People v. Brewer ( 2018 )

2018 IL App (1st) 160155 No. 1-16-0155
Opinion filed September 27, 2018
Fourth Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 10 CR 14226
)
BRYANT BREWER, ) Honorable
) Timothy J. Joyce,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Justices Gordon and Burke concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant Bryant Brewer was found guilty of the first degree
murder of Chicago police officer Thor Soderberg; the attempted first degree murder of Officers
Lynn Casey and Kimberly Thort, Sergeant Jason Kaczynski, and Richard Mints; disarming of a
peace officer; and armed robbery while personally discharging a firearm. The trial court
subsequently sentenced defendant a term of natural life for the first degree murder and a total
term of 115 years for the remaining convictions.
¶2 Defendant appeals, arguing that the State failed to prove beyond a reasonable doubt that
Officer Soderberg was killed “during the course of performing his official duties,” and his
sentence for natural life must be vacated and remanded for resentencing. Defendant also asserts
that if this court vacates his natural life sentence, then his extended sentences for attempt first
No. 1-16-0155
degree murder must also be vacated and remanded for a term within the Class X range of 6 to 30
years.
¶3 We discuss only the facts relevant to the issues raised on appeal and as necessary to detail
the circumstances of the offenses. The following evidence was presented at defendant’s July
2015 bench trial. Officer Soderberg was assigned to the police academy, but on occasion he
received different assignments. On July 7, 2010, Detective Phil Visor had been partnered with
Officer Soderberg for their shift. Detective Visor was also usually assigned to the police
academy, but on that day, he and Officer Soderberg were assigned to Operation Project Youth, to
help children get to and from school safely. Their assignment was based out of the seventh
district police station, located at South Racine Avenue and West 61st Street in Chicago.
¶4 At approximately 3:40 p.m., about an hour before the end of their shift, Detective Visor
dropped Officer Soderberg off at the south parking lot of the seventh district station. Officer
Soderberg was to attend a volleyball game at the police academy. While talking to Officer
Soderberg, Detective Visor observed Officer Soderberg remove his duty belt, which contained
his firearm, and place it in Officer Soderberg’s yellow Subaru. He also observed the officer
begin unbuttoning his uniform shirt to change clothes before the game.
¶5 Detective Visor then left the parking lot to finish his last hour of his shift. He was driving
nearby when he heard police sirens and a car race by him. He then followed the car to the station.
He learned that someone had been shot in the south parking lot. Detective Visor observed Officer
Soderberg’s body against a fence between two cars.
¶6 Isaac Potts lived a few houses from the police station at 1139 West 61st Street. On the
afternoon of July 7, 2010, he and a friend were fixing bicycles in front of his house. At around
3:30 or 3:40 p.m., he observed defendant walk by toward 61st Street and Racine Avenue. Potts
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heard defendant singing what sounded like a rap song, saying “shoot a mother***, kill a
mother***.” When asked by the prosecutor if defendant said, “f*** the police, shoot the police,”
Potts responded, “Yeah, I heard him say it ***.” A few minutes later, Potts heard gunfire and
dropped to the ground. He then got up, looked around, and headed toward the police station. He
observed defendant holding something in his hand and walking toward a building across the
street from the police station. Potts then observed defendant fire a gun approximately six to eight
times.
¶7 Next, Potts observed defendant walk back toward the police station with a blue bag that
defendant had not possessed previously. While defendant was in the street, a female police
officer came out of the station. Defendant walked toward her and fired two to three times. Potts
observed defendant try to chase the officer as she was taking cover near a squad car. Two
additional officers came outside and ordered defendant to drop the gun, which defendant did not
do. An officer then shot him.
¶8 On July 7, 2010, Lucas Sanchez was a landscaper employed by Christy Webber
landscaping company. He testified through a translator. He was supervising a crew at the police
station. At approximately 3:40 p.m., Sanchez was trimming bushes running north to south on
Racine Avenue between the street and the parking lot. He heard voices behind him and turned to
see “a police officer and an African-American going at each other’s hands.” He was
approximately “50 meters” away and had not seen either man enter the parking lot. He described
the officer as being in a blue shirt as part of his police uniform and the other man was shirtless.
Both men were punching each other near a car with an open trunk. Sanchez then looked for
someone else in the parking lot to get help for the police officer. He observed a woman smoking
in a car about 30 feet away. He went to talk to her in English as best he could. While he was
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talking to her, he heard two to three gunshots from the direction of the fight between the officer
and the African-American. Sanchez saw the African-American with the gun in his hand and
walking toward Racine Avenue. Sanchez identified defendant as the African-American with the
gun.
¶9 Richard Mints, another witness, was working to rehab a building that day located at 6117
South Racine Avenue, across the street from the police station. At approximately 3:40 p.m., he
was working on the front porch with a blue bag containing his tools. He noticed a man walking
west on 61st Street toward Racine Avenue. The man was wearing jeans and had a white t-shirt
over his shoulders. Mints testified that the man was “ranting raving” about the police and
“talking crazy.” According to Mints, the man said “f*** the police. I don’t care about them.
They can’t do nothing to me and stuff ***.” Mints observed the man stop at a door to the police
station facing Racine Avenue and try to gain entry by grabbing the doorknob, but the door did
not open. The man then walked around into the parking lot. Mints could not see inside the
parking lot due to some bushes. Two to three minutes later, Mints heard two to three gunshots
from the direction of the parking lot.
¶ 10 Mints then observed the man walking from the parking lot toward the building where
Mints was working. The man asked Mints, “what the f*** I was looking at.” The man then
raised the gun and fired at Mints. The man began to walk up the steps to the porch of the
building, so Mints ran to the courtyard of the building and up to the third floor into a vacant
apartment. While he was running, Mints heard three to four more gunshots. While in the vacant
apartment, Mints heard more gunshots and looked out the window. He observed the man chasing
a police officer around a car. He heard the officer telling the man to drop his weapon. When
Mints came downstairs, he noticed that his blue bag was gone. He also observed that the man
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was on the ground with several police officers outside. Mints saw his blue bag near the man.
That night, Mints looked at a photo array, but was unable to make an identification because he
was not looking at the man’s face. The parties stipulated that when Mints met with a detective on
July 7, 2010, Mints said the man was screaming and he was unable to understand him.
¶ 11 Officer Lynn Casey was assigned to building security as a desk officer on July 7, 2010.
She was retired at the time of trial. At about 3:40 p.m., Officer Casey was at the desk when she
heard what sounded like fireworks at the door of the station facing Racine Avenue. She went out
of the door to see what was happening and observed a man, identified as defendant, across the
street, exiting a gangway. He had blood on his head and chest. She ran back inside to radio for
assistance. She went back outside and observed defendant carrying a bag with his hands at his
side. She called out to him, and he called something in response, but she could not understand
what he said. Defendant then raised his right hand and fired a gun several times in her direction.
Officer Casey took cover by a squad car and radioed for help. Defendant continued to fire in her
direction and walked toward the squad car. Officer Casey ordered defendant to drop the gun. At
some point defendant fell to the ground, and Officer Casey realized defendant had been shot by
officers behind her at the station. She came out from behind the car and walked to defendant. She
kicked the gun away from his hand.
¶ 12 Officer Kimberly Thort was assigned to the targeted response unit at the police station on
July 7, 2010. At approximately 3:40 p.m., she was in her office on the second floor when she
heard several gunshots. She went to the windows and observed defendant walking across Racine
Avenue and shooting into a gangway. She ran downstairs to the first floor of the station. As she
approached the bottom of the stairs, she heard a gunshot come through the east wall of the police
station. Officer Thort “popped” into the gang unit and asked for help.
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¶ 13 Officer Thort then exited the front door of the station and observed Officer Casey hiding
behind a squad car. She noticed a black man on the sidewalk, identified as defendant, with a gun
in his hand. She ordered him to drop the gun, but he did not drop the gun. Defendant raised the
gun in her direction. Officer Thort fired three shots at him. Defendant began to walk toward her,
and she fired three additional times, but none of the shots struck defendant. She went back into
the building. Sergeant Jason Kaczynski then came outside and took her place in the doorway
taking cover behind the door. She heard him order defendant to drop the gun and then observed
Sergeant Kaczynski fire his weapon one time. They exited the building and placed defendant into
custody.
¶ 14 On July 7, 2010, Sergeant Jason Kaczynski was scheduled to begin his shift at 4 p.m. At
approximately 3:40 p.m., he was in the upstairs restroom when he heard gunfire. He exited the
restroom and went downstairs. He observed Officer Thort in the doorway giving an order to
someone outside. He heard gunfire. Sergeant Kaczynski went to the door to see what was going
on and then told Officer Thort to step back because he “was going to challenge the offender.”
The offender, identified as defendant, was on the street by a police car. Defendant was bare
chested and wearing pants. He told defendant to drop the gun, but defendant did not. Defendant
pointed the gun at him, and Sergeant Kaczynski fired one shot. Defendant then dropped to the
ground.
¶ 15 Detective Thomas Carr was at area one headquarters on July 7, 2010, at approximately 4
p.m. when he and his partner received an assignment that an officer had been shot. They arrived
at the scene shortly thereafter. When he arrived, Detective Carr was not aware that Officer
Soderberg had died. He observed an ambulance at the scene and was informed that the offender
was inside. He entered the ambulance and saw defendant on a gurney and being treated by the
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paramedics. Defendant had been shot once in the chest. Detective Carr questioned defendant for
less than five minutes.
¶ 16 After exiting the ambulance, Detective Carr spoke with officers at the scene and learned
that Officer Soderberg’s body was in the south parking lot. He and his partner proceeded to that
location and observed the officer’s body on the ground between two marked vehicles. Detective
Carr then went to Officer Soderberg’s vehicle, which was approximately one car length south.
He observed that the hatchback was open and inside was a duffle bag as well as other police and
personal items. He later observed a Glock semiautomatic handgun in the grass in front of the
police station. He subsequently learned that the Glock was registered to Officer Soderberg. The
firearm could hold 17 rounds in the magazine with an additional round in the chamber.
Approximately 16 cartridges were recovered by evidence technicians. Three cartridges were
recovered in the area by Officer Soderberg’s body. Detective Carr visited defendant in the
hospital the following day and observed that defendant had a mark under his right eye.
¶ 17 Dr. Ponni Arunkumar testified that he was employed as the assistant chief medical
examiner and gave testimony about Officer Soderberg’s autopsy. Officer Soderberg sustained
three gunshot wounds as well as bruises and abrasions to his arms, elbows, and right knee. The
first gunshot wound was to the bridge of his nose, and the course of the wound was downward.
The wound also indicated close-range firing of two feet or less. The second gunshot wound
entered the top right of his head, coursing right to left and downward. The wound also indicated
close-range firing. The third gunshot wound entered his right upper back, with a slightly upward
movement. The first two gunshots were consistent with a person standing over the victim’s head
and firing at close range and either could have caused sudden death. The third wound was
consistent with being shot while in a running motion and slightly down, and it would have been
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No. 1-16-0155
possible to move after receiving the gunshot to the back. The cause of death was multiple
gunshot wounds, and the manner of death was homicide.
¶ 18 After the State rested its case-in-chief, defendant moved for a directed finding, which the
trial court denied.
¶ 19 Defendant testified on his own behalf. He initially testified that he was living with his
mother at 42nd Street and Wolcott Avenue, but later admitted that his mother was living at 5814
South Wolcott Avenue. He admitted to using cocaine, heroin, PCP, marijuana, and “wicky
sticks,” which are cigarettes dipped in PCP. He spent the night of July 6, 2010, at his friend’s
house at 61st Street and Carpenter Avenue. The morning of July 7, 2010, he smoked marijuana
and left on foot to go to his mother’s house. He walked to 61st Street and Racine Avenue. He
then turned south on Racine Avenue and walked through the parking lot. He was planning to
climb over the fence as a shortcut. According to defendant, he did not try to open a door to the
police station.
¶ 20 According to defendant, as he was climbing the fence, he was pulled from the fence by
the back of his shirt and then struck with a gun on his head. The gun fell from the officer’s hand
and landed in front of a car. As the officer was reaching for the gun, defendant pushed him and
grabbed the gun. Defendant then wrestled with the officer for the gun. The gun went off and
struck the officer on the left side of the bridge of his nose. Defendant testified that the officer
continued to reach for the gun and the gun fired a second time. The officer fell between police
cars and defendant ran out of the parking lot.
¶ 21 Defendant testified that he tried to alert someone that the officer was shot by knocking on
a door to the police station, but no one answered. He kept the gun and continued walking. He
noticed Mints across the street and a bag on the porch. Defendant fired a couple times. He
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claimed he was not trying to shoot Mints, but fired a warning shot. Mints ran into the building.
Defendant then took Mints’s blue bag.
¶ 22 Defendant stated that Officer Casey started shooting at him from the door of the police
station. She asked if he was okay and ordered him to put the gun down, then she shot at him a
couple times. Defendant returned fire and shot three times. He was in the middle of Racine
Avenue at this time. He denied firing at any officers other than Officer Casey. He chased the
officer by a police car as she was reloading. At some point defendant was shot in the chest.
Officer Casey came over and kicked the gun from his hand. He was handcuffed and put in
ambulance. He remained hospitalized for a week, and subsequently sent to jail.
¶ 23 During cross-examination, defendant admitted that he had been arrested for three bags of
cocaine and had been processed at that police station. Defendant was mad at the police after he
was arrested with a bag of marijuana. He denied telling correctional officers in August 2013 that
he was going to “smoke you mother***” when he got out and he was a “cop killer.” He denied
shooting Officer Soderberg in the back. He also denied having his finger on the trigger, claiming
that the officer must have pulled the trigger.
¶ 24 In rebuttal, the State presented the testimony of Vernon Brown. Brown lived in the same
house as defendant’s mother. Each rented a bedroom and shared common areas. Defendant
stayed with his mother for over a year, left, and then returned. Brown heard defendant on
multiple occasions say, “f*** the police. I’m going to kill those mother***.” Brown was aware
that defendant had been arrested at the police station at 61st Street and Racine Avenue. Brown
testified that defendant became easily agitated and aggressive toward him, making him afraid of
defendant.
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¶ 25 Although additional testimony was presented by defendant and in the State’s rebuttal
regarding defendant’s mental health and effects of his head injuries, we need not detail this
testimony because it does not relate to the sole issue raised on appeal regarding whether Officer
Soderberg was performing his official duties at the time of his murder.
¶ 26 Following the trial, the trial court found defendant guilty of the first degree murder of
Officer Soderberg; attempted first degree murder of Officer Casey, Officer Thort, Sergeant
Kaczynski, and Richard Mints; armed robbery of Mints; disarming a peace officer; and
aggravated discharge of a firearm. The court subsequently sentenced defendant to natural life for
first degree murder, 100-year terms for each attempted murder of the police officers, 50-year
terms for the attempted murder and armed robbery of Mints, and 15 years for disarming a peace
officer. The sentences for attempted murder and armed robbery were to run concurrently to each
other, while the 15 years for disarming a peace officer was to run consecutively. All counts were
to run consecutive to defendant’s sentence of natural life. The total sentence was natural life plus
115 years.
¶ 27 This appeal followed.
¶ 28 On appeal, defendant argues that the State failed to prove beyond a reasonable doubt that
Officer Soderberg was killed “during the course of performing his official duties,” and therefore,
his sentence of natural life must be vacated. The State responds that Officer Soderberg, while in
uniform, was confronted and assaulted by defendant in the police station parking lot, and as a
result of defendant’s attack, Officer Soderberg shifted to performance of official duties.
¶ 29 The relevant indictment of first degree murder alleged that defendant “without lawful
justification, intentionally or knowingly shot and killed [Officer Soderberg] with a firearm and
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No. 1-16-0155
during the commission of the offense he personally discharged a firearm that proximately caused
death.” The indictment further asserted that
“[t]he State shall seek an extended term sentence in that the
murdered individual was a peace officer killed in the course of
performing his official duties and the defendant knew or should
have known that the murdered individual was a peace officer.”
¶ 30 Defendant contends that the State failed to prove Officer Soderberg was killed “in the
course of performing his official duties,” as required to impose an extended-term sentence under
Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the United States Supreme Court
held “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Id. at 490. Since the State was required to prove the aggravating factor, i.e.,
Officer Soderberg was killed in the course of performing his official duties, beyond a reasonable
doubt, the standard of review is the same as a challenge to the sufficiency of the evidence.
People v. Nevarez, 2012 IL App (1st) 093414, ¶ 66. We consider “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson
v. Virginia, 443 U.S. 307, 319 (1979); accord People v. Cox, 195 Ill. 2d 378, 387 (2001). It is the
responsibility of the trier of fact to “fairly *** resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443
U.S. at 319.
¶ 31 Here, the statutory sources for the aggravating factor in the indictment were section 9­
1(b)(1) of the Criminal Code of 1961 and section 5-8-1(a)(1)(c)(iii) of the Unified Code of
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Corrections. See 720 ILCS 5/9-1(b)(1) (West 2010); 730 ILCS 5/5-8-1(a)(1), (c)(iii) (West
2014). Both statutes include the same language regarding the murder of a peace officer “killed in
the course of performing his official duties.” 720 ILCS 5/9-1(b)(1) (West 2010); 730 ILCS 5/5­
8-1(a)(1), (c)(iii) (West 2014).
¶ 32 The Illinois Supreme Court has held that a peace officer “has the duty to maintain public
order wherever he may be; his duties are not confined to a specific time and place.” Arrington v.
City of Chicago, 45 Ill. 2d 316, 318 (1970); see also In re Joel L., 345 Ill. App. 3d 830, 834
(2004); People v. Weaver, 100 Ill. App. 3d 512, 514 (1981); People v. Barrett, 54 Ill. App. 3d
994, 996 (1977). As the Barrett court reasoned, “[i]t is the nature of the acts performed by the
officer which determine whether the officer was in the execution of his official duties.” Barrett,
54 Ill. App. 3d at 997.
¶ 33 In Barrett, a police officer was off duty and working as a paid security guard in a retail
store while in his police uniform. A store employee notified the officer that defendant and his
brother were attempting to steal items from the store. The officer then approached the men and
informed them that they were being placed under arrest. During a struggle, the officer was struck
by defendant two or three times. Defendant was subsequently convicted of aggravated battery
and challenged whether the State proved an element of aggravated battery, whether the officer
was engaged in the execution of his official duties. Id. at 994-95.
¶ 34 The reviewing court concluded the element had been proven that the officer was engaged
in the execution of his official duties when placing the men under arrest for shoplifting. The
court reasoned that the “decisive factor” at the time was “the nature of the acts he performed and
not his employment status at the time.” Id. at 996. The Barrett court found support in a federal
case from the Sixth Circuit, Stengel v. Belcher, 522 F.2d 438 (6th Cir. 1975), “ ‘[t]he fact that a
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police officer is on or off duty, or in or out of uniform is not controlling. It is the nature of the act
performed, not the clothing of the actor or even the status of being on duty, or off duty, which
determines whether the officer has acted under color of law.’ ” (Internal quotation marks
omitted.) Barrett, 54 Ill. App. 3d at 996 (quoting Stengel, 522 F.2d at 441).
¶ 35 In Weaver, an officer driving his private vehicle toward the village where he served as a
police officer observed the defendant driving erratically. The officer followed the defendant into
town, went to his home, and changed to his squad car. He learned via radio communication
where the defendant had been seen, drove to that location, and placed defendant under arrest.
During the arrest, the defendant struck the officer. Weaver, 100 Ill. App. 3d at 513-14. The
reviewing court held that “a police officer has the duty to maintain public order wherever he may
be, as long as he is within the State.” Id. at 514. The court concluded that when making an arrest,
an officer is “always engaged in execution of his official duties.” Id.
¶ 36 In In re Joel L., respondent had been adjudicated delinquent and placed on probation. The
State filed a petition to revoke probation, and a supplemental petition was filed later based on
allegations of aggravated battery against a peace officer. The respondent attended a special
education facility. The school hired police officers to provide security for the school. The officer
involved in the case was not in uniform, but wore a polo shirt with Springfield Police
Department logo and carried his badge, firearm, and handcuffs. The officer was asked to handle
a disturbance involving the respondent. He escorted the respondent to the principal’s office.
While the principal was talking to the respondent, the respondent began making threats toward
another student and yelling. The officer placed the respondent in handcuffs for everyone’s safety,
but did not tell respondent he was under arrest. The respondent was placed in a chair and the
officer sat in another chair to begin paperwork. The respondent then kicked the table, which
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pushed a second table. The officer was seated at the intersection of the tables and his arm was
pinched between the tables, causing a cut and a bruise. The trial court found that the respondent
had committed aggravated battery and revoked his probation. In re Joel L., 345 Ill. App. 3d at
831-32.
¶ 37 On appeal, the respondent argued, among other things, that the State failed to prove an
element of aggravated battery in the course of performing his official duties because the alleged
battery occurred while the officer was off duty and acting as a security guard. Id. at 833. The
reviewing court rejected the respondent’s argument, citing Barrett and Weaver. Id. at 834. The
court held that “[w]hen viewed in the light most favorable to the prosecution, we must accept the
trial court’s conclusion that the testimony established that [the respondent] knew that [the
officer] was a peace officer and that [the officer] was engaged in official duties for the purposes
of the elements of the criminal statute.” Id. at 835.
¶ 38 We also find the decision in Banks v. City of Chicago, 11 Ill. App. 3d 543 (1973), to be
instructive. In this case, the plaintiff sued a police officer for wrongful death of her husband (the
decedent), and received an award of $30,000. The plaintiff then sought indemnification from the
City of Chicago, his employer. The facts established that the police officer was off duty and at an
establishment that contained both a restaurant and a tavern, connected by a corridor. The officer
had been drinking a beer in the tavern when he walked into the connecting corridor. He observed
the decedent at the opposite end of the corridor, and the officer backed up against the wall to
allow him to pass. As he passed, the decedent bumped the officer and told him to, “ ‘Get the f***
out of my way.’ ” Id. at 545. The officer took out his star and identified himself as a police
officer, then continued to the restaurant as the decedent went the other direction. The officer was
walking past a booth in the restaurant when the decedent ran around him and pushed the barrel of
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No. 1-16-0155
a revolver into the officer’s lip. The officer’s mouth began to bleed, and he saw a flash, believing
the decedent pulled the trigger. The decedent ran toward the south wall of the restaurant, and the
officer ordered him the halt. The decedent turned, put both hands on the gun, and pointed it
toward the officer. The officer pulled out his own gun and fired once at the decedent. The
decedent slumped to the floor with the gun in his lap. He raised the gun a second time, aiming
for the officer. The officer fired a second time and the decedent collapsed. Id. at 545-46.
¶ 39 The officer testified at trial that he was aware of a police rule that a police officer is
considered to be on duty at all times and to respond immediately to any emergency. He was not
sure if the incident in the restaurant constituted an emergency, but testified that he fired in self-
defense. He also stated that his obligation as a police officer was to attempt to prevent the
commission of a crime in his presence, and the decedent’s actions constituted a crime. Id. at 546.
¶ 40 The trial court entered judgment in favor of the plaintiff and against the City of Chicago
for the indemnification of the officer. On appeal, the city contended that the evidence did not
prove the elements for recovery of indemnification, specifically whether the officer was engaged
in the performance of his duties as a policeman. Id. at 547. The city asserted that the officer’s
off-duty shooting of the decedent “was an action motivated solely by a desire to save his own
life, and was not within the performance of his duties as a police officer.” Id. at 549. The
reviewing court found this position “untenable.” Id. The court reasoned:
“The nature of a policeman’s job is that he be fit and armed at all
times, whether on or off duty, and subject to respond to any call to
enforce the laws and preserve the peace. It is true that his being
considered ‘on duty’ at all hours of the day or night does not result
in all of his acts being deemed to have been taken in the
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performance of his duties as a police officer. Karas v. Snell, 11 Ill.
2d 233 [(1957)]. However, since he is always obligated to attempt
to prevent the commission of crime in his presence, any action
taken by him toward that end, even in his official off-duty hours,
falls within the performance of his duties as a police officer.” Id. at
549-50.
The reviewing court held that the officer was acting in performance of his duties and affirmed
the award for indemnification, observing
“The fact that [the officer] happened also to have shot in self-defense was purely
coincidental to his attempt to prevent a crime in the performance of his duties as a police
officer. To hold otherwise would require the incongruous finding that a police officer is
invested with the authority and duty to defend all lives but his own. We cannot so find.”
Id. at 550.
¶ 41 We find the court’s reasoning to be applicable to the facts of the present case. Here,
defendant was observed walking toward the police station while ranting profanely about the
police by Potts and Mints. Brown testified about defendant expressing violent thoughts toward
the police with vulgar language on multiple occasions. Defendant was seen attempting to enter
the police station, but was unable to enter. Officer Soderberg had been dropped off near his car
in the south parking lot. He was in uniform and beginning to change his clothes. He had placed
his duty belt in his car. At some point, defendant confronted Officer Soderberg. Sanchez, who
was nearby trimming the bushes at the station, observed the men engaged in a fist fight with both
men throwing punches. As Sanchez was trying to inform someone about the fight and to help the
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officer, he heard gunshots. Defendant was observed leaving the parking lot with Officer
Soderberg’s firearm and proceeded to fire at Mints and multiple officers.
¶ 42 While we do not know the exact circumstances in which defendant first approached
Officer Soderberg, the evidence is uncontested that defendant obtained the officer’s firearm and
shot the officer three times. Defendant contends that Officer Soderberg’s actions were not in
performance of his official duties, but as a victim of a crime. We reject that position. As in
Banks, defendant’s actions toward the officer were the commission of a crime, which Officer
Soderberg had a duty to prevent. We agree with the Banks court’s conclusion that a police officer
has a duty to prevent commission of crime and to defend all lives, including his own. Thus, the
trial court, as the factfinder, could find that any action taken by Officer Soderberg to prevent the
commission of any crime, including a crime committed against himself, was in performance of
his official duties. In reviewing the evidence in the light most favorable to the State, we accept
the trial court’s conclusion that the State sufficiently proved beyond a reasonable doubt that
Officer Soderberg was killed while in the course of performing his official duties and affirm
defendant’s sentence of natural life. Since we have affirmed defendant’s natural life sentence, we
need not reach defendant’s argument asking to vacate his sentences for attempted first degree
murder of Officer Casey, Officer Thort, and Sergeant Kaczynski because this argument was
contingent on this court vacating his natural life sentence, which have not done.
¶ 43 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook
County.
¶ 44 Affirmed.
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