Appeal from the Circuit Court of Kane County. No. 09-CF-1096 Honorable Timothy Q. Sheldon, Judge, Presiding.
PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Schostok concurred in the judgment and opinion.
¶ 1 Defendant, James M. Fultz, appeals his conviction of aggravated battery (720 ILCS 5/12-4(b)(18) (West 2008)). Defendant argues that the evidence was insufficient to prove his guilt beyond a reasonable doubt and that three errors cumulatively deprived him of a fair trial. For the following reasons, we reverse and remand.
¶ 4 This case arose out of two charges against defendant, each involving a different police officer. On June 10, 2009, two police officers, Jay Ellis and Douglas Rashkow, were on their bicycles when they observed Anthony Jackson, a person who was wanted on an outstanding warrant, outside at a backyard barbecue. When the officers tried to arrest Jackson, they encountered various objections from other persons, including defendant's mother, Beulah Fultz. Ellis and Rashkow called for backup, and additional officers arrived at the scene. When officers attempted to arrest Beulah, defendant apparently intervened.
¶ 5 That night, Rashkow signed a misdemeanor complaint charging defendant with obstructing a police officer for using his body to physically prevent Beulah's arrest. Almost eight weeks later, on July 31, 2009, a complaint was filed charging defendant with felony aggravated battery for knowingly making physical contact of an insulting and provoking nature when he allegedly "pushed" Officer Josh Horton in the chest. According to defendant, between the June 10, 2009, incident, and the July 31, 2009, complaint adding the charge of aggravated battery, Beulah filed a citizen's complaint against the Aurora police department. On October 7, 2009, defendant was charged by indictment with: (1) aggravated battery against Horton; and (2) obstructing a police officer against Rashkow. Defendant was convicted of both; however, this appeal pertains only to the aggravated battery count involving Horton.
¶ 7 Prior to trial, defendant moved to exclude statements made at the scene by other persons (in which other persons yelled and called officers names) as being more prejudicial than probative. The court reserved ruling on the issue.
¶ 8 In addition, the State moved to admit, if defendant testified, evidence of prior felony convictions. Defense counsel argued that the court should consider that defendant's testimony would be important to show the difference between his and Horton's accounts. She noted that Horton did not request felony authorization for an aggravated battery until weeks later, and that other officers who wrote reports that day did not document that defendant touched Horton. The State responded that the decision-making process on a felony case is not admissible. The court determined that admission of one conviction would be appropriate, given that credibility between defendant and Horton would be at issue in light of their "polar opposite renditions of the facts."
¶ 10 A jury trial commenced on April 5, 2010. In the State's opening statement, the assistant State's Attorney explained that the evidence would reflect that defendant pushed an officer to prevent his mother's arrest. In her opening statement, defense counsel stated that, although defendant was charged on the night of the incident with obstructing Rashkow, he was not charged with aggravated battery "until some 41 days later." At that time, the State objected and the attorneys approached the bench. Defense counsel explained that the fact that Horton did not immediately seek felony authorization "goes directly to his own interest." The court told defense counsel to make no further comment on the issue in her opening statement and that it would later address the issue at greater length. Counsel requested a ruling and the court sustained the State's objection.
¶ 11 Five witnesses testified at trial: (1) Ellis; (2) Rashkow; (3) Officer Ryan Feeney; (4) Horton; and (5) defendant.
¶ 12 1. Ellis, Rashkow, and Feeney
¶ 13 Ellis and Rashkow explained that they were on bicycle patrol when Ellis recognized Jackson eating at a backyard barbecue at Beulah's house. They dismounted their bicycles and Ellis called for Jackson to come over to them. Over defendant's objection, Ellis was permitted to testify that Jackson said "No, fuck that Ellis. I'm not coming over to you." The officers then went onto the property to make contact with Jackson.
¶ 14 There were 10 to 15 people attending the barbecue. Over a defense objection, Ellis testified that Beulah demanded that the officers "get off her property." Ellis explained that there was an outstanding warrant for Jackson. As Ellis approached Jackson, Jackson began walking up steps leading to a rear entry door to the house. The officers ran after him and stood on either side of him, and Ellis used his radio to confirm that Jackson was wanted on a warrant. Over defendant's objection, Ellis testified that Jackson said "Now don't you feel stupid, I don't have a fucking warrant." Beulah, who had been in the yard, yelled that the officers should leave her property, that there was no warrant, and she attempted to step between Rashkow and Jackson near the door. She used her shoulder to push Rashkow out of the way, and Rashkow pushed her back and warned her that she would be arrested. Beulah took out her cell phone and said she was going to call a police lieutenant.
¶ 15 Ellis and Rashkow received confirmation that there was an outstanding warrant and handcuffed Jackson; various individuals, including (according to Ellis) defendant, approached and began "yelling and cursing" at the officers. According to Ellis, he and Rashkow detained Jackson on the porch until the arrival of both: (1) a van to transport Jackson from the scene; and (2) backup officers. When the van arrived, Ellis and Rashkow began walking Jackson to it. At that point, backup officers, including Feeney, Horton, and others, had arrived. Ellis took Jackson all the way to the van. Accordingly, he did not see defendant push Horton.
¶ 16 Rashkow similarly testified, over defense objection, that various people on the scene were "screaming and yelling" at the officers and that Beulah was yelling for them to get off of her property, that there was no warrant for Jackson, and that they were "harassing" Jackson. Beulah tried to "shoulder" her way past him, but he pushed her away and warned her to stay back. He told her she would be arrested. "She kept screaming and yelling at me." After backup officers, including Horton, arrived, Rashkow and Ellis moved Jackson from the porch to the van. However, Rashkow accompanied Ellis and Jackson only part way to the van, returning to the backyard where he had asked Horton to "keep an eye on Beulah because she was going to be taken into custody." Rashkow, Horton, and Feeney stood on the west side of the house, and Beulah was on the telephone. Rashkow began to approach Beulah and told her she was under arrest. She said she was not under arrest, "you are not going to arrest me," and she pushed past Rashkow and went toward the door. Rashkow warned her again, and decided to let other officers take Beulah into custody.
¶ 17 Horton "went first," and defendant approached the porch simultaneously. Rashkow saw Horton and Beulah "struggle," and so he approached. According to Rashkow, when he began to approach Beulah and Horton, who were about 15 feet away, defendant stepped in front of Rashkow; defendant positioned himself directly in front of Rashkow, about two feet away, declaring that Rashkow was not going to arrest his mother. Rashkow testified that, when defendant stepped in front of him, Horton was at the bottom of the steps and going onto the porch. Defendant stepped in front of him after the struggle between Horton and Beulah began and, apparently, in order to block Rashkow's path to join Horton on the porch. When asked where defendant was located when Rashkow saw Horton and Beulah struggling, Rashkow testified that defendant came toward Rashkow "from the area of the stairs." Rashkow testified that he never saw defendant have any contact with Horton.
¶ 18 Rashkow told defendant to move, but defendant did not comply. Rashkow tried to push defendant aside, and defendant put his hand out, with his palm facing Rashkow. He did not make contact with Rashkow. Rashkow drew his Taser gun, but did not use it, grabbed defendant by the shirt, and ordered defendant to the ground. Defendant did not comply and Rashkow told defendant he was under arrest. Once defendant was on the ground, Rashkow ordered him to roll over to be handcuffed. Defendant did not obey, so Rashkow and Feeney rolled defendant over and handcuffed him. Rashkow agreed that defendant only passively resisted and never tried to strike the officers. Rashkow escorted defendant to the transport van.
¶ 19 Feeney's testimony was inconsistent with Rashkow's and Ellis's regarding his arrival and the events leading up to the arrests of Jackson and Beulah. Specifically, Feeney testified that he arrived at the scene prior to both Jackson's and Beulah's arrests. Feeney testified that he stood next to Rashkow. Feeney further testified that the people in the yard were yelling at the police. Feeney explained that he stood one foot to Rashkow's right side, and, when defendant intervened, defendant stood one foot in front of Rashkow. Finally, Feeney testified that, when defendant refused Rashkow's order to roll over, Feeney helped Rashkow handcuff defendant. However, he did not testify to seeing defendant push Horton.
¶ 21 Before Horton took the stand, defense counsel asked the court to address the issue raised in her opening statement. Specifically, counsel requested permission to cross-examine Horton regarding the timing of the aggravated battery charge. Counsel explained that she wanted to ask Horton about the fact that it was not until July 21, 2009, that he called the State's Attorney's office to obtain felony authorization for the aggravated battery charge:
"I think it goes directly to his bias and interest. I don't intend on going into, as the State offered, their decisionmaking process about whether or not they authorized them or not, but only to the bias and interest of Officer Horton, and that he's going to testify, I expect, that [defendant] pushed him on June 10th and that he never went to get felony authorization for any charges.
He is aware of that procedure, that it is unusual that he doesn't get those right away and, Judge, I expect to ask him also that there was a citizen's complaint filed about the police action [on June 10, 2009], and that he was informed of that, which would also go to his bias and interest, and after 40 days, seeking charges of aggravated battery against [defendant]."
¶ 22 The State objected that Horton's decision-making process would create a trial within the trial, that it did not have anything to do with the merits of the allegations, and that the decision-making process within the State's Attorney's office, which the State would use to rebut defendant's line of questioning, would be inadmissible and "totally improper." The State argued that it thus would be unable to rebut the line of questioning. Further, the State argued that there could be many reasons why Horton delayed and, in any event, that Beulah filed the citizen's complaint (not in the record), not defendant, so "there would be no bias against the defendant." ...