People v. Brouder

• Decision Date: 12 April 1988
• Docket Number: No. 86-2429,86-2429
• Citation: 168 Ill.App.3d 938,523 N.E.2d 100,119 Ill.Dec. 632
• Parties: , 119 Ill.Dec. 632 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas J. BROUDER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 100

523 N.E.2d 100

168 Ill.App.3d 938, 119 Ill.Dec. 632

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas J. BROUDER, Defendant-Appellant.

No. 86-2429.

Appellate Court of Illinois,

First District, Second Division.

April 12, 1988.

Paul P. Biebel, Jr., Acting Public Defender of Cook County, Chicago, (Marilyn Martin, Asst. Public Defender, of counsel), for defendant-appellant.

Richard M. Daley, State's Atty., Chicago (Thomas V. Gainer, Jr., Kathleen A. Bom, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice STAMOS delivered the opinion of the court:

The defendant, Thomas Brouder, was charged with one count of telephone harassment and one count of resisting arrest. Following a jury trial, defendant was acquitted of telephone harassment but found guilty of resisting arrest. The trial court sentenced defendant to one year conditional discharge conditioned upon thirty days of community service and two fines: a $70 fine and a $20 Violent Crime Victims Assistance Fund ("VCA") fine. Defendant appeals. We reverse and remand.

Defendant raises seven contentions on appeal. In view of the fact that we are reversing and remanding this case to the trial court on the basis of jury instructions, we will address only those arguments which are relevant. First, we find that the complaint sufficiently set forth the nature and elements of the resisting arrest charge. Second, we hold that the evidence adduced at trial was sufficient to find defendant guilty beyond a reasonable doubt of resisting arrest. Third, we find that Officer Niesluchowski's use of the phrase "he resisted us" should not have been admitted into evidence. Fourth, we find that the trial court did not err when it precluded cross-examination of Officer Gordon regarding defendant being a prominent real estate broker in the area and whether Officer Gordon knew that defendant was a Kiwanis leader who had helped to purchase booking equipment for the local police station.

Finally, we reverse and remand the judgment of the trial court on the ground that it was reversible error for the trial court to refuse to give defendant's tendered instruction defining "knowingly" after the jury expressed confusion over the term "knowing resistance."

I. THE COMPLAINT

The complaint adequately set forth the nature and elements of the resisting arrest charge. Defendant was charged with resisting arrest. The complaint against defendant read as follows:

"Thomas J. Brouder * * * committed the offense of Resisting A Peace Officer in that he knowingly resisted the performance by Patrolman Robert W. Gordon, known by him to be a peace officer, of an authorized act, said officer was attempting to make a lawful arrest within the official capacity of said peace officer, to wit, officer advised the defendant that he was under arrest due to a signed complaint, defendant refused to be handcuffed by said officer and had to be bodily pushed down to be restrained while handcuffs were placed on the defendant. This occurred in the Village of Riverside, County of Cook, State of Ill. in violation of Chapter 38 Section 31-1 Illinois Revised Statutes."

After the jury returned a verdict against defendant on the resisting arrest charge, he filed a motion in arrest of judgment. The trial court denied defendant's motion. On appeal, defendant contends that the trial court erred in denying this motion. Specifically, defendant contends that the complaint failed to describe with particularity the acts that constituted resistance or obstruction.

In Illinois, separate rules govern the sufficiency of a complaint first attacked on appeal and one which is attacked by a motion in arrest of judgment. (People v. Lutz (1978), 73 Ill.2d 204, 209-10, 22 Ill.Dec. 695, 383 N.E.2d 171; People v. Deal (1979), 69 Ill.App.3d 74, 77, 25 Ill.Dec. 564, 387 N.E.2d 21.) Where a defendant files a timely motion in arrest of judgment, the issue is whether the complaint sufficiently states the necessary elements of the offense set forth in section 111-3(a) so that the language of the complaint apprises defendant with reasonable certainty of the precise offense with which he is charged. (People v. Miles (1981), 96 Ill.App.3d 721, 725, 52 Ill.Dec. 324, 422 N.E.2d 5.) Section 111-3(a) requires that a charge must: (1) state the name of the offense; (2) cite the statutory provision allegedly violated; (3) set forth the nature and elements of the offense charged; (4) state the date and county of the offense, and (5) state the name of the accused. (Ill.Rev.Stat.1983, ch. 38, par. 111-3.) "While the cases in this State have stopped short of requiring absolute compliance with each step, they nonetheless require that a charging instrument give notice of the elements of a charge and particularize it sufficiently with allegations of the essential facts to enable the accused to prepare a defense which, if successful, would bar further prosecution for the same offense." People v. Smith (1984), 99 Ill.2d 467, 471, 77 Ill.Dec. 108, 459 N.E.2d 1357.

Defendant cites two cases to support his position that the complaint against him did not sufficiently set forth the specific acts which led to the resisting arrest charge. (See People v. Fox (1983), 117 Ill.App.3d 1084, 73 Ill.Dec. 727, 454 N.E.2d 824; People v. Leach (1972), 3 Ill.App.3d 389, 279 N.E.2d 450.) In Fox, defendants were charged with obstructing a peace officer. The information charged that defendants committed "the offense of OBSTRUCTING A PEACE OFFICER, in that they then and there knowing Myron Deckard to be a peace officer did knowingly obstruct said officer by attempting to conceal the whereabouts of Joe L. Pate after being informed that said officer had a warrant for the arrest of Joe L. Pate * * *." (Emphasis in original.) ( Fox, 117 Ill.App.3d at 1085, 73 Ill.Dec. 727, 454 N.E.2d 824.) In finding that the information failed to state an offense, the trial court granted defendants' motion to dismiss. The State appealed.

On appeal, the issue was whether a charge alleging the offense of obstructing a peace officer must contain language describing the specific physical acts of defendant. In affirming the trial court, the appellate court held that a description of a defendant's physical acts must be alleged and that the phrase "attempting to conceal the whereabouts" did not sufficiently describe the act(s) which formed the basis of the charge. Fox, 117 Ill.App.3d at 1086, 73 Ill.Dec. 727, 454 N.E.2d 824.

In Leach, defendant was charged with resisting a peace officer. The complaint alleged that defendant "committed the offense of Resisting or Obstructing a peace officer in that she knowingly obstructed the performance of ROBERT GALLOWAY * * *." ( Leach, 3 Ill.App.3d at 393, 279 N.E.2d 450.) Defendant was convicted of the resisting arrest charge and she appealed.

On appeal, the court found that the complaint did not contain any allegation describing the physical "resisting" act of defendant. Moreover, the court stated that a complaint which contains a charge solely in the language of the statute is insufficient. In holding that the complaint did not give defendant notice of the crime, the court reversed defendant's conviction. Leach, 3 Ill.App.3d at 395, 279 N.E.2d 450.

In the case at bar, the trial court held that the complaint was sufficiently drafted "to inform the defendant of the nature of the offense, to allow him to prepare a defense, and to protect him, his constitutional rights under the double jeopardy provision." We are in agreement with the trial court. The complaint alleged the defendant "refused to be handcuffed by said officer and had to be bodily pushed down to be restrained while handcuffs were placed on the defendant * * *." This language specifies the physical acts which led to defendant's resisting arrest charge. Although we believe that the part of the complaint describing defendant's physical acts could have been more artfully drafted, we feel that the complaint, as it stands now, apprised defendant with reasonable certainty of the offense with which he was charged and is thus sufficient.

II. SUFFICIENCY OF THE EVIDENCE

The evidence produced at trial was sufficient to establish that defendant was guilty beyond a reasonable doubt of resisting a peace officer. Defendant was charged with resisting a peace officer. In pertinent part Illinois statutory law provides:

"A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer of any authorized act within his official capacity commits a Class A misdemeanor." Ill.Rev.Stat.1983, ch. 38, par. 31-1.

The statute mandates some physical act by defendant which "imposes an obstacle which may impede, hinder, interrupt, prevent or delay the performance of the officer's duties, such as going limp, forcefully resisting arrest or physically aiding a third party to avoid arrest." (People v. Raby (1968), 40 Ill.2d 392, 399, 240 N.E.2d 595 citing Landry v. Daley (N.D.Ill.1968), 280 F.Supp. 938, 959.) It is the general rule in Illinois that the testimony of an officer involved in the arrest, regarding a defendant's behavior at the time of arrest is sufficient to sustain a conviction of resisting or obstructing a peace officer. (People v. Greenwood (1976), 39 Ill.App.3d 898, 901; 350 N.E.2d 776.) Defendant argues that the testimony of Officers Gordon and Niesluchowski is inconsistent.

Defendant cites an Illinois case to support the proposition that the inconsistent testimony of two peace officers regarding a defendant's resistance to arrest is insufficient evidence to convict defendant of resisting arrest. (See City of Pekin v. Ross (1980), 81 Ill.App.3d 127, 36 Ill.Dec. 412, 400 N.E.2d 992.) In view of the vagueness of the officers' testimony, the many contradictions and inconsistencies, and the impeaching evidence offered by the defense, the Ross court found that the trial court's conviction of defendant was against the manifest weight...