People v. Jenkins

• Decision Date: 13 October 1989
• Docket Number: No. 1-87-3785,1-87-3785
• Citation: 545 N.E.2d 986,137 Ill.Dec. 225,190 Ill. App. 3d 115
• Parties: , 137 Ill.Dec. 225 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Allison JENKINS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 986

545 N.E.2d 986

190 Ill.App.3d 115, 137 Ill.Dec. 225

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Allison JENKINS, Defendant-Appellant.

No. 1-87-3785.

Appellate Court of Illinois First District, Sixth Division.

Oct. 13, 1989.

[190 Ill.App.3d 119][137 Ill.Dec. 228] Cecil A. Partee, State's Atty., Cook County, for plaintiff-appellee (Inge Fryklund and Paula Carstensen, Asst. State's Attys., of counsel).

Michael B. Brohman and Catherine A. Daubard, Chicago, for defendant-appellant(Jenner & Block, of counsel).

Justice LaPORTAdelivered the opinion of the court:

While investigating possible drug dealing in front of the Gayle Elementary School, Officers Fred Hattenberger and Jay Brunkella approached the defendant, Allison Jenkins, and another man.Although testimony conflicts as to what occurred, during a struggle between the defendant and Officer Hattenberger, Officer Hattenberger's gun discharged.The bullet struck Officer Brunkella in the chest, and he died 12 days later.

The defendant was charged with aggravated battery of Officer Hattenberger under Ill.Rev.Stat.1985, ch. 38, par. 12-4(b)(6) and with the felony murder of Officer Brunkella under Ill.Rev.Stat.1985, ch. 38, par. 9-1(a)(1).

At trial, the defendant moved for a directed verdict at the close of the State's case, arguing that the State had not proven its case because it had not shown either that the defendant had the intent to commit the battery or that, if the defendant had committed the battery, the State had not proven that the battery was a direct cause of the felony murder.This motion was denied.

After the trial was completed, the jury found the defendant guilty of both the aggravated battery of Officer Hattenberger and the felony murder of Officer Brunkella.The defendant was sentenced to concurrent sentences of five and twenty years, respectively.The defendant appeals, raising the following issues: (1) Whether defendant's conviction was an unwarranted extension of the felony murder doctrine; (2) whether the non-Illinois Practice (IPI) jury instructions for felony murder were so erroneous that a new trial is required; (3) whether the trial court made erroneous evidentiary rulings which deprived the defendant of a fair trial; (4) whether the defendant should be granted a new trial because of prosecutorial misconduct; (5) whether the State fulfilled its burden of proving the causation, intent, and bodily harm elements of aggravated battery and felony murder; (6) whether the defendant should be granted a new trial because of ineffective assistance of counsel; (7) whether the trial court failed to give a proper deadlocked jury instruction and therefore the defendant should be granted a new trial; and (8) whether the defendant's penalty for conviction for felony murder was unconstitutional.

The two primary witnesses to the incident were the defendant and Officer Hattenberger, who told very different stories on the witness stand.The only portion which can be agreed upon is that as the defendant and Officer Hattenberger struggled and fell, Officer Hattenberger's Colt .45 "secondary" weapon discharged, and the bullet struck Officer Brunkella in the chest, causing his death.

Officer Hattenberger's Testimony

According to Officer Hattenberger, on September 22, 1986, he and Officers Jay Brunkella, Tom Cotter, and Rick Myamotto were conducting a plainclothes surveillance of drug dealing in front of Gayle Elementary School, in the 1600 block of West Jonquil.Officers Hattenberger and Brunkella watched the area from the third floor of the school while Officers Cotter and Myamotto waited in a car nearby for Officers Hattenberger and Brunkella's radioed instructions to follow and stop any cars and question the occupants.

Shortly after arriving on the third floor, Officers Hattenberger and Brunkella saw a man identified as Michael Jones and two people in a car engage in what they believed to be a drug transaction.After a radio transmission to Officers Cotter and Myamotto to stop the car, they saw the defendant approach Jones.Officer Brunkella identified the newcomer to Officer Hattenberger as Jenkins, and Officer Hattenberger testified that he knew the newcomer as Allison Jenkins.

The officers watched Jenkins approach a vehicle and lean inside.They saw hand movement between Jenkins and the driver of the vehicle, although they could not see what the movements were.The vehicle departed and the defendant crossed the street carrying a potato chip bag, which he placed underneath the fence in front of the school.Officer Hattenberger testified that based upon his experience this indicated to him that the defendant was stashing drugs in the potato chip bag beneath the fence.

The defendant approached Jones.Officers Hattenberger and Brunkella decided to approach the two men together.Officer Brunkella walked west to retrieve the potato chip bag while Officer Hattenberger walked east to confront the defendant and Jones.According to Officer Hattenberger, the defendant looked up, saw Officer Hattenberger, and denied having anything on him.Officer Hattenberger replied "Come here.Take it easy.I just want to talk to you."The defendant took two or three steps toward Officer Hattenberger, making hand movements near his waist, then turned and ran out into the street.Officer Hattenberger testified that he saw no weapon.

Officer Hattenberger chased the defendant, yelling at him to stop.When the defendant did not stop despite repeated shouts to do so, Officer Hattenberger drew his gun with his right hand.He chambered a bullet.Officer Hattenberger testified that he wanted to have his gun loaded and ready to use because the defendant's actions, coupled with information that he had heard from unidentified sources on the street that the defendant carried a gun, led him to believe that the defendant was armed.

Officer Hattenberger chased the defendant until the defendant abruptly stopped and turned to face him approximately fifteen feet away.Officer Hattenberger approached the defendant, who was again making hand movements about his waist, until Officer Hattenberger was close enough to grab the defendant's right arm with his left hand.The defendant relaxed, then when Officer Hattenberger relaxed the defendant elbowed him in the chest and tried to run east.Because the defendant ran straight into Officer Hattenberger's arm, the officer pulled the defendant in to his body, "to try to get a grip on him," although on cross-examination Officer Hattenberger said that "I didn't say I pulled him into me.I said I had a grip on his left arm across the front of his body."

Officer Hattenberger testified that the defendant sought to break free of the officer's grip by swinging his arms.They fell, and as they did so Officer Hattenberger wrapped his right arm around the defendant.

At this time, Officer Hattenberger's gun discharged.He testified that he was sure he tensed as he fell, and that the shot occurred as they fell.Officer Hattenberger also testified that the gun did not discharge when the defendant elbowed him in the chest, but discharged as they fell.

Just before the struggle began, Officer Hattenberger looked up and saw Officer Brunkella to the defendant's right and slightly behind him, appearing to stand between the defendant and himself.When the shot went off, Officer Brunkella said he had been hit, and Officer Hattenberger radioed for help.Officers Cotter and Myamotto arrived at the scene within minutes.Officer Cotter attended Officer Brunkella, while Officer Myamotto arrested and handcuffed the defendant.Officer Hattenberger recovered his gun, then went to the school yard fence and retrieved the potato chip bag.

Officer Hattenberger testified to photographs admitted into evidence of a bruise which appeared "[a]bove my belly button and below my chest" taken two days after the incident.

The Defendant's Testimony

The defendant testified that he was on the street in the 1600 block of West Jonquil on September 22, 1986, because he was on the way to a job cleaning carpets.A car stopped, and he spoke with two friends in the car, who gave him "a taste of potato chips," and as they drove off offered the defendant the remainder of the bag, which he finished and dropped the empty bag into the street.The defendant denied the prosecution's suggestion that there were any packets in the bottom of the bag.

The defendant testified that when he first saw Officer Hattenberger on September 22, 1986, he was entering the school yard with Officer Brunkella, whom the defendant knew because Officer Brunkella had previously arrested him.The defendant was standing on the street talking to Michael Jones and a second man on a bicycle.Officer Brunkella entered the school yard with a man carrying a gun in his right hand, whom the defendant identified at trial as Officer Hattenberger.Officer Hattenberger grabbed Michael Jones, who was closest to him; the man on the bicycle rode off, and the defendant started to back up.Then, according to the defendant, Officer Hattenberger "turned to me, point the gun at my chest and told me to run so he could shoot me."The defendant said that Officer Hattenberger did not say "come here," and that he told Officer Hattenberger that he would not run, that he had no reason to run, and that Officer Hattenberger should put his gun away.

The defendant kept backing up, with his hands raised to shoulder height and the palms pointing outward.He backed up into Officer Brunkella, who grabbed and held onto the defendant.Defendant testified that Officer Hattenberger released Jones and turned to the defendant, squatted, "[a]nd he told me to run so he could shoot me."The defendant testified that he was stopped by Officer Brunkella from backing up further.

Defendant testified that while Officer Brunkella held him, Officer Hattenberger ran up to them, and the three struggled, with the defendant positioned...