THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL SMITH, Defendant-Appellant.
Appeal No. 3-11-0477
APPELLATE COURT OF ILLINOIS THIRD DISTRICT
Opinion filed February 22, 2013
2013 IL App (3d) 110477
The Honorable Michael R. Albert, Judge, Presiding.
Circuit No. 10 CM 409; A.D., 2013
Justices Carter and Holdridge specially concurred, with opinion.
OPINION
¶ 1 Defendant, Daniel Smith, appeals his conviction and sentence for obstructing a peace officer. We affirm defendant‘s conviction, vacate his sentence, and remand to the circuit court for further proceedings.
FACTS
¶ 2 ¶ 3 Defendant was charged with one count of obstructing a peace officer and one count of resisting a peace officer. The conviction on the resisting count has not been challenged on appeal. The pertinent section of the complaint alleged:
“Defendant committed the offense of OBSTRUCTING A PEACE OFFICER, in that said Defendant knowingly obstructed the performance of Jacob Reul of an authorized act within his official capacity, being the arrest of Daniel E. Smith, knowing Jacob Reul to be a peace officer engaged in the execution of his official duties, in that he exited his vehicle during a traffic stop *** and refused to return to the vehicle in violation of
Chapter 720, Act 5, Section 31-1, Illinois Compiled Statutes .”
¶ 4
¶ 5 Upon returning to his squad car, Reul took approximately 20 minutes to run defendant‘s information and prepare a traffic citation. However, before he was able to sign the citation, defendant exited his vehicle carrying a grocery bag. Even though Reul instructed defendant to return three to five separate times, defendant refused to comply. Instead, defendant complained told Reul that Reul was taking too long and that defendant was going into his house to put away his cold groceries and check on his children, who were home alone. Reul grabbed defendant‘s arm and told him to return to his vehicle or he would be placed under arrest. When defendant again refused to comply, Reul told defendant he was under arrest. At that time, defendant tightened his arm and pulled away. Reul placed defendant into an “arm bar” hold and swept his feet out from under him, taking defendant to the ground. Reul testified that because defendant
¶ 6 Maggie Ellmaker, an officer with the Sterling police department, testified that when she arrived at the scene of the incident, Reul was “in a fight” with defendant, who was facedown on the ground on his chest. Reul was on defendant‘s back, and defendant was trying to push off the ground with his legs. Ellmaker grabbed defendant‘s arm and helped get him handcuffed.
¶ 7 Defendant moved for a directed verdict on the obstructing charge (count I). Defendant argued that there was no showing that he had obstructed Reul because, except for the signature, the citation was complete at the time defendant exited his car. The court denied the motion, noting that defendant had obstructed Reul by not obeying the order to return to his car.
¶ 8 Defendant‘s daughter testified that she observed the incident from the front window of the family‘s residence. She saw an officer back defendant up against his vehicle, sit defendant on the ground, place defendant in a choke hold, and spray defendant with pepper spray. Defendant‘s wife did not witness the incident; however, she testified that defendant is not a violent person.
¶ 9 Defendant testified that he is an assistant manager at a dollar store and he was on his way home from work when he was pulled over in front of his residence by Reul. Defendant admitted he was speeding. Defendant gave Reul the information that was requested and waited in his car. Defendant alleges Reul did not instruct him to stay in his vehicle and the temperature was approximately 100 degrees at the time defendant was pulled over. While he waited in his vehicle, he started getting very hot and feeling sick. He did not have his vehicle‘s air conditioning on because he did not want to run out of gas.
¶ 10
¶ 11 Defendant was convicted of both obstructing a peace officer and resisting a peace officer. The circuit court imposed a sentence of 48 consecutive hours in the county jail on each count to be served concurrently. Defendant requested credit for two days of time already served. The court denied defendant‘s request because “they were not consecutive days.” A motion to stay sentence pending appeal was granted.
ANALYSIS
¶ 12 ¶ 13 Defendant argues that we must vacate his conviction for obstructing a peace officer on the ground that there was a fatal variance between the charge in the complaint and the proof adduced at trial. The complaint charged defendant with obstructing his own arrest by exiting his vehicle and refusing to return to it. In his initial brief, defendant calls our attention to the fact that evidence at trial established that defendant was not under arrest at the time he exited the vehicle. Specifically, it states:
“Recognizing that defendant was not under arrest at the time he exited his vehicle and refused the officer‘s requests to return, the State switched its theory at trial. Specifically, defense counsel made a motion for directed verdict and argued that defendant could not have obstructed his arrest as charged in Count I because he had not been placed under arrest at that time. The State responded that defendant obstructed the officer‘s preparation of the traffic citation because the officer had not signed his name to the citation yet and therefore had not completed the authorized act of writing the citation. Thus, the State evidence and argument at trial differed from what was charged in the complaint.”
¶ 14 A defendant is only entitled to a new trial if he can show (1) that a variance existed between the allegations in a complaint and proof at trial, and (2) that said variance was fatal to his conviction. People v. Collins, 214 Ill. 2d 206, 219 (2005). A variance between allegations in a complaint and proof at trial is fatal to a conviction if the variance is material and could mislead the accused in making his defense. Collins, 214 Ill. 2d at 219.
¶ 15 The parties initially dispute whether a variance even exists. The State alleges that defendant was under arrest at the time Reul informed him that he would be receiving a citation.1 Under this interpretation no variance would exist between the complaint and the proof at trial.
¶ 16 There is no bright-line test for distinguishing between a Terry stop and a custodial arrest. People v. Arnold, 394 Ill. App. 3d 63, 70 (2009). Whether an encounter constitutes an arrest or a Terry stop “depends on the degree of the intrusion or coerciveness surrounding the detention.” People v. Carlson, 307 Ill. App. 3d 77, 80 (1999). For example, the use of handcuffs to restrain the person being detained is an indication that the detention is an arrest rather than a Terry stop. People v. Gabbard, 78 Ill. 2d 88, 93 (1979). While the determinative test is subjective, the supreme court has held that the essential elements of an arrest are (1) the intent of the police to make the arrest, and (2) the defendant‘s understanding, based on an objective standard of reasonableness, that he is in fact under arrest. People v. Johnson, 159 Ill. 2d 97, 116 (1994).
¶ 17 A review of the parties’ cited cases reveals an apparent split of authority on the issue of whether a person stopped for a minor traffic violation is under arrest or merely seized. The defendant cites People v. Gilbert, 347 Ill. App. 3d 1034 (2004). The Gilbert court held that “a reasonable person, when stopped for a minor traffic violation, would not view himself as being under arrest but merely temporarily stopped.” Gilbert, 347 Ill. App. 3d at 1040. In response, the State cites People ex rel Ryan v. Village of Hanover Park, 311 Ill. App. 3d 515 (1999) (defendant considered under arrest when stopped by municipal police officer for a traffic violation), People v. Stewart, 242 Ill. App. 3d 599 (1993) (defendant‘s arrest occurred at the time officer advised defendant that a citation would be issued to him for speeding), and People v. Kinney, 189 Ill. App. 3d 952 (1989) (defendant arrested when officer stopped defendant‘s vehicle intending to issue defendant a traffic citation).
¶ 18
¶ 19 Article 31 of the Criminal Code of 1961 (the Code) addresses various offenses related to interference with public officers. Section 31-1(a) specifically relates to resisting or obstructing a peace officer and provides:
“A person 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 commits a Class A misdemeanor.”
720 ILCS 5/31-1(a) (West 2010).
¶ 20 Here, the State did not need to establish that defendant was under arrest to secure a conviction for obstructing a peace officer. Instead, the State needed to prove only that: (1) defendant knowingly obstructed a peace officer; (2) the officer was performing an authorized act in his official capacity; and (3) defendant knew he was a peace officer.
¶ 21 In the instant case, Reul pulled defendant over with his squad car while on duty. Reul informed defendant that he was going to issue him a speeding citation. Clearly, defendant knew Reul was a peace officer and was performing an act within his official capacity - issuing defendant a speeding citation. With this knowledge defendant got out of his vehicle and refused
¶ 22 In reaching our decision, we reject defendant‘s assertion that simply exiting his vehicle and refusing to return does not constitute obstructive behavior. Recently, the supreme court in People v. Baskerville, 2012 IL 111056, ¶ 19 explained:
“The term ‘obstruct’ is not defined in section 31-1. When a statutory term is not expressly defined, it is appropriate to denote its meaning through its ordinary and popularly understood definition. [Citation.] At the time the statute was adopted, the dictionary defined ‘obstruct’ to mean ‘1 : to block up : stop up or close up : place an obstacle in or fill with obstacles or impediments to passing *** 2 : to be or come in the way of : hinder from passing, action, or operation : IMPEDE ***.’ [Citation.] In turn, ‘hinder’ means ‘to make slow or difficult the course or progress of’ [citation], and ‘impede’ means “to interfere with or get in the way of the progress of [citation]. Applying the dictionary definition, it
is evident that ‘obstruct’ encompasses physical conduct that literally creates an obstacle, as well as conduct the effect of which impedes or hinders progress.”
¶ 23 Disobeying an officer‘s command and refusing to further comply can be included in the above definition, as it can undoubtedly interfere with the completion of an officer‘s duty. The fact that the actual citation was complete, absent Reul‘s signature, is of no consequence as Reul was clearly still in the process of issuing the citation. The evidence, when taken in the light most favorable to the State, establishes that the defendant possessed the requisite mental state while committing an act sufficient to support his conviction for obstructing a peace officer.
¶ 24 Finally, defendant maintains that he is entitled to two days’ credit against his sentence for time he spent in custody prior to sentencing.2 The trial court denied defendant‘s credit request because the days he spent in custody prior to sentencing were “not consecutive days.” Upon review, we find section 5-4.5-100(b) of the Unified Code of Corrections requires defendant be awarded two days’ credit.
¶ 25 Section 5-4.5-100(b) of the Unified Code of Corrections,3 entitled “Calculation of Term of Imprisonment,” provides:
“(b) CREDIT; TIME IN CUSTODY; SAME CHARGE.
¶ 26 Section 531-1(a-5) of the Criminal Code of 1961, provides:
“(a-5) In addition to any other sentence that may be imposed, a court shall order any person convicted of resisting or obstructing a peace officer *** to be sentenced to a minimum of 48 consecutive hours of imprisonment or ordered to perform community service for not less than 100 hours as may be determined by the court. The person shall not be eligible for probation in order to reduce the sentence of imprisonment or community service.” (Emphasis added.)
720 ILCS 5/31-1(a-5) (West 2010).
¶ 27 The court ordered defendant to serve 48 consecutive hours of imprisonment. Thus, it complied with the mandate prescribed in section 531-1(a-5). However, the court failed to
¶ 28
¶ 29 The Behavior Allowance Act provides that persons jailed for offenses “for which the law provides a mandatory minimum sentence” cannot be given any good-behavior allowance which “would reduce the sentence below the mandatory minimum.”
¶ 30 For the foregoing reasons, we affirm defendant‘s conviction for obstructing a peace officer, vacate his sentence for that offense, and remand to the circuit court for further proceedings.
¶ 31 Affirmed in part and vacated in part; cause remanded.
¶ 32 JUSTICE CARTER, specially concurring.
¶ 33 I agree with the majority‘s conclusion on the first issue that there was no fatal variance in the present case. I also agree with the majority‘s conclusion on the second issue that defendant is entitled to credit for two days actually served. However, contrary to the arguments of the parties
¶ 34 For the reasons stated, I specially concur with the majority‘s opinion.
¶ 35 JUSTICE HOLDRIDGE, specially concurring.
¶ 36 I agree that the defendant‘s conviction for obstructing a peace officer should be affirmed. However, I would uphold the conviction on different grounds than those relied upon by the majority. In my view, there was no variance of any kind between the charge and the proof presented at trial. Count I of the criminal complaint charged that the defendant knowingly obstructed his “arrest” by exiting his vehicle during a traffic stop and refusing to return to the vehicle. An “arrest” occurs when a person‘s freedom of movement has been restrained by means of physical force or show of authority. People ex rel. Ryan v. Village of Hanover Park, 311 Ill. App. 3d 515, 531 (1999). In determining whether a person has been arrested, the relevant inquiry is “whether a reasonable, innocent person
¶ 37 Thus, in this case, the defendant was under arrest at the time Officer Reul informed him that he would be receiving a ticket for speeding and directed him to remain in his vehicle. By exiting his vehicle before Officer Reul issued the ticket, the defendant obstructed his “arrest,” just as the criminal complaint alleged. There was, therefore, no variance between the charge and the evidence adduced at trial.
¶ 38 Justice McDade states that there is an “apparent split of authority on the issue of whether a person stopped for a minor traffic violation is under arrest or merely seized.” Supra ¶ 17; see also supra ¶ 18. Specifically, the majority maintains that Village of Hanover Park, Stewart, and Kinney conflict with People v. Gilbert, 347 Ill. App. 3d 1034, 1040 (2004), which states that “a reasonable person, when stopped for a minor traffic violation, would not view himself as being under arrest but
¶ 39 To be clear, in my view, the relevant question is not whether a custodial arrest occurred in this case. It clearly did not. The question is whether a reasonable, innocent person in the defendant‘s position would have felt free to leave. As noted, Officer Reul told the defendant that he would be receiving a ticket and ordered him to remain in his car. At that point, no reasonable person in the defendant‘s position would have felt free to leave. Accordingly, the defendant was arrested at that time even though he had not yet been taken into custody.6
¶ 40 In my view, the evidence in this case demonstrates that the defendant was arrested and that he knowingly obstructed his arrest, as charged in the criminal complaint. I would hold that there was no variance between the charge and the proof, and I would affirm the defendant‘s conviction on that basis.
¶ 41 As to the second issue raised in this appeal, I agree that the defendant‘s sentence should be vacated for the reasons set forth by Justice McDade, and I concur fully with her analysis of that issue.