Appeal from the Circuit Court of Cook County. No. 11 CR 9865. The Honorable Nicholas R. Ford, Judge, presiding.
Defendant's conviction for resisting a peace officer following a jury trial on a charge of aggravated battery of a peace officer was upheld over defendant's contentions tat resisting a peace officer is not a lesser-included offense of aggravated battery and that his counsel was ineffective in failing to request an instruction on self-defense, since all of the elements of resisting a peace officer were embodied in the charge of aggravated battery of a peace officer and defendant's theory of the case that he did not use force against any police officers was contrary to a claim that he acted in self-defense during his encounter with officers who were investigating a shooting.
For Plaintiff-Appellee: Alan J. Spellberg, Tasha-Marie Kelly & April K. Gonzales, Office of the State's Attorney, County of Cook, Chicago, IL.
For Defendant-Appellant: Kate E. Schwartz, Office of the State Appellate Defender, Chicago, IL.
PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Pucinski concurred in the judgment and opinion.
HYMAN, PRESIDING JUSTICE
[¶1] A jury convicted defendant Luis Sanchez, who was charged with aggravated battery of a peace officer (720 ILCS 5/12-4(b)(18) (West 2010)), of the lesser-included offense of resisting a peace officer. The court sentenced Sanchez to 364 days in Cook County jail. Sanchez raises two grounds for reversing his conviction: (1) resisting arrest does not qualify as a lesser-included offense of aggravated battery; and (2) denial of effective assistance of trial counsel. We affirm. The charge for aggravated battery of a peace officer embodied all the necessary elements for the lesser-included offense of resisting a peace officer. As to defendant's trial counsel, defendant does not have a claim for ineffective representation. His counsel's failure to ask for a self-defense jury instruction was entirely proper under the circumstances.
[¶3] This case arises out of a police investigation into a June 8, 2009, shooting in the Avondale Park neighborhood of Chicago. In the course of the investigation, several police officers went to a home at 2920 North Sawyer, Chicago, in the early morning hours of June 9, where defendant Luis Sanchez was asleep. When the officers left the house, Sanchez was in handcuffs, charged with aggravated battery and resisting or obstructing a police officer. Before trial, the State dismissed the felony resisting charge and proceeded with the felony count of aggravated battery. During trial, the State and the defense offered different versions of the events that led up to Sanchez's arrest.
[¶4] The State's first witness, Commander Joseph Salemme, testified that on June 9, 2011, at about 2:30 a.m., he and 9 or 10 police officers from the Area Five detective division went to Sanchez's home at 2956 North Sawyer, Chicago, to interview him about a shooting in Avondale Park the day before. Not finding Sanchez at home, Salemme and the others proceeded to a house down the block at 2920 North Sawyer, where Sanchez's parents and siblings lived. Salemme wore a shirt and tie and a black bulletproof vest and carried a firearm. Some of the police officers with him wore bulletproof vests and department-issued uniforms, including black battle-dressed uniforms, name plates, stars, a Chicago police department patch on the left arm and a City of Chicago flag on the right arm.
[¶5] Salemme said when they got to 2920 North Sawyer, one of the officers knocked on the front door and the person who answered allowed them in. Before Salemme entered the living room he heard an officer say, " Police. Wake up. Police. Wake up." Salemme then heard Sanchez yell, " Fuck you. You are not going to put that shooting on me." When Salemme entered the living room, he saw Sanchez standing in front of a couch, surrounded by police officers. Salemme then saw Sanchez punch police officer George Junkovic in the chest. Salemme saw Junkovic take two or three steps backward, then heard him yell " taser, taser" just before twice deploying his taser on Sanchez. Salemme said ...