People v. Fultz , 971 N.E.2d 596 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Fultz, 2012 IL App (2d) 101101
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JAMES M. FULTZ, Defendant-Appellant.
District & No. Second District
Docket No. 2-10-1101
Filed June 11, 2012
Held In a prosecution for aggravated battery of a police officer, defendant’s
(Note: This syllabus conviction was reversed and the cause was remanded for a new trial,
constitutes no part of since the evidence against defendant was not overwhelming, the trial was
the opinion of the court essentially a credibility contest between defendant and the officer, and
but has been prepared due process and fundamental fairness required a new trial where
by the Reporter of defendant was erroneously barred from challenging the officer’s
Decisions for the credibility with the issue of bias and the trial court erred in giving, over
convenience of the defendant’s objection, IPI Criminal 4th No. 3.13, concerning defendant’s
reader.)
prior conviction, which had negative implications for defendant’s
credibility.
Decision Under Appeal from the Circuit Court of Kane County, No. 09-CF-1096; the
Review Hon. Timothy Q. Sheldon, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Thomas A. Lilien and Paul Alexander Rogers, both of State Appellate
Appeal Defender’s Office, of Elgin, for appellant.
Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
Bauer and Victoria E. Jozef, both of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel PRESIDING JUSTICE JORGENSEN delivered the judgment of the
court, with opinion.
Justices McLaren and Schostok concurred in the judgment and opinion.
OPINION
¶1 Defendant, James M. Fultz, appeals his conviction of aggravated battery (720 ILCS 5/12-
4(b)(18) (West 2008)). Defendant argues that the evidence was insufficient to prove his guilt
beyond a reasonable doubt and that three errors cumulatively deprived him of a fair trial. For
the following reasons, we reverse and remand.
¶2 I. BACKGROUND
¶3 A. Overview
¶4 This case arose out of two charges against defendant, each involving a different police
officer. On June 10, 2009, two police officers, Jay Ellis and Douglas Rashkow, were on their
bicycles when they observed Anthony Jackson, a person who was wanted on an outstanding
warrant, outside at a backyard barbecue. When the officers tried to arrest Jackson, they
encountered various objections from other persons, including defendant’s mother, Beulah
Fultz. Ellis and Rashkow called for backup, and additional officers arrived at the scene.
When officers attempted to arrest Beulah, defendant apparently intervened.
¶5 That night, Rashkow signed a misdemeanor complaint charging defendant with
obstructing a police officer for using his body to physically prevent Beulah’s arrest. Almost
eight weeks later, on July 31, 2009, a complaint was filed charging defendant with felony
aggravated battery for knowingly making physical contact of an insulting and provoking
nature when he allegedly “pushed” Officer Josh Horton in the chest. According to defendant,
between the June 10, 2009, incident, and the July 31, 2009, complaint adding the charge of
aggravated battery, Beulah filed a citizen’s complaint against the Aurora police department.
On October 7, 2009, defendant was charged by indictment with: (1) aggravated battery
against Horton; and (2) obstructing a police officer against Rashkow. Defendant was
convicted of both; however, this appeal pertains only to the aggravated battery count
involving Horton.
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¶6 B. Pretrial
¶7 Prior to trial, defendant moved to exclude statements made at the scene by other persons
(in which other persons yelled and called officers names) as being more prejudicial than
probative. The court reserved ruling on the issue.
¶8 In addition, the State moved to admit, if defendant testified, evidence of prior felony
convictions. Defense counsel argued that the court should consider that defendant’s
testimony would be important to show the difference between his and Horton’s accounts. She
noted that Horton did not request felony authorization for an aggravated battery until weeks
later, and that other officers who wrote reports that day did not document that defendant
touched Horton. The State responded that the decision-making process on a felony case is
not admissible. The court determined that admission of one conviction would be appropriate,
given that credibility between defendant and Horton would be at issue in light of their “polar
opposite renditions of the facts.”
¶9 C. Trial
¶ 10 A jury trial commenced on April 5, 2010. In the State’s opening statement, the assistant
State’s Attorney explained that the evidence would reflect that defendant pushed an officer
to prevent his mother’s arrest. In her opening statement, defense counsel stated that, although
defendant was charged on the night of the incident with obstructing Rashkow, he was not
charged with aggravated battery “until some 41 days later.” At that time, the State objected
and the attorneys approached the bench. Defense counsel explained that the fact that Horton
did not immediately seek felony authorization “goes directly to his own interest.” The court
told defense counsel to make no further comment on the issue in her opening statement and
that it would later address the issue at greater length. Counsel requested a ruling and the court
sustained the State’s objection.
¶ 11 Five witnesses testified at trial: (1) Ellis; (2) Rashkow; (3) Officer Ryan Feeney; (4)
Horton; and (5) defendant.
¶ 12 1. Ellis, Rashkow, and Feeney
¶ 13 Ellis and Rashkow explained that they were on bicycle patrol when Ellis recognized
Jackson eating at a backyard barbecue at Beulah’s house. They dismounted their bicycles and
Ellis called for Jackson to come over to them. Over defendant’s objection, Ellis was
permitted to testify that Jackson said “No, fuck that Ellis. I’m not coming over to you.” The
officers then went onto the property to make contact with Jackson.
¶ 14 There were 10 to 15 people attending the barbecue. Over a defense objection, Ellis
testified that Beulah demanded that the officers “get off her property.” Ellis explained that
there was an outstanding warrant for Jackson. As Ellis approached Jackson, Jackson began
walking up steps leading to a rear entry door to the house. The officers ran after him and
stood on either side of him, and Ellis used his radio to confirm that Jackson was wanted on
a warrant. Over defendant’s objection, Ellis testified that Jackson said “Now don’t you feel
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stupid, I don’t have a fucking warrant.” Beulah, who had been in the yard, yelled that the
officers should leave her property, that there was no warrant, and she attempted to step
between Rashkow and Jackson near the door. She used her shoulder to push Rashkow out
of the way, and Rashkow pushed her back and warned her that she would be arrested. Beulah
took out her cell phone and said she was going to call a police lieutenant.
¶ 15 Ellis and Rashkow received confirmation that there was an outstanding warrant and
handcuffed Jackson; various individuals, including (according to Ellis) defendant,
approached and began “yelling and cursing” at the officers. According to Ellis, he and
Rashkow detained Jackson on the porch until the arrival of both: (1) a van to transport
Jackson from the scene; and (2) backup officers. When the van arrived, Ellis and Rashkow
began walking Jackson to it. At that point, backup officers, including Feeney, Horton, and
others, had arrived. Ellis took Jackson all the way to the van. Accordingly, he did not see
defendant push Horton.
¶ 16 Rashkow similarly testified, over defense objection, that various people on the scene
were “screaming and yelling” at the officers and that Beulah was yelling for them to get off
of her property, that there was no warrant for Jackson, and that they were “harassing”
Jackson. Beulah tried to “shoulder” her way past him, but he pushed her away and warned
her to stay back. He told her she would be arrested. “She kept screaming and yelling at me.”
After backup officers, including Horton, arrived, Rashkow and Ellis moved Jackson from
the porch to the van. However, Rashkow accompanied Ellis and Jackson only part way to the
van, returning to the backyard where he had asked Horton to “keep an eye on Beulah because
she was going to be taken into custody.” Rashkow, Horton, and Feeney stood on the west
side of the house, and Beulah was on the telephone. Rashkow began to approach Beulah and
told her she was under arrest. She said she was not under arrest, “you are not going to arrest
me,” and she pushed past Rashkow and went toward the door. Rashkow warned her again,
and decided to let other officers take Beulah into custody.
¶ 17 Horton “went first,” and defendant approached the porch simultaneously. Rashkow saw
Horton and Beulah “struggle,” and so he approached. According to Rashkow, when he began
to approach Beulah and Horton, who were about 15 feet away, defendant stepped in front of
Rashkow; defendant positioned himself directly in front of Rashkow, about two feet away,
declaring that Rashkow was not going to arrest his mother. Rashkow testified that, when
defendant stepped in front of him, Horton was at the bottom of the steps and going onto the
porch. Defendant stepped in front of him after the struggle between Horton and Beulah began
and, apparently, in order to block Rashkow’s path to join Horton on the porch. When asked
where defendant was located when Rashkow saw Horton and Beulah struggling, Rashkow
testified that defendant came toward Rashkow “from the area of the stairs.” Rashkow
testified that he never saw defendant have any contact with Horton.
¶ 18 Rashkow told defendant to move, but defendant did not comply. Rashkow tried to push
defendant aside, and defendant put his hand out, with his palm facing Rashkow. He did not
make contact with Rashkow. Rashkow drew his Taser gun, but did not use it, grabbed
defendant by the shirt, and ordered defendant to the ground. Defendant did not comply and
Rashkow told defendant he was under arrest. Once defendant was on the ground, Rashkow
ordered him to roll over to be handcuffed. Defendant did not obey, so Rashkow and Feeney
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rolled defendant over and handcuffed him. Rashkow agreed that defendant only passively
resisted and never tried to strike the officers. Rashkow escorted defendant to the transport
van.
¶ 19 Feeney’s testimony was inconsistent with Rashkow’s and Ellis’s regarding his arrival and
the events leading up to the arrests of Jackson and Beulah. Specifically, Feeney testified that
he arrived at the scene prior to both Jackson’s and Beulah’s arrests. Feeney testified that he
stood next to Rashkow. Feeney further testified that the people in the yard were yelling at the
police. Feeney explained that he stood one foot to Rashkow’s right side, and, when defendant
intervened, defendant stood one foot in front of Rashkow. Finally, Feeney testified that, when
defendant refused Rashkow’s order to roll over, Feeney helped Rashkow handcuff defendant.
However, he did not testify to seeing defendant push Horton.
¶ 20 2. Horton
¶ 21 Before Horton took the stand, defense counsel asked the court to address the issue raised
in her opening statement. Specifically, counsel requested permission to cross-examine
Horton regarding the timing of the aggravated battery charge. Counsel explained that she
wanted to ask Horton about the fact that it was not until July 21, 2009, that he called the
State’s Attorney’s office to obtain felony authorization for the aggravated battery charge:
“I think it goes directly to his bias and interest. I don’t intend on going into, as the
State offered, their decisionmaking process about whether or not they authorized them
or not, but only to the bias and interest of Officer Horton, and that he’s going to testify,
I expect, that [defendant] pushed him on June 10th and that he never went to get felony
authorization for any charges.
He is aware of that procedure, that it is unusual that he doesn’t get those right away
and, Judge, I expect to ask him also that there was a citizen’s complaint filed about the
police action [on June 10, 2009], and that he was informed of that, which would also go
to his bias and interest, and after 40 days, seeking charges of aggravated battery against
[defendant].”
¶ 22 The State objected that Horton’s decision-making process would create a trial within the
trial, that it did not have anything to do with the merits of the allegations, and that the
decision-making process within the State’s Attorney’s office, which the State would use to
rebut defendant’s line of questioning, would be inadmissible and “totally improper.” The
State argued that it thus would be unable to rebut the line of questioning. Further, the State
argued that there could be many reasons why Horton delayed and, in any event, that Beulah
filed the citizen’s complaint (not in the record), not defendant, so “there would be no bias
against the defendant.” Finally, the State suggested that Horton’s police report (not in the
record) could be used to establish that he documented on the day of the incident that
defendant pushed him.
¶ 23 Defense counsel reiterated that she did not intend to get into the State’s Attorney’s
decision-making process. She argued that the delay went directly to Horton’s bias and that
“he can testify as to how long [he waited to] seek felony authorization. He can establish that
foundation.” Counsel argued that she expected that Horton would testify that he learned that
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Beulah filed the complaint and then, 41 days after the incident, he sought the aggravated
battery charge against her son. Counsel argued that the questioning went directly to Horton’s
bias and credibility. In sum, she argued:
“My questions would only go to, when was the first time that you sought felony
authorization from the State’s Attorney’s Office, and wasn’t that not until well over 40
days later and wasn’t that only after you learned that [defendant’s] mother had filed a
complaint with the police department.”
¶ 24 The court found defense counsel’s proposed line of questioning irrelevant and
immaterial, determined that the inquiry “doesn’t go to prove anything whatsoever in the case;
would open up a collateral issue, a trial within a trial,” and denied counsel’s request.
¶ 25 Horton testified that he arrived at the scene on June 10, 2009, in response to a dispatch
call for assistance at Beulah’s house. In contrast to the testimony of Ellis and Rashkow,
Horton testified that, when he arrived, Ellis and Rashkow were already escorting Jackson in
handcuffs toward Horton’s squad car. Horton met them by the sidewalk. Horton approached
them and Rashkow told him that Beulah was going to be arrested and that Horton should take
her into custody. Horton knew Beulah and had had prior interactions with her. Horton went
to the back of the property, where Beulah was standing near a small staircase by the back
patio; he approached to take her into custody. At that time, Rashkow and Ellis were behind
Horton. When Horton was a few feet away from Beulah, defendant “stepped between”
Horton and Beulah and “put his hands on” Horton’s chest, with both hands open and fingers
spread, and said “you are not taking my mom.” Defendant applied enough force to stop
Horton’s forward movement. Horton took defendant’s hands, moved them away from his
chest, and pushed defendant out of the way. Defendant stepped off to the side. Horton then
proceeded to approach and arrest Beulah.
¶ 26 On cross-examination, Horton agreed that defendant stepped into his path with his hands
outreached, Horton was walking forward, and defendant’s hands stopped Horton’s forward
movement.
¶ 27 3. Defendant’s Testimony
¶ 28 The State rested. The court denied defendant’s motion for a directed verdict. Defendant
took the stand and testified that he was at the backyard barbecue with 10 to 15 people when
Ellis and Rashkow arrived. Defendant kept quiet when they arrived and stood away from the
officers while they arrested Jackson and took him to the transport van. Beulah was by the
porch and yard; she was on a cordless telephone asking to speak to a shift commander.
Beulah started to walk toward the house. Defendant then saw several officers walking at a
fast pace behind her, so he “intervened with Rashkow and asked what was going on.”
Defendant testified that he did not hear anyone tell Beulah she was under arrest and that the
officers were basically chasing her. When defendant stepped in front of Rashkow and asked
what was going on, Rashkow pushed defendant with his left hand. Defendant said “What’s
going on?” Rashkow told him to back up and get out of the way. Defendant said that he was
not doing anything, and Rashkow pulled out his Taser. Defendant raised his hands and said
“I’m not being aggressive with you; what’s going on, what’s going on?” Rashkow told him
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to get down and defendant asked, “for what, for what, I’m not doing nothing.” Rashkow put
the Taser to defendant’s chest, and defendant submitted and went to the ground. Defendant
was then handcuffed.
¶ 29 Defendant testified that, prior to stepping in front of Rashkow, defendant had not made
any contact with other officers, had not encountered Horton, and did not step in front of
Horton. When asked if he had any physical contact with Horton, defendant replied “None.”
He never put his hands on Horton’s chest.
¶ 30 4. Certified Conviction and Closing
¶ 31 The court permitted the State to read into evidence a certified conviction against
defendant for unlawful possession of a controlled substance. In closing argument, the State
argued that the jury should believe Horton over defendant for various reasons, including
because defendant had been convicted of another offense and “that means that may weigh
on his believability as a witness in this case. The defendant versus Officer Horton, ladies and
gentlemen, when you look at these instructions, I think that it’s easy to determine who is the
more believable witness in this case.” (Emphasis added.)
¶ 32 D. Instructions and Verdict
¶ 33 At the instructions conference, the State offered Illinois Pattern Jury Instructions,
Criminal, No. 3.13 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 3.13), which instructed
that the jury could consider defendant’s prior conviction only to assess his credibility, not as
proof that he was guilty of the charged offenses. Defense counsel objected, stating “I’m
going to object and ask that it not be given in this particular case. We do have the one
conviction in. I think this would highlight it.” The court overruled defendant’s objection and
gave the instruction. The jury found defendant guilty of both charges.
¶ 34 E. Posttrial
¶ 35 The court denied defendant’s posttrial motion, but agreed that its decision to give, over
defendant’s objection, IPI Criminal 4th No. 3.13 was error because the committee comment
to the instruction explains that it should be given “only at the request of the defendant.” IPI
Criminal 4th No. 3.13, Committee Note. Nevertheless, the court found the error to be
harmless.
¶ 36 In addition, defendant argued posttrial that the court erred in prohibiting his line of
inquiry regarding Horton’s knowledge of Beulah’s complaint against the police department
about the events that occurred at her house on June 10, 2009, and Horton’s subsequent
request for felony authorization. The State represented that Beulah’s complaint pertained
only to Rashkow, and defense counsel objected that the complaint was not in evidence. The
State then represented that Horton wrote a report about the incident and described
defendant’s actions in that report before defendant was charged and before the complaint by
Beulah was made. Defense counsel objected that the report was not in evidence. The State
replied that in discovery it provided defendant with a copy of Horton’s report, which was
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dated June 10, 2009, and, so, “it’s not as though Officer Horton suddenly made up what
[defendant] did and decided to request a charge.” Further, the State questioned the basis of
the alleged bias, questioning how Horton, by charging defendant, would be protecting
another officer (i.e., Rashkow) who was the subject of the complaint by someone other than
defendant (i.e., Beulah). The State concluded, “Officer Horton wrote a report at the time. Just
didn’t–our office or the police department didn’t charge [defendant] with a felony at the
time.” The State represented that it did not know whether Horton sought, on the night of the
incident, a felony charge. “But there’s a whole process that we would have had a whole
separate trial about, in order to determine just why Officer Horton just didn’t charge the
defendant that first night, as opposed to 30 days later. When, in fact, he wrote a report that
night that indicated that the defendant had pushed him.”
¶ 37 In rebuttal, defense counsel noted that police reports typically reflect when an officer
sought felony authorization, who he or she spoke to, and whether that request was granted
or denied. Here, however, no report reflects that Horton sought felony authorization. The
State agreed that no report reflects whether Horton sought felony authorization. Defense
counsel further noted, as to Beulah’s complaint, that she was not permitted to get into the
subject of the complaint, who it was against, and whether it involved Horton. She
represented that the complaint was all about the incident that happened between defendant,
Beulah, and the officers. Counsel reiterated that she should have been permitted to ask
Horton about the fact that he had the discretion to seek charges that same day and yet he did
not do so until 40 days later; she had no interest in the State’s Attorney’s office and its
processes because, at the stage when Horton was deciding whether to seek charges, it was
not involved.
¶ 38 The court denied the posttrial motion and sentenced defendant to three years’
imprisonment. Defendant appeals.
¶ 39 II. ANALYSIS
¶ 40 A. Sufficiency of the Evidence
¶ 41 Defendant argues first that the evidence was insufficient to prove his guilt of aggravated
battery. Specifically, he notes that: (1) despite the presence of several other officers, Horton
was the only witness who testified that defendant made physical contact with him; (2)
Horton’s testimony was “significantly inconsistent” with the testimony of other officers; and
(3) Horton’s testimony failed to show that defendant made contact of an insulting or
provoking nature. Therefore, he argues that we must reverse his conviction outright. For the
following reasons, we disagree.
¶ 42 When a defendant challenges the sufficiency of the evidence supporting his or her
conviction, the inquiry is whether, after viewing the evidence in the light most favorable to
the State, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. People v. Collins, 214 Ill. 2d 206, 217 (2005). It is the function
of the trier of fact to weigh and resolve conflicts in the evidence and draw reasonable
inferences therefrom. People v. Williams, 193 Ill. 2d 306, 338 (2000). Nevertheless, while
the jury’s findings regarding witness credibility are entitled to great weight, the jury’s
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determination is not conclusive. People v. Smith, 185 Ill. 2d 532, 542 (1999). The appellate
court will reverse a conviction where the evidence is so unreasonable, improbable, or
unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. Id.
¶ 43 Here, defendant argues that, although the indictment alleged that he contacted Horton in
an insulting and provoking manner when he “pushed” Horton, the evidence did not establish
beyond a reasonable doubt that defendant initiated any contact with Horton. Defendant notes
that there were numerous guests and officers at the scene, yet the State called only four
witnesses, including Horton, and none of the other witnesses saw any interaction between
defendant and Horton. He notes that Rashkow and Feeney were, based on their testimony,
in a position where they would have seen defendant’s interaction with Horton if, in fact, it
had occurred.
¶ 44 We agree with defendant that Rashkow’s and Feeney’s testimony was such that, if
contact between Horton and defendant occurred, it is surprising that they did not see it.
Rashkow and Feeney were watching Horton approach the porch to arrest Beulah and, after
they saw Horton and Beulah engage in a struggle, they moved forward to assist. According
to Rashkow, it was then that defendant stepped, from the stairs near the porch, between
Rashkow and Horton.
¶ 45 However, and as defendant concedes, the testimony of a single credible witness, even if
it is contradicted by the defendant, may be sufficient to sustain a conviction. Smith, 185 Ill.
2d at 541-42; see also People v. Rendak, 2011 IL App (1st) 082093, ¶ 31. Horton testified
that, as he followed Beulah toward the porch, defendant stepped in front of him and put his
hands out onto Horton’s chest. Horton pushed defendant out of the way and continued
toward Beulah. Rashkow and Feeney did not testify that they saw the contact, but Rashkow
did testify that Horton and defendant approached the porch at the same time and that
defendant came toward Rashkow “from the area of the stairs.” Therefore, the jury could have
reasonably found that Rashkow’s description of defendant and Horton approaching the porch
at the same time, coupled with Rashkow’s additional testimony that defendant approached
Rashkow from the stairs area, bolstered Horton’s account. In essence, the jury could have
considered Horton’s testimony in addition to the foregoing two aspects of Rashkow’s
testimony and concluded that the contact with Horton occurred first, and that defendant
stepped in front of Rashkow after Horton pushed defendant aside. The jury could have
assumed that Rashkow did not see the contact because Horton’s body blocked Rashkow’s
view.
¶ 46 Defendant disagrees that Horton falls into the category of a single credible witness,
arguing that Horton’s testimony was not credible. Not only was Horton’s testimony
uncorroborated, defendant argues, it was inconsistent in many respects with that of the other
officers. Specifically, Horton’s account of when he arrived differed from Feeney’s and
Rashkow’s: Feeney testified that Horton was at the scene when Jackson was detained on the
porch, and Rashkow stated that Horton arrived before he and Ellis took Jackson from the
porch to the van. Horton, in contrast, testified that Jackson was already being escorted to the
van when he arrived. Further, according to Horton, Rashkow told him to arrest Beulah, when,
in contrast, Rashkow testified that he told Horton only to keep an eye on Beulah. Simply put,
we reject this argument because it was for the jury to decide whom to credit, whether these
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inconsistencies were significant, and whether they detracted from Horton’s credibility.
¶ 47 Defendant asserts that it is critical for this court to consider the overall impact that the
inconsistencies and lack of corroboration had on Horton’s credibility as compared to
defendant’s. He asserts that, for purposes of assessing sufficiency, we should view the
evidence not simply as a matter of Horton’s word against defendant’s but, rather, as Horton’s
credibility as compared to that of all the witnesses who either rejected (defendant) or could
not support (all the other witnesses) Horton’s story. The problem with defendant’s argument
is that it strips the entire record down to only the testimony about defendant’s alleged
physical contact with Horton without considering how the entirety of the record could have
influenced the jury’s deliberations. For example, the officers testified that, when they tried
to arrest Jackson, the persons at the scene were upset. They explained that Beulah was yelling
at them, pushing past them, and calling their supervisor. Defendant’s testimony established
that, when he noticed officers rapidly following Beulah, he had a physical encounter with
Rashkow. And Rashkow testified that defendant approached the porch at the same time as
Horton and then approached Rashkow from the direction of the porch. Again, the question
is whether we can say that the evidence is so unreasonable, improbable, or unsatisfactory as
to justify a reasonable doubt of defendant’s guilt; we cannot substitute our view of the
evidence for the jury’s. Smith, 185 Ill. 2d at 542. When the jury considered Horton’s
testimony in light of the evidence as a whole, it could have reasonably found beyond a
reasonable doubt that defendant made contact with Horton.
¶ 48 Finally, defendant argues that, even if the evidence can be viewed to establish that he
made contact with Horton, it did not establish beyond a reasonable doubt contact of an
insulting or provoking nature. Specifically, defendant argues that, although the State alleged
that he “pushed” Horton, Horton’s testimony reflects only that Horton walked into
defendant’s outstretched hands. Further, defendant notes that Horton did not testify that he
found the contact to be insulting or provoking; rather, he testified only that he moved
defendant out of the way and kept walking.
¶ 49 Defendant is correct that, to prove him guilty of aggravated battery against Horton, the
State had to prove, beyond a reasonable doubt, that he made physical contact of an insulting
or provoking nature. See 720 ILCS 5/12-3(a)(2), 12-4(b)(18) (West 2008). However, we
reject defendant’s argument because, even if Horton did not explicitly testify that he felt
insulted or provoked by defendant’s contact, the trier of fact may take into account the
context in which a defendant’s contact occurred to determine whether the touching was
insulting or provoking. People v. Wrencher, 2011 IL App (4th) 080619, ¶ 55 (“[t]he victim
does not have to testify he or she was provoked; the trier of fact can make that inference from
the victim’s reaction at the time”); People v. DeRosario, 397 Ill. App. 3d 332, 334 (2009)
(contact can be insulting or provoking depending on the context, including the parties’
relationship).
¶ 50 Here, defendant argues that the aggravated battery statute speaks of one who “makes”
contact and that, here, Horton caused the contact and defendant was the object of the contact.
Inherent in this argument is defendant’s suggestion that he was just standing in place, with
his hands and arms outstretched, and Horton walked right into him. However, the evidence
reflected that, when he saw Horton approaching Beulah, defendant stepped in front of Horton
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with his arms extended. The jury could have reasonably inferred that defendant stepped in
front of Horton with outstretched hands intending to physically stop him. Thus, the jury
could have reasonably inferred that, where defendant knew that Horton was an officer acting
in the performance of his duties, and he stepped in front of Horton with his arms extended,
the resulting contact, which was sufficient to stop Horton’s forward movement, was a
knowing insult or provocation. The jury could also have reasonably inferred that Horton was
insulted and/or provoked where he reacted by pushing defendant aside.
¶ 51 In sum, we reject defendant’s challenges to the sufficiency of the evidence.
¶ 52 B. Cumulative Error
¶ 53 Defendant next argues that, cumulatively, the court’s decisions to: (1) preclude the
defense from presenting evidence bearing on Horton’s credibility; (2) allow the State to
introduce testimony concerning irrelevant and inflammatory statements made at the scene
by Jackson and Beulah; and (3) give IPI Criminal 4th No. 3.13 over defendant’s objection,
prejudiced him and require a new trial. Defendant notes that two of the three alleged errors
undermined his credibility, while the third deprived him of an opportunity to call Horton’s
credibility into question. Together, he argues, they rendered the verdict unreliable.
¶ 54 In instances where individual errors committed by a trial court do not merit reversal
alone, the cumulative effect of the errors can deprive a defendant of a fair trial. People v.
Simmons, 342 Ill. App. 3d 185, 191 (2003). In such cases, due process and fundamental
fairness require that the defendant’s conviction be reversed and the cause remanded for a new
trial. Id. We address each claim of error in turn.
¶ 55 1. Horton’s Credibility
¶ 56 Defendant argues first that the trial court erred in precluding his attempts to show that
Horton complained of aggravated battery only after he became aware of Beulah’s complaint
against the police department. Defendant asserts that Horton’s knowledge of Beulah’s
complaint gave him a motive to falsely accuse defendant, thereby affecting Horton’s
credibility. Defendant notes that he was constitutionally entitled to present evidence
supporting his theory of the case and to confront and cross-examine his accusers, and that
courts are to give a defendant the “widest latitude” (People v. Blue, 205 Ill. 2d 1, 14 (2001))
to elicit testimony showing that a prosecution witness has a motive to testify falsely. He
argues that the subject of Beulah’s complaint did not matter, because Horton could have been
motivated to protect the department, to retaliate against Beulah by raising the stakes and
charging her son, or to gain leverage for the department in any investigation into Beulah’s
complaint. Thus, he concludes, where Horton was the central witness for the State’s case and
where an inference that Horton had a motive to falsely testify against defendant could have
been made, the court erred in denying defendant wide latitude in cross-examination. We
agree.
¶ 57 The limitation of cross-examination rests within the sound discretion of the trial court
and will not be reversed unless there has been a clear abuse of discretion. People v. Green,
339 Ill. App. 3d 443, 455 (2003). An abuse of discretion occurs only where the court’s
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decision is arbitrary or fanciful, or where no reasonable person would adopt the court’s view.
People v. Dunmore, 389 Ill. App. 3d 1095, 1105 (2009).
¶ 58 The confrontation clause of the sixth amendment to the United States Constitution (U.S.
Const., amend. VI) guarantees a defendant the right to cross-examine a witness against him
or her for the purpose of establishing that the witness is biased or has a motive to testify
falsely. People v. Klepper, 234 Ill. 2d 337, 355 (2009). However, trial judges retain “wide
latitude to impose reasonable limits” on a defense counsel’s inquiry into the potential bias
of a witness, based on various concerns, including confusion of the issues or interrogation
that is of little relevance. Id.
¶ 59 Here, the critical issue at trial was the credibility of Horton’s testimony that defendant
pushed him. Defense counsel thoroughly emphasized to the jury that no other witness
corroborated Horton’s depiction of the event and that defendant testified that the event did
not happen. However, we do not agree with the State that such cross-examination was
sufficient to challenge Horton’s credibility on account of bias or motive to testify falsely.
Specifically, there is a difference between challenging the credibility of a witness’s account
of events and challenging the overall credibility of the witness him or herself. There is a
difference between pointing out inconsistencies or weaknesses in a story and exploring why
or for what reasons the witness might fabricate the story. Here, the trial court did not impose
“reasonable limits” on defendant’s ability to explore the relevant issue of Horton’s potential
bias. Instead, rather than limit, the court entirely precluded any line of questioning regarding
Horton’s potential bias.
¶ 60 Nevertheless, the State argues, the court’s decision was not an abuse of discretion. The
State notes that the court considered the issue on three occasions, and further asserts that it
was not fanciful for the court to decide that “the line of questioning concerning the timing
of the aggravated battery complaint” was irrelevant and improper. However, defendant did
not seek to question Horton about “the timing of the aggravated battery complaint.” He was
not seeking to explore the timing of the charging instruments themselves. Rather, defendant
wished to question Horton regarding only Horton’s decisions and actions. Indeed, while the
premise of the court’s ruling–that the questioning would open up a collateral issue and lead
to a mini-trial regarding the processes in the police department and State’s Attorney’s office
for pursuing felony charges–might be a basis for limiting the scope of the examination, we
cannot find reasonable the court’s decision to not allow any questioning of Horton regarding
whether he: (1) was familiar with the procedure for seeking felony authorization; (2) sought
felony authorization against defendant and, if so, when; and (3) when, if ever, he became
aware of Beulah’s complaint against the police department regarding the June 10, 2009,
incident. Rather than addressing collateral issues of the timing of the charging instruments
themselves, or matters beyond Horton’s control, the foregoing topics were entirely within
Horton’s own knowledge regarding what he knew, when, and what, if any, actions he took.
¶ 61 Defendant requests us to consider this error only in a cumulative-error context. Indeed,
we cannot find the error, on its own, reversible. Although a defendant should be allowed the
“ ‘widest latitude possible’ ” on cross-examination to establish bias or a motive to testify
falsely, the evidence of bias or motive must not be remote or uncertain and it must give rise
to an inference that the witness has something to gain or lose by his or her testimony. Green,
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339 Ill. App. 3d at 455 (quoting People v. Furby, 228 Ill. App. 3d 1, 3-5 (1992)). Here, as
there was no offer of proof below regarding Horton’s answers to the aforementioned
questions, the contents of Horton’s police report, or the contents and subjects of Beulah’s
complaint, we cannot assess whether defendant’s questioning of Horton would have resulted
only in remote or uncertain evidence of bias or motive. Indeed, both sides agree that it is
currently unknown from the record whether Horton (as opposed to someone else in the
department) ever requested felony authorization. If he did not, then, presumably, defendant’s
examination into Horton’s bias would have quickly come to a halt. Thus, while we agree
with defendant that the court abused its discretion where it did not allow any examination
into whether Horton’s testimony was retaliatory, we cannot reverse on this basis alone.
Therefore, and as defendant requests, we will assess the error within a cumulative-error
framework.
¶ 62 2. Witness Comments
¶ 63 Defendant next argues that the court erred where it partially denied his motion in limine
and allowed into evidence statements that Jackson and Beulah made at the scene. The
specific comments defendant challenges are Jackson’s comments: (1) “No, fuck that Ellis.
I’m not coming over to you” and (2) “now, don’t you feel stupid, I don’t have a fucking
warrant.” Defendant further challenges the admission of Beulah’s comments, wherein she:
(1) “demanded” that Ellis and Rashkow “get off her property” and (2) was “yelling” for the
officers to “get off her property” and that they were “harassing” Jackson. Defendant argues
that the court erred because the statements were highly inflammatory and, at best, only
marginally relevant. Defendant argues that the statements had little to no probative value,
because they were not made by him. Thus, there was no reason to disclose them to the jury
except to exploit their inflammatory nature and unfairly suggest that defendant was more
likely to behave aggressively toward Horton because one of his guests and his own mother
displayed hostility toward the police.
¶ 64 We review rulings concerning the admissibility of evidence for an abuse of discretion.
Dunmore, 389 Ill. App. 3d at 1105. As noted, an abuse of discretion occurs only where the
court’s decision is arbitrary or fanciful, or where no reasonable person would adopt the
court’s view. Id.
¶ 65 Here, we cannot find that the court abused its discretion. The comments made by Jackson
and Beulah provided context to the officers’ decisions to call for police backup and to arrest
Beulah, which, in turn, is what resulted in defendant’s intervention. Further, the relatively
comprehensive view of the number of people at the scene coupled with the heightened
emotion provided a basis from which the jury could have found that, despite their positions,
Rashkow and Feeney might have been too distracted by the entirety of the scene to notice
Horton’s brief physical encounter with defendant.
¶ 66 Defendant argues that the State’s need to explain the officers’ actions was simply not so
necessary as to outweigh the comments’ inflammatory nature. However, as defendant
concedes, the court pretrial balanced the State’s interests against defendant’s by permitting
the State to offer, with respect to other individuals at the scene (not Jackson or Beulah), only
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the general nature of the comments without getting into their exact content. Defendant argues
that the court should have made the same ruling with respect to the comments made by
Jackson and Beulah, but the fact remains that, by considering each witness and the statements
made and determining whether to allow the exact language or merely the generalized nature
of the comments, the court clearly engaged in a thoughtful balancing analysis. We simply do
not agree with defendant that the comments by Jackson and Beulah were more prejudicial
than probative. To exclude the comments would have created an artificial semblance of a
benign scene, contrary to the one that the officers faced. Indeed, if the jury had heard only
that Beulah and Jackson made comments reflecting that they were upset or angry, Rashkow’s
ordering Beulah’s arrest and, ultimately, pointing a Taser gun at defendant would have
seemed less reasonable than when the full extent of the situation is revealed.
¶ 67 3. Jury Instruction Error
¶ 68 Defendant next argues that the court erred in giving over his objection IPI Criminal 4th
No. 3.13 and that the error was not harmless. Defendant argues that, contrary to the State’s
assertion, the instruction does not necessarily benefit a defendant by limiting the purposes
for which the jury may consider the prior conviction; rather, the instruction can also serve
to highlight to the jury that the defendant has a prior conviction, and that, presumably, is the
reason why the committee comments specify that the instruction may be given only at the
defendant’s request. Defendant argues that this case differs from those where a court’s
refusal to give a defendant’s requested instruction is viewed as harmless, because, here, the
court gave an instruction that defendant did not want given. Under the facts of this case,
defendant argues, any error that could have made defendant seem less credible than Horton
might well have affected the outcome.
¶ 69 Clearly, and as the trial court conceded and the State concedes now, IPI Criminal 4th No.
3.13 was given in error. Defense counsel objected to the instruction at the instructions
conference and specifically noted that the basis of her objection was that it would highlight
the conviction for the jury. The question, therefore, is whether the error was harmless. A
court’s refusal to give instructions in the manner proposed is harmless where the result of the
trial would not have been different if the instructions had been given as proposed. People v.
Brandon, 283 Ill. App. 3d 358, 364 (1996). Further, errors in instructions are generally
deemed harmless where the instructions, taken as a whole, fully and correctly state the law.
Id.
¶ 70 Here, the State argues that the instructional error was harmless because, as a whole, the
instructions correctly stated the law and the error could have only benefitted defendant. The
State argues that, although defendant argues prejudice in that the instruction highlighted his
conviction, the instruction was merely duplicative of the State’s closing argument, which did
the same. Thus, the State argues, the instruction merely benefitted defendant by blunting the
impact of his properly admitted conviction.
¶ 71 We reject the State’s arguments that the instruction serves only to benefit a defendant and
that the error is harmless when the instructions, as a whole, are accurate. Both of these
arguments, when applied to an earlier version of IPI Criminal No. 3.13 (no material change
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in text), were effectively rejected by the appellate court. Specifically, in People v. Gibson,
133 Ill. App. 2d 722 (1971), the defendant raised several issues on appeal, but the court
found that only two grounds for reversal were material, one of which was that the trial court
erred in giving, at the State’s request, IPI Criminal No. 3.13. The court noted that the
instruction correctly set forth the law, but that it should be given only at the request of the
defendant. Id. at 726. The court stated:
“It should be the prerogative of the defendant to determine whether such an instruction
is beneficial to his defense or whether it would only serve to accentuate his past criminal
record. To use or to not use such an instruction is a matter which is to be determined by
the defendant or the trial court on its own motion, and not by the People. The giving of
such an instruction by the People was prejudicial to the defendant and constitutes error.”
Id.
We are mindful that the court did not reverse solely on this ground. However, of the issues
the defendant raised on appeal, the court did find that the error required attention. Further,
the court found critical that giving the instruction is the defendant’s prerogative.
¶ 72 Another reversal, based, in part, on an improper use of IPI Criminal No. 3.13, occurred
in People v. Cook, 262 Ill. App. 3d 1005, 1019 (1994). There, the court found that the trial
court erred in giving IPI Criminal No. 3.13 at the State’s request because “[g]iving this
instruction at the behest of the State may unfairly accentuate defendant’s past criminal
record.” Id. Although the court had found the evidence sufficient to sustain the defendant’s
conviction, the court rejected the State’s argument that reversal was unwarranted because the
evidence against the defendant was overwhelming. Id. at 1017, 1019.
¶ 73 The State points to a case where the instructional error did not mandate reversal. It notes
that, in Brandon, the court held that, even though the instruction was given in error and the
committee comment must be followed, the error was harmless. Brandon, 283 Ill. App. 3d at
364. As defendant notes, however, Brandon found the error harmless “in the unusual
circumstances of [that] case.” Id. Specifically, the instruction was deemed harmless in
Brandon because a similar instruction was also provided for other witnesses (not the
defendant), who had testified and had been impeached with prior convictions. Because the
trial court gave a similar instruction regarding other witnesses and had instructed the jury to
consider the defendant’s testimony in the same manner as it judged other witnesses’
testimony, the trial would not have had a different result if the instruction had not been given.
Id. at 364-65. Here, in contrast, the trial witnesses consisted of police officers, none of whom
were impeached with prior convictions, and defendant. Thus, unlike in Brandon, the
erroneous instruction regarding prior convictions with respect to defendant was in no way
insulated by similar instructions regarding other witnesses. Again, the Brandon court
explicitly stated that the circumstances were unusual and that the committee comment to IPI
Criminal No. 3.13 must be followed. As we do not, here, have circumstances similar to those
in Brandon, we do not find the result in Brandon controlling.
¶ 74 We conclude that the court’s instructional error here was not harmless. In so finding, we
consider the circumstances of this case. The evidence here, while sufficient to sustain the
conviction, was not overwhelming. Rather, the evidence exclusively concerned a credibility
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contest between Horton and defendant. Given that defendant was not permitted to fully
challenge Horton’s credibility, the instructional error, coupled with the State’s closing
argument (in which the prosecutor relied on “the instructions” to remind the jury that, in
assessing whether to believe Horton or defendant, it should remember that defendant has a
prior conviction), was not harmless. We are guided by the decisions in Gibson, Cook, and
Brandon, which make clear that, because the instruction, contrary to the State’s argument,
can indeed prejudice a defendant, the instruction may be given only at the defendant’s
request. Because this case came down to a credibility contest between Horton and defendant,
and because the instruction concerned defendant’s credibility and was erroneously given over
his objection, we cannot conclude that the result of the trial would not have been different
if the instruction had not been given.
¶ 75 We note that the State is correct that, even absent IPI Criminal 4th No. 3.13, it is allowed
to emphasize the impact of a prior conviction in closing argument. However, as defendant
notes, if we find harmless the court’s giving of IPI Criminal 4th No. 3.13 over a defendant’s
objection, on the basis that the State can highlight the conviction in closing argument
anyway, or because other instructions were legally accurate, we have rendered meaningless
the instruction’s requirement that the power to request or reject the instruction lies solely
with the defendant.
¶ 76 In sum, we agree with defendant that the trial errors cumulatively deprived him of a fair
trial. The trial came down to a credibility contest between Horton and defendant. The
erroneous rulings went to the heart of that issue. Specifically, and as discussed above,
defendant was erroneously precluded from challenging Horton’s credibility with the issue
of bias. Then, the instructional error had negative implications for defendant’s credibility.
Together, and under the facts of this case, the errors convince us that due process and
fundamental fairness require that defendant’s conviction be reversed and the cause remanded
for a new trial. Thus, we reverse defendant’s aggravated battery conviction and remand the
cause for a new trial on that charge.
¶ 77 III. CONCLUSION
¶ 78 For the foregoing reasons, the judgment of the circuit court of Kane County is reversed,
and the cause is remanded.
¶ 79 Reversed and remanded.
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