Appeal from the Circuit Court for the 14th Judicial Circuit, Whiteside County, Illinois, Circuit No. 10 CM 409 The Honorable Michael R. Albert, Judge, Presiding.
The opinion of the court was delivered by: Justice McDADE
JUSTICE McDADE delivered the judgment of the court, with opinion.
Justices Carter and Holdridge specially concurred, with opinion.
¶ 1 Defendant, Daniel Smith, appeals his conviction and sentence for obstructing a peace officer. We affirm defendant's conviction, vacate his sentence, and remand to the circuit court for further proceedings.
¶ 3 Defendant was charged with one count of obstructing a peace officer and one count of resisting a peace officer. The conviction on the resisting count has not been challenged on appeal. The pertinent section of the complaint alleged:
"Defendant committed the offense of OBSTRUCTING A PEACE OFFICER, in that said Defendant knowingly obstructed the performance of Jacob Reul of an authorized act within his official capacity, being the arrest of Daniel E. Smith, knowing Jacob Reul to be a peace officer engaged in the execution of his official duties, in that he exited his vehicle during a traffic stop *** and refused to return to the vehicle in violation of Chapter 720, Act 5, Section 31-1, Illinois Compiled Statutes."
¶ 4 The matter proceeded to a jury trial. Jacob Reul, an officer with the Sterling police department, testified that he stopped Smith's vehicle in front of his house for speeding. Reul informed defendant that he would be receiving a ticket for speeding and directed him to stay in his vehicle.
¶ 5 Upon returning to his squad car, Reul took approximately 20 minutes to run defendant's information and prepare a traffic citation. However, before he was able to sign the citation, defendant exited his vehicle carrying a grocery bag. Even though Reul instructed defendant to return three to five separate times, defendant refused to comply. Instead, defendant complained told Reul that Reul was taking too long and that defendant was going into his house to put away his cold groceries and check on his children , who were home alone. Reul grabbed defendant's arm and told him to return to his vehicle or he would be placed under arrest. When defendant again refused to comply, Reul told defendant he was under arrest. At that time, defendant tightened his arm and pulled away. Reul placed defendant into an "arm bar" hold and swept his feet out from under him, taking defendant to the ground. Reul testified that because defendant would not put his hands behind his back, he had no choice but to use pepper spray. Ultimately, a second officer arrived and defendant was placed in handcuffs.
¶ 6 Maggie Ellmaker, an officer with the Sterling police department, testified that when she arrived at the scene of the incident, Reul was "in a fight" with defendant, who was facedown on the ground on his chest. Reul was on defendant's back, and defendant was trying to push off the ground with his legs. Ellmaker grabbed defendant's arm and helped get him handcuffed.
¶ 7 Defendant moved for a directed verdict on the obstructing charge (count I). Defendant argued that there was no showing that he had obstructed Reul because, except for the signature, the citation was complete at the time defendant exited his car. The court denied the motion, noting that defendant had obstructed Reul by not obeying the order to return to his car.
¶ 8 Defendant's daughter testified that she observed the incident from the front window of the family's residence. She saw an officer back defendant up against his vehicle, sit defendant on the ground, place defendant in a choke hold, and spray defendant with pepper spray. Defendant's wife did not witness the incident; however, she testified that defendant is not a violent person.
¶ 9 Defendant testified that he is an assistant manager at a dollar store and he was on his way home from work when he was pulled over in front of his residence by Reul. Defendant admitted he was speeding. Defendant gave Reul the information that was requested and waited in his car. Defendant alleges Reul did not instruct him to stay in his vehicle and the temperature was approximately 100 degrees at the time defendant was pulled over. While he waited in his vehicle, he started getting very hot and feeling sick. He did not have his vehicle's air conditioning on because he did not want to run out of gas.
¶ 10 After about 20 minutes, defendant exited the vehicle in order to check on his children who were home alone and to place his cold and frozen grocery items in the refrigerator. Reul exited his squad car, grabbed defendant's wrist, and backed defendant up against his vehicle. Defendant told Reul that he would return to his vehicle, but would stand outside of it because it was so hot. Reul tried to sweep defendant's feet out from under him, but ended up just kicking defendant's leg. Reul then forced defendant to the ground and sat on him. Defendant said he was having problems breathing. Defendant also testified that Reul tried to force defendant's arms behind his back, but his arms would not bend at that angle because of a prior shoulder or rotator cuff injury he had suffered. Reul then placed defendant in a choke hold and sprayed him with pepper spray. Defendant admitted trying to push up on his knees, explaining that he was having breathing problems.
¶ 11 Defendant was convicted of both obstructing a peace officer and resisting a peace officer. The circuit court imposed a sentence of 48 consecutive hours in the county jail on each count to be served concurrently. Defendant requested credit for two days of time already served. The court denied defendant's request because ...