DocketNumber： 3-95-0406
Judges： Lytton
Filed Date： 4/30/1997
Status： Precedential
Modified Date： 10/19/2024
No. 3--95--0406
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 14th Judicial Circuit,
) Henry County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 94--CF--221
)
DALE A. ENGLISH, ) Honorable
) Jay M. Hanson
Defendant-Appellant. ) Judge, Presiding
_________________________________________________________________
JUSTICE LYTTON delivered the opinion of the court:
_________________________________________________________________
The defendant, Dale A. English, was convicted of burglary and
aggravated battery. 720 ILCS 5/19--1; 12--4 (West 1994). He was
sentenced to a 30-month term of probation for the offenses which
was conditioned on his serving 6 months of imprisonment. On
appeal, the defendant argues that: (1) he was not proved guilty of
burglary beyond a reasonable doubt; (2) the trial court erred in
commenting on photographs in evidence; and (3) the trial court
should not have instructed the jury on resisting arrest. We affirm
in part and reverse in part.
At trial, Esther Ensley testified that at 12:45 a.m. on Au-
gust 23, 1994, she awoke after she heard a loud crash. She looked
out her bedroom window and saw a group of men standing behind a
Pepsi truck in front of a Super-Valu grocery store across the
street. As she watched the men, they ran toward a nearby apartment
building. She then saw a man with dark hair in blue jeans and a
white tee shirt take a case of bottles out of the truck, put it on
his shoulder and carry it away. Ensley said she got a side view of
the man's face. The men were laughing at him. The man then went
in back of the building beyond her view. She said that the light-
ing in the area was good and that she had no trouble seeing the man
or the truck. She then called the police.
Ensley further testified that when the police arrived, the man
that had removed the bottles from the truck talked to the officer.
Ensley heard the man tell the officer that the people who had taken
the bottles had left. Ensley then called the police again and told
them that the man was lying and that he was the man who had stolen
the bottles. Officer Underwood then came to her house. She told
Underwood that she was positive that the man he had been speaking
to had lied about taking the bottles. Ensley identified the defen-
dant in court as the man who had taken the bottles.
Police officer Harry Underwood testified that on August 24,
1994, he received a call at 12:45 a.m. to report to the Super-Valu.
When he arrived at the scene he spoke to some people, including the
defendant. He received a dispatch over the radio that identified
the defendant as the person who had taken the bottles. He then
went to the house across the street and spoke to Ensley. After
speaking to her, he arrested the defendant.
Underwood further testified that he later drove the defendant
to the police department and took him into an interrogation room.
The defendant refused to answer questions and began swearing at
him. Underwood told him that he would have to go back into the
holding cell. As he reached down to grab the defendant, the defen-
dant sprung out of the chair, hit Underwood in the chest, threw him
into the wall and put him in a headlock. Other officers came into
the interrogation room and assisted Underwood in subduing and
handcuffing the defendant.
The defendant testified that he was attending an apartment
party near the Super-Valu store. He left the apartment to look for
his friend and noticed the police outside. He listened to the
police officer's conversation with some other men and then went
back to the party. When he arrived back at the apartment, another
police officer told him that someone had accused him of stealing
pop bottles. He returned to the store and Underwood arrested him.
The defendant admitted that he swore at Underwood at the
police station, but testified that in response, Underwood grabbed
him and ripped the gold chain from his neck. When the defendant
pushed Underwood away, the officer grabbed him around his upper
body and slung him on the desk. The defendant told Underwood that
he was not going to fight, but Underwood pushed him and hit him in
the mouth.
Steven Johnson, the defendant's private investigator,
testified that he had photographed the police station, the Ensley
house, and the Super-Valu. He said that some of the photographs
were taken without a flash and therefore were darker that what he
had actually seen the day he took them. The photographs were then
admitted into evidence.
The trial court then repeated Johnson's comment to the jury
about some of the photographs being darker than it actually was on
the day they were taken. Defense counsel responded that he did not
introduce the photographs taken without a flash into evidence. The
trial court then looked at the photographs and questioned Johnson
about them. The trial judge then stated to the jury that the
admitted photographs actually did depict what Johnson saw the day
he had taken them.
After the close of evidence, the court gave the jury Illinois
Pattern Instruction No. 24--25.20. Illinois Pattern Jury Instruc-
tions, Criminal, No. 24--25.20 (3d ed. 1992). That instruction
states as follows:
"A person is not authorized to use force to
resist an arrest which he knows is being made
by a peace officer, even if he believes that
the arrest is unlawful and the arrest in fact
is unlawful."
On appeal, the defendant first argues that he was not proved
guilty of burglary beyond a reasonable doubt because the evidence
was based on doubtful, vague and unreliable identification
testimony.
In reviewing a conviction, this court must ask itself 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. People
v. Collins, 106 Ill. 2d 237, 478 N.E.2d 267 (1985). It is well
settled that a defendant's conviction may be affirmed based upon
the identification testimony of a single witness who had an
adequate opportunity to observe the defendant. People v. Phillips,
99 Ill. App. 3d 362, 425 N.E.2d 1040 (1981).
Here, we find Ensley's identification testimony to be suffi-
ciently reliable to support the burglary conviction. Ensley
watched the defendant take the bottles from the truck and heard him
deny doing so to the police. She identified him at the scene and
again at trial. Any questions regarding her ability to identify
the defendant were primarily for the trier of fact to resolve.
Accordingly, we find that the defendant was proven guilty of
burglary beyond a reasonable doubt.
Next, the defendant argues that the trial court erred in
commenting on the credibility of the defense's evidence to the
jury. Specifically, he refers to the court's comments about the
darkness of the photographs.
A judge's comments constitute reversible error only if the
remarks prejudice the defendant. See People v. Snulligan, 204 Ill.
App. 3d 110, 561 N.E.2d 1125 (1990). It is the defendant's burden
to show that he has been harmed by the trial court's remarks.
People v. Wells, 106 Ill. App. 3d 1077, 436 N.E.2d 688 (1982).
Here, the defendant was not harmed by the trial judge's
comments. In fact, the comments assisted the jury and actually
benefited the defendant. If the judge had simply admitted the
photographs into evidence, the jury may have mistakenly believed
that some of those photographs portrayed the lighting as darker
than it actually was. If so, the jury might have believed that
Ensley had a better opportunity to view the defendant than she
actually did. Instead, the judge correctly stated that the photo-
graphs admitted fairly depicted the lighting of the areas. There-
fore, the judge's comments clarified a potential misunderstanding
and did not result in prejudice to the defendant. We find no
error.
Finally, the defendant argues that the trial court committed
reversible error when it instructed the jury on resisting arrest
when he was never charged with that crime.
The law is clear that the jury can be instructed on only the
crime charged and offenses included within that crime. People v.
McCauley, 2 Ill. App. 3d 734, 277 N.E.2d 541 (1972). The natural
result of giving an instruction based on an uncharged crime is
prejudice to the defendant. People v. McCauley, 2 Ill. App. 3d
734, 277 N.E.2d 541 (1972). Therefore, it is reversible error to
inject into the case, by way of instruction, an issue which is not
properly before the jury. Shore v. Turman, 63 Ill. App. 2d 315,
210 N.E.2d 232 (1965).
In McCauley, the defendant was charged with aggravated
battery. The trial court instructed the jury on resisting arrest
and attempted escape. On appeal, the court found that instructing
the jury on resisting arrest and escape when they were not charged
was error and created prejudice to the defendant. "The law is
clear that the jury can be instructed only concerning the crime
charged." People v. McCauley, 2 Ill. App. 3d at 736, 277 N.E.2d at
542. We agree.
Here, the trial court erred in instructing the jury on the
charge of resisting arrest. The basis for the aggravated battery
charge was the altercation with Officer Underwood, which occurred
long after the defendant had been arrested. Thus, an instruction
on resisting arrest was unwarranted. Moreover, the defendant was
prejudiced by giving such an instruction. At trial, the defendant
claimed that he struck Underwood in self-defense. The instruction
on resisting arrest, however, informed the jury that the defendant
was not authorized to use any force against a police officer in the
course of an arrest. The instruction could have confused the jury
and led them to conclude that the defendant could not have lawfully
defended himself in the interrogation room. Thus, the defendant
was hindered from presenting his theory of self-defense because the
improper instruction denied him an affirmative defense to the
aggravated battery charge.
The judgment of the circuit court of Henry County is affirmed
as to the burglary conviction and is reversed as to the aggravated
battery count.
Affirmed in part; reversed in part and remanded.
McCUSKEY and MICHELA, JJ., concur.