People v. Haynes ( 2011 )

SECOND DIVISION
March 31, 2011
No. 1-08-0805
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
) Cook County
Plaintiff-Appellee, )
)
v. ) 05 MC 619520
)
)
)
APRIL HAYNES, ) Honorable
) Robert Clifford,
Defendant-Appellant. ) Judge Presiding.
)
)
JUSTICE KARNEZIS delivered the opinion of the court, with opinion.
Presiding Justice Cunningham and Justice Hoffman concurred in the judgment and
opinion.
OPINION
Following a jury trial, defendant April Haynes was convicted of resisting a police
officer and attempting to obstruct justice (720 ILCS 5/31-1 (West 2006)) and was
sentenced to 1 year of conditional discharge and 15 days of community service. On
1-08-0805
appeal, defendant argues: (1) trial counsel was ineffective for failing to request that the
jury be instructed on self-defense; (2) the trial court failed to comply with Illinois
Supreme Court Rule 431(b) (eff. May 1, 2007); and (3) the trial court improperly
imposed a fee pursuant to section 5-1101(a) of the Illinois Vehicle Code (55 ILCS 5/5-
1101(a) (West 2006)).
On March 30, 2010, we affirmed defendant’s conviction but modified the fees
associated with her case. People v. Haynes, 399, Ill. App. 3d 903 (2010). On January
26, 2001, the Illinois Supreme Court entered supervisory order No. 110299, directing
this court to vacate its judgment and reconsider the case in light of People v.
Thompson, 238 Ill. 2d 598 (2010). Upon reconsideration, we affirm defendant’s
conviction as modified.
BACKGROUND
Defendant was charged with battery of a police officer (720 ILCS 5/12-3(a)(1)
(West 2006)), resisting arrest (720 ILCS 5/31-1(a) (West 2006)), attempted obstruction
of justice ( 720 ILCS 5/31-4(a) (West 2006)) and permitting an unauthorized person to
drive her vehicle (625 ILCS 5/6-304 (West 2006)) after defendant’s car, being driven by
her unlicensed son, slid into a pole in Lansing, Illinois. Defendant was arrested after
she failed to inform police officers that her son was the driver of the vehicle. When
officers attempted to arrest her, defendant refused to cooperate and place her hands
behind her back. It took five officers to eventually get defendant’s hands cuffed behind
her back.
2
1-08-0805
Nadine Guthrie testified that she was driving her daughter to school on
November 23, 2005, at approximately 8 a.m., when she saw a car swerve and hit a
metal pole in the 3300 block of Ridge Avenue in Lansing, Illinois. She saw two youths
exit the vehicle. Guthrie continued to drive her daughter to school but planned to
return to the scene to see if the boys needed help.
Kaila Seimers was working in Mancino’s restaurant at about 8 a.m. on
November 23, 2005, when she heard a car crash. She saw that the car had hit a pole
and watched as two young men got out of the car. They walked over to her and asked
to use her phone. The young men left after they made a call. Seimers called the police
and reported the accident.
Several minutes later, defendant entered the restaurant and asked Seimers to
tell the police that she (defendant) had been the one driving the car. Seimers testified
that she refused to lie and went back to work. Defendant went outside to wait for the
police to arrive.
Officer Hynek testified that he received a dispatch stating that there was a non-
injury car accident at 3300 Ridge Road. When Officer Hynek arrived at the scene, he
saw a car resting against a light pole. He approached the vehicle and saw defendant
standing there. Defendant told him that her car slid into the pole and that she was the
only one in the car. Officer Hynek filled out the accident report that included
defendant’s information. Defendant never told Officer Hynek that her son was driving
3
1-08-0805
the car. Officer Hynek told defendant to wait in Mancino’s restaurant while he filled out
the report.
While Officer Hynek was filling out the report, Nadine Guthrie arrived at the
scene of the accident. She asked if the two people in the car were injured. She then
stated that she saw two young men exit the car after the accident.
After his conversation with Guthrie, Officer Hynek went into Mancino’s restaurant
to talk to defendant. He asked defendant about her children. Defendant responded
that her children were in school. Officer Hynek contacted another police officer to go
speak with defendant’s oldest son Lance at the local high school. Lance later admitted
to Officer Yonker that he was the one who drove the car into the pole.
Officer Hynek gave defendant several opportunities to admit that she was not
driving the car, but she continued to maintain that she was the driver. Officer Hynek
told defendant she was under arrest and asked her to put her hands behind her back.
Officer Hynek testified that it is police department policy to handcuff people with their
hands placed behind their back. Defendant placed her hands in front of her chest and
clenched them together. Officer Hynek and Officer Klingleschmitt tried to break
defendant’s hands apart and bring them behind her back, but defendant fell to the
ground.
While defendant was on the ground, Officers Hynek and Klingleschmitt
continued to try to get defendant’s hands behind her back, but defendant hid her hands
underneath her body. Officer Hynek put his knee in her back and when that was
4
1-08-0805
ineffective, he used the Taser gun twice on her back. Officer Hynek testified that he
used the Taser gun on a “dry stun” mode, which only inflicts localized pain, unlike the
gun’s other mode, which inflicts greater pain to the entire body by electric shock.
Video cameras in Mancino’s restaurant captured most of defendant’s arrest.
The videotapes were entered into evidence by the State and played to the jury. Officer
Hynek gave a narrative of the videotape as part of his testimony. The video showed
the following. Defendant was standing inside the restaurant struggling with Officers
Hynek and Klingleschmitt as they attempted to place her under arrest. The three then
fell to the ground and defendant hid her hands underneath her body. Officer Hynek
threatened to use the Taser gun on defendant and eventually used the Taser on her
shoulder in “dry mode” after he attempted to free defendant’s hands with a knee to her
back. When Officer Hynek tasered defendant, Officer Klingeschmitt was able to grab
defendant’s arm. However, defendant quickly pulled her arm away and put it under her
body. Officer Hynek used the Taser gun again. Defendant then kicked Officer Hynek
in the groin. Defendant refused to place her hands behind her back and refused to
cooperate with the officers despite being told repeatedly that she was under arrest.
Three additional officers arrived at the scene and attempted to gain defendant’s
cooperation. Defendant resisted the request of all five officers. The officers eventually
used pressure points to free defendant’s hands. Finally, the officers were able to
handcuff defendant’s hands behind her back using three sets of handcuffs. The video
ends with defendant being escorted out of the restaurant.
5
1-08-0805
After she was handcuffed, Officer Hynek drove defendant to the station. During
the transport, defendant admitted that she knew her son Lance Dudley was driving her
car and that Lance did not have a driver’s permit. The parties stipulated that Lance
Dudley did not have a driver’s license on the date of the accident.
Following the court’s denial of defendant’s motion for a directed finding,
defendant testified. Defendant also gave a narrative of the videotape obtained from
Mancino’s restaurant.
Defendant testified that she was shopping for groceries at about 7:30 a.m. on
the day of the incident and that she intended to drive her sons to school that morning.
She was on her way home when she received a call from her son Lance who told her
that he was driving and had hit a pole. Lance was not given permission to drive and
did not have a driver’s license. She drove to Mancino’s and walked over to the site of
the accident. Lance was no longer there. Officer Hynek arrived while she was
standing there.
Defendant testified that Officer Hynek asked her what happened and she told
him that the car slid into the pole. She testified that she never told officers that she was
driving the car. Defendant went into Mancino’s restaurant to wait for Officer Hynek to
fill out his report.
Officer Hynek came into the restaurant and yelled at defendant to “put your
hands behind your back. Lance was driving.” Defendant testified that she told Officer
Hynek that she understood that he may be placing her under arrest but that she was “to
6
1-08-0805
[sic] large to be cuffed from one set of cuffs behind [her] back” and asked that she be
handcuffed in front.
Defendant testified that she did not resist arrest but Officer Hynek grabbed her
hands and jerked her around in a circular motion. Defendant testified that she
continually told the officers that she would go with them but that Officer Hynek kept
twirling her around. She also testified that she attempted to explain to the officers that
she had numerous medical conditions but Officer Hynek would not listen and tasered
her when she was standing up. Defendant claims that this incident was missing from
the video. She fell to the ground as she was paralyzed from being tasered. She lost
control of her body and rolled over on her stomach and onto her hands. Defendant
also claims that this was missing from the video. She continually asked officers to
handcuff her in front but Officer Hynek threatened to taser her again. Officers
eventually handcuffed her behind her back with three sets of handcuffs.
Defendant testified that the video was missing many incidents. However, the
parties stipulated to the authenticity of the video. In addition, defendant denied asking
Kaila Seimers to lie.
Defendant also called Officer Klingleschmitt as a witness. After defendant was
placed in custody, Officer Klingleschmitt filled out a “Use of Force” report. Officer
Klingleschmitt did not include in her report that defendant kicked Officer Hynek in the
groin because she did not see that happen.
7
1-08-0805
After hearing all of the evidence, the jury convicted defendant of resisting arrest
and attempting to obstruct justice. Defendant was sentenced to 1 year of conditional
discharge with 15 days of community service. She was also ordered to pay a fee. It is
from this judgment that defendant now appeals.
ANALYSIS
Ineffective Assistance of Counsel
Defendant first claims that trial counsel was ineffective when he failed to tender
a self-defense instruction so that the jury could consider whether defendant’s actions
were intended to defend herself against the officers’ use of force. Specifically,
defendant claims that there was sufficient evidence to show that her use of force, if any,
was justified in light of the officers' prior use of excessive force.
To prevail on a claim of ineffective assistance of counsel, a defendant must
satisfy the two prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 80 L.
Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). A defendant must show that (1) trial
counsel's representation fell below an objective standard of reasonableness, and (2)
she was prejudiced by the deficient performance. Strickland, 466 U.S. at 687, 80 L. Ed.
2d at 693, 104 S. Ct. at 2064; People v. Albanese, 104 Ill. 2d 504, 525 (1984). Where
the defendant fails to prove prejudice, the reviewing court need not determine whether
counsel's performance constituted less than reasonable assistance. Strickland, 466
U.S. at 697, 80 L. Ed.2d at 699, 104 S. Ct. at 2069; People v. Flores, 153 Ill. 2d 264,
284 (1992). The defendant bears the burden of overcoming a strong presumption in
8
1-08-0805
favor of finding that counsel’s advocacy was effective. Albanese, 104 Ill. 2d at 525.
Failure to request a self-defense instruction constitutes ineffective assistance of
counsel when such a failure was not the result of trial strategy. See People v. Wright,
111 Ill. 2d 18, 26-27 (1986).
A person resists arrest when he or she commits a physical act of resistance or
obstruction, that is, a physical act that impedes, hinders, interrupts, prevents or delays
the performance of the officer's duties, such as going limp, forcefully resisting arrest, or
physically helping another party to avoid arrest. People v. Raby, 40 Ill. 2d 392, 399
(1968); People v. McCoy, 378 Ill. App. 3d 954, 962 (2008).
An arresting officer generally may use any force reasonably necessary to
effectuate an arrest and need not retreat in the face of resistance. 720 ILCS 5/7-5(a)
(West 2006). An arrestee may not use force to resist an arrest even if the arrest is
unlawful. 720 ILCS 5/7-7 (West 2006). However, the use of excessive force by a
police officer invokes the right of self-defense. 720 ILCS 5/7-1(a) (West 2006). “A
person is justified in the use of force against another when and to the extent that [s]he
reasonably believes that such conduct is necessary to defend [her]self or another
against such other’s imminent use of unlawful force.” 720 ILCS 5/7-1(a) (West 2006).
A defendant is entitled to an instruction on her theory of the case if there is some
foundation for the instruction in the evidence. People v. Jones, 175 Ill. 2d 126, 131-32
(1997). Only a slight amount of evidence is necessary to justify giving an instruction.
People v. Robinson, 92 Ill. App. 3d 972 (1981). An instruction on self-defense is
9
1-08-0805
required in a resisting arrest case when the defendant has presented some evidence of
excessive force on the part of the arresting officer. People v. Williams, 267 Ill. App. 3d
82, 88 (1994).
Defendant argues that this case is analogous to People v. Sims, 374 Ill. App. 3d
427 (2007). In Sims, the defendant was prosecuted for battery and resisting arrest.
The trial court rejected the defendant’s request for a self-defense instruction based on
the officers’ use of excessive force. The evidence produced at trial showed that the
defendant submitted peacefully to being handcuffed and was placed in the squad car
without incident. He did not use force against the officers until after his girlfriend
arrived at the car. Defendant asserted that he only resorted to force when one officer
put his hands on defendant's girlfriend and then one of the officers threw defendant to
the ground. Sims, 374 Ill. App. 3d at 433.
On appeal, the Sims court found that the trial court incorrectly denied the
defendant’s request for a self-defense instruction because the defendant produced
evidence that demonstrated that he was afraid and was struggling to try to get away
from the officers. Sims, 374 Ill. App. 3d at 435. In addition, a jury could have
reasonably believed that officers used excessive force where photographs of the
defendant showed that he had sustained a swollen eye and numerous cuts and
bruises. Sims, 374 Ill. App. 3d at 435.
We find this case similar to People v. Wicks, 355 Ill. App. 3d 760 (2005). In
Wicks, the defendant argued that the trial court erred when it refused defendant’s
10
1-08-0805
request for a self-defense instruction in a resisting arrest case. The Wicks court
affirmed the decision of the trial court finding that the evidence adduced at trial showed
that the defendant refused from the outset to cooperate with police. The police officers’
efforts were designed to get the defendant’s hands out of his pockets. As such, the
police officers’ use of force was justified and not excessive. Consequently, the trial
court did not err when it refused to give a self-defense instruction. Wicks, 355 Ill. App.
3d at 764.
Here, defendant did not submit peacefully to the officers to be handcuffed (cf.
People v. Sims, 374 Ill. App. 3d 427, 435 (2007)). Similar to Wicks, defendant refused
to follow the officers’ orders and it was only after defendant refused to cooperate with
the officers by keeping her hands clenched in front of her that the officers resorted to
using force. Defendant testified that she knew Officer Hynek was placing her under
arrest and told her to “stand up, and put your hands behind your back.” Defendant
testified that she replied, “Officer, I understand that you may be placing me under
arrest, however, I am to [sic] large to be cuffed from one set of cuffs behind my back”
and asked to be cuffed in the front. Officer Hynek testified that officers told defendant
numerous times that they could not handcuff her in front but would accommodate her
by using multiple handcuffs behind her back. However, defendant would not put her
hands behind her back and wrestled with the officers, causing defendant and the
officers to fall to the ground. The video shows that once on the ground, defendant hid
her hands underneath her body. It was only after defendant repeatedly refused to
11
1-08-0805
cooperate with the officers that Officer Hynek used his taser gun. It eventually took five
officers to place defendant in custody. Defendant was handcuffed behind her back with
three sets of handcuffs.
Like Wicks, the evidence in this case does not support the giving of a self-
defense instruction. A self-defense instruction should only be given in a resisting arrest
case when a defendant resists arrest after the officers resort to using excessive force.
A self-defense instruction is inappropriate in this case where defendant resisted arrest
and then officers used force to effectuate the arrest. Consequently, we cannot find that
defendant was prejudiced by defense counsel’s failure to request a self-defense
instruction. As such, we find that counsel provided effective assistance.
Rule 431(b) Violation
Defendant next claims the trial court failed to comply with Illinois Supreme Court
Rule 431(b) (eff. May 1, 2007) when it failed to question one juror whether she
understood and accepted each of the four Rule 431(b) (Zehr) principles.
In People v. Zehr, 103 Ill. 2d 472, 477 (1984), our supreme court held that
“essential to the qualification of jurors in a criminal case” is that they know : (1) a
defendant is presumed innocent, (2) he is not required to present evidence on his own
behalf, (3) the State must prove him guilty beyond a reasonable doubt, and (4) his
decision not to testify may not be held against him.
In 1997, our supreme court amended Rule 431(b) to embrace the voir dire
principles established in Zehr. 177 Ill. 2d R. 431(b). The new rule required, that if
12
1-08-0805
requested by defendant, the trial court was required to ask potential jurors, individually
or in a group, whether that juror understood and accepted the four Zehr principles. 177
Ill. 2d R. 431(b). At that time, the trial court had no obligation to sua sponte question
jurors as to the Zehr principles. People v. Lampley, 405 Ill. App. 3d 1, 9 (2010).
On May, 1, 2007, Rule 431(b) was amended to require the trial court to question
potential jurors on the Rule 431(b) principles in every case, without defendant’s
prompting, whether they understand and accept each Zehr principle. Lampley, 405 Ill.
App. 3d at 9. The current version of Illinois Supreme Court Rule 431(b) (eff. May 1,
2007), reads as follows:
“ ‘The court shall ask each potential juror, individually or in a group, whether that
juror understands and accepts the following principles: (1) that the defendant is
presumed innocent of the charge(s) against him or her; (2) that before a defendant
can be convicted the State must prove the defendant guilty beyond a reasonable
doubt; (3) that the defendant is not required to offer any evidence on his or her
behalf; and (4) that the defendant's failure to testify cannot be held against him or
her; however, no inquiry of a prospective juror shall be made into the defendant's
failure to testify when the defendant objects.’ “
In enacting the amended version of Rule 431(b), our supreme court imposed a
sua sponte duty on courts to ask potential jurors individually or in a group whether they
accept these principles. Lampley, 405 Ill. App. 3d at 9.
13
1-08-0805
Defendant claims that during voir dire in the present case, the trial court
addressed the Rule 431(b) principles with 11 of the 12 jurors. Defendant urges that the
trial court failed to make the proper inquiry of Tammie Bradley, who was initially
selected as an alternate juror, but was later empanelled when a juror was dismissed.
The record in this case reveals that the trial court questioned juror Bradley regarding
the subject matter of only one of the Zehr principles, that the State was required to
prove defendant guilty beyond a reasonable doubt.
Rule 431(b) “mandates a specific question and response process.” People v.
Thompson, 238 Ill. 2d 598, 607 (2010). “The rule requires questioning on whether the
potential jurors both understand and accept each of the enumerated principles.”
Thompson, 238 Ill. 2d at 607. Accordingly, failure to ascertain whether the jurors both
understand and accept the principles constitutes a violation of Rule 431(b) and
therefore, error. Thompson, 238 Ill. 2d at 607.
Defendant admits that she neither objected at trial to the alleged errors by the
court nor raised the errors in her posttrial motion for a new trial. A defendant's failure
to both object at trial to an alleged error and raise the issue in a written post-trial motion
results in forfeiture of that issue on appeal. People v. Enoch, 122 Ill. 2d 176, 186
(1988). Defendant requests, however, that we review this allegation of error under the
plain error doctrine.
The plain error doctrine allows a court of review to consider a forfeited error
when “(1) the evidence is close, regardless of the seriousness of the error, or (2) the
14
1-08-0805
error is serious, regardless of the closeness of the evidence.” People v. Herron, 215 Ill.
2d 167, 186-87 (2005). Under the first prong of the doctrine, “the defendant must prove
'prejudicial error.' That is, the defendant must show both that there was plain error and
that the evidence was so closely balanced that the error alone severely threatened to
tip the scales of justice against him.” Herron, 215 Ill. 2d at 187.
In the instant case, the evidence was not so closely balanced that the “error
alone severely threatened to tip the scales of justice against [her].” Herron, 215 Ill. 2d
at 186-87. The testimony of Officer Hynek, in conjunction with the video, shows that
defendant repeatedly resisted officers’ requests to place her hands behind her back. It
took a Taser gun, a knee to the back and the use of pressure points, as well as five
officers, to obtain defendant’s compliance. Defendant’s claim of error with regard to
the court’s violation of Rule 431(d) is, therefore, not reviewable under the first prong of
the plain error doctrine.
With respect to the second prong of the plain error doctrine, “the defendant must
prove there was plain error and that the error was so serious that it affected the
fairness of the defendant's trial and challenged the integrity of the judicial process.”
Herron, 215 Ill. 2d at 187. Defendant must be able to show that the trial court’s error in
failing to comply with Rule 431(b) was so serious that it “affected the fairness of the
defendant’s trial and challenged the integrity of the judicial process.” People v.
Piatkowski, 225 Ill. 2d 551, 565 (2007). A defendant can satisfy the second prong of
plain error review if he is able to establish that he was tried by a biased jury.
15
1-08-0805
Thompson, 238 Ill. 2d at 614. However, a violation of Rule 431(b) does not implicate a
fundamental right or constitutional protection and, therefore, a failure to conduct a
proper Rule 431(b) questioning does not make it inevitable that the jury was biased.
Thompson, 238 Ill. 2d at 609-10. The defendant must prove such bias. Thompson,
238 Ill. 2d at 614.
In Thompson, the supreme court held that the defendant failed to meet his
burden to establish that the trial court’s violation of Rule 431(b) affected the fairness
and integrity of his trial because the defendant failed to provide evidence showing the
jury in his case was biased as a result of the violation. Thompson, 238 Ill. 2d at 614-
15. As a result, the defendant’s procedural default was not excused by the second
prong of plain error review. Thompson, 238 Ill. 2d at 615. Similarly here, we find no
basis for a second prong plain error review of defendant’s assertion that the court
violated Rule 431(b) because there is no evidence in the record that would lend
support to a possible claim of a biased jury. Defendant’s claim that the court violated
Rule 431(b) is not saved from forfeiture by the second prong of plain error review
Fees
Finally, defendant argues, and the State agrees, that the $5 court system fee
was improperly imposed in this case where section 5-1101(a) of the Counties Code
provides that a fee may be levied against a person for a judgment of guilt or grant of
supervision in violation of the Illinois Vehicle Code or a similar municipal ordinance.
See 55 ILCS 5/5-1101(a) (West 2006).
16
1-08-0805
Although defendant was initially charged with permitting an unauthorized person
to drive her vehicle in violation of section 6-304 of the Illinois Vehicle Code, defendant
was acquitted of this charge. Defendant was convicted of resisting arrest and
attempting to obstruct justice, which are not offenses under the Illinois Vehicle Code.
Consequently, the $5 court system fee should be vacated.
Based on the foregoing, the judgment of the trial court is affirmed as modified.
Affirmed as modified.
17
1-08-0805
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
APRIL HAYNES,
Defendant-Appellant.
No. 1-08-0805
Appellate Court of Illinois
First District, Second Division
March 31, 2011
JUSTICE KARNEZIS delivered the opinion of the court.
CUNNINGHAM, P.J., and HOFFMAN, J., concur.
Appeal from the Circuit Court of Cook County.
The Honorable Robert Clifford, Judge Presiding.
For APPELLANT, Michael J. Pelletier, Deputy Appellate Defender of the State of Illinois
(Linda Olthoff, Assistant Appellate Defender, of counsel)
For APPELLEE, Anita Alvarez State's Attorney of Cook County (James E. Fitzgerald,
William Toffenetti, Kathryn Roy, Assistant State’s Attorneys, of counsel)
18