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The People of the State of Illinois v. Danny Comage

February 25, 2011

THE PEOPLE OF THE STATE OF ILLINOIS,
APPELLEE,
v.
DANNY COMAGE,
APPELLANT.



The opinion of the court was delivered by: Justice Burke

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

Chief Justice Kilbride and Justice Theis concurred in the judgment and opinion.

Justice Freeman specially concurred, with opinion.

Justice Thomas dissented, with opinion, joined by Justices Garman and Karmeier.

OPINION

In this case, we must determine whether certain physical evidence was "concealed" within the meaning of Illinois' obstructing justice statute when police officers knew where the evidence was and had no difficulty recovering it, but the evidence was out of the officers' sight for approximately 20 seconds. The appellate court concluded that the evidence was concealed and, on that basis, affirmed the defendant's conviction for obstructing justice. 395 Ill. App. 3d 560. For the reasons that follow, we reverse the judgment of the appellate court.

Background

In March 2007, the State charged the defendant, Danny Comage, with obstructing justice (720 ILCS 5/31--4(a) (West 2006)), alleging that defendant, "with the intent to obstruct the prosecution of himself for possessing drug paraphernalia, knowingly concealed physical evidence, in that he threw a metal pipe and push-rod*fn1 over a wooden privacy fence and out of view while being pursued by police." The State also charged defendant with unlawful possession of drug paraphernalia (720 ILCS 600/3.5 (West 2006)) and resisting a peace officer (720 ILCS 5/31--1 (West 2006)).

In July 2007, a jury in the circuit court of Macon County convicted defendant of obstructing justice and resisting a peace officer but found him not guilty of possession of drug paraphernalia. Defendant subsequently filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial. Defendant contended, inter alia, that one of the State's witnesses made reference to defendant having invoked his right to remain silent during police questioning in violation of Doyle v. Ohio, 426 U.S. 610 (1976). The trial court granted defendant's motion for a new trial. Thereafter, the trial court dismissed the unlawful possession count on double jeopardy grounds and the State then voluntarily dismissed the charge for resisting arrest.

A second jury trial commenced in February 2008 on the remaining charge of obstructing justice. Officers Chad Larner and Kathleen Romer, both of the Decatur police department, testified on behalf of the State. On the night of March 19, 2007, shortly before 10:50 p.m., Larner was investigating a theft at a gas station in the 900 block of West Eldorado Street in Decatur. Larner began looking for the suspect, who had been described as a clean-shaven, thinly built, black man who was wearing "nice casual clothes." While patrolling the area, Larner observed a man who matched the suspect's description in the parking lot of a McDonald's restaurant. The man ran south from the parking lot, across Eldorado Street, and into the parking lot of a Pizza Hut restaurant. Larner stopped the man, advised him of the purpose for the stop, and asked for identification. The man identified himself as defendant.

As Larner was conducting a warrant check on defendant, Officer Kathleen Romer arrived. While the officers were talking to defendant, Romer noticed that defendant began to act strangely: jumping around, fidgeting, and at one point, threatening to urinate on the squad car. As the dispatcher radioed back information about defendant to the officers, defendant took off running through the parking lot. The two officers chased defendant for 20 to 30 yards before he finally stopped.

During the chase, both officers saw defendant reach into his pocket, pull out two rod-like objects that were five to six inches in length, and throw them over a six-foot-tall, wooden privacy fence that abutted the Pizza Hut parking lot. The officers were a short distance behind defendant when he threw the objects. Larner stated that the area was "well-lit with artificial lighting" and that he had a "clear observation" of defendant as they were running. Defendant stopped 10 to 15 feet after throwing the objects when Romer threatened to use her Taser.

After securing defendant, Larner walked around to the other side of the fence to recover the objects defendant had thrown. Larner found a crack cocaine pipe and a push rod in a parking lot on the other side of the fence. At trial, Larner testified that he clearly saw defendant toss the items over the fence and that the items were within 10 feet of where defendant was apprehended. Larner further stated that he located the items "twenty seconds" after he went to look for them. The jury found defendant guilty.

Defendant filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Citing In re M.F., 315 Ill. App. 3d 641 (2000), defendant contended he had not concealed evidence because the officers in this case observed him toss the crack pipe and push rod over the fence and knew where the items were, and the officers promptly retrieved the items with no difficulty. The trial court denied defendant's motion. Defendant was then sentenced to three years' imprisonment.

Defendant appealed, arguing that the State failed to prove him guilty beyond a reasonable doubt because the items at issue were never concealed within the meaning of the obstructing justice statute. The appellate court, with one justice dissenting, affirmed. 295 Ill.

App. 3d 560. We allowed defendant's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).

Analysis

Illinois' obstructing justice statute, section 31--4 of the Criminal Code of 1961, provides:

"A person obstructs justice when, with intent to prevent the apprehension or obstruct the prosecution or defense of any person, he knowingly commits any of the following acts:

(a) Destroys, alters, conceals or disguises physical evidence, plants false evidence, furnishes false information[.]" 720 ILCS 5/31--4(a) (West 2006).

As he did in the appellate court, defendant contends that the State failed to prove him guilty beyond a reasonable doubt of obstructing justice because he never concealed the crack pipe and push rod. To address this argument we must first determine the meaning of the word "conceal" as it is used in the obstructing justice statute.

The cardinal rule of statutory construction is to ascertain and give effect to the legislature's intent. Abruzzo v. City of Park Ridge, 231

Ill. 2d 324, 332 (2008). The legislature's intent is best indicated by giving the statutory language its plain and ordinary meaning. Id. To determine the plain meaning, we must consider the statute in its entirety and be mindful of the subject it addresses. Orlak v. Loyola University Health System, 228 Ill. 2d 1, 8 (2007). Our review on this issue is de novo. Abruzzo, 231 Ill. 2d at 332.

The obstructing justice statute does not define the word "conceal." When a statutory term is undefined, it is appropriate to employ a dictionary definition to ascertain its meaning. See Landis v. Marc Realty, L.L.C., 235 Ill. 2d 1, 11 (2009). The obstructing justice statute was adopted in 1961. See 1961 Ill. Laws 1983, 2039 §31--4 (eff. Jan. 1, 1962). Webster's dictionary from that time contains two definitions of the word "conceal." The first definition states: "1 to prevent disclosure or recognition of avoid revelation of refrain from revealing withhold knowledge of draw attention from treat so as to be unnoticed ***." Webster's Third New International Dictionary 469 (1961). The second definition states: "2 to place out of sight withdraw from being observed shield from vision or notice Before this court, defendant relies primarily on the first definition of the word "conceal." Defendant contends he did not "withhold knowledge" of the crack pipe and push rod from the police officers. To the contrary, defendant emphasizes that he was in full view of the police officers at all times and that "[t]he officers were in no doubt that [defendant] had thrown contraband--or where." Thus, in defendant's view, because both the existence and location of the evidence were fully known to the officers the evidence was not concealed. See also, e.g., People v. Mulcahey, 72 Ill. 2d 282, 285 (1978) (noting that something may be secreted or concealed from others when it is kept from their knowledge).

The State, however, stresses the second meaning of the word "conceal." According to the State, by throwing the evidence over the fence, defendant placed it "out of sight" of the police officers. The State does not dispute that the officers knew defendant had thrown the contraband, nor does the State dispute that the officers were able to recover it in a matter of seconds. However, the State contends that the "word 'conceals' merely conveys that something has been hidden, not that it will remain hidden forever." Thus, in the State's view, defendant concealed the crack pipe and push rod and, therefore, was properly found guilty of obstructing justice. We disagree.

Courts have repeatedly rejected the proposition that temporarily removing contraband from the sight of police officers during a pursuit or arrest is sufficient, by itself, to constitute concealment for purposes of obstructing justice or tampering with evidence statutes. For example, in In re M.F., 315 Ill. App. 3d 641 (2000), the defendant was standing on a landing or portion of roof over the entrance to an apartment building. A police officer was standing on the sidewalk, approximately 30 feet away. As the officer watched, the defendant twice reached into his pocket and made a throwing motion toward the street behind the officer. The police officer's flashlight was shining on the defendant's face and person but the officer did not see what the defendant had in his hands. After the defendant was apprehended by other police officers, the officer on the sidewalk looked in the direction the defendant had thrown the objects. In a matter of seconds, he found three bags containing cocaine, located approximately 10 feet away. Id. at 643-44.

Although the defendant had placed the cocaine out of sight of the police officer, the appellate court determined that the drugs had not been concealed within the meaning of the obstructing justice statute. In its analysis, the appellate court reviewed numerous decisions from other jurisdictions and stated:

"the clear weight of authority from other states concludes that where a defendant merely drops, throws down, or abandons drugs in the vicinity of the defendant and in the presence and view of the police, this conduct does not constitute concealment that will support an evidence--tampering or obstruction charge, or a conviction that is additional to and separate from the ongoing possessory offense." Id. at 650. The appellate court concluded:

"even though respondent may have intended to prevent the apprehension or obstruct the prosecution of himself for the possession charge, throwing the drugs to the ground was not an act of concealment that will ...


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