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People v. Mandarino

Court of Appeals of Illinois, First District, Third Division

June 28, 2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JAMES MANDARINO, Defendant-Appellant.

Appeal from the Circuit Court of Cook County No. 10 CR 08675, Honorable Thomas Fecarotta, Judge Presiding.

Presiding Justice Neville concurred in the judgment and opinion.

OPINION

HYMAN JUSTICE

¶ 1 After a firearm, the law enforcement officer's most potentially damaging weapon is the baton. When self-defense is at play, or circumstances call for coercive or precautionary measures, the baton offers a less harmful yet effective alternative. Nevertheless, like with a firearm, use of the baton is fraught with risk and repercussions.

¶ 2 Defendant James Mandarino, a former police officer in Streamwood, Illinois, was convicted after a bench trial of aggravated battery and official misconduct stemming from an early morning traffic stop that ended with Mardarino striking the nonaggressive driver 15 times in the span of 10 seconds with his baton. Mandarino raises five issues on appeal–whether the trial court erred in (i) allowing a lay witness's opinion testimony on use of force; (ii) stating that Mandarino may not have known that his squad car camera was recording; (iii) denying Mandarino's motion to reopen proofs; and (iv) applying the standard for assessing Mandarino's use of force. Finally, Mardarino contends the State failed to prove his guilt beyond a reasonable doubt. After a thorough review of the record, we affirm the trial court.

¶ 3 BACKGROUND

¶ 4 In 1993, Mandarino became a police officer and joined the Streamwood police department as a patrol officer the next year. Promoted to the tactical unit in 1997, Mandarino also took on the additional duties of field training officer. In 2001, he returned to patrol duties, working the midnight shift. He received the Chief's Award in 2005 for his work training other officers, and in 2006, was selected to serve as a sharpshooter for the Northern Illinois Police Alarm System, a SWAT team specializing in high risk situations. His stellar career, however, would end following the events on the early morning of March 28, 2010.

¶ 5 Ronald Bell and his friend, Nolan Stalbaum, attended a union banquet on Saturday evening, March 27. Bell testified that before dinner he had two mixed drinks and another after dinner. Stalbaum had four drinks. From the banquet, Bell and Stalbaum went to Bell's cousin's house to watch a pay-per-view fight. They arrived close to 1:30 a.m. Bell testified that he did not drink any liquor while there. At about 3 a.m., with Bell at the wheel, Bell and Stalbaum headed to Bell's home in Streamwood, where he lives with his brother and his brother's family.

¶ 6 That Saturday, Mandarino's shift started at 6 p.m., and was scheduled to end at 6 a.m. on March 28, around 3:45 a.m., with the temperature hovering near 30 degrees, a light spring rain tapping against his windshield, Mandarino observed the traffic along Schaumburg Road from a strategic spot in front of a strip mall. What happened next was captured on video (no audio was recorded) by a dashboard camera in Mandarino's squad car. (Note: The "Time Stamp" on the video reads one hour earlier than the actual time of the events. The "Description" occurred extremely close in proximity to, but not necessarily at, the exact time indicated below.)

Time Stamp

Description

02:47:17.5

(IMAGE OMITTED)

Mandarino sits in his squad car in front of a strip mall on Schaumburg Rd., Streamwood, Illinois.

02:48:30.1

Bell's car, heading westbound along Schaumburg Rd., comes into view.

02:48:41.7

As Bell turns off Schaumburg Rd. onto East Ave., Mandarino testifies that Bell accelerated, causing his tires to squeal.

02:48:45.6

The squad car starts moving. Mandarino calls dispatch to report a vehicle driving recklessly.

02:48:51.7

Mandarino pursues Bell's car.

02:48:55.3

Bell's car turns from East Ave. left onto Juniper Circle.

Mandarino testifies that Bell took the turn sharply, nearly hitting the curb, which Bell denies.

02:49:05.9

Mandarino activates the emergency lights while turning onto Juniper Circle..

02:49.08.7

Bell's brake lights activate as he turns left into the driveway of 228 Juniper Circle.

02:49:16.4

Mandarino pulls into the driveway.

02:49:21.6

Bell's car sits between a two-story townhome on the right side of the screen and a parked car to the left side.

02:49:24.4

(IMAGE OMITTED)

Mandarino parks his squad car about two car lengths behind Bell's car. Bell's brake lights go off

Both Bell and Stalbaum testify that neither was aware that they had been followed by Mandarino until about this moment.

Mandarino reports to dispatch a reckless driving stop.

02:49:26.0

Mandarino leaves his squad car.

Bell opens the driver's door, and, two seconds later, Stalbaum opens the passenger door.

02:49:28.9

(IMAGE OMITTED)

Bell slowly exits, looking back at the squad car.

Mandarino testifies that, as he approached, he said, "Streamwood police department, get back in the vehicle and close the door. Get back in the vehicle and close the door."

Stalbaum testifies that he did not hear Mandarino say this and that Mandarino never ordered them to get back in the car.

02:49:29.4

(IMAGE OMITTED)

Mandarino walks toward the car, his right hand on his holster. Bell is partially out of the car, with one foot on the ground. Stalbaum remains inside the car with the door open.

Mandarino testifies that, in an attempt to contain them, he told Bell and Stalbaum four times to remain in the car, and their getting out of the car created a high risk situation.

02:49:30.2

(IMAGE OMITTED)

Mandarino, still walking forward, draws his gun and aims at Bell, who is standing with one foot outside his car and one foot inside.

Mandarino testifies that he drew his gun because of two recent armed robberies reported within a mile of the location, and because Bell and Stalbaum were not getting back in the car. Mandarino says he ordered Bell and Stalbaum to "put your hands where I can see them and get back in the vehicle."

(Deputy Police Chief James Keegan testifies that Juniper Circle was a low crime area without gang activity.)

02:49:32.0

(IMAGE OMITTED)

Mandarino stops several feet behind Bell's car. Bell retreats inside the car. Stalbaum stands outside the car, looking at Mandarino. Stalbaum holds a cup or can in his right hand.

Mandarino testifies that he thought Stalbaum was holding a can.

Stalbaum says, "You have no right to stop me. I'm not the driver."

02:49:33.7

(IMAGE OMITTED)

Mandarino aims his gun at Stalbaum, who closes the passenger door. Bell sits in the car with one foot on the ground, looking back at Mandarino.

Mandarino orders Stalbaum to get in the car and close the door.

02:49:36.8

Mandarino begins walking to the right, still pointing his gun at Stalbaum. Mandarino tells Stalbaum to get back in the car.

02:49:38.6

After taking three steps, Mandarino stops.

Stalbaum testifies that Mandarino told him to "remain by the vehicle."

02:49:40.7

(IMAGE OMITTED)

Stalbaum turns around and takes a step back towards the car.

Mandarino testifies that Stalbaum yelled, "This is f^**ing buUsh***! What's your problem? You have no f***ing right to stop me. I'm not the driver." Mandarino describes Stalbaum as "agitated."

02:49:51.2

Stalbaum opens the passenger door, but remains standing.

02:49:57.3

Mandarino aims his gun at Bell, who is still sitting in the car with one foot on the ground.

02:50:00.1

(IMAGE OMITTED)

Mandarino takes a step toward Bell, and Bell puts both hands on his head.

02:50:02.9

Bell removes his hands from his head.

02:50:05.8

Bell puts his hands back on his head.

Mandarino testifies that he never instructed Bell to put his hands on his head.

02:50:07.6

(IMAGE OMITTED)

Bell removes his hands from his head, but keeps them up. He turns his head to talk to Mandarino. Bell testifies that he told Mandarino, " You have no right to stop me. I'm on my driveway. What's your problem? This is ridiculous."

According to Mandarino, Mandarino responds that he stopped Bell "for squealing tires, improper lane usage, and driving recklessly, " and orders him to get back in the car and close the door.

02:50:11.2

Bell again puts his hands on his head.

02:50:13.2

Bell removes his hands from his head and puts them in his lap.

02:50:20.1

Bell puts his hands back on his head.

02:50:23.8

Bell again removes his hand from his head, and keeping them up, turns his head to talk to Mandarino.

02:50:28.5

Bell drops his hands into his lap.

02:50:36.1

(IMAGE OMITTED)

Bell sits back in the vehicle, his left foot on the ground.

02:50:41.8

(IMAGE OMITTED)

Believing that Bell "looked like he was starting to comply, " Mandarino places his gun in his holster.

02:50:42.5

Stalbaum begins to exit the car. Mandarino takes a few steps toward the passenger side. Mandarino tells dispatch Bell's licence plate, and advises that two subjects are trying to get out of the vehicle. Mandarino testifies that he orders Stalbaum to turn around and show him his hands.

02:50:44.5

(IMAGE OMITTED)

Bell peeks his head out of the car.

Mandarino testifies that Stalbaum says, "I don't have to f''**ing listen to you. I'm not the driver."

02:50:44.8

(IMAGE OMITTED)

Stalbaum's back is turned toward Mandarino, as Mandarino removes his taser fi-om his belt.

Mandarino testifies that he tells Stalbaum to "get back in the vehicle, [and] close the door."

02:50:47.4

Stalbaum walks toward the house. Mandarino approaches fi-om his right side. Mandarino testifies that he tells Stalbaum to get down on the ground and that he was under arrest.

02:50:49.0

Stalbaum faces the house, his head bent toward Mandarino.

02:50:50.5

(IMAGE OMITTED)

Stalbaum takes another step toward the house. He testifies that Mandarino was about six to seven feet away.

Mandarino relates that he tells Stalbaum, "Get on the ground, you're under arrest."

Mandarino testifies that Stalbaum stuck out his chest and said, "F*** you." Mandarino says he could tell Stalbaum was intoxicated, and feared Stalbaum would become combative.

Stalbaum testifies that he responded, "What did I do? I'm just the passenger."

02:50:58.3

(IMAGE OMITTED)

Mandarino deploys the taser striking Stalbaum's chest. Stalbaum hunches over and falls out of view.

Mandarino testifies that Stalbaum fell to his knees and forearms and that the taser immobilizes a subject for five seconds.

02:51:00.8

(IMAGE OMITTED)

Hearing the taser and Stalbaum's cries, Bell slowly begins exiting the car.

02:51:01.2

Stalbaum has dropped the can, which rolls into view.

02:51:03.8

(IMAGE OMITTED)

Bell, standing outside of the car with his hands up, looks over his shoulder and over the car at Mandarino and Stalbaum. Mandarino shines his flashlight in Bell's face.

Mandarino tells Bell to "put your hands where I can see them."

Bell replies, "My hands are in the clear."

02:51:13.0

(IMAGE OMITTED)

Bell puts his hands on his head, and slowly turns to face Mandarino and Stalbaum.

Mandarino testifies that he directs Bell to get back inside the car and close the door. Bell relates that he asks, "Why are you stopping me? You have no right to stop me. What are you doing?"

02:51:16.8

Mandarino hunches over Stalbaum, who is on the ground. He testifies that he instructs Stalbaum to get all the way down on the ground, and that Stalbaum yells, "F*** you. I don't have to listen to you." Stalbaum tries to get up.

About this time, Bell's neighbor, Joshua Hall, begins watching the scene from across the street and Bell's brother, Stacey, begins watching from inside the townhouse.

02:51:18.2

(IMAGE OMITTED)

Mandarino spends the next few moments dividing his attention between Bell and Stalbaum while shining his flashlight at Bell.

Mandarino testifies that he tells Bell to get back in the car and close the door. He says Bell was becoming increasingly agitated.

02:51:59.4

Mandarino puts the flashlight away. He tells dispatch that one subject is tased and "another subject advised to stay in the car."

02:52:03.8

(IMAGE OMITTED)

Bell quickly puts his hands in the air.

Mandarino testifies that Bell shouts, "You have no right to stop me. I'm on my f***ing driveway. What's your f***ing problem."

Stacey and Hall testify that they never heard Bell swear at Mandarino.

02:52:05.3

Mandarino again retrieves his flashlight from his belt. He tells Bell to get back in the car and close the door.

About this time, Mandarino deploys the taser on Stalbaum for a second time, but it is no longer effective.

02:52:08.1

(IMAGE OMITTED)

Bell puts his hands back on his head.

02:52:25.9

(IMAGE OMITTED)

Bell stands on his toes trying to look over the vehicle.

02:52:39.5

(IMAGE OMITTED)

Bell gestures sharply at Mandarino, while saying something, and then puts his hands back on his head.

02:52:40.3

(IMAGE OMITTED)

Mandarino backs away from Stalbaum, and partly turns toward Bell.

About this time, the front door of townhome opens. Stalbaum testifies that Bell's brother, Stacey, was at the door. Stacey announced himself to Mandarino.

Stacey testifies that Mandarino was telling Stalbaum that he needs to stay down.

Mandarino testifies that he tells Stacy to stay inside the house.

02:52:43.9

(IMAGE OMITTED)

Bell puts his hands back on his head.

02:52:47.0

(IMAGE OMITTED)

Mandarino steps further back from Stalbaum and returns the flashlight to his belt.

The lights inside the townhome turn on.

02:52:52.5

(IMAGE OMITTED)

Taking a few more steps back, Mandarino removes and extends his collapsible baton.

Mandarino testifies that Bell says, "You have no f***ing right to stop me."

02:52:54.2

(IMAGE OMITTED)

With the baton placed over his right shoulder, Mandarino walks toward Bell, who has his hands on his head.

Bell testifies that Mandarino only told him to "put your hands where I can see them and get down."

Mandarino testifies that he told Bell to "get all the way down on the ground."

Hall, watching from across the street, testifies that Mandarino told Bell "to get down on the ground."

02:52:56.2

(IMAGE OMITTED)

Bell falls to his knees, his hands up in the air. Mandarino stands in front of him, the baton over his right shoulder, pointing at Bell with his left hand.

02:52:59.7

(IMAGE OMITTED)

Mandarino steps just to the right of Bell, who is kneeling, hands on his head, and his head looking down. Mandarino points at Bell with his left hand.

Mandarino testifies that he tells Bell to get all the way down on the ground. He further testifies that he notices Stalbaum stirring on the porch.

02:53:00.9

(IMAGE OMITTED)

Mandarino grabs Bell's right arm and pulls Bell forward. Bell puts his left hand on the ground.

Mandarino testifies that he "wanted to get him [Bell] out of that fighting position." He felt Bell's right arm begin "to lock up, flex up. I felt him starting to rise up. I continued to pull down and I felt him begin to reach forward."

Stacey testifies that he heard Bell saying, "I still don't understand what I did. What did I do?"

02:53:01.8

(IMAGE OMITTED)

Mandarino forces Bell's right arm onto the ground.

Mandarino testifies, "I began to step back because I feel he was getting in a highly agitated state that I've seen before and I knew it was a matter of time he's going to get up and fight me. As I'm moving back, my left hand is still on him and I feel his body is still rising up as I'm moving backward."

02:53:02.5

(IMAGE OMITTED)

Bell is on his hands and knees. Mandarino raises the baton above his left shoulder and swings it, striking Bell's upper right arm. (First strike.)

Mandarino testifies that he was attempting to get Bell to lay flat.

Bell testifies that he asks "[W]hy are you hitting me?"

Stalbaum testifies that Bell cried out, "Why are you doing this to me?"

Stacey testifies that he yelled from inside the house, "Why are you striking him? He didn't do anything. He's following your commands."

Hall crosses from his side of the street, saying, "Whoa, whoa, whoa, stop."

02:53:03.5

(IMAGE OMITTED)

Mandarino strikes the back of Bell's leg. (Second strike.)

Bell begins rising to his knees.

02:53:04.0

(IMAGE OMITTED)

Mandarino strikes Bell's right hand or arm. (Third strike.)

Mandarino testifies that, as he was striking Bell, he repeatedly instructed Bell to get all the way down on the ground. Mandarino says Bell tries to reach for Mandarino's holster.

02:53:04.8

(IMAGE OMITTED)

Mandarino strikes Bell's right hand or arm, as Bell guards his head. (Fourth strike.)

Mandarino testifies that he fears that Bell would pull Mandarino's leg up and force him to the ground and feels "extreme fear for [his] safety."

02:53:05.5

(IMAGE OMITTED)

Mandarino strikes Bell's right arm. (Fifth strike.)

Bell testifies that he protested, saying "I don't deserve to be treated like this. I don't understand. You still haven't told me what I got pulled over for and I thought I was doing everything you commanded me to."

02:53:06.3

(IMAGE OMITTED)

Mandarino strikes Bell's right arm as Bell holds it above his head. (Sixth strike.)

02:53:06.9

(IMAGE OMITTED)

Mandarino strikes Bell's right elbow or forearm as Bell shields his head with his arm. (Seventh strike.)

02:53:07.5

(IMAGE OMITTED)

Mandarino strikes Bell's right arm as Bell shields his head with his arm. (Eighth strike.)

02:53:08.0

(IMAGE OMITTED)

Mandarino strikes Bell's right arm as Bell holds it above his head. (Ninth strike.)

02:53:08.1

Stacey comes out the front door. Stalbaum stands up.

02:53:09.0

(IMAGE OMITTED)

Mandarino strikes Bell's right arm as Bell shields his head with his arm. (Tenth strike.)

02:53:09.8

(IMAGE OMITTED)

Mandarino strikes Bell's right arm as Bell shields his head with his arm. (Eleventh strike.)

02:53:10.5

(IMAGE OMITTED)

Mandarino strikes Bell in the head. Bell falters, bleeding. (Twelfth strike.)

Mandarino testifies that he did not intentionally strike Bell in the head, but "was aiming for [Bell's] shoulder area with a back hand strike, I believe I struck his shoulder and I believe that's when it deflected and struck his ear."

02:53:11.2

(IMAGE OMITTED)

Mandarino strikes the right side of Bell's chest as Bell collapses. (Thirteenth strike.)

02:53:11.9

(IMAGE OMITTED)

Mandarino strikes Bell's back as he goes to the ground on his knees and forearms. (Fourteenth strike.)

02:53:12.9

(IMAGE OMITTED)

Mandarino strike's Bell's back. (Final and fifteenth strike in the span of 10 seconds.)

Mandarino testifies that he used force on Bell to "get control and compliance."

After landing the last strike, Mandarino looks up and sees Stacey approaching.

02:53:13.5

(IMAGE OMITTED)

Stacey stops, Mandarino takes a quick step back while pointing at Bell.

Mandarino testifies that he stopped hitting Bell because he "believed that he wasn't rising up anymore, " and that Stacy presented a greater threat to him.

02:53:13.5

Mandarino shouts at Stacey, Stop, don t come any closer."

Stacey testifies that he says, "Why are your hitting my brother?" and "I'm not a threat, but you don't have a right to strike him and beat him like you're beating him."

02:53:14.3

(IMAGE OMITTED)

Mandarino points his baton at Stacey, and Stacey points at Bell.

Bell testifies that he says, "Stacey, I didn't do anything wrong. I don't understand why I got pulled over for and why he beat me."

02:53:16.9

Mandarino takes a step toward Bell, and points his baton at Bell. According to Bell, Mandarino tells Bell to "Shut the f*** up."

02:53:19.7

Mandarino takes a step back, still pointing his baton at Bell.

02:53:21.0

Stacey gestures at Bell, who is lying on the ground weeping. Stacey testifies that he asks Mandarino, "What do you want him to do?"

02:53:25.7

Stalbaum emerges from the house.

02:53:26.1

Stacey takes a step forward, gesturing at Bell, then takes a step back.

Mandarino testifies that he says, "I want him to get all the way on the ground."

02:53:39.1

Stacey points at Bell, and tells him to get all the way on the ground.

02:53:40.8

Mandarino points his baton at Stacey who takes a step back. Stacey testifies that he tells Mandarino, "I'm not a threat. Why are you beating my brother?"

Mandarino says, "I told him to get down on the ground."

Stacey responds, "He is down on the ground."

02:53:41.3

Bell gets up slightly, his knees and left forearm still on the ground. Mandarino steps toward him, pointing his baton at Bell.

02:53:43.2

Bell rises a little more, his knees and left hand still on the ground.

02:53:44.8

Mandarino feigns to hit Bell, and Bell gets back on his knees and forearms.

02:53:46.1

Stacey gestures at Bell to stay down. Stacey testifies that he tells Mandarino, "I'm going to approach my brother and pull him like you asked. Maybe he just didn't understand you correctly because you didn't give him the command to lay flat on the ground."

02:53:50.7

(IMAGE OMITTED)

Stacey takes Bell's wrists and pulls him flat on the ground. Mandarino points the baton at Stacey.

02:53:52.7

Stacey backs away from Bell and Mandarino. Bell testifies that he asks Mandarino, "Why did I get pulled over? Why did you do this to me?"

02:53:56.9

Mandarino points at Stalbaum standing in the doorway of the house. Stalbaum shuts the door.

02:54:20.5

A police cruiser enters the frame from the left and obstructs the camera's view.

¶ 7 Bell was placed under arrest. He resisted efforts to place him in handcuffs, and once in the squad car, kicked at a window several times before an officer instructed him to stop.

¶ 8 Bell was first taken to the Streamwood police station, and examined by paramedics. He refused to allow the paramedics to treat him, telling them to get "the f*** away from [me], " and "This is bullish***. I don't know what the f *** you guys are doing here. I am not supposed to be here." The paramedics described him as intoxicated and agitated, and they took Bell to St. Alexis Hospital. There, he refused to let the nurses examine him, draw blood or take a urine sample. He also demanded to talk to an attorney and asked that pictures to be taken of his injuries. The treating physician, Dr. Mona Lala, testified that Bell had contusions to his arms.

¶ 9 Bell testified that he had a concussion. Dr. Lala did not diagnose him with or treat him for a concussion but on discharge, Bell was instructed on the possibility of a concussion. Dr. Lala testified that there is no treatment for a mild concussion, and that patients are typically discharged with instructions.

¶ 10 Lala described Bell as "combative and agitated, " and a security risk. She noted that he smelled of alcohol and appeared intoxicated, and that blunt force trauma to the head could have caused Bell's combativeness. Several hours after being admitted and pictures having been taken of his injuries, Bell permitted the staff to treat him. He received seven stitches in his right ear.

¶ 11 After treatment, Bell was returned to the Streamwood police station, where he was charged with driving under the influence. Stalbaum was charged with resisting arrest. The charges against both of them were later dropped.

¶ 12 The State charged Mandarino with aggravated battery and official misconduct. Mandarino waived his right to a jury trial and proceeded with a bench trial.

¶ 13 Among Mandarino's witnesses was Larry Danaher, who testified as an expert in the use of force. Danaher testified that the use of force is a continuum from the least force and escalating to higher levels of force: (1) the officer's presence on the scene; (2) verbal commands; (3) use of empty hands such as grabbing or holding; (4) control devices such as a taser or pepper spray; (5) use of an impact weapon such as the collapsible baton; and (6) lethal force.

¶ 14 Danaher believed that the traffic stop became high risk once Bell and Stalbaum exited the car because they might have been armed or dangerous, and because Bell and Stalbaum were agitated and intoxicated, they were more dangerous. According to Danaher, Mandarino properly drew his gun and commanded Bell and Stalbaum to return to the car. The risk level increased when Bell and Stalbaum did not follow this order, and Mandarino could not safely retreat and wait for backup. Also, Mandarino could not safely go "hands on" with Stalbaum as long as multiple subjects were present, so tasing Stalbaum was appropriate.

¶ 15 When Bell got out of the car, while Stalbaum was tased, Danaher believed Bell became a threat. And, while Bell was on his knees in front of Mandarino, a position that Danaher described as the "wrestler position, " Danaher contended that Bell could have lunged at Mandarino, and it would have been safer for Mandarino to have kept a greater distance.

¶ 16 From an officer's safety standpoint, Danahar testified that Bell should lie flat on his stomach with arms and legs extended. When Bell rose to his knees after Mandarino struck him twice, Bell took what Danaher called a threatening position. Danaher testified that an officer should strike a person as often as necessary to gain compliance or immobilize him or her. He further characterized Bell's actions as actively resisting, as opposed to passively resisting, Mandarino's commands. Considering the totality of the circumstances–including Bell's age, the possibility that Bell and Stalbaum were armed, their intoxication and profanity, and the lack of officer backup–Danaher opined that Mandarino's use of force on Bell was justified.

¶ 17 The State called Streamwood Police Department Deputy Chief Keegan to testify that the area around Juniper Circle was a low crime, nongang area. On cross, Keegan testified he had known Mandarino for 15 years and held him in high regard. Keegan further testified that Mandarino received outstanding marks on evaluations, and that he had never known Mandarino to abuse a suspect. Keegan said that Streamwood police are trained to maintain their distance, space, and cover when they are alone and dealing with multiple suspects. He was also asked about the substance of Mandarino's outstanding evaluations.

¶ 18 On redirect, Keegan stated that he would have evaluated Mandarino differently based on his actions toward Bell and Stalbaum. Keegan said that he found Mandarino's actions in this situation unacceptable. Keegan believed it was improper for Mandarino to draw his gun. He opined that Mandarino should have stayed behind the cover of his squad car door. Keegan also commented that Mandarino's use of the baton was "inappropriate and unnecessary."

¶ 19 Mandarino testified that the written procedures of the Streamwood police department classify the police baton as a nondeadly weapon, but they acknowledge that the baton could be lethal and should not be raised above the officer's head or used as a club.

¶ 20 The trial court delivered an oral verdict on March 23, 2011. The judge said the video was "very telling of what occurred that night." He found that neither Bell nor Stalbaum "told the whole truth, " and they were intoxicated. While Mandarino considered the traffic stop high-rise, the trial court said he "was a little surprised to see immediately, in 44 seconds flat, the handgun coming out pointed directly at Mr. Bell and Mr. Stalbaum, " followed shortly by the tasing of Stalbaum and then the striking of Bell, who "was on all fours."

¶ 21 Regarding the use of force on Bell, the trial court said that "any rational analysis, in viewing the video, would indicate that the conduct of the defendant was wrong, just plainly wrong. I think his conduct is such that it was unprovoked, unnecessary, and in my opinion, totally unacceptable. I didn't see any provocation, and I looked so hard for that provocation. I had to watch that video 55 to 60 times last night. And I saw none." The trial court went on to state that "there's no doubt, no doubt at all, that this baton is used as a deadly weapon. It was used as a club, a club over Mr. Mandarino's head with full force. This wasn't a tap. This was full force. In the head, in the back, in the right arm, the forearm, and so forth. Clearly, it's a deadly weapon."

¶ 22 Regarding the charge of aggravated battery resulted in great bodily harm, the trial court found Mandarino guilty based on "a combination of the entire striking to the back, to the side, to the ear, to the entire body, " the testimony of a mild concussion, and the seven stitches.

¶ 23 The trial court denied Mandarino's motion to reopen the proofs and other posttrial motions, and sentenced him to 30 months' probation and 150 hours of community service. Defendant Mandarino filed a timely notice of appeal.

¶ 24 ANALYSIS

¶ 25 I. Deputy Chief Keegan's Testimony

¶ 26 Mandarino argues that the trial court erred by allowing Deputy Chief Keegan, a lay witness, to testify to his opinion that Mandarino's use of force on Bell was unreasonable and unnecessary. The State responds that Mandarino forfeited the issue by failing to object to Keegan's opinion. We agree.

¶ 27 "Where a defendant fails to object to an error at trial and include the error in a posttrial motion he or she forfeits ordinary appellate review of that error." People v. Brewer, 2013 IL App (1st) 072821, ¶ 18. When Keegan was giving his opinion, Mandarino objected that it was "beyond the scope, " "calls for speculation, " and was inconsistent with Keegan's prior testimony. Mandarino failed to apprise the trial court of the objection he now urges on appeal–that the testimony was improper opinion testimony by a lay witness. Nor did Mandarino raise the issue in a posttrial motion. Appellate arguments must correspond to the objections at trial; otherwise, the issue is forfeited for purposes appeal unless Mandarino shows plain error.

¶ 28 The State argues that the admission does not amount to plain error under the doctrine of curative admissibility. The first step in conducting plain-error review is to determine whether error occurred at all. People v. Walker, 232 Ill.2d 113, 124 (2009). There is no error in allowing inadmissible evidence where the opposing party opens the door to its admission. See People v. Williams, 192 Ill.2d 548, 571 (2000) ("A criminal defendant cannot complain on appeal of the introduction of evidence which he procures or invites.").

¶ 29 Under the doctrine of curative admissibility, in a criminal case, if the defendant on cross- examination opens the door to a particular subject, the State on redirect examination may question the witness to clarify or explain the subject brought out during, or remove or correct any unfavorable inferences left by, the defendant's cross-examination, even if this elicits evidence that would not be proper or admissible. See People v. Manning, 182 Ill.2d 193, 216-17 (1998); People v. Liner, 356 Ill.App.3d 284, 292-93 (2005). The doctrine is protective, and only shields a party from unduly prejudicial inferences raised by the other side. Liner, 356 Ill.App.3d at 293. The decision to allow curative evidence lies within the sound discretion of the trial court. See Manning, 182 Ill.2d at 216-17 (citing People v. Chambers, 179 Ill.App.3d 565, 581 (1989)).

¶ 30 Here, on cross examination, Mandarino elicited testimony from Keegan regarding Mandarino's exceptional performance and service records. Mandarino also solicited testimony that when an officer who is alone must deal with multiple subjects, it is best for the officer to maintain distance, space, and cover away from the subjects. Keegan further testified, if distance, space, and cover are not feasible options for the officers, then he or she should "keep everybody under visual observation" and radio for assistance.

¶ 31 On redirect, Keegan opined that Mandarino's actions toward Bell and Stalbaum were inconsistent with his exceptional record of service. Keegan stated that Mandarino should not have approached Bell and Stalbaum, but stayed with cover and distance behind the squad car door. Keegan also stated that Mandarino's use of the baton on Bell was "inappropriate and unnecessary."

¶ 32 The questioning and testimony of Keegan by counsel for Mandarino opened the door. Generally, character evidence is neither relevant nor admissible. But, Rule 404 of the Illinois Rules of Evidence provides an exception: "Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of Accused. In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same." Ill. R. Evid. 404(a)(1) (eff. Jan. 1, 2011). Keegan's testimony of Mandarino's outstanding evaluations served as evidence of his good character and was probative in determining whether he was capable of acting in the manner charged. People v. Sandham, 276 Ill.App.3d 86, 92 (1995) ("Evidence of defendant's good character as it relates to the nature of the crimes charged is admissible "), rev'd on other grounds, 174 Ill.2d 379 (1996). Under Rule 404(a)(1), the State was permitted to rebut Mandarino's character evidence. See People v. Lewis, 25 Ill.2d 442, 445 (1962) ("Once the accused offers proof of his good character, the prosecution may cross-examine and offer evidence of bad character in rebuttal."). This rebuttal also allowed the State to cure any impression left by Keegan's testimony that he still considered Mandarino to be an outstanding officer. Thus, the court did not abuse its discretion in admitting Keegan's opinion. The prosecution may rebut character evidence offered by a criminal defendant by offering its own character evidence.

¶ 33 In dissent, Justice Sterba argues that admission of Keegan's redirect testimony was improper and constituted plain error. As discussed above, we do not believe the trial court erred in permitting Keegan's opinion testimony as a rebuttal. But, assuming arguendo that the dissent is ...


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