Court of Appeals of Illinois, First District, First Division
from the Circuit Court of Cook County, No. 11-CR-4949; the
Hon. Clayton J. Crane, Judge, presiding.
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
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.
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 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
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
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 ...