Appeal from the Circuit Court of Kane County. No. 08-CF-2933 Honorable Timothy Q. Sheldon, Judge, Presiding.
The opinion of the court was delivered by: Justice Zenoff
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Hudson and Birkett concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant, George R. Jones, was convicted of aggravated battery (720 ILCS 5/12-4(a) (West 2008)) and sentenced to 41/2 years' imprisonment. In this direct appeal, defendant argues that: (1) the State improperly amended the indictment on the first day of trial and
(2) his trial counsel was ineffective for failing to strike a juror and for waiting until surrebuttal to call a witness, who was not allowed to testify. We affirm.
¶ 5 A transcript of the grand jury proceedings on October 16, 2009, is part of the record. The transcript reflects that the State asked the grand jury to return a three-count indictment: "count one, disarming a peace officer; count two, aggravated battery; count three, resisting a peace officer." Carpentersville police detective Paul Brandt, who was not present during the incident involving defendant, was the only witness to testify. Detective Brandt's testimony was based on his review of police reports.
¶ 6 According to the reports, Officers Joseph Gutierrez, Edward Acot, and Robert Drews were dispatched to a reported domestic disturbance at Foxview Apartments on October 15, 2008, around 11:15 p.m. Defendant was being belligerent and not allowing his girlfriend, Amanda Perkins, to speak with the officers. The officers advised defendant that they needed to make sure Amanda was all right. Defendant replied that she was fine and denied them access into the apartment. Officer Gutierrez asked defendant to step outside of the apartment to talk. Defendant refused to exit and stated that Officer Gutierrez could come inside if he took off his vest, gun, and belt. After Officer Gutierrez told defendant that that was not going to happen, defendant reached out and grabbed Officer Gutierrez's arm. Officer Gutierrez told defendant not to grab him and that he was under arrest. Officer Gutierrez reversed defendant's grip on his arm, and Officers Drews and Gutierrez tried to lift defendant through the door to place him under arrest. Defendant fought the whole way and grabbed Officer Acot's gun and tried to unholster it. Defendant continued to fight with the officers and was taken to the ground and tased.
¶ 7 The grand jury returned a three-count indictment charging defendant with disarming a peace officer, aggravated battery, and resisting a peace officer. All three counts identified Officer Acot as the victim. The disarming count alleged that defendant knowingly disarmed or attempted to disarm Officer Acot by taking or attempting to take his firearm. The aggravated battery count alleged that defendant knowingly made contact of an insulting or provoking nature with Officer Acot in that he struck him about the body. The resisting count alleged that defendant knowingly resisted his arrest in that he struck and resisted Officer Acot.*fn1
¶ 8 A jury trial commenced on July 12, 2010. On the day of trial, the State advised the court that, the night before, it had become aware that the aggravated battery count contained a "scrivener's error." Although that count referred to Officer Acot as the victim, the grand jury transcript testimony and police reports indicated that defendant committed the aggravated battery against Officer Gutierrez. The amended count alleged that defendant knowingly made contact of an insulting nature with Officer Gutierrez in that he struck him about the body.
¶ 9 Defense counsel responded to the State's motion by arguing as follows. Changing the victim's name did not constitute correcting a scrivener's error or a formal defect; instead, it amounted to a "material change" to the indictment. Officer Acot was known to have been involved in the arrest yet the State waited two years, until the day of trial, to change the name of the victim. At this point, the court asked defense counsel whether he agreed that the grand jury transcript set forth Officer Gutierrez as the victim. Defense counsel replied that the grand jury transcript set forth allegations concerning both Officers Gutierrez and Acot. However, he argued, the aggravated battery charge of insulting or provoking contact could be "anything," even breathing on the officer in an insulting or provoking way. Defense counsel reiterated that the name of the victim could not be changed on the day of trial.
¶ 10 The court allowed the amendment for two reasons: first, defense counsel's acknowledgment that there was reference to Officer Gutierrez in the grand jury transcript; and second, the liberal case law regarding "how late in the proceedings" the State is allowed to move for such an amendment. Nevertheless, the court gave defense counsel the option of a continuance if the amendment was a surprise in terms of his trial strategy. Defense counsel asked the court to clarify whether it was ruling that the amendment addressed a formal defect in the indictment, to which the court responded affirmatively. Defense counsel then conferred with defendant and opted to proceed to trial.
¶ 12 During voir dire, one of the potential jurors, Jolynn Williams, stated that her uncle had been a police officer. When defense counsel asked if she would give more credibility to a police officer's testimony than defendant's testimony, she said she would. Defense counsel then questioned another potential juror, Jerry Glees, and the following colloquy occurred.
"Q. And again, I understand all of us are favor-or very favorable, may have very favorable experiences with police officers, I'm not saying anything bad about a police officer but would you give a police officer any more credibility, his testimony, right off Jump Street?
A. I think I would, just because being taught that they're to uphold the law and they're to be honest and credible witnesses.
Q. Now anything an officer said, would you just assume that that is true?
A. I would not say that I might assume it, I would like to think that I would listen to all of the facts and make a decision bassed [sic] on that.
Q. You said that you would like to think?
A. Well, I would have to go through the trial and see what happens. I'm just saying that police officers are-they're to uphold the law and [sic] gives them credence.
Q. Just like all of us here?
Q. So you are more likely to give credibility after the fact, would you say that you would be more likely to give a police officer's testimony than any other citizen?
A. I am saying I would believe they would be more credible.
Immediately after this exchange, a sidebar conference occurred. Defense counsel indicated that he was "going to show cause," and the court stated that it would ask some follow-up questions. To Williams (and not Glees), the court noted that she was related to a police officer and believed an officer's testimony to be "most credible." The court asked if she could be fair and impartial in this case, and she said no. The court excused Williams for cause and told defense counsel to continue. Defense counsel said, "Oh, I guess-I'm sorry," and then began questioning the replacement juror. The replacement juror and Glees were accepted as jurors in the next panel. During the remainder of jury selection, defense counsel excused one more juror on a peremptory challenge.
¶ 14 During opening argument, the State maintained that defendant was drunk, belligerent, and refusing to let the police officers check on Amanda. When the officers asked him to step outside of his apartment, defendant refused, telling Officer Gutierrez to take off his vest, gun, and belt and come inside and fight him. Officer Gutierrez refused, and defendant grabbed the officer's arm and attempted to pull him into the apartment. As Officer Acot tried to help Officer Gutierrez free himself from defendant's grip, defendant grabbed at Officer Acot's gun. Officer Acot then shouted to Officer Drews, who helped get defendant to the ground. Defendant continued to struggle and grab at Officer Acot's gun, until he was tased and handcuffed.
¶ 15 Defense counsel countered the State's theory by arguing as follows. The officers asked Amanda, "the woman that [the jury] will be hearing from," if she was fine, and she said yes. The officers shined a flashlight on her and saw no bruises or marks. Yet, they still wanted to come inside defendant's apartment. So, they grabbed defendant from inside of his home and dragged him through the top of the screen door, which was possible because the screen was not intact with the door. Defense counsel explained that defendant did not commit the offenses he was charged with; all of the violence came from the officers. He also argued that the officers had to justify their use of a Taser even though no charges were pending against defendant at the time they questioned him. Defense counsel continued that the jury would hear the officers testify and "hear from Amanda" and "probably" from defendant to see what happened in the case.
¶ 16 Officer Gutierrez testified first, on behalf of the State. Officer Gutierrez had been employed as a police officer by the Village of Carpentersville for four years and was on patrol the night of the incident. He was dispatched to defendant's apartment around 11 p.m. regarding a possible disturbance. Officers Acot and Drews and two personnel from Fox Valley security were also at the scene. Defendant's apartment was partly underground with stairs leading down to the front door. The officers knocked on the door, and defendant eventually appeared.
¶ 17 Officer Gutierrez described defendant's demeanor as belligerent. The officers told defendant that they were there to make sure Amanda was okay. Defendant, shirtless and smelling of alcohol, replied that Amanda was fine and refused to let the officers inside the apartment. At this point, Amanda came and stood behind defendant. It was dark, and Officer Gutierrez could not see her even when using his flashlight, although he could hear her. Defendant was yelling at the officers, telling Officer Gutierrez that he was " 'in shit' " and did not have a right to be there.
¶ 18 The front door was open and defendant was standing behind the screen door. He was poking his head and upper torso out of the screen, which was not intact with the door. Defendant said that Officer Gutierrez could come inside if he removed his vest, gun, and belt, but Officer Gutierrez said that that was not going to happen. Defendant did not directly mention fighting, but that was what Officer Gutierrez inferred. As Officer Gutierrez explained that they wanted simply to make sure Amanda was all right, defendant reached out through the screen and grabbed his left arm. Officer Gutierrez was "startled, stunned." Officer Gutierrez told defendant that defendant was not allowed to touch him, and he reversed the grip, putting defendant in a wrist lock and pulling him forward. Defendant began to fall forward through the screen door. Officer Gutierrez tried to hold defendant back with defendant's other arm, and Officer Acot tried to assist in bringing defendant down to the ground. Defendant continued to fight.
¶ 19 Officer Drews then came down the stairs and tried to lift up defendant's legs so that they would come through the screen. At this point, Officer Acot yelled that defendant had grabbed for his gun and was pulling at it. Defendant was told to stop resisting and eventually Officer Drews used a Taser. Defendant was handcuffed and taken to the police station. When defendant asked why he was under arrest, Officer Gutierrez told him he was being arrested for aggravated battery, based on contact with Officer Gutierrez, and resisting arrest.
¶ 20 On cross-examination, Officer Gutierrez testified that he told defendant that the officers needed to come inside his apartment to make sure Amanda was all right. When he asked if Amanda was all right, she answered that she was okay. At this point, Officer Gutierrez shined his flashlight in the apartment and could see "parts" of Amanda. The officers did not leave and continued to investigate what was going on. Officer Gutierrez had been trained how to deal with drunk and belligerent people. Still, he was "shocked" when defendant grabbed his arm. Officer Gutierrez reversed the grip, and Officer Acot grabbed defendant by the waist to get him through the doorway. Defendant's feet were still inside his apartment but he was leaning outside of the doorway. Then, the screen door opened and defendant's legs were suspended in the air. Officer Drews tried to grab defendant's legs. When all three officers had different parts of defendant's body, and he was suspended in the air, he grabbed at Officer Acot's gun. Officer Gutierrez admitted that he did not know defendant's intentions behind this action. Eventually, defendant was brought to the ground. None of the officers were injured.
¶ 21 On redirect, Officer Gutierrez testified that defendant was under arrest right after he touched the officer's arm; no injury was required for an arrest. When defendant told him to remove his equipment, his tone was suggestive, "like we were going to fight." In addition, even though Amanda said she was okay, her voice was quivering and she seemed like she was afraid.
¶ 22 On recross, Officer Gutierrez admitted that he could not see defendant's hand on Officer Acot's gun. He also said that defendant was still grabbing at Officer Acot's gun from the ground and that defendant was not committing a crime and ...