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The People of the State of Illinois v. Nubia Rendak

September 1, 2011


Appeal from the Circuit Court of Cook County. Honorable Kevin M. Sheehan, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Lavin

No. 08-2093

PRESIDING JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Pucinski and Sterba concurred in the judgment and opinion.



¶ 2 This appeal stems from a physical altercation occurring at a police station between defendant Nubia Rendak, Officer Charlene Fine and detention aide Joyce Ivy. As a result of the incident, defendant was charged with two counts of aggravated battery to a peace officer and two counts of resisting or obstructing a peace officer. After a bench trial, defendant was convicted on all counts and sentenced to two years' probation. On appeal, defendant contends that: (1) her indictment should have been dismissed because it was the product of vindictive prosecution; (2) she is entitled to a new trial because the trial court improperly restricted defense counsel's cross-examination of the State's witnesses; and (3) the evidence at trial was insufficient to prove her guilty beyond a reasonable doubt. For the reasons discussed below, we affirm.

¶ 3 In the early morning hours of July 22, 2004, Chicago police officers were called to the home of defendant where she was arrested for domestic battery to her then-husband. Due to defendant's conduct during her arrest and her behavior while she was being processed at the police station, she was charged on July 24, 2004, with two counts of aggravated battery to a peace officer. On August 13, 2004, the aggravated battery charges against defendant were noll-prossed when the officers failed to appear in court for a hearing. On October 10, 2004, defendant's domestic battery charge, which originated from the altercation resulting in her arrest, was amended to battery to which defendant plead guilty and received a sentence of one year supervision.

¶ 4 On May 2, 2006, defendant filed a civil rights lawsuit in federal court against the City of Chicago, the police officers who arrested her, and the police officer and detention aide who processed her at the police station. In her complaint, defendant alleged that while she was being placed under arrest for her domestic battery charge on July 22, 2004, the arresting Chicago police officers battered her without any provocation, to which she sustained injuries and trauma. On July 27, 2006, the parties and the attorneys met in an unsuccessful attempt to settle the civil suit. On July 28, 2006, an indictment against defendant was filed charging her with two counts of aggravated battery to a peace officer and two counts of resisting a peace officer resulting from her conduct on July 22, 2004. At a second settlement conference on September 12, 2006, the district court determined that defendant's civil suit should be stayed and dismissed without prejudice until the completion of the criminal case pending against defendant.

¶ 5 Prior to her criminal trial, defendant filed a motion to dismiss the July 28, 2006, indictment which argued, inter alia, that the indictment was brought as vindictive retaliation for her filing the civil rights lawsuit. Defendant requested that the charges against her be dismissed, or alternatively, that the court conduct an evidentiary hearing to determine whether the State had abused its discretion by indicting her. The trial court denied this motion.

¶ 6 At trial, three witnesses testified on behalf of the State. Officer J. Meier testified that around 12:30 a.m. on July 22, 2004, he responded with his partner, Officer Prete, to a domestic battery call at the home of defendant. After speaking with defendant's then-husband and observing injuries to his face, Officer Meier saw defendant emerge from an alley. Officer Meier testified that when he first saw defendant, he noticed that there were bruises on both of defendant's arms as well as above her left eye. He also believed that defendant was intoxicated because she smelled of alcohol, spoke in a drunken manner and was acting belligerent. When Officer Meier approached defendant to place her under arrest, she resisted. Officer Meier admitted that because defendant was struggling, some force was required to restrain defendant to effect an arrest, however, he denied that any officer at any time punched or kicked defendant, or stomped on her hand during the arrest.

¶ 7 Officer Charlene Fine testified that on July 22, 2004, she was working as a lockup keeper in the 25th District along with detention aide Joyce Ivy when defendant arrived around 4:55 a.m. Upon her arrival, Officer Fine testified that she observed bruises on both of defendant's arms and a bruise over her left eye. Officer Fine also believed that defendant was intoxicated because she slurred her words and smelled of alcohol. Defendant was initially cooperative upon arriving but when Officer Fine and Ivy attempted to photograph and fingerprint defendant, she became "extremely belligerent." Defendant sufficiently resisted such that Officer Fine was unable to continue the processing she had begun. Officer Fine decided that defendant should be placed in a holding cell and given time to calm down, but when Ivy and Officer Fine attempted to do so, defendant cursed and struggled. With a closed fist, defendant struck Officer Fine in the left eye and cheekbone with sufficient force to crack the frame of her glasses and dislodge a lens. Defendant then dropped to the ground and began swinging her arms and kicking both Ivy and Officer Fine numerous times as they continued in their attempt to escort defendant to the holding cell. Eventually, defendant was successfully placed into the holding cell. However, as a result of defendant's conduct, Officer Fine sustained a fractured cheek bone and eye socket, as well as considerable bruising on her arms, face, and ankle. Her injuries caused her to take a leave of absence of approximately four months.

¶ 8 Detention aide Joyce Ivy's testimony was largely consistent with Officer Fine. She testified that she was also working in the 25th District on July 22, 2004. When defendant arrived at the police station, Ivy observed that defendant visually appeared intoxicated and smelled of alcohol. Ivy also saw that defendant had various bruises on her arms and face which did not appear to be "fresh." Ivy did not document defendant's observed injuries because defendant had been received with "medical clearance," and Ivy indicated that in such cases, injuries do not have to be recorded. Although defendant was cooperative during a routine search of her person, she became uncooperative and cursed at Ivy and Officer Fine when they attempted to photograph her. Ivy then assisted Officer Fine in taking defendant to a holding cell, however, defendant resisted. Ivy saw defendant strike Officer Fine in the face, and as defendant continued to resist, she began scratching and kicking both Ivy and Officer Fine. Defendant was eventually successfully placed in a holding cell. As a result of the incident, Ivy stated she sustained an injury to a finger on her right hand and was kicked several times in the legs, and that she could not work for several days due to these injuries. Ivy also denied that either she or Officer Fine struck defendant at anytime during the altercation.

¶ 9 Three witnesses testified on behalf of the defense. Defendant's sister, Dorroi Tavares, had seen defendant prior to her arrest in the early morning hours of July 22, 2004, when Tavares gave defendant a ride home. Tavares testified that she did not observe any bruises on defendant's body or face at that time. She only first observed bruises on defendant's body and face when she picked defendant up from jail several days later.

¶ 10 Tara Rendak, defendant's 17 year-old daughter, testified that she was present at defendant's home at the time of the arrest, and believed that defendant was under the influence of alcohol based on her raised temper. Tara did not see any bruises on defendant's body prior to the arrest. She also saw defendant wrestling with police officers and trying to get away while they were arresting her.

¶ 11 Defendant testified on her own behalf. She testified that on the night prior to her July 22, 2004, domestic abuse arrest, she had drank five beers. When she arrived at her home, she and her then-husband began to argue. The argument escalated to the point where Tara was asked by defendant's then-husband to call the police. When the police officers arrived, defendant stated she ran to a door, threw a table, and then ran outside to her car where she was apprehended by police officers. During her arrest, she testified that one of the officers stomped on her right hand and broke it. After being arrested, however, she was sent to the hospital where it was revealed that her hand was not broken. Defendant testified that once she was at the police station, she was "pretty cool," but did not want her photograph to be taken by the "ladies."*fn1 Defendant testified that Officer Fine and Ivy came into the holding cell to force her to be photographed, and in doing so, pinned her down, kicked her in the back, and struck her in the head with a fist. During defendant's testimony, she was shown 16 photographs apparently depicting the bruising to her body and was able to assign a responsible individual for each injury.*fn2 She also claimed that prior to being taken into custody, she did not have any bruises on her body, except for a "little one." Defendant testified that she did not remember hitting anyone with her hand and that she kicked her feet a couple times, but only after Officer Fine and Ivy began beating her.

¶ 12 The trial court found defendant guilty of all charges and sentenced her to two years' probation. Defendant timely appeals.


¶ 14 A. Prosecutorial Vindictiveness

¶ 15 Defendant first contends that her indictment should have been dismissed because the State's refiling of criminal charges against her constituted vindictive prosecution. As a general matter, a prosecution is vindictive and violates due process if it is undertaken to punish a defendant because he has done "what the law plainly allows him to do." United States v. Goodwin, 457 U.S. 368, 372 (1982); see also People v. Hall, 311 Ill. App. 3d 905, 911 (2000).

We must also, however, keep in mind that "[o]ne purpose of instituting criminal proceedings against an individual is to punish; therefore, the presence of a punitive motivation behind prosecutorial action does not render such action constitutionally violative." Hall, 311 Ill. App. 3d at 911 (citing Goodwin, 457 U.S. at 372-73). Claims of vindictive prosecution present questions of both law and fact, and therefore this court reviews the trial court's legal conclusions de novo, but will not upset the trial court's findings of fact unless they are clearly erroneous. Hall, 311 Ill. App. 3d at 910.

¶ 16 The thrust of defendant's argument here is based on timing. Defendant's primary evidence is the fact that the criminal charges against her were refiled after she filed a civil rights lawsuit. Defendant claims that the circumstances entitled her to a presumption of prosecutorial vindictiveness. Presumptions of vindictiveness, however, only exist in a very narrow set of circumstances. Ordinarily, a presumption of prosecutorial vindictiveness exists where a prosecutor brings additional charges and more serious charges against a defendant after the defendant has successfully overturned a conviction, effectively subjecting the defendant to greater sanctions for pursuing a statutory or constitutional right. See Goodwin, 457 U.S. at 376-77; People v. Brexton, 405 Ill. App. 3d 989, 996 (2010); Hall, 311 Ill. App. 3d at 911. No such presumption, however, automatically exists in the pretrial setting where a prosecutor has broad discretion in charging a defendant. Brexton, 405 Ill. App. 3d at 996; Hall, 311 Ill. App. 3d at 911; see Goodwin, 457 U.S. at 382-84.

¶ 17 To be clear, while we hold that such a presumption does not automatically exist in a pretrial setting, we do not foreclose the possibility that a pretrial presumption could nevertheless exist under unique circumstances. See Goodwin, 457 U.S. at 376, 380-81. Under the circumstances of the case sub judice, however, we decline to find such a presumption. Defendant has offered nothing more than the temporal sequence of events in support of her argument that a presumption should be found. This is clearly insufficient. Defendant's arguments that Fine and Ivy had never been contacted by the State's Attorney regarding the underlying battery prior to reindictment,*fn3 that the "threat of liability *** prompted the government to go on the offensive," and that Corporation Counsel conferred with the State's Attorney regarding difficulty in settling the civil rights case and coordinated the subsequent indictment of defendant are also inadequate to trigger any presumption in her favor. This alleged evidence is unsupported by any citation to the record, and our own review of the record reveals no objective support for these assertions. In denying defendant's motion to dismiss the indictment, the trial court itself noted that the vast majority of defendant's proffered evidence was nothing more than speculation and educated guesses. For obvious reasons, this sort of evidence is of little value for the purposes of our analysis. In the same vein, to the extent that defendant takes issue with the fact that Detective Nega testified before the grand jury during the 2006 indictment as opposed to trial witnesses Officer Fine or detention aide Ivy is also of little importance. The record indicates that Detective Nega had been assigned to investigate the underlying case and that he had interviewed both of the victims on July 22, 2004. Moreover, the character of the evidence presented to the grand jury does not affect the validity of the indictment, and an indictment may be proper despite being based on solely hearsay. People v. Fassler, 153 Ill. 2d 49, 60 (1992).

¶ 18 Returning now to our finding that no presumption of vindictive prosecution should exist based on timing alone, we observe that the United States Supreme Court has stated that the "mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule." Goodwin, 457 U.S. at 384. In fact, the United States Supreme Court has not yet found a presumption of vindictiveness in any pretrial context. Furthermore, various decisions by the Seventh Circuit Court of Appeals have held, under a variety of circumstances, that coincidental or even suspicious timing is insufficient to establish any prosecutorial animus due to the broad discretion afforded to a prosecutor at that stage. See United States v. Pittman, No. 10-2132, slip op. at 7-8 (7th Cir. June 15, 2011); United States v. Cooper, 461 F.3d 850, 856 (7th Cir. 2006); United States v. Falcon, 347 F.3d 1000, 1005 (7th Cir. 2003)). While we acknowledge that federal court decisions are not binding upon this court, such decisions can serve as persuasive authority. People v. Haywood, 407 Ill. App. 3d 540, 546 (2011). Here, defendant argues that the timing of events was suspicious, however, we note that on balance, the timing could just as easily have been coincidental. Even if we were to agree that the timing here was suspicious, we hold that mere opportunity for vindictiveness and speculation based on such an opportunity is insufficient evidence to establish a presumption of vindictiveness.

¶ 19 Moreover, we also observe that as a matter of policy, to hold that timing alone would be sufficient to find a presumption of vindictiveness would simply be too lax of a standard. We recognize prosecutorial vindictiveness as an important and valid basis for relief available to a defendant, but were a presumption of vindictiveness be so easy to establish, abuse of that low bar would surely follow, opening the floodgate for suspects to strategically file civil suits against various government agencies as either a tool to gain leverage in negotiation or a precautionary measure in order to establish automatic presumptions of prosecutorial vindictiveness should they be prosecuted. This is not the result or behavior that this court seeks to validate or encourage.

¶ 20 Where there is no presumption of prosecutorial vindictiveness, a defendant might nevertheless " 'prove objectively that the prosecutor's charging decision was motivated by a desire to punish him for doing something that the law plainly allowed him to do.' " Hall, 311 Ill. App. 3d at 911-12 (quoting Goodwin, 457 U.S. at 384). This, however, is a rather heightened standard and we have held that a defendant bears the burden of production and persuasion when attempting to show actual prosecutorial vindictiveness, which requires: (1) objective evidence that the prosecutor had some animus or retaliatory motive; and (2) objective evidence that tends to show the prosecution would not have occurred absent that motive. Hall, 311 Ill. App. 3d at 913. Thereafter, the burden shifts to the prosecution to justify its decision with legitimate, articulable, objective reasons. Goodwin, 457 U.S. at 374. Defendant, however, has not satisfied her burden. To reiterate, defendant's argument revolves only around the timing of events and no more. As much as we might acknowledge defendant's argument that there is perhaps subjective evidence of animus, there is a clear shortage of objective evidence establishing both actual animus and that the prosecution would have not otherwise occurred. We have already discussed why timing alone would be an improper basis for finding a presumption of vindictiveness. For similar reasons, we find that timing alone is insufficient to carry the burden of proof in establishing actual vindictiveness.

¶ 21 Defendant also briefly asserts that should this court find that no prosecutorial vindictiveness was established, she is entitled to an evidentiary hearing on the matter. Citing United States v. Falcon, 347 F.3d 1000, 1004 (7th Cir. 2003), defendant argues that she is entitled to such a hearing if she offers "sufficient evidence to raise a reasonable doubt" that the prosecution was proper. Falcon, 347 F.3d at 1004. However, Falcon also held that the sufficient evidence must be objective evidence and that it must show the prosecutorial conduct at issue was motivated by some form of prosecutorial animus. We find insufficient objective evidence exists in this case to warrant a hearing. Falcon itself, which defendant relies upon, states "timing *** is not enough to shift the burden to the government or require a hearing." Falcon, 347 F.3d at 1005; see also Cooper, 461 F.3d at 856; United States v. Bullis, 77 F.3d 1553, 1559 (7th Cir. 1996). We see no compelling reason to relax this recognized standard in the case at bar. Accordingly, the trial court did not err in denying defendant's motion to dismiss based on allegations of prosecutorial vindictiveness.

¶ 22 B. Cross-Examination of the State's Witnesses

¶ 23 Defendant next contends that she is entitled to a new trial because the circuit court improperly precluded her from presenting evidence, through cross-examination, regarding the credibility of all three of the State's witnesses. Specifically, she argues that the State's witnesses had a motive to lie because they faced liability in a civil rights suit should defendant be found not guilty. The right to cross-examination is based on a criminal defendant's constitutional right to confront the witnesses against him. See U.S. Const., amends. VI, XIV; Ill. Const.1970, art. I, § 8; Crawford v. Washington, 541 U.S. 36, 54 (2004). This right to cross-examination, however, is not absolute and the trial court retains broad discretion in determining the extent of the cross-examination at trial. People v. Price, 404 Ill. App. 3d 324, 330 (2010). While a defendant should be afforded the "widest latitude" in attempting to show a witness' bias or motive on cross-examination, the scope of such cross-examination nevertheless remains within the trial court's discretion. People v. Robinson, 349 Ill. App. 3d. 622, 632-33 (2004). Furthermore, evidence used to impeach a witness must be timely, unequivocal ...

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