People v. Flannigan

• Decision Date: 03 March 1971
• Docket Number: Gen. No. 70--58
• Citation: 267 N.E.2d 739,131 Ill.App.2d 1059
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Rocke FLANNIGAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 739

267 N.E.2d 739

131 Ill.App.2d 1059

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Rocke FLANNIGAN, Defendant-Appellant.

Gen. No. 70--58.

Appellate Court of Illinois, Fifth District.

March 3, 1971.

Elmer Jenkins and Jeff Troutt, Benton, for defendant-appellant.

Frank Bonan, State's Atty., McLeansboro, for plaintiff-appellee.

GEORGE J. MORAN, Justice.

Defendant, Rocke Flannigan, was found guilty in a jury trial in the Circuit Court of Hamilton County of resisting a peace officer in violation of Ill.Rev.Stat.1969, Chap. 38, Sec. 31--1.He then entered a plea of guilty to a charge of reckless driving-second offense in violation of Ill.Rev.Stat.1969, Chap. 95 1/2, Sec. 145, and was sentenced to terms of one year and six months, respectively, to be served consecutively at the State Farm at Vandalia.Defendant appeals from both judgments of conviction.

At approximately 3:30 or 4:00 p.m. on the afternoon of April 25, 1969, defendant was seen by various people driving his car in and around McLeansboro, Illinois, in what may be described for purposes of this opinion as a reckless manner.Defendant had been having an argument with his girl friend, Sharon Thomas, who was being walked home by a mutual friend, Donald Donaldson.At the place where the incident occurred defendant had pulled his car off to the side of the road near where his friend and girl friend were walking as he had done several times immediately preceding this in an attempt to talk with her.

Sergeant Carl Pendell, a state patrolman, testified that he was on duty at that time, that it was reported to him, and he saw, that defendant was driving his car in a reckless manner.He stopped his patrol car behind defendant's car and walked up to the car where defendant was sitting behind the steering wheel.He told defendant that he was under arrest and to come with him.Defendant asked what the charge was.Pendell told him reckless driving.Defendant asked who was going to prefer the charges and Pendell answered that he was.Defendant used profane language and told Pendell that the police were always picking on him.Pendell reached in the car to get the keys but defendant grabbed them from the ignition and put them in his pocket.Then he took the keys out and put them back in the ignition, but he did not start the car.Pendell again reached into the car and grabbed the keys.Defendant asked him to return the keys so he could give them to his girl friend.However, Pendell refused.Instead, he asked defendant two or three times to get out of the car and when defendant did not do so immediately, Pendell reached in and took defendant from the car.When he was outside, defendant said, 'Take your hands off me.I'll go.'Pendell released him but defendant would not go, so he put his hands on defendant again and took him back to the patrol car.When Pendell first released defendant, defendant jerked his arm away but made no attempt to run, nor did defendant hit or push Pendell after he was released.

'Q: Did he say, let me alone, I will go with you?Did he say take your hands off me, I will go with you?

A: Yes, sir.

Q: And what did he do?

A: He wanted to argue.

Q: Did you make any effort to go toward your squad car and have him follow or say, get going, and I will follow you?

A: No.

Q: What made you put your hand on him, after you jerked him out of the car and let him alone, what made you grab him and force him in the squad car?

A: When you arrest someone, you ask them to go with you peaceful like, and we would like for them to do that.When they don't do it, we are supposed to take them back to the squad car by other means, and I put my hand on his arm and took him back to the car, which is what I am supposed to do.

Q: Did he make any effort to flee or run when you were taking him back to the car?

A: He was trying to get my hand off of him.

Q: He wasn't trying to escape you, was he?

A: I don't know.

Q: He didn't, did he?

A: He didn't because I didn't let him.

Defendant's father, Wallace Flannigan, arrived at the patrol car just as defendant and Pendell did.Pendell walked around to the driver's side of the patrol car, got in and unlocked the door to the passenger side and defendant got into the patrol car by himself and made no effort to run.Then Pendell, defendant and defendant's father drove to the police station where, Pendell testified, defendant was verbally abusive and had to be placed in jail.

Defendant testified that he had wanted to keep the keys so that he could give them to his girl friend so she could drive his car home.When Pendell told him to get out of the car he said, 'All right.'By that time she had already turned around and started walking toward the car.She was ten or fifteen feet away at that time.Defendant testified, 'I was putting the keys back in the ignition and he reached in and pulled them out and he said, 'Get out,' and I said, 'Wait just a second,' and he opened the door and I turned to look at Sharon and he grabbed me and pulled me out.'Pendell started to push defendant toward the patrol car and defendant told him, 'Take your hands off me.Let me walk.I will go.Don't push and shove me around.'Defendant testified that he was not trying to run away but was trying to wait for Sharon to walk to the car so that he could give her the keys.When he and Pendell got to the patrol car his father arrived at the same time and they were standing by the passenger's side of the patrol car while Pendell went around to the other side in order to unlock the door.

Donald Donaldson testified that he was standing next to the car during the incident.He saw Pendell reach in the car and defendant pulled the keys from the ignition.He heard defendant say, 'No, you can't have that.I want to give my keys to Sharon.'He heard Epndell tell defendanthe was under arrest and to come with him and also heard the defendant say, 'I want to give my keys to Sharon.'After Pendell told defendanthe was under arrest, the second or third time, 'He just opened the door, reached in and grabbed hold of Rocke and pulled him out of the car.'He could not say whether there was a pause but he appeared to immediately grab defendant from the car and the whole incident lasted perhaps one minute.He did not see anything after that.

Wallace Flannigan testified that as he approached the cars he saw Pendell pull defendant from the car and they were 'kind of wrestling around.'He heard defendant say that if Pendell would take his hands off, he would go.The witness walked up and said, 'Let me take him.He'll go.'Then Pendell walked around to the driver's side of the patrol car and defendant entered the car by himself.The only resistance the witness saw was when defendant was saying, 'Take your hands off.I'll go.'

A person is guilty of resisting a peace officer '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 * * *.'(Ill.Rev.Stat.1969, Chap. 38, Sec. 31--1.)This section recently withstood a constitutional challenge in Landry v. Daley, D.C.280 F.Supp. 938, wherein the court stated at page 959:

'The gist of the offense is 'resisting' or 'obstructing' the valid acts of a peace officer.These terms convey commonly recognized meanings.'Resisting' or 'resistance' means 'withstanding the force or effect of' or the 'exertion of oneself to counteract or defeat'.'Obstruct' means 'to be or come in the way of.'These terms are alike in that they imply some physical act or exertion.Given a reasonable and natural construction, these terms do not proscribe mere argument with a policeman about the validity of an arrest or other police action, but proscribe only some physical act 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.'

Subsequently, our Supreme Court approved this language in People v. Raby, 40 Ill.2d 392, 240 N.E.2d 595, and noted that the Landry case emphasized 'that the statute requires knowing resistance or obstruction, '(which) considerably narrows the scope of the enactment by exempting innocent or inadvertent conduct from its proscription." Although both of these cases involve arrests during demonstrations the same 'reasonable and natural construction' of the statute must be applied.

The record in this case is replete with testimony, not set forth in detail here, of the manner of defendant's driving on the day in question, of prior encounters with the law arising out of traffic incidents, and of his general disrespect for law officers and authority in general.Certainly defendant's conduct and attitudes are not admirable, but the information in this case charges him with 'resisting a police officer' not 'disrespect for the law.'The state concedes that the charge for resisting a police officer is not based on his abusive conduct in the police station; hence, review of this conviction must be confined to evidence of defendant's conduct from the time Sergeant Pendell placed defendant under arrest until defendant was seated in the patrol car.

Essentially, the evidence shows that defendant did not immediately step from his car, that he wanted to give his car keys to his girl friend, that he intended to argue with Sergeant Pendell over the charge and that he jerked his arm away from Pendell when Pendell tried to take him...