People v. Mandarino

• Decision Date: 28 June 2013
• Docket Number: Docket No. 1–11–1772.
• Citation: People v. Mandarino, 2013 IL App (1st) 111772, 994 N.E.2d 138, 373 Ill.Dec. 653 (Ill. App. 2013)
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. James MANDARINO, Defendant–Appellant.
• Court: Appellate Court of Illinois

2013 IL App (1st) 111772

994 N.E.2d 138

373 Ill.Dec. 653

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

v.James MANDARINO, Defendant–Appellant.

Docket No. 1–11–1772.

Appellate Court of Illinois, First District, Third Division.

June 28, 2013.

Erin McCurdy Levy, of Clarendon Hills, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Janet C. Mahoney, Assistant State's Attorney, of counsel), for the People.

Justice HYMAN delivered the judgment of the court, with opinion. Presiding Justice Neville concurred in the judgment and opinion. Justice Sterba dissented, with opinion.

OPINION

¶ 1 After a firearm, the law enforcement officer's most potentially damaging weapon is the baton. When self-defense is at play, or circumstances call for coercive or precautionary measures, the baton offers a less harmful yet effective alternative. Nevertheless, like with a firearm, use of the baton is fraught with risk and repercussions.

¶ 2 Defendant James Mandarino, a former police officer in Streamwood, Illinois, was convicted after a bench trial of aggravated battery and official misconduct stemming from an early morning traffic stop that ended with Mardarino striking the nonaggressive driver 15 times in the span of 10 seconds with his baton. Mandarino raises five issues on appeal-whether the trial court erred in (i) allowing a lay witness's opinion testimony on use of force; (ii) stating that Mandarino may not have known that his squad car camera was recording; (iii) denying Mandarino's motion to reopen proofs; and (iv) applying the incorrect standard for assessing Mandarino's use of force. Finally, Mardarino contends the State failed to prove his guilt beyond a reasonable doubt. After a thorough review of the record, we affirm the trial court.

¶ 3 BACKGROUND

¶ 4 In 1993, Mandarino became a police officer and joined the Streamwood police department as a patrol officer the next year. Promoted to the tactical unit in 1997, Mandarino also took on the additional duties of field training officer. In 2001, he returned to patrol duties, working the midnight shift. He received the Chief's Award in 2005 for his work training other officers, and in 2006, was selected to serve as a sharpshooter for the Northern Illinois Police Alarm System, a SWAT team specializing in high risk situations. His stellar career, however, would end following the events on the early morning of March 28, 2010.

¶ 5 Ronald Bell and his friend, Nolan Stalbaum, attended a union banquet on Saturday evening, March 27. Bell testified that before dinner he had two mixed drinks and another after dinner. Stalbaum had four drinks. From the banquet, Bell and Stalbaum went to Bell's cousin's house to watch a pay-per-view fight. They arrived close to 1:30 a.m. Bell testified that he did not drink any liquor while there. At about 3 a.m., with Bell at the wheel, Bell and Stalbaum headed to Bell's home in Streamwood, where he lives with his brother and his brother's family.

¶ 6 That Saturday, Mandarino's shift started at 6 p.m., and was scheduled to end at 6 a.m. On March 28, around 3:45 a.m., with the temperature hovering near 30 degrees, a light spring rain tapping against his windshield, Mandarino observed the traffic along Schaumburg Road from a strategic spot in front of a strip mall. What happened next was captured on video (no audio was recorded) by a dashboard camera in Mandarino's squad car. (Note: The “Time Stamp” on the video reads one hour earlier than the actual time of the events. The “Description” occurred extremely close in proximity to, but not necessarily at, the exact time indicated below.)

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[373 Ill.Dec. 678]¶ 7 Bell was placed under arrest. He resisted efforts to place him in handcuffs, and once in the squad car, kicked at a window several times before an officer instructed him to stop.

¶ 8 Bell was first taken to the Streamwood police station, and examined by paramedics. He refused to allow the paramedics to treat him, telling them to get “the f* * * away from [me],” and “This is bullish* * *. I don't know what the f* * * you guys are doing here. I am not supposed to be here.” The paramedics described him as intoxicated and agitated, and they took Bell to St. Alexis Hospital. There, he refused to let the nurses examine him, draw blood or take a urine sample. He also demanded to talk to an attorney and asked that pictures to be taken of his injuries. The treating physician, Dr. Mona Lala, testified that Bell had contusions to his arms.

¶ 9 Bell testified that he had a concussion. Dr. Lala did not diagnose him with or treat him for a concussion, but on discharge, Bell was instructed on the possibilityof a concussion. Dr. Lala testified that there is no treatment for a mild concussion, and that patients are typically discharged with instructions.

¶ 10 Lala described Bell as “combative and agitated,” and a security risk. She noted that he smelled of alcohol and appeared intoxicated, and that blunt force trauma to the head could have caused Bell's combativeness. Several hours after being admitted and pictures having been taken of his injuries, Bell permitted the staff to treat him. He received seven stitches in his right ear.

¶ 11 After treatment, Bell was returned to the Streamwood police station, where he was charged with driving under the influence. Stalbaum was charged with resisting arrest. The charges against both of them were later dropped.

¶ 12 The State charged Mandarino with aggravated battery and official misconduct. Mandarino waived his right to a jury trial and proceeded with a bench trial.

¶ 13 Among Mandarino's witnesses was Larry Danaher, who testified as an expert in the use of force. Danaher testified that the use of force is a continuum from the least force and escalating to higher levels of force: (1) the officer's presence on the scene; (2) verbal commands; (3) use of empty hands such as grabbing or holding; (4) control devices such as a Taser or pepper spray; (5) use of an impact weapon such as the collapsible baton; and (6) lethal force.

¶ 14 Danaher believed that the traffic stop became high risk once Bell and Stalbaum exited the car because they might have been armed or dangerous, and because Bell and Stalbaum were agitated and intoxicated, they were more dangerous. According to Danaher, Mandarino properly drew his gun and commanded Bell and Stalbaum to return to the car. The risk level increased when Bell and Stalbaum did not follow this order, and Mandarino could not safely retreat and wait for backup. Also, Mandarino could not safely go “hands on” with Stalbaum as long as multiple subjects were present, so tasing Stalbaum was appropriate.

¶ 15 When Bell got out of the car, while Stalbaum was tased, Danaher believed Bell became a threat. And, while Bell was on his knees in front of Mandarino, a position that Danaher described as the “wrestler position,” Danaher contended that Bell could have lunged at Mandarino, and it would have been safer for Mandarino to have kept a greater distance.

¶ 16 From an officer's safety standpoint, Danahar testified that Bell should lie flat on his stomach with arms and legs extended. When Bell rose to his knees after Mandarino struck him twice, Bell took what Danaher called a threatening position. Danaher testified that an officer should strike a person as often as necessary to gain compliance or immobilize him or her. He further characterized Bell's actions as actively resisting, as opposed to passively resisting, Mandarino's commands. Considering the totality of the circumstances—including Bell's age, the possibility that Bell and Stalbaum were armed, their intoxication and profanity, and the lack of officer backup—Danaher opined that Mandarino's use of force on Bell was justified.

¶ 17 The State called Streamwood Police Department Deputy Chief Keegan to testify that the area around Juniper Circle was a low crime, nongang area. On cross, Keegan testified he had known Mandarino for 15 years and held him in high regard. Keegan further testified that Mandarino received outstanding marks on evaluations, and that he had never known Mandarino to abuse a suspect. Keegan said that Streamwood police are trained to maintain their distance, space, and cover when they are alone and dealing with multiple suspects. He was also asked about the substance of Mandarino's outstanding evaluations.

¶ 18 On redirect, Keegan stated that he would have evaluated Mandarino differently based on his actions toward Bell and Stalbaum. Keegan said that he found Mandarino's actions in this situation unacceptable. Keegan believed it was improper for Mandarino to draw his gun. He opined that Mandarino should have stayed behind the cover of his squad car door. Keegan also commented that Mandarino's use of the baton was “inappropriate and unnecessary.”

¶ 19 Mandarino testified that the written procedures of the Streamwood police department classify the police baton as a nondeadly weapon, but they acknowledge that the baton could be lethal and should not be raised above the officer's head or used as a club.

¶ 20 The trial court delivered an oral verdict on March 23, 2011. The judge said the video was “very telling of what occurred that night.” He found that neither Bell nor Stalbaum “told the whole truth,” and they were intoxicated. While Mandarino considered the traffic stop high-risk, the trial court said he “was a little surprised to see immediately, in 44 seconds flat, the handgun coming out pointed directly at Mr. Bell and Mr. Stalbaum,” followed shortly by the tasing of Stalbaum and then the striking of Bell, who “was on all fours.”

¶ 21 Regarding the use of force on Bell, the trial court said that “any rational analysis, in viewing the video, would indicate that the conduct of the defendant was wrong, just plainly wrong. I think his conduct is such that it was unprovoked, unnecessary, and in...