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The People of the State of Illinois v. Joseph J. Berardi

January 21, 2011

THE PEOPLE OF THE STATE OF ILLINOIS PLAINTIFF-APPELLEE,
v.
JOSEPH J. BERARDI,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court, of the Ninth Judicial Circuit Fulton County, Illinois, No. 09-CM-227 The Honorable Edward R. Danner, Judge, Presiding.

The opinion of the court was delivered by: Justice McDADE

JUSTICE McDADE delivered the judgment of the court, with opinion.

Justices Holdridge and O'Brien concurred in the judgment and opinion.

OPINION

The State charged defendant, Joseph J. Berardi, with resisting a peace officer in violation of section 31-1 of the Criminal Code of 1961 (720 ILCS 5/31-1 (West 2006)). Following a trial, a jury found defendant guilty of the charge in the information. The circuit court of Fulton County sentenced defendant to perform community service and imposed fines and costs. For the reasons that follow, we reverse defendant's conviction.

BACKGROUND

The amended information charged defendant with the following conduct:

"[D]efendant knowingly resisted the performance of W.D. Taylor of an authorized act within his official capacity, being the securing of a private office space at Canton City Hall, knowing W.D. Taylor to be a peace officer engaged in the execution of his official duties, in that he physically remained in such office space and refused to exit after being asked repeatedly to exit ***."

Our court has construed section 31-1 as follows:

"Given a reasonable and natural construction, [it] do[es] not proscribe mere argument with a policeman about the validity of an arrest or other police action, but proscribe[s] only some physical act which imposes an obstacle which may impede, hinder, interrupt, prevent or delay the performance of the officer's duties, such as going limp, forcefully resisting arrest or physically aiding a third party to avoid arrest." People v. Raby, 40 Ill. 2d 392, 399 (1968) (citing Landry v. Daley, 280 F. Supp. 938, 959 (N.D. Ill. 1968)).

See also People v. Lauer, 273 Ill. App. 3d 469, 474 (1995).

The facts adduced at trial are that at the time of the alleged offense, defendant was an alderman for the city of Canton. On March 31, 2009, Canton had published a notice in a local newspaper that the city's budget was then available for viewing during normal business hours. On the date of the offense, Friday, April 3, 2009, defendant had called Canton city hall and requested a copy of Canton's annual budget. An election was scheduled in Canton on the following Tuesday. At trial, defendant testified that he wanted "to make sure the public has an opportunity to see [the budget] because this is Friday. And if you don't get it Friday, then comes Monday, and you only got [sic] a day to go through a 400 page budget."

Defendant was informed that he could come to city hall to obtain a copy of the budget. Shortly thereafter, defendant received a call from Canton's budget director contradicting both the notice in the paper and the information defendant obtained from the phone call. The budget director informed defendant he could not obtain a copy of the budget at that time.

The same day defendant went to Canton city hall. Defendant's wife and friend, who are not parties to these proceedings, accompanied him. Defendant's wife prepared a video recording of the events that transpired when defendant went to city hall concerning the budget. The recording is an exhibit in the record on appeal. Upon his arrival, defendant proceeded directly to the budget director's office. The budget director's office is located adjacent to a central office area. The budget director's office can be locked with a key. Access to the central office area is through a locked door. The locked door to the central office area requires a key fob for entry. Defendant did not possess a key fob for access to the central office area or keys for any of the internal offices.

The budget director, John Favorita, informed defendant that the mayor had directed him not to distribute copies of the budget until the following Monday. Defendant and his entourage proceeded to the city clerk's office where they again requested a copy of the budget. A deputy clerk informed defendant he would have to discuss any issues concerning the budget with the budget director. After directing defendant back to the budget director, the deputy clerk left her own desk, went to the budget ...


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