Davis v. City of Chicago

2021 IL App (1st) 191805-UNos. 1-19-1805 & 1-19-2097 (cons.)
SECOND DIVISION
May 11, 2021
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
DASHA DAVIS, Individually and as ) Appeal from the Circuit Court
Representative of the ESTATE OF GARY J. ) of Cook County.
SMITH, deceased, and RAMAR BROWN, )
)
Plaintiffs, ) No. 15 L 4799
)
v. )
) The Honorable
CITY OF CHICAGO, a municipal corporation, ) Thomas More Donnelly,
and UNKNOWN OFFICERS OF THE CHICAGO ) Judge Presiding.
POLICE DEPARTMENT, )
)
Defendants )
)
(Dasha Davis, as Representative of the Estate of )
Gary J. Smith, Plaintiff-Appellee; City of Chicago, )
Defendant-Appellant). )
JUSTICE PUCINSKI delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.
ORDER
¶1 Held: Although the plaintiff’s counsel improperly argued that the jury’s answer to a
special interrogatory was to be dictated by the jury’s verdict, the trial court did not abuse its
discretion in determining that it did not warrant a new trial under the circumstances in which the
argument was made. The defendant’s contention that the trial court erred in refusing to give IPI
5.01 with respect to witnesses the plaintiff failed to call did not warrant reversal, because the
defendant did not provide a sufficient record on appeal to conduct meaningful review. The
defendant’s contention that the trial court erred in giving IPI 5.01 with respect to missing
dashcam videos was waived due to the defendant’s failure to object to the giving of the
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instruction. Finally, even if the trial court erred in giving a jury instruction defining willful and
wanton conduct to include reckless conduct, such an error did not warrant reversal.
¶2 Defendant, City of Chicago, appeals from the judgment entered in favor of plaintiff,
Dasha Davis, as Representative of the Estate of Gary J. Smith, following a jury trial on her
wrongful death and survival claims arising out of the shooting death of her father, Gary J. Smith,
by a Chicago police officer. On appeal, defendant argues that (1) it was denied a fair trial when
plaintiff’s counsel improperly linked the special interrogatory to the general verdict during
closing arguments; (2) the trial court refused defendant’s request that Illinois Pattern Instruction
(“IPI”) 5.01 be given based on plaintiff’s failure to call certain family members as witnesses at
trial; (3) the trial court erred in giving IPI 5.01 based on defendant’s failure to produce certain
dashcam videos at trial; and (4) the trial court erred in giving an instruction defining willful and
wanton conduct as including reckless conduct. For the reasons that follow, we affirm.
¶3 BACKGROUND
¶4 The record on appeal in this matter is quite voluminous. Accordingly, we recite here
only those facts necessary to a general understanding of the procedural background and the
evidence presented at trial. Additional facts will be discussed as necessary during our analysis of
the issues raised on appeal.
¶5 In May 2015, plaintiff1 filed suit alleging that one or more officers with the Chicago
Police Department (“CPD”), without legal justification, shot and killed Smith in the early
morning hours of May 11, 2014. The initial complaint included wrongful death and survival
claims based on underlying causes of action for battery, assault, and intentional infliction of
1
In addition to Davis in her capacity as representative of Smith’s estate, the initial complaint
included as plaintiffs Davis in her individual capacity and Ramar Brown, Smith’s son. Davis
and Brown in their individual capacities were subsequently dismissed as plaintiffs.
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emotional distress. A jury trial was conducted on these claims in 2018 but ended in a mistrial
after the jury became hopelessly deadlocked.
¶6 A second jury trial was conducted from February 26, 2019, through March 21, 2019.
¶7 Plaintiff testified first. She testified that although she lived apart from Smith while she
was growing up, he would often take her to do things together and to celebrate holidays. In the
time before Smith died, she saw him nearly every day and visited him at his home. She testified
regarding the negative impact Smith’s passing had on her life. She also testified that Smith was
right handed.
¶8 Sharon Hughes testified that she lives on West Madison in Chicago, near the intersection
of West Madison and North Lotus. The view from her second-story apartment faces North Lotus
and an AutoZone parking lot on the northwest corner of West Madison and North Lotus. At
around 2:20 a.m. on May 11, 2014, Hughes was awoken by noise outside of her apartment. She
looked out her window and saw about 20 people shoving and cussing at each other. She called
911 to report the disturbance. During that call, the dispatcher asked Hughes if she saw any
weapons in the crowd, and Hughes answered that she did not. She further confirmed during her
testimony that she never saw anyone in the crowd point a gun.
¶9 When the police arrived, they started to disperse the crowd. As they were doing that,
Hughes heard someone say, “He got a gun.” She saw a man run through the AutoZone parking
lot to North Lotus. Two police officers chased the man: one of the officers went through the
AutoZone parking lot, while the other ran from Madison up Lotus. Hughes then heard gunshots
and, in response, she dropped to the floor. In total, she heard about five or six gunshots. She did
not witness the shooting because she was on the floor. Once the shots stopped, she got up and
looked out the window. People were screaming that the man had been shot, and a lot of police,
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fire trucks, and ambulances arrived. She never saw a police officer with two guns in his hands or
placing a gun in the trunk of a car.
¶ 10 Matthew Williams testified that he lived in an apartment on the northeast corner of West
Madison and North Lotus. His front window overlooked Madison, but his back porch
overlooked North Lotus towards the AutoZone on the northwest corner of the intersection. At
approximately 2:30 a.m. on May 11, 2014, he was watching TV when he heard a commotion
outside and then shortly after, he heard gun shots. He looked out his front window and saw a
group of people rushing toward Lotus. He then rushed to his back porch to see what was
happening on Lotus. When he got there, he observed the group of people he had seen from his
front window, police officers, and a man lying on the ground, squirming. Williams did not see a
police officer pick up a gun from near the man on the ground, walking around with a gun in each
hand, or unloading a gun. Williams did not see the actual shooting.
¶ 11 Retired Sergeant Lance Becvar of the CPD testified that on May 11, 2014, he worked for
the CPD as the supervisor of the mobile tech unit. That unit was involved in the maintenance
and operations of technology in police cars, including dashcams. Officers in that unit also
respond to requests from detectives for the immediate retrieval of dashcam video following an
incident.
¶ 12 Becvar explained that dashcams automatically record failsafe video from the time the
system is logged on until the time it is logged off. Failsafe video, however, is recorded over
approximately every 24 to 48 hours, depending on the memory available and how much that
particular vehicle was used. Failsafe video does not include audio.
¶ 13 Event video, on the other hand, begins recording only when the lights on a vehicle are
activated, an officer pushes a button on the in-car touchscreen, or an office pushes a button on
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their microphone. When an event video is activated, it automatically captures the one minute of
failsafe video that preceded the activation. An event video stops only when an officer presses a
button on the in-car touchscreen. Audio is included with event video, provided that the
microphones are properly synced. Event videos are uploaded either manually by the officers
when they return to the station and log off the system, or automatically when the vehicle
connects with a CPD hotspot at a station. Officers with the mobile tech unit are able to retrieve
event videos from a car’s system. After an event video is created, the creating officer is
supposed to assign a classification to the video, which determines how long it will be retained by
the CPD. Unless labeled under a classification that is retained indefinitely, the video will be
retained for a minimum of 90 days, after which time it can be purged.
¶ 14 With respect to dashcam videos related to the shooting of Smith, Becvar testified that the
video log for the vehicle used by Officers Serguey Klemens and Jonathan Elarde showed that
five event videos were created by that vehicle’s dashcam in the hours leading up to Smith’s
death. He did not know why there was no video created around 2:30 a.m. on May 11, 2014, but
testified that an event video should have been triggered if the emergency lights on the vehicle
were activated and the system was working properly. He looked for but did not find any help
desk tickets related to the dashcam in that vehicle. He also testified that if repairs had been
performed, there would have been documentation to that effect.
¶ 15 With respect to the dashcam in the vehicle operated by Officers Martina Makropoulos
and Brandon Dougherty, Becvar testified that the video log showed that an event video started
when the lights on the vehicle were activated at approximately 2:29:18 a.m. The video was then
stopped when a stop button was pressed at 2:30:56 a.m. Becvar agreed that if it had been
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requested in time, the passive video that followed the stopping of the event video could have
been retrieved.
¶ 16 Moving on to the vehicle driven by Officers Daniel Trakes and Melvin Mendez on May
11, 2014, Becvar testified that an event video was created and captured from 2:29:54 a.m.
through 3:08:50 a.m. It was then later uploaded at 5:03:56 a.m. A DVD was burned of the video
at 5:20:14 a.m. by the records division of the CPD. Becvar did not know where the DVDs were,
as he was not involved in that process. The video log reflected that the video was given a
“default” classification and, thus, was subject to the 90-day retention period. Accordingly, the
video was purged from the system on August 11, 2014.
¶ 17 Finally, with respect to the dashcam in the vehicle operated by Officers Jaime Ortiz and
Javier Saez that night, the video log demonstrated that an event video was created starting at
2:34:13 but did not show when it ended. It was purged from the system on September 18, 2014.
¶ 18 On cross-examination, Becvar testified that it would not be uncommon for a dashcam to
work properly during part of a shift and then stop working. Dashcams are exposed to extreme
temperatures and vibrations.
¶ 19 Krystal Ellis, Smith’s fiancé, testified next. She testified that on the night of May 10,
2014, she and Smith attended a birthday party for Smith’s aunt at In the Cut (“ITC”) barbershop
on West Madison. Around 2:00 a.m. on May 11, 2014, everyone started to leave the party.
Ellis’s vehicle was parked across Madison on North Lotus. She and Smith began to walk
towards her vehicle when he turned around and went back to talk to some family members. She
continued to her vehicle, went to the driver’s side, and sat in the driver’s seat with the door open
to change her shoes. Smith then returned to the vehicle and stood on the passenger’s side with
the door open while talking to Ellis.
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¶ 20 Meanwhile, there was a group of approximately 10 to 20 people arguing on the sidewalk
by TJ’s Barbershop, which was located on the southside of Madison, west of ITC. Someone
called Smith over, because he was known to be a peacemaker. Ellis walked to the entrance to the
AutoZone parking lot on Madison, which was across the street from TJ’s. From there, she saw
Smith stand in the middle of group of people with his arms extended in an attempt to break up
the argument.
¶ 21 A few minutes later, police arrived. One of the unmarked police cars drove around a
CTA bus that was at the intersection of Madison and Lotus and into the crowd in front of TJ’s,
causing the people in the crowd to jump out of the way. Smith jogged back across Madison
towards where Ellis was standing. When he reached her, she “fussed at” him and told him,
“Let’s go.” Smith did not have anything in his hand at that time. They then jogged together
toward the northwest corner of Madison and Lotus. Right before they reached the corner, Ellis
saw two police officers running toward them with their guns out. One of those officers was
Arkadiusz Pachnik. She later testified that she saw three to five officers running towards them.
¶ 22 Pachnik ran toward Smith and said, “Hey.” Another officer pushed Ellis out of the way.
Smith stopped in his tracks and put his hands up about 6-12” over his head while standing next to
the fence surrounding the AutoZone parking lot. Smith did not have anything in his hands when
he put them up. The officers ran past Smith. When Ellis got up and faced Smith, she saw
Officer Shikema Teague to her right and Pachnik to the right of Teague. Pachnik and Teague
had their guns out and pointed at Smith. Then, lots of shots were fired. Ellis was approximately
two feet away from Smith at the time of the shooting, but she could not say who fired first or
how many shots each officer fired. Later, during various points in her testimony, Ellis testified
that she saw three officers with their guns pointed at Smith (Pachnik, Teague, and Elarde), three
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to five officers with their guns out, and “a lot” of officers present at the time Smith was shot.
When Smith was shot, he fell back against the fence and down onto his left side.
¶ 23 Ellis testified that Smith did not own or carry a gun. At no point that night did Smith
have a gun. Ellis did not see the police pick up a gun from Smith’s side after he fell to the
ground, and she never saw Pachnik walking around with two guns in his hand. Smith was right
handed.
¶ 24 On cross-examination, Ellis testified that during questioning by police after the shooting,
the police kept pressuring her to say that Smith had a gun. She repeatedly told them that he did
not. One of the detectives asked what Smith was reaching for in his pocket, and she told him
that he was reaching for a cigarette because she had asked him for one.
¶ 25 Valentina Hoy testified that she lived on the corner of Madison and Lotus. On the
morning at issue, she woke up to a crowd of more than 10 people arguing outside of her window,
just west of her apartment on Madison. She saw some people in the group shoving and pushing,
but no one was throwing punches. Amid the people talking, she heard a man telling the people
in the group that they were family, grew up together, and did not need to be fighting. Eventually,
the man threw his hands up and ran off across street. Two women were standing in the street and
one of them flagged down a passing police car and said that the man who had run off had a gun.
The other woman screamed at her, asking, “Why would you say that?” Hoy did not see anybody
in the crowd with a gun, and she did not see a gun in the hand of the man who ran across the
street.
¶ 26 When the woman flagged down the police, two officers got out and chased after the
running man with their guns drawn. When the man reached the northwest corner of Madison
and Lotus, he realized the police were behind him. He put his hands up and turned the corner.
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He did not have a gun in his hands when he put them up. Once the man and the officers went
around the corner, she could not see the man’s body, but she could see that his hands were still
up. Within seconds, she heard gunshots. She could not see the shooting from where she was,
but she heard someone yell, “You killed my friend. He didn’t have no gun.”
¶ 27 After the shooting, she did not see anybody pick up a gun from the ground, an officer
with two guns in his hands, or an officer place a gun in the trunk of a car.
¶ 28 Officer Matthew Dallio of the CPD’s Public Safety Information Technology Unit
testified next. He testified that on May 11, 2014, he was asked to retrieve some dashcam videos
pertaining to Smith’s shooting. When he arrived at the detective bureau, he was given a list of
three vehicles from which to retrieve videos. From Sergeant Luis Gonzalez’s vehicle, he
retrieved the failsafe video.
¶ 29 He attempted to remove video from the vehicle operated by Elarde and Klemens, but was
unable to do so, because the system was inoperable and did not record a video. When he logged
onto the system in that vehicle, the operating system produced error messages indicating that all
of the system files were corrupted and nothing was working. In situations like that, the recording
equipment would not start, meaning nothing would have been recorded after the system was
corrupted and there would be nothing to retrieve. There were no signs that anyone had tampered
with the system in Elarde and Klemens’ car.
¶ 30 Dallio also reviewed the failsafe video from the vehicle operated by Makropoulos and
Dougherty. He did not review the event video from that vehicle. He reviewed the failsafe video
with the detectives, and the detectives determined that it showed that Makropoulos and
Dougherty arrived at the scene of the shooting after the fact and parked away from the crime
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scene. Although Dallio never visited the scene of the shooting, the detectives would tell him if
the video was needed for evidentiary purposes.
¶ 31 With respect to the storage of failsafe video, Dallio explained that each time the vehicle is
turned on, the dashcam system deletes the oldest stored file and creates a new one in its place.
When the system is then turned off, the dashcam system ends the file and pushes it to the back of
storage. Accordingly, the more that a vehicle is used and turned off and on, the more failsafe
video data that is deleted.
¶ 32 On cross-examination, Dallio testified that dashcam systems are essentially just
computers like a person would have at home or in their office. The dashcam system in a police
vehicle runs nearly 24 hours per day, 7 days per week, is exposed to extreme heat and cold in the
back of the vehicles, and bounces around in the car all day.
¶ 33 The parties stipulated that if called to testify, Sergeant Daniel Durst would testify that he
was the supervising officer for Elarde and Klemens on May 10, 2014, and May 11, 2014. At
11:00 p.m. on May 10, 2014, he determined that the dashcam in the vehicle operated by Elarde
and Klemens was operable and logged on. During his contacts with Elarde and Klemens prior to
the shooting incident, they did not report any problems with their dashcam. Durst knew of no
problem with their dashcam on May 11, 2014, and did not create a work order for their dashcam
that day or thereafter.
¶ 34 Sergeant Luis Gonzalez of CPD testified that at approximately 2:20 a.m. on May 11,
2014, he responded to a call of battery in progress at 5400 West Madison. When he arrived,
Pachnik, Teague, Elarde, and Klemens were already there and sitting in their vehicles. Gonzalez
observed people leaving ITC but did not observe any battery in progress. Gonzalez parked his
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car and got out to speak with Terrance Stanley, the owner of ITC. At the same time, Pachnik,
Teague, Elarde, and Klemens got out of their vehicles and walked to where Gonzalez was.
¶ 35 As he was speaking to Stanley, Gonzalez observed a group of people near TJ’s,
approximately 200 feet away, arguing but not fighting. He did not observe anyone with a gun,
pointing a gun, or people ducking to get out of the way of a gun. He sent Pachnik, Teague,
Elarde, and Klemens to disperse the people near TJ’s. Elarde and Klemens drove their vehicle
westbound around and behind a bus that was stopped facing eastbound near the intersection of
Madison and Lotus, so that the front of their vehicle went into the crowd. When they did this,
people from the crowd started to disperse, and Gonzalez observed Smith walk and then run
northeast toward the corner of Madison and Lotus.
¶ 36 Gonzalez testified that prior to the shooting, no officer came over the radio to report that
anyone had a gun. He acknowledged, however, that during the statement he gave on the
morning of the shooting, he stated that shortly before the shooting, Elarde had relayed over the
radio that someone in the crowd had a gun. He testified that he was mistaken when he made that
statement.
¶ 37 As Smith was heading toward the northwest corner of Madison and Lotus, Gonzalez saw
Pachnik and Teague get out of their vehicle and run towards Smith. Meanwhile, Elarde was also
running after Smith, following the same path Smith had taken across Madison. Gonzalez did not
know whether Pachnik, Teague, or Elarde had their guns out while approaching Smith. As
Smith was running north on Lotus and facing away from Pachnik, Pachnik grabbed the back of
Smith’s shirt. In response, Smith shrugged away and turned toward Pachnik. Gonzalez never
saw a gun in Smith’s hand. At the time Pachnik started shooting, Smith and Pachnik were only
about two feet away from each other, but then Pachnik took a couple of steps back as he was
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shooting. During this time, Pachnik, Teague, and Smith were standing in a triangle, with
Pachnik on the north end of the triangle, Teague standing south of Pachnik, and Smith standing
west of the two officers near the fence. Gonzalez did not know where Elarde was at the time the
shots were fired. Gonzalez maintained that although his back was to the shooting scene, he
observed the shooting because he turned his neck so that he could see.
¶ 38 After the shooting, Gonzalez ran across the street and used his radio to call a “10-1,”
which means officer needs assistance. When he got to where Smith was, Gonzalez observed a
gun lying on the ground next to Smith’s body, but he could not recall what part of Smith’s body
the gun was near. Gonzalez directed Pachnik to pick up the gun with his bare hands because
there were people “bum-rushing” the shooting scene. Although he knew that Pachnik turned
over the gun to his immediate supervisor, he did not witness that exchange. After Pachnik
picked up the gun, Gonzalez told Ellis, “See what he had?” Ellis responded “Yes, I told him to
drop it but he wouldn’t drop it.” Gonzalez did not tell investigators what Ellis said when he gave
his statement later that morning. He did not tell anyone about Ellis’s statement until three years
later when he was deposed for the present lawsuit.
¶ 39 Gonzalez testified that he did not start running when he saw the others running after
Smith. He admitted, however, that in his statement after the shooting, he stated several times
that he told Stanley to wait and that he would be right back, and then started running after the
others and crossed the street before the shooting occurred. He also told investigators that as
Teague and Pachnik were approaching Smith, he turned his body towards them and began
walking or jogging into the street towards them. Gonzalez admitted that this did not happen and
testified that he was mistaken when he made those statements. In addition, Gozalez told
investigators that he was “closing in” when he saw Pachnik grab the back of Smith’s shirt and
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Smith shrug off Pachnik. He told investigators that he was actively running towards the incident
when Smith turned towards Pachnik and that he was about 20 to 25 feet away when the shooting
occurred. Gonzalez testified that this also was not true and that he was still across the street
when Pachnik grabbed Smith’s shirt and the shooting occurred. He did not move toward the
shooting scene until after the shots were fired. He changed his statement to investigators after he
viewed a video from the CTA bus that showed when he actually crossed the street.
¶ 40 The video deposition of Sergeant Floyd Goldsmith of the CPD was played for the jury.
During that deposition, Goldsmith testified that on May 11, 2014, Pachnik and Teague were
members of the tactical team he supervised. At some point on the morning of May 11, 2014, he
responded to the shooting of Smith. While there, Goldsmith learned that a gun had been
recovered following the shooting. Goldsmith could not recall the details of the conversation he
had with Pachnik regarding the recovery of the weapon. Goldsmith took the recovered gun from
Pachnik and placed it in the trunk of his car. The gun was not placed in any type of evidence bag
before he put it in the trunk. At some point the gun was removed from the trunk of his vehicle,
but he could not recall the details of that transfer.
¶ 41 The deposition of Officer Jaime Ortiz of the CPD was read into the record. He testified
that on the morning of May 11, 2014, he was working with his partner, Officer Javier Saez. At
approximately 2:30 a.m., they responded to a call of shots fired in the area of Madison and
Lotus. They immediately responded from approximately two and a half blocks away, resulting
in them being one of the first cars to arrive on the scene. They parked facing north on Lotus,
near the corner of Lotus and Madison. When he got out of the car, he did not see any officer
kick a gun on the ground or pick up a gun off the ground. While he was at the scene, he never
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heard any of the officers say that the man who was shot had a gun. He did not see any citizens
threaten or approach any officers.
¶ 42 Joseph Wohrstein, a latent print examiner with the Illinois State Police, testified that he
did not find any fingerprints suitable for comparison on the gun, magazine, or bullets recovered
from the shooting.
¶ 43 Officer Paul Presnell, a forensic investigator with the CPD, testified that he was called to
the scene of Smith’s shooting on approximately 3:40 a.m. on May 11, 2014. While at the scene,
he was told that a gun had been recovered and that it was in the trunk of an unmarked police car.
Presnell photographed the gun and its magazine in the trunk of the vehicle and then recovered
them by placing them in a gun box and locking the box in his van. After completing his work at
the scene, Presnell returned to the police station to photograph Pachnik and recover Pachnik’s
weapon. Pachnik’s gun and magazine had a capacity of 16 bullets. At the time Presnell
recovered Pachnik’s gun, there were eight bullets in the magazine and one in the chamber. The
purpose of recovering Pachnik’s gun was for testing. Presnell was not asked to recover Teague’s
or Elarde’s guns for testing.
¶ 44 Presnell testified that he recovered seven shell casings from the scene of the shooting. He
also testified that one bullet that was removed from Smith at the hospital and four by the medical
examiner during the autopsy.
¶ 45 Sergeant Bryan Holy of the CPD testified next. Holy worked as a sergeant in the
detective bureau, which meant that he supervised detectives but was not a detective himself. At
some point in the days following the shooting, he became the supervising sergeant for the
investigation of the shooting. Holy testified that the medical examiner’s report indicated that
Smith sustained four through-and-through bullet wounds. He also testified that he was aware
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that five bullets were recovered from Smith’s body. Pachnik’s gun was missing seven bullets.
He never ordered testing on Teague’s or Elarde’s gun or inquired of them regarding whether they
fired their guns.
¶ 46 Holy acknowledged that dashcam video from the vehicle operated by Makropoulos and
Dougherty showed them arriving at the scene shortly after the shooting occurred and parking
about 20 to 30 feet away from where Smith was laying before the video was stopped by one of
the officers. He also acknowledged that the dashcam video from the vehicle operated by Elarde
and Klemens, if it existed, might have shown whether Smith had a gun while in the crowd near
TJ’s.
¶ 47 The parties stipulated that if Brian Zentek, a forensic scientist with the Illinois State
Police, were to testify, he would testify that based on his examination and testing, the seven shell
casings recovered from the scene and the five bullets recovered from Smith’s body were fired by
Pachnik’s gun.
¶ 48 Pachnik testified next. He testified that on the morning of May 11, 2014, he responded to
a call of a battery in progress. He and Teague drove east on Madison past ITC. He saw people
outside of ITC, but he did not see any fights taking place. He turned around and parked in the
median of Madison facing westbound. He and Teague did not immediately get out of the car,
and as they were sitting in their vehicle, Elarde and Klemens pulled up and parked behind them.
As they were sitting in the car, a second call came over the radio, this time for a man with a gun
in the area. Teague responded on the radio that they were at the scene. Packnik acknowledged
that in his recorded statement to investigators and during his deposition, he stated that he and
Teague were already out of their vehicle and dispersing the crowd when the call for a man with a
gun came in.
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¶ 49 Once Gonzalez arrived on the scene, Pachnik, Teague, Elarde, and Klemens exited their
vehicles to help Gonzalez disperse the crowd near ITC. No one was fighting or doing anything
illegal. As the crowd was thinning out, a woman ran over to another woman in the area of ITC
and said, “That guy’s got a gun. They’re about to start shooting.” Meanwhile, the crowd in front
of TJ’s started to build, and Gonzalez directed Pachnik, Teague, Elarde, and Klemens to go
disperse that crowd. Pachnik acknowledged that he did not tell the investigator about the woman
who reported seeing a gun, but testified that he did tell detectives.
¶ 50 As he and Teague were in the eastbound lanes of Madison walking back to their vehicle,
Teague stopped, looked west toward the bus, and told him that the man with the red plaid shirt
had the gun in front of TJ’s. He understood this to mean that Teague saw the man with the gun.
They continued to walk to their car. By the time they reached the driver’s side of their car,
Elarde and Klemens had driven their vehicle around the back of the bus into the crowd in front of
TJ’s, and Pachnik saw people running from behind the bus. When he reached the driver’s side of
the vehicle, he looked west, trying to find the person Teague pointed out. He then started to run
west toward the bus when Teague called his name. He turned around, and Teague told him it
was the man wearing the red plaid shirt and pointed at Smith, who was running across Madison.
Pachnik believed that Smith was running because he had a gun. Pachnik threw his car keys to
Teague and started to run northwest toward Smith and the northwest corner of Madison and
Lotus.
¶ 51 Pachnik acknowledged that he had previously testified that he and Teague might have
been on the sidewalk or in the street when she told him that she saw a man with a gun, but he
explained that after he saw the video from the CTA bus, he realized that they were in the
eastbound lanes of Madison. He also acknowledged that the video showed that he and Teague
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walked all the way to their vehicle and that he did not begin to show a sense of urgency in his
movements until after he reached their car. At no point did he see anyone near TJ’s fighting,
pointing a gun, ducking, or in possession of a gun.
¶ 52 When Pachnik first saw Smith, Smith was jogging across Madison toward the north
sidewalk of Madison by the AutoZone parking lot. Pachnik could not see Smith’s left hand
moving as he ran across Madison, so he assumed that it was at his left side. In a video from one
of the police observation devices (“POD”) in the area, Pachnik identified Smith jogging across
the street and testified that Smith tucked his left hand up by his waistband. Pachnik did not,
however, see a gun in Smith’s hand at this point.
¶ 53 Once Smith reached the sidewalk on the north side of Madison, he began to run faster.
At this point, Smith and Pachnik were running toward each other on the sidewalk. Pachnik had
his gun out and pointed at Smith. Pachnik yelled, “Police! Let me see your hands!” twice, but
Smith did not comply and kept running toward Pachnik. The two met just west of Lotus, and
Pachnik pushed Smith in his right shoulder and up against the fence surrounding AutoZone, but
Smith was able to get between Pachnik and the fence. Smith turned left (north) onto Lotus ahead
of Pachnik.
¶ 54 As they were both running, Pachnik grabbed the back of Smith’s collar with his left hand
and tried to pull him back. In response, Smith leaned forward. Pachnik saw Smith’s left arm
moving toward his left side and yelled, “Drop the gun, drop the gun!” Because Pachnik was
standing behind and to the right of Smith, he could not see the left side of Smith’s body and
could not see a gun, but based on Teague’s statements and his own observations, Pachnik
believed Smith had a gun.
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¶ 55 Smith then spun to his left. To gain distance from Smith, Pachnik let go of Smith’s
collar, pushed Smith away, extended his arm, and took a couple steps back. Both men were
spinning and moving at this point, and as Smith was turning, Pachnik saw a gun in Smith’s left
hand. The gun was pointed toward the AutoZone parking lot but, as Smith turned, the gun also
spun and pointed back towards Madison and then towards Pachnik. As soon as Pachnik saw the
gun in Smith’s hand, he started firing his weapon from his hip. He did not know exactly where
Smith’s gun was pointed at the time he started firing. Although he started firing when Smith’s
gun was not pointed at him, Smith continued to spin, such that the gun was eventually pointed at
him. Both he and Smith were moving as he was firing.
¶ 56 As Pachnik shot, Smith fell to the ground. At some point, Pachnik’s focus shifted from
the gun in Smith’s hand to Smith’s person, and he continued to shoot until he saw Smith’s gun
on the ground. He did not know whether Smith had fallen to the ground by that point. Pachnik
acknowledged that he initially told investigators that he continued to shoot Smith as Smith fell to
the ground and after he no longer saw a gun in Smith’s possession. He later called the
investigator to change his statement to reflect that he did not mean that he did not see a gun in
Smith’s hand, but instead meant that he took his eyes off the gun and instead focused on Smith’s
person.
¶ 57 Although he did not know where exactly Teague was at the time of the shooting, he knew
she was close. He also did not know where Elarde was, but he acknowledged that video showed
Elarde running toward the northwest corner of Madison and Lotus seconds before the shooting.
Teague and Elarde did not fire their weapon.
¶ 58 After Pachnik stopped shooting, Smith was on the ground with his back against the fence.
Pachnik ordered Smith to put his hands up, and Smith complied. Smith’s gun was on the ground
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next to his right thigh. Pachnik walked over and kicked the gun away from Smith. Pachnik then
picked up the gun with his bare hands because there were people running in his direction. He
identified a dashcam video that depicted him after the shooting carrying his gun in one hand and
the gun he recovered from Smith in his other. He identified a second video in which he is shown
unloading the gun recovered from Smith. Ultimately, Pachnik gave the recovered gun to
Goldsmith, who then put it in the trunk of an unmarked, dark-colored Crown Victoria.
¶ 59 The video deposition of Officer Jonathan Elarde was played. During that deposition,
Elarde could not recall many details of May 11, 2014, because he sometimes “blocks things out.”
He did testify, however, that prior to the shooting, he and Klemens drove their vehicle west on
Madison around the CTA bus and towards the crowd near TJ’s. When they pulled up, the crowd
scattered. At that time, Elarde did not see anyone with a gun. At some point, he started chasing
Smith in a northeast direction across Madison. He believed that he chased Smith because
someone said that he had a gun. He could not remember whether he had his gun out while he
was chasing Smith, whether he told Smith to stop, whether he heard anyone else yell stop, or
whether he saw Pachnik running across Madison.
¶ 60 Smith turned onto Lotus. Once Elarde got to and turned the corner of Lotus and
Madison, he saw Smith’s body on the ground. He could not recall whether Smith was moving,
Pachnik was nearby, or anyone else was nearby. He did not recall seeing a gun near Smith,
Pachnik kick a gun, Pachnik pick up a gun, or Pachnik in possession of a gun other than his
service weapon.
¶ 61 Elarde testified that he did not know why the dashcam in his vehicle did not create an
event video when he activated his vehicle’s light bar when he drove around the bus.
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¶ 62 Plaintiff next played the video deposition of Officer Shikema Teague. In that deposition,
Teague testified that on the morning of May 11, 2014, she and Pachnik responded to a call of a
battery in progress in the 5400-block of Madison. As they drove east on Madison, the observed
two large crowds. The first was west of Lotus on the south sidewalk near TJ’s and consisted of
approximately 20 people. She did not see any weapons or any sort of physical altercation taking
place in that group as they drove past. The second crowd was on the south sidewalk near ITC.
There, Teague observed what appeared to be a party going on, with DJ equipment and people
inside the barbershop. There were also people outside the barbershop. There was no indication
of any type of altercation occurring at this location.
¶ 63 Gonzalez was already at the location and talking to the owner of ITC when Pachnik and
Teague arrived. She and Pachnik performed a U-turn and parked facing west on Madison. They
then received a call for a man with a gun at the location. She responded to dispatch by saying
they were at the reported location and did not see anyone with a gun. She then got out of the
vehicle and went over to Gonzalez.
¶ 64 A woman who was standing on the southeast corner of Madison and Lotus told her that
there was a guy in the crowd near TJ’s who had a gun. Teague relayed to Pachnik what the
woman told her, and they headed to their car. When they reached their vehicle, Teague looked
west and saw Smith with his left arm extended and a gun in his hand. She told Pachnik what she
saw. At the same time, Elarde drove his vehicle past them. Pachnik started running toward the
crowd. Teague called out to him, indicated that Smith was across the street and wearing a red
plaid shirt. Pachnik stopped, tossed the car keys back to her, and started running northwest
toward the corner of Lotus and Madison with his gun out. Smith was walking briskly across
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Madison and then started to jog and then run when he got to the sidewalk on the north side of
Madison. She started running on an angle in an attempt to cut off Smith.
¶ 65 Smith turned onto Lotus and got past Pachnik. Pachnik grabbed the back of Smith’s
collar with his left hand and tried to pull Smith down. Smith buckled at the knees a little but did
not fall. Pachnik started shooting before she reached them. She did not hear Pachnik or Smith
say anything before the shooting started. She did not see Smith reach for a gun as he was shot.
Smith had his back to a fence and when he was shot, he fell back against it and slid down to the
ground into a sitting position and then into a laying position on his back. She ran around a utility
box to Pachnik’s right. She did not see a gun on Smith when he was shot and did not see a gun
after that.
¶ 66 Javony Crawford testified that on May 11, 2014, she lived on the corner of Madison and
Lotus. In the early hours of that morning, she woke up to a commotion outside her window. She
went to the window and saw police lined up outside and a lot of angry people saying, “They shot
him for no reason. He didn’t have anything.” She did not see the shooting.
¶ 67 Gary Rini, an independent forensic science consultant, testified as an expert for plaintiff.
He opined that the CPD exhibited investigative bias, did not properly preserve the shooting scene
and evidence, and did not create a proper chain of custody for the gun allegedly recovered from
Smith. He also criticized the CPD for failing to test Teague’s and Elarde’s guns to learn whether
they were fired, recover Pachnik’s service weapon sooner, canvas for eyewitnesses, and
download and view the dashcam videos of all dashcam-equipped police vehicles that responded
to the scene. With respect to specific dashcam videos, Rini testified that the sudden failure of the
Elarde/Klemens camera, Dallio’s determination that the Makropoulos/Dougherty video was not
significant, and the failure to retain the videos from the Trakes/Mendez and Saez/Ortiz cameras
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were all “red flags.” These videos might have contained relevant footage to help determine the
events leading up to and following the shooting, as the Elarde/Klemens video might have shown
whether anyone in the crowd in front of TJ’s had a gun, the Makropoulos/Dougherty video
showed Pachnik walking after the shooting, the Trakes/Mendez video was parked at the
northwest corner of Madison and Lotus following the shooting, and the Saez/Ortiz vehicle was
parked facing north on Lotus next to where Smith was laying.
¶ 68 Rini testified that the medical examiner’s report concluded that Smith sustained four
perforating, i.e., through and through, bullet wounds and four penetrating, i.e., the bullet did not
exit, bullet wounds. In addition, the hospital removed another bullet from Smith’s body that was
not accounted for in the medical examiner’s report. In total, Smith sustained nine gunshot
wounds. Seven shell casings were recovered from the scene and the location where they were
recovered (northeast of Smith’s body) was consistent with Pachnik having run after and past
Smith.
¶ 69 Rini also testified to what he believed was the most probable sequence of Smith’s
wounds. He opined that the first shot to strike Smith was to the inside of his left arm. Rini
reasoned that because Pachnik testified that he aimed for Smith’s center mass, Smith must have
been facing Pachnik at the time Pachnik started firing. Accordingly, because the wound to
Smith’s left arm would have been the one closest to facing Pachnik, Rini concluded that must
have been the first wound sustained by Smith. He also opined that the wound to Smith’s left arm
was consistent with his hands being in the air and inconsistent with holding a gun at his side. He
testified that Smith’s arm must have been up, because the bullet could not have struck in that
location if his arm was straight down and tucked against his body.
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¶ 70 Rini testified that after being shot in his left arm, Smith sustained a grouping of gunshots
to his left side, suggesting that Smith’s body was rotating to the right. According to Rini, after
being struck in the left arm, Smith would have brought his left arm down toward the center of his
body, causing his left shoulder to lower and his body to twist from the left to the right. This
movement would have exposed Smith’s left side to Pachnik. Smith was then shot three times in
the left side, but Rini could not discern the order of those three shots. The shots to Smith’s left
side would have been followed by two shots to his back as Smith continued to rotate to the right.
One of those shots was to Smith’s left lower back, and the trajectory of that bullet indicated that
the gun was fired downward. The next shot in the “logical” sequence, Rini opined, was to
Smith’s lower right back. The final shot was to Smith’s right side.
¶ 71 With respect to Pachnik’s use of force, Rini opined that Pachnik based his belief that
Smith had a gun on Teague’s statement that Smith had a gun. Without seeing a gun firsthand,
Pachnik was not justified in his use of deadly force. Moreover, Smith’s mere possession of a
gun, without pointing it at Pachnik, did not justify the use of deadly force. Because Rini’s
review of the evidence suggested that Smith had his hands in the air, Rini concluded that
Pachnik’s use of deadly force was not justified. In fact, Rini testified that it was his opinion that
Pachnik acted recklessly and with utter indifference to or conscious disregard for Smith’s safety
when he pursued Smith alone based on the assumption that Smith had a gun.
¶ 72 On cross-examination, Rini acknowledged that Pachnik testified that he actually observed
a gun in Smith’s hand, Smith did not obey commands to show his hands and drop the gun, and
Smith spun quickly toward him with the gun in his hand. According to Rini, Pachnik should
have waited to fire his gun until Smith “actually was in position to fire the gun at him” and
Pachnik knew for certain that his life was in imminent danger. In addition, Rini testified that
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Pachnik’s claim that he saw Smith with a gun was not supported by the facts of the case, namely,
Teague’s, Ellis’s, and Hoy’s testimony that they did not see Smith with a gun.
¶ 73 Rini agreed that if a person was standing still with his hands up, like Ellis claimed Smith
was, an officer who was standing three feet away and not moving should hit center mass. A
person who is moving, however, would be much harder to hit in center mass. Rini admitted that
he had no idea how Smith was moving his body at the time he was shot, but agreed that there
was significant movement of Smith’s body.
¶ 74 Rini also acknowledged on cross-examination that none of the dashcam videos related to
this case would have shown the shooting.
¶ 75 The deposition of Detective Marina Makropoulos was read into evidence. In it, she
testified that on May 11, 2014, she was a patrol officer with the CPD. In the early morning hours
of that day, she and her partner, Brandon Dougherty, responded to a “10-1” call over the radio.
A “10-1” call means that an officer needs assistance. She and Dougherty arrived on the scene
approximately one minute after the shooting. They parked facing north at the corner of Madison
and Lotus. The headlights of their vehicle illuminated the northwest corner of Madison and
Lotus as they pulled up. In addition, their dashcam was pointed directly at the shooting scene as
they arrived. As they arrived, one of them turned off the dashcam, but she could not recall
whether it was her or Dougherty.
¶ 76 Plaintiff then rested.
¶ 77 Defendant first called Teague to testify live. She testified that in the early morning hours
of May 11, 2014, she and Pachnik responded to a call of a battery in progress in the 5400-block
of West Madison. They drove east on Madison, past TJ’s, where she saw about 10 people
standing on the sidewalk. They continued east and saw a larger crowd in front of ITC. They
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slowed as they passed and then did a U-turn and parked in the median of Madison facing west.
While they were sitting in their parked vehicle, a call of a person with a gun came over the radio.
Teague responded that they were sitting at the location and did not see anyone with a gun.
¶ 78 Teague then got out of the vehicle and joined Gonzalez where he was talking to the
owner of ITC on the sidewalk. Gonzalez told her he had the situation under control and to
disperse the crowds. Teague started walking west on the south sidewalk to disperse the people
standing along it. As she was doing this, a woman told Teague, “You guys are messing with us,
but they’re getting ready to start shooting down there.” The woman was referring to the crowd
near TJ’s. Teague relayed this information to Pachnik while they were on the sidewalk, starting
to walk back to their vehicle. She could be heard on Gonzalez’s dashcam telling Pachnik,
“Something’s going down there with the gun.”
¶ 79 As she and Pachnik walked to their vehicle, she looked west on Madison to see what was
happening. She saw Smith, wearing a red plaid shirt and red baseball cap, in a “bladed stance”
in the south bike lane of Madison with his left arm fully extended and pointing a gun at the
people on the sidewalk near TJ’s. People responded by ducking to get out of the way. Teague
told Pachnik that there was a man with a red plaid shirt with a gun and that he pointed a gun at
people on the sidewalk. Although the quality was such that the gun could not be seen, Teague
identified a video that she testified showed Smith extending his left arm toward the crowd near
TJ’s and people ducking and fleeing.
¶ 80 She and Pachnik continued to their vehicle. She was not running at this point, because
she wanted to watch where Smith went. Once she and Pachnik reached their car, Pachnik began
to run west. He only went a few steps before she called his name and told him the guy in the red
plaid shirt was now across the street. She had seen Smith run north across Madison to the north
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sidewalk of Madison and then run east. As Smith was running north across Madison, Teague
could see the gun was along his left side because his left arm came up a little as he was running.
Once he started running east on Madison, Smith brought the gun up to his left waist area.
Pachnik tossed the keys to their vehicle to Teague and ran towards Smith. Teague continued to
watch until Pachnik met up with Smith.
¶ 81 Once Smith and Pachnik met at the northwest corner of Madison and Lotus, Smith got
past Pachnik and ran around the corner onto Lotus. At that point, she began to run toward them.
Pachnik had his gun out and in his right hand. He used his left to grab the back of Smith’s collar.
When he did this, Smith kind of lost his balance or his knees buckled, but he did not fall.
Pachnik and Smith were still moving and she saw Smith’s body start to turn, but she could not
see which direction he turned or see him complete the turn, because her view became blocked by
a People’s Gas infrastructure sign. She was unable to see Smith’s left hand before her view
became blocked.
¶ 82 At the time the shooting started, Teague was running along the curb of North Lotus. She
did not see the first part of the shooting because of the sign, but she drew her gun when she heard
the shots. When she heard the first shots, she did not know who shot first, whether it was
Pachnik or Smith. Once she got past the People’s Gas sign and was standing to the north of
Pachnik, she saw that it was Pachnik shooting. Smith fell backwards into the fence, slid down
into a sitting position, and then laid down. Teague then saw a black handgun on the ground close
to Smith’s body. Pachnik kicked the gun away from Smith and then picked it up with his left
hand.
¶ 83 Teague did not fire her weapon.
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¶ 84 On cross-examination, Teague testified that she did not see any physical contact between
Pachnik and Smith while they were on Madison. She did not see Pachnik push Smith by the
shoulder. She also testified that she never heard Pachnik identify himself as police, yell stop or
freeze, tell Smith to drop the gun or show his hands, or say anything else at all before he started
shooting.
¶ 85 Ronald O’Keefe, a paramedic with the Chicago Fire Department, testified that he
responded to the scene to provide emergency medical care to Smith following the shooting.
After Smith was loaded into an ambulance and while O’Keefe was working on Smith, an
unidentified police officer came to the side door of the ambulance. The officer asked Smith
where he got the gun, and Smith responded that someone gave it to him.
¶ 86 Elarde testified next. He testified that he drove his vehicle around the back of the bus and
toward the crowd near TJ’s because Gonzalez told them to disburse the crowds. After he drove
the car around, he got out of the car and heard people yelling and pointing, “He’s got a gun.
He’s got a gun, the guy in the red hat.” Elarde then ran northeast behind the bus, chasing Smith.
Once Smith turned north onto Lotus, Elarde could no longer see him. He then heard gunshots.
He was 40 to 60 yards away on Madison at that point. As a result, he did not personally see the
shooting. We he turned the corner onto Lotus, he saw Pachnik walking southbound on Lotus and
he saw Smith on the ground. He did not see Pachnik kick or pick up a gun. Elarde denied ever
yelling “hey” at Smith, pushing a woman before the shooting, or firing his gun at Smith.
¶ 87 On cross-examination, Elarde testified that prior to pulling his vehicle around the bus, he
never saw anyone with a gun or heard anyone say that someone had a gun. After he pulled his
car around the bus, he did not see anyone with a gun. He did not see a gun in Smith’s hand or in
his waistband. He also clarified that it was one woman yelling that someone had a gun when he
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pulled around the bus and towards the crowd. He testified that he never heard Pachnik or anyone
else yell “stop,” and he never heard Pachnik yell “drop the gun” or anything similar. He did not
remember seeing Pachnik push Smith up against the fence while on Madison. He also did not
remember whether he took his gun out while he was chasing Smith.
¶ 88 Christopher Regalado testified that he was currently employed as a police officer with the
CPD, but on May 11, 2014, he was a bus driver with the CTA. In the early morning hours of
that day, he was driving his bus eastbound on Madison. As he approached the intersection of
Madison and Lotus, he observed a crowd of approximately 30 to 40 people in the right (south)
lane of eastbound Madison. The crowd of people appeared to be agitated and arguing, but not
throwing punches. He observed a man in a red sweater with a white stripe across it, who
appeared to be the main agitator in the group. Other people appeared to be trying to hold him
back from getting at someone. He did not see the man in the red shirt or anyone else in the
crowd with a gun. Because of these people, he had to move the bus into the left lane. The light
at Lotus turned red, and he stopped at the intersection in the left lane to pick up a waiting
passenger.
¶ 89 As he was stopped, he watched the crowd in the side mirrors of the bus. A large group of
the crowd started to move behind the bus. He looked ahead and saw a police car driving toward
the bus, pass to the left of the bus, and then pull behind it toward the crowd. People from the
crowd then started to flee toward the north corner of Madison and Lotus. He saw the man in the
red shirt running from the back of the bus toward the corner with two other men. As he was
running toward the corner, he was holding the left side of his waist. He also observed two
officers with an unmarked police vehicle in front of the bus. One of the officers pointed toward
the back of the bus, and then the other, male officer ran northwest to meet the three men who ran
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from behind the bus. Regalado heard the officer yell “stop” and then saw the officer pull his
weapon. The three men disappeared around the corner and the officer followed them down
Lotus.
¶ 90 At that point, the light turned green, and Regalado started to drive away when he heard
three gunshots. He did not actually see the shooting.
¶ 91 The defense then rested.
¶ 92 In rebuttal, plaintiff recalled Ellis, who reiterated certain portions of her previous
testimony. Plaintiff also called Dr. Michael Slater, an emergency room doctor, who testified that
given Smith’s injuries, he would not have been physically or mentally capable of communicating
clearly beyond basic, rudimentary information. He would not have been able to have a
conversation using complete sentences while he was in the back of the ambulance.
¶ 93 Following closing arguments by the parties, the case was submitted to the jury. The jury
returned a verdict in favor of plaintiff and against defendant in the amount of $5,097,193.70.
¶ 94 Following an unsuccessful posttrial motion for new trial, defendant instituted this appeal.
¶ 95 ANALYSIS
¶ 96 On appeal, defendant argues that (1) it was denied a fair trial when plaintiff’s counsel
improperly linked the special interrogatory to the general verdict during closing arguments; (2)
the trial court refused defendant’s request that IPI 5.01 be given based on plaintiff’s failure to
call certain family members as witnesses at trial; (3) the trial court erred in giving IPI 5.01 based
on defendant’s failure to produce certain dashcam videos at trial; and (4) the trial court erred in
giving an instruction defining willful and wanton conduct as including reckless conduct. We
address each of these contentions in turn and conclude none of them warrant reversal.
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¶ 97 Special Interrogatory
¶ 98 Defendant first argues that it did not receive a fair trial where plaintiff’s counsel
improperly linked the special interrogatory to the general verdict by indicating that if the jury
awarded plaintiff damages, then it was required to answer the special interrogatory in the
negative. Defendant contends that the trial court erred in denying its motion for new trial on this
basis. We will reverse the trial court’s decision on a motion for new trial only where it is
affirmatively shown that the trial court abused its discretion. Maple v. Gustafson, 151 Ill. 2d
445, 455 (1992). We cannot say that defendant has made such a showing here.
¶ 99 The purpose of a special interrogatory is to test the verdict against the jury’s findings on
the controlling factual issues. Sommese v. Maling Bros., Inc., 36 Ill. 2d 263, 267 (1966).
Attorneys are free to comment on a special interrogatory in closing arguments or to suggest how
special interrogatories should be answered; they may not, however, tell a jury that it must
conform its answer to a special interrogatory to its verdict or to reveal which party submitted the
special interrogatory. Clarke v. Medley Moving & Storage, Inc., 381 Ill. App. 3d 82, 94 (2008). 2
¶ 100 Although such improper comments may constitute reversible error, prejudice to the
defendant can be averted if the trial court acts promptly to sustain objections or issue curative
instructions and the comment is brief, innocuous, or ambiguous. O’Connell v. City of Chicago,
285 Ill. App. 3d 459, 467-68 (1996); see also O’Neil v. Continental Bank, N.A., 278 Ill. App. 3d
327, 340 (1996) (the plaintiff’s argument that the jury should answer the special interrogatories
“consistent with” the verdict did not require reversal where plaintiff’s counsel made a single,
2
Notably, the Illinois legislature amended section 2-1108 of the Illinois Code of Civil Procedure
(735 ILCS 5/2-1108 (West 2020)), allowing parties during closing arguments “to explain to the
jury what may result if the general verdict is inconsistent with any special finding.” Because the
trial in this case took place before January 1, 2020, however, the amendment does not apply. Id.(stating that the amendment “applies only to trials commencing on or after January 1, 2020).
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innocuous comment that did not advise the jury that an inconsistent answer to the special
interrogatories would result in nullification of the verdict and did not identify the source of the
special interrogatory and where the trial court gave a curative instruction to the jury that the
special interrogatories should be answered based on the evidence); Levin v. Welsh Brothers
Motor Service, Inc., 164 Ill. App. 3d 640, 652 (1987) (the plaintiff’s counsel’s argument that
there could be no verdict for the plaintiff if the jury answered the special interrogatory in the
affirmative did not merit reversal where it was ambiguous as to whether it was advising the jury
of the legal or practical effect of answering the special interrogatory in a certain way, it was
brief, and the trial court sustained the defendant’s objection and gave a curative instruction). The
trial court is in the best position to determine the prejudicial effect, if any, the improper
comments had on the jury. O’Connell, 285 Ill. App. 3d at 464; see also Pister v. Matrix Service
Industrial Contractors, Inc., 2013 IL App (4th) 120781, ¶ 85 (noting that the trial court was in
the best position to assess the impact on the jury of its comment regarding the relationship
between the special interrogatory and the general verdict form).
¶ 101 At the very end of plaintiff’s closing argument in this case, plaintiff’s counsel made the
following argument:
“There is one more thing that I was reminded of. After you give the amounts that you
are going to give, you are going to have what’s called a special interrogatory. And this is
a special interrogatory and it reads very much like the instructions that you are going to
be read.
So if you find, if you award the estate and Ramar and Dasha money damages, you are
to say no here.”
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Defendant objected, and the trial court sustained that objection. Plaintiff’s counsel continued by
reading the special interrogatory:
“ ‘At the time deadly force was used against Gary Smith, was it reasonable for any
officer to use deadly force to believe such force was necessary to prevent imminent death
or great bodily harm?’ ‘No.’
And that would be—you do that after you assess the damages amount.”
Defense counsel did not object to this second statement, and plaintiff’s counsel then concluded
her remarks.
¶ 102 During a break before defendant’s closing argument, defendant moved for a mistrial
based on plaintiff’s counsel’s argument regarding the special interrogatory. The trial court noted
that plaintiff’s counsel’s argument was clearly improper and questioned the veracity of plaintiff’s
counsel’s claims that the argument was inadvertent. Plaintiff’s counsel insisted the error was
unintentional and requested that the trial court give a curative instruction to the jury rather than
grant a mistrial. Defendant argued that a curative instruction would not cure the defect, because
the jury now knew that the general verdict and special interrogatory were linked. The trial court
denied defendant’s request for a mistrial, finding that although plaintiff’s argument was blatant
misconduct, it was not so prejudicial as to warrant mistrial. According to the trial court, the
reference was made in passing and defendant’s objection was sustained. The trial court also
explained that it would give a curative instruction if defendant so wished and suggested that the
parties confer and draft a curative instruction.
¶ 103 After the jury returned its verdict in favor of plaintiff, defendant renewed its motion for a
mistrial on the basis of plaintiff’s closing argument remarks on the special interrogatory. During
the discussion of defendant’s renewed motion, the trial court stated that an off-the-record
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discussion had occurred at some point before the verdict, during which defendant elected to
forgo a curative instruction. Defense counsel explained that defendant declined a curative
instruction because it would not have remedied the prejudice that resulted from plaintiff’s linking
of the verdict and special interrogatory. In denying the renewed motion for mistrial, the trial
court observed that although the misconduct was egregious, defendant never made a motion to
strike the comments from the record, the trial court sustained the objection made by defendant,
plaintiff’s counsel’s tone in making the comments was subdued, the comments were not part a
very demonstrative part of the closing, the comment was not “drummed into [the jury’s] head,”
and the comment was isolated and singular. For those reasons, the trial court concluded that
although the argument was clearly improper, it did not warrant reversal.
¶ 104 Defendant raised the issue again in its motion for a new trial, and again, the trial court
concluded that although plaintiff’s counsel’s comments were clearly improper, they were not so
prejudicial as to warrant a new trial.
¶ 105 As the trial court did, we conclude that plaintiff’s counsel’s comment during closing
argument that if the jury awarded plaintiff damages it was to answer the special interrogatory no
was indisputably improper. It unequivocally informed the jury that its answer to the special
interrogatory was dictated by its verdict.
¶ 106 Nevertheless, despite our agreement with defendant that plaintiff’s counsel’s comments
were improper, we have no basis on which to conclude that the trial court abused its discretion in
finding that the prejudice from those comments was not so great as to require a new trial. The
record on appeal confirms that plaintiff’s counsel’s statements were an afterthought. She had
thanked the jury for its time and attention, suggesting that her closing argument was coming to
an end, before she remembered to address the special interrogatory. She made the objectionable
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statement, defendant objected, and the trial court sustained that objection. Plaintiff’s counsel
then, as is allowed, suggested that the jury should answer the special interrogatory no after it
addressed damages and ended her closing. The record does not suggest that any undue emphasis
was placed on the improper comments or that plaintiff’s counsel repeated the improper
comments after the trial court sustained defendant’s objection. Moreover, the trial court
specifically noted that counsel’s tone was subdued and undemonstrative at the time she made the
comment, and the record on appeal gives us no reason to question this assessment. Given the
trial court’s superior position in assessing the prejudicial effect of such improper comments and
the fact that the trial court concluded on three separate occasions that their prejudicial effect was
minimal, we conclude that the trial court did not abuse its discretion in denying defendant’s
request for a new trial.
¶ 107 Defendant argues that the improper comments were sufficiently prejudicial to warrant
reversal, because they were “the punctuation mark at the end of a long, emotional plea to the jury
to compensate Smith’s estate and his children for pain and suffering.” Defendant does not make
any contention that the rest of plaintiff’s closing argument was improper, but instead contends
that the prejudice from the improper comments was enhanced by the fact that they were made at
the end of an emotional closing argument. We do not agree that the fact plaintiff appears to have
given an otherwise effective closing argument means that the prejudice from the improper
comments is somehow greater or that the trial erred in assessing the prejudicial impact of the
statements.
¶ 108 We also note that the trial court offered to give a curative instruction to be fashioned by
defense counsel. Defense counsel declined that offer on the basis that the prejudice from the
improper comments could not be cured by such an instruction, because the jury had already been
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informed of the link between the verdict and the special interrogatory. Defendant continues to
maintain that position on appeal. Caselaw, however, refutes defendant’s position that curative
instructions do not mitigate the prejudice from such improper comments. See, e.g., White v.
Stevens, 301 Ill. App. 3d 709, 712 (1998) (finding that the improper comments in that case were
especially serious where no curative instruction was given); O’Connell, 285 Ill. App. 3d at 468-
69 (considering the lack of a curative instruction in concluding that the improper comments
warranted reversal); O’Neil, 278 Ill. App. 3d at 340 (considering the curative instruction given
by the trial court as a factor in concluding that the plaintiff’s argument that the jury should
answer the special interrogatories “consistent with” the verdict did not require reversal); Levin,
164 Ill. App. 3d at 652 (considering the given curative instruction as a factor in concluding that
the plaintiff’s counsel’s argument that there could be no verdict for the plaintiff if the jury
answered the special interrogatory in the affirmative did not merit reversal). Although we do not
mean to imply that a curative instruction will always cure any and all prejudice from comments
improperly linking verdicts and special interrogatories, we reject the notion that curative
instructions can never have any mitigative effect on the prejudice resulting from such comments.
Given that a curative instruction would have had at least some mitigative effect on the prejudice
defendant claims to have suffered as a result of the improper comments, defendant’s rejection of
the trial court’s offer of a curative instruction arguably constitutes waiver of any claim of
prejudice. See Dienstag v. Margolies, 396 Ill. App. 3d 25, 40 (2009) (where the defendant
declined the trial court’s offer to instruct the jury to disregard the witness’s improper reference to
plaintiff’s counsel as “doctor,” there was no indication that defendant was prejudiced by the
comment); Kamelgard v. American College of Surgeons, 385 Ill. App. 3d 675, 681-82 (2008)
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(where a party refuses relief from the complained-of error, including offers of curative
instructions, that party waives its right to complain of the error on appeal).
¶ 109 IPI 5.01—Family Members
¶ 110 Defendant also complains that the trial court erred in refusing its request to give IPI 5.01
based on plaintiff’s failure to call four family members as witnesses at trial: Romaine Bland,
Perry Coleman, Keyawonia Smith, and Demetrius Williams, Jr. Defendant argues that plaintiff
identified these witnesses as being with Smith on the night of the shooting and, thus, her failure
to call them at trial should give rise to an inference that their testimony would have been adverse
to her case. A trial court’s decision whether to give IPI 5.01 will not be reversed absent a clear
abuse of discretion. Koonce v. Pacilio, 307 Ill. App. 3d 449, 461 (1999).
¶ 111 IPI 5.01 provides as follows:
“If a party to this case has failed [to offer evidence] [to produce a witness] within his
power to produce, you may infer that the [evidence] [testimony of the witness] would be
adverse to that party if you believe each of the following elements:
1. The [evidence] [witness] was under the control of the party and could have
been produced by the exercise of reasonable diligence.
2. The [evidence] [witness] was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstances would
have [offered the evidence] [produced the witness] if he believed [it to be] [the
testimony would be] favorable to him.
4. No reasonable excuse for the failure has been shown.”
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To warrant giving this instruction, the moving party must present some foundational evidence on
each of the four elements. Graves v. Rosewood Care Center, Inc., 2012 IL App (5th) 100033, ¶
45.
¶ 112 Here, the trial court refused to give IPI 5.01 with respect to the witnesses at issue on the
basis that plaintiff was barred from calling them at trial by an order entered by the pretrial
motion judge and, thus, had a reasonable excuse for not calling the witnesses. On March 28,
2017, prior to the first trial, the motion judge entered an order that read, “Any f(1) witness listed
by either party who cannot be located for purposes of deposition will be barred as of June 1,
2017[,] and stricken from the parties’ witness lists at trial.” The record on appeal does not
contain a transcript of the March 28, 2017, hearing at which the motion judge entered this order.
¶ 113 At a status hearing on October 12, 2017, defendant requested that the June 1, 2017,
deadline set in the March 28, 2017, order be extended to November 15, 2017. In response,
plaintiff’s counsel represented that she had given the best addresses she had for the witnesses and
could not be responsible if defendant was unable to locate them. The motion judge responded:
“But, I mean, I’m not going to sit there and sanction you, but if any witness that’s listed
by any party who can’t be located in order to be deposed, you know, how can that person
be listed as a trial witness then? They’d just be stricken.”
Following the hearing, the motion judge entered another order. This time it read, “Parties to
provide lists of trial-ready witnesses pursuant to Rule 213(f)(1) & (f)(2) by 10/23/17. Any
witness who cannot be located with a correct address by 11/15/17 may not be called at trial.”
¶ 114 Defendant argues that this order was not a reasonable excuse for plaintiff failing to call
the family member witnesses, because the order was a result of plaintiff’s failure to provide valid
addresses for the witnesses. In support, defendant cites Panos v. McMahon, 23 Ill. App. 3d 776-37-
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(1974). In that case, the plaintiff, in his answers to interrogatories, listed as witnesses to the
accident at issue two family members who were passengers in his vehicle. Id. at 784-85. On the
defendant’s motion, the trial court entered an order directing the plaintiff to provide the
defendant with the addresses of those witnesses and, if the plaintiff failed to do so, barring those
witnesses at trial. Id. at 785. The plaintiff failed to provide the addresses to the defendant. Id.As a result, the trial court instructed the jury pursuant to IPI 5.01 and allowed the defendant to
comment on the absence of those witnesses. Id. at 784. On appeal, the court rejected the
plaintiff’s contention that the trial court’s order barring the witnesses made them unavailable to
the plaintiff. Id. at 785. The court noted that the witnesses were the plaintiff’s relatives and he
knew their whereabouts; therefore, he could have avoided the effect of the order by providing the
witnesses’ addresses to the defendant. Id.¶ 115 Although both this case and Panos involve orders that barred witnesses at trial based on
missing addresses, Panos is distinguishable from the present case in an important respect. In
Panos, the plaintiff knew the whereabouts of the witnesses, was specifically ordered to produce
their addresses, and willfully withheld their addresses from the defendant. The order barring the
witnesses was a sanction for the plaintiff’s failure to comply with the trial court’s order. In
contrast, in this case, although defendant speculates that plaintiff should know the whereabouts
of the witnesses because they were Smith’s relatives and she frequently spent time with Smith,
the record does not contain any definitive evidence regarding whether plaintiff had actual
knowledge of their whereabouts.
¶ 116 Moreover, the order barring witnesses in Panos was imposed as a sanction for the
plaintiff’s willful withholding of the witnesses’ addresses in violation of the trial court’s clear
directive. Here, based on the record before us, we are unable to conclude that the order barring
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witnesses for whom a valid address could not be found was a sanction imposed on plaintiff for
misconduct. Both the initial March 28, 2017, order and the October 12, 2017, extension order
applied equally to both parties and neither order directed the disclosure of specific witness
information. Moreover, the motion judge’s comments at the October 12, 2017, suggest that the
orders were intended as a case management mechanism, not a sanction for misconduct. We also
note, however, that the record on appeal does not contain a transcript of the hearing on March 28,
2017. Therefore, to the extent that the initial order might have been entered as a sanction against
plaintiff, we have no way of determining that. Because this doubt arises from the insufficiency
of the record on appeal, we must resolve it against defendant. See Foutch v. O’Bryant, 99 Ill. 2d
389, 391-92 (1984) (“[A]n appellant has the burden to present a sufficiently complete record of
the proceedings at trial to support a claim of error, and in the absence of such a record on appeal,
it will be presumed that the order entered by the trial court was in conformity with law and had a
sufficient factual basis. Any doubts which may arise from the incompleteness of the record will
be resolved against the appellant.”). Therefore, we conclude that defendant has failed to
demonstrate that the trial court abused its discretion in finding that plaintiff had a reasonable
excuse for not calling the witnesses at trial, where she was barred from calling them by the
motion judge’s case management order.
¶ 117 IPI 5.01—Dashcam Videos
¶ 118 Defendant next argues that the trial court abused its discretion by giving IPI 5.01 with
respect to the dashcam videos from the vehicles operated by Elarde and Klemens, Makropoulos
and Dougherty, Saez and Ortiz, and Trakes and Mendez. According to defendant, plaintiff failed
to present evidence satisfying the four elements justifying drawing an adverse inference. We
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conclude that defendant has waived this claim for failing to make any objection to the giving of
IPI 5.01 as it relates to the missing dashcam videos.
¶ 119 At the request of plaintiff, the trial court gave the following instruction based on IPI 5.01:
“If a party to this case has failed to offer evidence within his power to produce, you
may infer that the evidence would be adverse to that party if you believe each of the
following elements:
1. The evidence was under the control of the party and could have been produced
by the exercise of reasonable diligence.
2. The evidence was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstances would
have offered the evidence if he believed it to be favorable to him.
4. No reasonable excuse for the failure has been shown.”
The given instruction was stated in general terms and did not explicitly refer to the missing
dashcam videos or any other specific pieces of evidence.
¶ 120 “Enlightened trial practice does not permit counsel under the guise of trial strategy to sit
idly by and permit instructions to be given the jury without specific objections and then be given
the advantage of predicating error thereon by urging the error for the first time in a post-trial
motion.” Doe v. Parrilo, 2020 IL App (1st) 191286, ¶ 62 (internal quotations omitted).
Accordingly, absent a specific objection during the jury instruction conference or when the
instruction is read to the jury, a party waives any claim of error related to the giving of an
instruction. Id.¶ 121 Over the course of the trial, the parties and the trial court discussed IPI 5.01 on a number
of occasions. At no point during these discussions did defendant register an objection to the
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giving of the general IPI 5.01, much less as it specifically related to the missing dashcam videos
or plaintiff’s ability to satisfy the elements of IPI 5.01. In addition, after the close of evidence,
the trial court informed the parties, “All right. So after the close of evidence I wanted to give the
parties an opportunity to preserve any objections they had with respect to the jury instructions
and to tender any instructions they wish that the Court has refused." Although defendant took
advantage of this opportunity to preserve its objections to the trial court’s rulings on other
instructions, it did not mention IPI 5.01. Not only that, defendant did not object when plaintiff
presented evidence related to the missing dashcam videos or argued the missing dashcam videos
in closing arguments. On the record before us,3 it appears that the first time defendant argued
that IPI 5.01 should not have been given—with respect to the missing dashcam videos or
otherwise—was in its posttrial motion for a new trial. This is not sufficient to preserve the
alleged error, as issues may not be raised for the first time in a posttrial motion. See Zdeb v.
Baxter International, Inc., 297 Ill. App. 3d 622, 630 (1998).
¶ 122 Defendant argues that it preserved its objection to the giving of IPI 5.01 because it filed
motions in limine to bar plaintiff from discussing the missing dashcam videos and argued at trial
that plaintiff should be barred from eliciting testimony regarding the videos. Defendant’s
characterization of the cited motions and arguments, however, are not accurate. The two
motions in limine that defendants cite were not motions in limine to preclude plaintiff’s IPI 5.01
argument that defendant’s failure to produce the dashcam videos gave rise to an inference that
the videos would have been adverse to defendant. Instead, one was a motion to preclude
3
It is clear from the record that there were several off-the-record discussions regarding the jury
instructions to be given. To the extent that defendant might have objected to the giving of IPI
5.01 during one of those off-the-record discussions, the burden of providing a record on appeal
demonstrating those objections was on defendant. Foutch, 99 Ill. 2d at 391-92 (“[A]n appellant
has the burden to present a sufficiently complete record of the proceedings at trial to support a
claim of error.”).
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argument by plaintiff that the failure to collect and retain the videos, among 14 other alleged
investigative failures by the CPD, constituted evidence that defendant failed to properly
investigate Smith’s shooting. The bases for this motion were that (1) the failure to properly
investigate the shooting was not the proximate cause of plaintiff’s injury, and (2) defendant was
immune from liability based on the failure to properly investigate. The other was a motion to
preclude plaintiff from arguing that not all CPD vehicles were equipped with operable cameras,
because such evidence was irrelevant and because defendant did not have a duty to equip its
vehicles with operable cameras. Neither of these motions mentioned IPI 5.01, the four missing
dashcam videos at issue, any adverse inferences to be drawn from defendant’s failure to produce
those videos, or plaintiff’s alleged failure to satisfy the four elements of IPI 5.01.
¶ 123 Likewise, the two portions of oral argument defendant cites as evidence that it has not
waived this claim of error do not support its position. First, the transcripts to which defendant
cites are not certified transcripts that were included in the report of proceedings portion of the
record on appeal pursuant to Supreme Court Rule 323 (eff. July 1, 2017). Instead, the cited
transcripts were simply attached as exhibits to defendant’s motion for a new trial. Even putting
this deficiency aside, however, the transcripts do not support the notion that defendant objected
to plaintiff’s argument under IPI 5.01 as it relates to the missing dashcam videos. Both
transcripts reflect discussions of defendant’s motion in limine regarding plaintiff’s contention
that defendant did not conduct a proper investigation and/or engaged in a cover up of the
shooting. Defendant’s argument during this discussion was that plaintiff should not be allowed
to use the missing dashcam videos as evidence of a coverup. Defendant did not argue that
plaintiff should not be allowed to reference the missing videos at all or that IPI 5.01 would be
improper. In fact, at one point, the trial court told defendant with respect to the missing dashcam
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videos, “And you might want to look at 5.01. I don’t know if it’s going to be tendered, but that’s
the law with respect to issues of that kind and it might be guidance as to how we argue this to the
jury during the course of the trial and how we present evidence.” It is clear from this comment
that IPI 5.01 was not at issue at the time—it had not even been tendered as an instruction at that
point.
¶ 124 In sum, defendant did not register a specific objection to IPI 5.01 during any of the jury
instruction conferences on the record and raised no contention of error in that respect until it filed
its posttrial motion. Defendant’s motions in limine—which were filed and argued before
plaintiff ever tendered IPI 5.01 and which sought to bar plaintiff’s argument that the CPD failed
to properly investigate the shooting and/or engaged in a coverup—were not a substitute for a
specific objection to the giving of IPI 5.01. This is especially true where defendant had multiple
opportunities to make a specific objection after plaintiff had tendered IPI 5.01 but chose not to.
Accordingly, we conclude that defendant has waived review of this claimed error.
¶ 125 Willful and Wanton Instruction
¶ 126 Finally, defendant argues that the trial court erred in giving an instruction that defined
willful and wanton conduct as including reckless conduct, because all evidence at trial was that
the shooting was intentional. We conclude that even if defendant is correct that all of the
evidence at trial was that the shooting was intentional, the inclusion of the reckless language in
the willful and wanton instruction was not reversible error.
¶ 127 The threshold for giving a particular jury instruction is not a high one. Mikolajczyk v.
Ford Motor Co., 231 Ill. 2d 516, 549 (2008). Generally, so long as the instructions clearly and
fairly instruct the jury, parties are entitled to have the jury instructed on each of their theories
supported by the evidence. Id. The record need only contain some evidence supporting the
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theory is necessary to justify the giving of the instruction, even if the evidence is insubstantial.
Id. Whether the jury would be persuaded by the evidence does not matter. Id. It is within the
trial court’s discretion to give or deny a requested jury instruction. Id.¶ 128 Illinois Pattern Instruction 14.01 provides:
“When I use the expression ‘willful and wanton conduct’ I mean a course of action
which [shows actual or deliberate intention to harm] [or which, if not intentional] [shows
an utter indifference to or conscious disregard for (a person’s own safety) (and) (the
safety of others)].”
The instruction that the trial court gave in this case read:
“When I use the expression ‘willful and wanton conduct’ I mean a course of action
taken without legal justification which shows actual or deliberate intention to harm, or
which, if not intentional, shows an utter indifference to or conscious disregard for Gary
Smith’s safety.”
¶ 129 In the trial court, plaintiff argued that the “utter indifference to or conscious disregard
for” language, i.e., the reckless language, was warranted based on evidence suggesting that
Pachnik ran after Smith with his gun out and without knowing whether Smith was armed,
grabbed Smith, ran past Smith, turned and started firing wildly before he realized Smith was
unarmed, and failed to hit center mass. Plaintiff also argued that Teague and Elarde started
shooting without knowing what was happening. The trial court sided with plaintiff, noting that
only a scintilla of evidence was necessary to justify giving the instruction.
¶ 130 On appeal, defendant argues that the evidence plaintiff contended supported a conclusion
that the officers were reckless goes only to the question of whether Smith was armed and
whether Pachnik was justified in using deadly force, not whether Pachnik’s conduct was
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intentional or reckless. We are inclined to agree. As defendant points out on appeal, there is no
dispute—either among the parties or within the evidence—that Pachnik’s and the other officers’
(assuming that officers other than Pachnik also fired their guns) conscious goal in pulling the
trigger on their guns was to shoot Smith. None of the evidence suggested that any of the officers
shot accidentally, intended to fire warning shots and hit Smith instead, or intended to shoot
someone or something other than Smith. Plaintiff’s arguments that Pachnik, Teague, and Elarde
shot at Smith without being certain that he was armed and a threat to them and that Pachnik did
not aim well do not speak to whether the officers acted intentionally or recklessly in shooting.
Instead, these arguments are relevant only to whether the officers were justified in shooting and
Pachnik’s accuracy in shooting.
¶ 131 Despite our agreement that all of the evidence at trial was that the officer(s) intended to
shoot Smith, we do not agree that any error in including the reckless language in the willful and
wanton instruction warrants reversal and a new trial.
“A faulty jury instruction does not require reversal unless the error results in serious
prejudice to the party’s right to a fair trial. [Citation.] In determining whether a party has
been prejudiced, we consider whether the instructions, taken as a whole, were sufficiently
clear so as not to mislead the jury. [Citation.] Even if [the complaining party] was
prejudiced by the use of the [faulty instruction], there must be a reasonable basis
supporting the conclusion that, but for the error, the verdict might have been different.”
Doe v. University of Chicago Medical Center, 2014 IL App (1st) 121594, ¶ 87. Here, we can
find no reasonable basis on which to conclude that absent the inclusion of the reckless language
in the willful and wanton instruction, the jury might have returned a verdict in favor of
defendant.
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¶ 132 The jury was given the following instruction regarding the burden of proof in this case:
“The plaintiff has the burden of proving the following propositions:
That Pachnik and/or Teague and/or Elarde shot Gary Smith without legal
justification; and
The conduct of Pachnik and/or Teague and/or Elarde was willful and wanton.
If you find from your consideration of all the evidence that these propositions have
been proved, then your verdict should be for the plaintiff. On the other hand, if you find
from your consideration of all the evidence that any of these propositions has not been
proved, then your verdict should be for the defendant.”
As discussed above, with respect to the definition of willful and wanton, the trial court instructed
the jury:
“When I use the expression ‘willful and wanton conduct’ I mean a course of action
taken without legal justification which shows actual or deliberate intention to harm, or
which, if not intentional, shows an utter indifference to or conscious disregard for Gary
Smith’s safety.”
Finally, with respect to the determination of whether the officers were justified in their use of
deadly force, the trial court instructed the jury:
“A police officer is legally justified in the use of force likely to cause death or great
bodily harm only when he reasonably believes that such force is necessary to prevent
imminent death or great bodily harm.”
Aside from the inclusion of the reckless language in the willful and wanton instruction,
defendant does not contend that the trial court erred in giving the above instructions.
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¶ 133 Taken together, these instructions required the jury to find the following in order to return
a verdict for plaintiff:
(1) Pachnik, Teague, and/or Elarde shot Smith;
(2) the shooting was unjustified, i.e., the officer(s) did not reasonably believe that
shooting Smith was necessary to prevent imminent death or great bodily harm; and
(3) the conduct of the officer(s) was willful or wanton, i.e., showed either (a) actual or
deliberate intention to harm (was intentional), or (b) an utter indifference to or conscious
disregard for Smith’s safety (was reckless).
Because the jury returned a verdict in favor of plaintiff here, it necessarily must have found that
plaintiff satisfied its burden in proving (1), (2), and either 3(a) or (3b).
¶ 134 When viewed in this fashion, it is easy to see why the allegedly erroneous definition of
willful and wanton does not warrant reversal. With respect to the third—willful and wanton
conduct—element of plaintiff’s burden, plaintiff was required to prove either intentional or
reckless conduct by the officers, not both. Defendant acknowledges—even argues—that all of
the evidence at trial demonstrated that Pachnik shot Smith intentionally: “[I]t was undisputed
that the shooting was intentional,” and “[A]ll the evidence was of an intentional shooting.”
Accordingly, even if the trial court had not included the reckless language in the willful and
wanton instruction, the evidence mandated a finding by the jury that the shooting was
intentional, thereby satisfying the third element of plaintiff’s burden. This is not a case in which
the inclusion of the reckless language provided the jury with a basis on which to find that
plaintiff satisfied the willful and wanton conduct element where it otherwise could not have;
rather, even without the option of finding that plaintiff satisfied the willful and wanton conduct
element by proving reckless conduct, the jury would still have been required to find that plaintiff
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satisfied the willful and wanton conduct element based on the overwhelming evidence that the
officers intended to shoot Smith. Therefore, because the jury still would have found the officers’
conduct to be willful and wanton based on intentional conduct, even if the reckless language was
not included in the willful and wanton instruction, there does not exist a reasonable basis on
which to conclude that the verdict would have been different had the trial court not included the
reckless language and any error in including it does not constitute reversible error.
¶ 135 CONCLUSION
¶ 136 For the foregoing reasons, the judgment of the Circuit Court of Cook County is affirmed.
¶ 137 Affirmed.
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