that the shot came from Blanton. Officer Jablon saw Blanton nearly hit one police officer with his car and another officer jump backwards onto the hood of his squad car to avoid getting hit.

Officer Jablon further testified that he saw Blanton drive on the sidewalk on Diversey, continued to follow him, and pulled up to the scene on Pine Grove after Officer Covelli's squadrol had stopped. Officer Jablon drew his gun when he got out of his car because, based on everything known about Blanton to that point, he was dealing with a dangerous, and possibly armed, man. As Officer Jablon approached Blanton's car, he saw Blanton, who had turned around in the car to face Officer Covelli, point with something that he held in his right hand. Officer Jablon was in fear for his life and prepared to fire his gun. He heard Officers Covelli and Balesh shout at Blanton before he heard shots. When he heard the gunshots, Officer Jablon thought he was being shot at, and, upon seeing and hearing the glass in Blanton's car windows break, he started to fire his gun. Officer Jablon discharged 10 bullets in rapid succession and ...


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