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People v. Brown

Court of Appeals of Illinois, First District, First Division

August 21, 2017

GEORGE BROWN, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County, No. 11-CR-4949; the Hon. Clayton J. Crane, Judge, presiding.

          Peter V. Bustamante and Claudia E. Sainsot, of Law Office of Peter V. Bustamante, of Chicago, for appellant.

          Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Joseph Alexander, Assistant State's Attorneys, of counsel), for the People.

          JUSTICE SIMON delivered the judgment of the court, with opinion.Justices Harris and Mikva concurred in the judgment and opinion.



         ¶ 1 Defendant George Brown was charged with aggravated battery to a police officer. After a bench trial, defendant was acquitted of committing that offense, but found guilty of resisting a police officer as a lesser-included offense. Newly discovered evidence caused the trial court to vacate the conviction for resisting a police officer and order a new trial on the resisting charge only. This time, defendant opted for a jury trial and was found guilty again for resisting a police officer.

         ¶ 2 Defendant raises a number of issues on appeal. We find that there was no violation of defendant's right to be free from double jeopardy and that the resolution of the issues in his second trial was not precluded by collateral estoppel. We also find that the trial court did not err when it denied defendant's motion to quash arrest. We do, however, find that defendant should have been recharged and that he was denied a fair trial because the trial court refused to give a jury instruction that was amply supported by the evidence. Accordingly, we reverse and remand.

         ¶ 3 BACKGROUND

         ¶ 4 Defendant George Brown was driving down a one-way street when a police car approached head-on and effectuated a stop of defendant's vehicle. Defendant got out of the car and ran. Officer Joseph Lopez exited his police vehicle from the passenger side and chased defendant down. Defendant was hit with a Taser four times, and then he was handcuffed. That is where the undisputed facts end.

         ¶ 5 The State charged defendant with aggravated battery to a police officer. The State claims, through Officer Lopez, that the officers were driving on Laramie Avenue[1] when, approaching the intersection with Quincy Street, Officer Lopez spotted a black SUV with its headlights turned off on Quincy Street. The officers turned their vehicle down Quincy Street, going the wrong way down the one-way street so that they were facing defendant head on. The officers situated their vehicle in front of defendant's vehicle to block its path, at which point both vehicles came to a stop. Then, defendant put his vehicle in reverse at an angle and traveled a few car lengths backwards before he could not go any further in reverse. The officers exited their vehicle and drew their weapons. Defendant did not comply with the officers' verbal commands, and defendant then exited his vehicle on foot and began to flee.

         ¶ 6 The State's case continued with Officer Lopez being in foot pursuit of defendant. When Officer Lopez got within a couple feet of defendant, defendant turned around, charged Officer Lopez, and struck the officer in the face. The two individuals struggled for a bit longer until other officers arrived. When the officers were trying to gain control of defendant, he was flailing and putting up a fight so Officer George Moussa deployed his Taser to try to subdue defendant. After the third time tasing defendant, Officer Moussa did a "dry stun" on defendant, meaning that the Taser was placed directly against defendant's body to stun him. At that point, the officers were able to handcuff him. Defendant was taken into custody and to the hospital per department procedures for when a Taser is deployed. Officer Lopez was also taken to the hospital and examined regarding the punch he received from defendant.

         ¶ 7 Defendant was charged by information with aggravated battery to a peace officer. The State pled that defendant committed that offense, in that he committed a battery, intentionally causing bodily harm to the victim when he "struck Police Officer Lopez star #15739 in the face with a closed fist" while knowing Officer Lopez to be a police officer.

         ¶ 8 The version of events offered by defendant is strikingly different. Defendant claims that he was driving east on Quincy Street after picking up his friend Grover Tucker, who lived on that block. His headlights were on. All of the sudden, a vehicle approached them head-on going the wrong way down the one-way street. The occupants of the vehicle got out and pointed guns at him, yelling for him to get out of the car. Defendant, not recognizing that the people were police, panicked, got out of the car, and ran in the opposite direction-west down Quincy Street. Defendant claims that as he was trying to run away, he was knocked to the ground and someone began punching and choking him, and he was tased multiple times. He said that he never punched Officer Lopez. Defendant was arrested and taken to the hospital.

         ¶ 9 At the bench trial, although defendant was only charged with aggravated battery to a police officer, the court found him guilty of resisting arrest, a misdemeanor, but not guilty of aggravated battery to a police officer. Defendant was sentenced to 300 days in prison, the time he had already served. He did not appeal.

         ¶ 10 In the meantime, however, defendant's mother filed a complaint with the Chicago police department for police brutality because her son was tased four times. Defendant also filed a civil lawsuit for excessive force. During discovery in his civil case for excessive force, it was uncovered that a police observational device (POD) camera captured some of the events relevant to defendant's criminal case. The video shows the police car occupied by Officer Lopez turning from Laramie Avenue onto Quincy Street and approaching a vehicle head on. The vehicle has its headlights turned on.

         ¶ 11 Based on this video, defendant filed a petition to vacate his conviction. The basis for the petition was that defendant would have filed a motion to quash his arrest because, according to Officer Lopez's own testimony, the only reason the officers stopped defendant was because his headlights were not turned on. The trial court viewed the video and heard arguments from the parties. The trial judge explained, "I've had occasion to review that video. The lights are on, the officer is coming up the wrong way on a one-way street when he encounters him." The trial court vacated defendant's conviction and ordered a new trial.

         ¶ 12 With his conviction vacated, defendant filed a motion to quash arrest and suppress evidence based on the fact that it was an illegal arrest. According to defendant, the video showed that his headlights were on, so the only legal justification the officers claimed to have had for the arrest had been refuted. The trial court held an evidentiary hearing on the motion to suppress. At the suppression hearing, for the first time, Officer Lopez explained that when the officers turned onto Quincy Street, they actually encountered two black SUVs. He stated that they encountered one black SUV that looked similar to defendant's vehicle that had its headlights on, but they went around that vehicle to get to a second vehicle that was down the block and out of range of the POD camera that had its headlights off. The second black SUV, he testified, was defendant's vehicle. Defendant again testified and asserted that the vehicle in the video was his black SUV. Because the POD cameras scan the area and look in different directions, the video does not show the entire event. The trial court found the video to be inconclusive to establish that it was defendant's vehicle that had its headlights turned on.

         ¶ 13 The case was, therefore, headed toward trial again, this time before a jury. The State never amended the charging document under which defendant was only charged with aggravated battery to a police officer, even though defendant had already been acquitted of that offense. But since defendant was found guilty of resisting arrest, the State was set to proceed to trial for that offense-a misdemeanor for which the sentence was already discharged.

         ¶ 14 The State filed a motion in limine to preclude the admission of the POD video. The State argued that the only issue for the jury to decide was whether defendant resisted arrest and, thus, the video and the issue of whether defendant's headlights were turned on were irrelevant and would only confuse the jury. The trial court agreed and ruled that the video would not be admitted into evidence.

         ¶ 15 Defendant, meanwhile, moved to dismiss the case on the basis that the State never amended the information and the statute of limitations had run for the State to file a charge for resisting arrest. Defendant also argued that he was entitled to dismissal because the only act set forth in the information on which the charge against him was based was that he struck Officer Lopez in the face-a fact necessarily adjudicated in ...

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