People v. Janosek

• Court: Appellate Court of Illinois
• Writing for the Court: JUSTICE HARRIS delivered the judgment of the court, with opinion.
• Citation: People v. Janosek, 2021 IL App (1st) 182583, 193 N.E.3d 741, 456 Ill.Dec. 501 (Ill. App. 2021)
• Decision Date: 10 December 2021
• Docket Number: 1-18-2583
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David JANOSEK, Defendant-Appellant.

2021 IL App (1st) 182583

193 N.E.3d 741

456 Ill.Dec. 501

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.David JANOSEK, Defendant-Appellant.

No. 1-18-2583

Appellate Court of Illinois, First District, SIXTH DIVISION.

December 10, 2021

Daniel J. Florey, of Daniel J. Florey, P.C., of Palos Heights, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Christine Cook, and Stacia Weber, Assistant State's Attorneys, of counsel), for the People.

JUSTICE HARRIS delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant David Janosek was convicted of aggravated assault and resisting a peace officer and sentenced to one year of conditional discharge with fines and fees. On appeal, he contends that the search of his backyard was improper, the charge of aggravated assault was fatally defective, the evidence was insufficient to convict him beyond a reasonable doubt, and trial counsel rendered ineffective assistance. For the reasons stated below, we affirm.

¶ 2 I. JURISDICTION

¶ 3 On October 2, 2018, the trial court found defendant guilty of aggravated assault and one count of resisting a peace officer and sentenced him to conditional discharge with fines and fees. Defendant filed a posttrial motion on October 22, 2018; the court denied it on November 13, 2018; and defendant filed his notice of appeal on December 11, 2018. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution ( Ill. Const. 1970, art. VI, § 6 ) and Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013) and Rule 606 (eff. Mar. 12, 2021) governing appeals from a final judgment of conviction in a criminal case.

¶ 4 II. BACKGROUND

¶ 5 Defendant was charged by complaint with one count of aggravated assault and two counts of resisting a peace officer, all allegedly committed at a specified address in Cook County on or about May 25, 2018. Count I cited section 12-2(c)(1) of the Criminal Code of 2012 (Code) ( 720 ILCS 5/12-2(c)(1) (West 2018)) and alleged that defendant committed aggravated assault when he "picked up a black in color holster, which contained a black/gold in color Winchester, model 11, .177 cal, Co2 BB gun, and pointed it in the direction of [Officer Peter] Lenos *** while the gun was still contained in the holster, and then attempted to take the gun out of the holster." Counts II and III cited section 31-1(a) of the Code (id. § 31-1(a)) and alleged that defendant committed the offense of resisting a peace officer when he "knowingly resisted the performance of *** an authorized act within his official capacity, being the arrest of" defendant by Lenos and Corporal Daniel Dabros respectively, knowing each "to be a peace officer engaged in the execution of his official duties, in that he refused to place his hands/arms behind his back and attempted to defeat the arrest by tensing up and pulling his arms away from" Lenos and Dabros respectively.

¶ 6 At trial, Dabros testified that he was an on-duty police officer, in uniform and driving a marked police car, at about 1:15 p.m.¹ on May 25, 2018, when he received a report to go to a certain address about "a BB gun complaint." At that address, he found a home with a woman in the driveway. After speaking with her, Dabros went through her backyard "towards the house where she said the complaint was coming from," which was "the property *** [d]irectly behind her residence." As he went toward her backyard, he heard popping from a BB gun or small-caliber firearm. He believed it to be from a BB gun because he had previously answered a call to the same home. When he turned toward the popping noise, he saw and heard a window closing in the house about 20 yards away. By then, he was in defendant's backyard. "I don't know if it was on his actual backyard, but it was behind his house in a tree line." Dabros saw Lenos nearby in defendant's driveway, with his Taser drawn and apparently looking for the source of the popping sound.

¶ 7 After hearing the window close, Dabros heard Lenos say "Put it down" and saw defendant exiting the house, with a black and gold object in his hand that Dabros believed to be a gun, and walking towards Lenos. Lenos then approached defendant in an attempt to take him into custody. When Lenos told defendant that he was under arrest and to put his hands behind his back, "he kept pulling away" and would not comply. Dabros joined Lenos in trying to put handcuffs on defendant, standing right next to defendant and telling him to stop resisting. Defendant kept resisting and said that they needed either a warrant or an ambulance. Dabros put a handcuff on defendant's left wrist while Lenos handcuffed his other wrist. Dabros and Lenos then tried to put defendant into a police car, but he refused and asked for an ambulance. An ambulance was ordered for defendant, and he was put inside and taken to the hospital. He later "end[ed] up back at the police department" where he was charged with aggravated assault, two counts of resisting arrest, and an ordinance violation for the BB gun. Dabros had recovered the BB gun in a holster from "the ground in the backyard." When he first saw the BB gun as he approached defendant's home, it was holstered.

¶ 8 On cross-examination, Dabros testified that the address he responded to was defendant's neighbor's home but that defendant was on his own property when Lenos and Dabros arrested him. Dabros entered defendant's backyard by passing through a tree line. When defendant exited his house into his backyard, he was about 20 yards from Dabros. Neither Lenos nor Dabros announced that they were police officers. Defendant put down the BB gun when told to, and Dabros never saw it out of the holster and "could not say for sure that he aimed it directly towards any officers." Dabros could not recall whether Lenos told defendant to put his hands behind his back before Lenos made physical contact with him, and he did not recall Lenos telling him to put his hands on his head. While on the ground, defendant said that he had just had surgery and still had stitches and a patch on his side, but Dabros did not recall him saying that the officers were hurting him or "going to give me a heart attack." After defendant was arrested, he requested an ambulance. When asked if defendant was injured, Dabros answered that defendant "wasn't complaining of anything specific," and he denied that defendant's face was discolored.

¶ 9 On redirect examination, Dabros testified that he heard a popping noise as he entered defendant's backyard through the tree line.

¶ 10 Lenos testified that he was an on-duty police officer, in uniform and driving a marked police car, on May 25, 2018, when he went to a certain address.² He waited on the neighboring property while Dabros "went to the complainant's house [and] was going to come through the backyard. He wanted me to wait for him so I can go to the backyard from" defendant's front yard. Lenos did not hear anything at first but then, as he and Dabros approached defendant's backyard, heard a loud popping or snapping noise he believed to be from a BB gun or a "low-caliber firearm." He had heard both sounds "[n]umerous times" previously. Lenos could not see Dabros but was in radio communication with him, and Dabros told him that the noise "sounded like it came from inside of the house" and that Dabros had seen the basement window closing. Lenos was on defendant's driveway at that point and "peeking" into his backyard. Lenos was in a straight line with defendant's basement door when he exited his house by the basement door into his backyard. His hands were empty as he approached Lenos, as Lenos had told him to do.

¶ 11 However, about 30 to 40 feet from Lenos, defendant bent down and picked up from the ground a holster holding "what appeared to be a semi-automatic handgun." Defendant took "a shooter stance," raising "the holster up at" Lenos, and "attempted to take the firearm out of the holster." Lenos "took cover behind the wall even more" and told defendant to put the gun down. He then "took a chance of it being a BB gun" and told defendant that he would tase defendant if defendant shot him with the BB gun. Defendant then put the holster back on the ground. Lenos approached defendant to detain him, telling him to put his hands behind his back. However, he "pulled his arms away and attempted to defeat the arrest." By then, Dabros was assisting Lenos in trying to get his hands behind his back, with Lenos holding his left hand. "Eventually we took [him] to the ground" and told him he was under arrest but "he advised us that he wasn't" and did not comply with their orders by "giv[ing] us his hands." Only after Lenos twice threatened to tase defendant did he "g[i]ve us his hands so we could complete the arrest." Lenos cut his finger while arresting defendant, although he was unsure how it happened. Lenos was uncertain whether he had ever announced that he was a police officer.

¶ 12 On cross-examination, Lenos testified that he was on defendant's driveway in response to a call and did not see defendant in his backyard. When defendant picked up the holstered object, Lenos believed it to be a semiautomatic pistol based on the handle, which was the only portion he could see due to the holster. Defendant was holding the weapon by its handle, not the holster. He took a shooter stance, held the weapon with both hands, and tried to remove it from the holster. Lenos did not "a hundred percent" know the weapon to be a BB gun but believed it to be one due to "past incidents we have had with him." When defendant started to draw the weapon, Lenos told him that he would tase him, and defendant then dropped the weapon as ordered. Lenos had drawn his taser already. He approached defendant and made physical contact with him, intending "to take him down," immediately after he dropped the weapon. Lenos reiterated that he told defendant to put his hands behind his back, was unsure...