*1 ILLINOIS, Plaintiff-Appellee, v. OF OF THE STATE THE PEOPLE WILSON, Defendant-Appellant. T. CHARETTA 3 — 08—0233 Third District No. 31, August 2010.
Opinion filed J., concurring. PJ., McDADE, specially HOLDRIDGE, Wilson, Appellate Defender’s both of State Ryan R. Gary R. Peterson and Office, appellant. Springfield, for Gary (Terry F. Attorney, A. Mertel and of Peoria Lyons, State’s Kevin W counsel), Office, of Attorneys Appellate Prosecutor’s
Gnidovec, of State’s both People. for the the court: opinion delivered SCHMIDT
JUSTICE Wilson, her conviction appeals Defendant, T. Charetta she Specifically, injury to the officer. resulting in an officer instruc- (1) pattern jury Illinois a modified wording challenges: (2) counsel’s effectiveness. tion; her trial
FACTS resisting charges: jury trial on two to a proceeded Defendant (720 ILCS to the officer in an resulting 5/31— 2(a)(6) (720 (West ILCS l(a 7) assault 2006)); aggravated 5/12— — officer, that on 2006)). testified (West police Scott, a Peoria Bradley as known of Peoria part dispatched he was January uniform, and police-issue standard He was dressed Niagra Alley. he large alley. way observed a crowd located To make his through alley, legs he launched balls at the and feet of pepper officer, in the He began assisting individuals crowd. another Venzon, Sergeant glass past with crowd control when a bottle flew body. left side of his
Venzon identified defendant as who threw the bottle. Scott consequently approached grabbed defendant and her arm. Ven- *2 attempted zon and Scott pull alley to defendant down the other where located, officers were but she refused to be handcuffed and did not comply put with commands to her pinned hands behind her back. Scott against defendant ficer, a to handcuffing wall facilitate the while another of- Betts, Eric provided assistance. pushed against Defendant wall and temporarily broke Scott’s grasp of her arm. Scott then grabbed upper defendant’s arm and forced her ground, to the whereupon pull she tried to her arms underneath her body keep to from gain handcuffed. While Scott tried to control of defendant’s arm, left defendant along pile” “rolled with the pinned and Scott’s arm against ground. Ultimately, the officers were able to handcuff defendant and take her to a police car. Scott subsequently received treatment sprained for a wrist Hospital. at Methodist
Officer Betts testified that scene, when he arrived at the he witnessed Scott attempting defendant, to arrest and he helped get ground. defendant to the Once ground, on the shifting defendant was from side to pulled side. Betts one of defendant’s arms from beneath body her and secured a handcuff to Though the arm. did he not remember rolling losing balance, defendant or his he did notice grimace. Scott He then saw someone throw another bottle that landed near him. pursue Betts left to who threw the bottle.
Lashanda Marizetts testified that she and defendant went to Club 112, which was located in the alley, January 21, 2007. Defendant had cranberry juice a and vodka but did not any consume beer or have any reason possess a beer bottle. As the closing, fight club was a broke out. Marizetts began and defendant walking up alley outside police club when a grabbed officer defendant. Marizetts said officer threw defendant ground placed to the his knee on her back. The officer began striking defendant. Wilson,
Kecia sister, defendant’s testified that she was with defendant and Marizetts at the January club on 2007. Several fights broke out when the club closed. Wilson police observed officers grab defendant, and she testified that the officers would not tell why they defendant arresting They were her. took defendant to the ground and began punching moving her. Defendant was ground on the because the officers were on her pulling back and her hair.
Defendant testified that she and some friends went to the club to closed, birthday. her celebrate her When the club she and friends tried leave, fights they but due to several outside waited until most of the patrons they club, police club’s had left. As from the walked back, grabbed pulled defendant’s arm. Defendant her arm and the of- requested get against ficer that she the wall with her hands behind done, her back. When defendant asked the officer what she had the of- against helped ficer threw her Another officer then the wall. throw ground. her her Defendant said her hands were at side and not behind her back. conference, jury
At the instruction the State tendered a modified peace pattern version of the Illinois instruction for of- proposition ficer. The added a to which modified version fourth object. accepted defendant did not The trial court the instruction as modified. The instruction read: Officer, charge Resisting Obstructing
“To sustain a Peace followingpropositions: the State must officer; Proposition: First That Brad Scott was a Proposition: Second That the defendant knew Brad Scott was a officer; Proposition: knowingly Third That the defendant resisted or performance of Brad of an authorized act obstructed the Scott capacity; and within his official *3 Proposition: That the defendant’s act of was a Fourth added.) injury (Emphasis to Brad Scott.” cause of an deliberations, jury a note to the point during
At some its sent inquiring: court resisting a officer
“May propositions peace be broken down separate injury separated be from the into two counts. Can resisting?” noted: “That’s the lesser included offense.” The court
Defense counsel no, go My there. to replied: “Obviously, you have chosen not to answer no, charges you upon must deliberate based expressed satisfac- you.” The State and defense counsel both before response. tion with that charge ag- defendant on the of
Ultimately, jury acquitted result- guilty resisting peace her of gravated assault but found The trial court sentenced defendant ing in an to the officer. discharge. appeals. She 18 months of conditional
ANALYSIS a new trial since she “was claims she is entitled to Defendant jury instruction was non-pattern an inaccurate prejudiced when this claim. It is well Defendant has forfeited provided jury.” to the any putative jury settled that a defendant forfeits review of instruc object if any tion error she does not to the instruction or offer alterna particular tive instruction at trial and does not raise the instruction Herron, in posttrial People issue her motion. 215 Ill. 2d object N.E.2d 467 Defendant concedes she did not to the complains, any instruction of which she now nor did she raise issues questioning Nevertheless, propriety posttrial its her motion. plain defendant asserts that the claimed error “constitutes error and alternative, should be reviewed as such.” In the defendant asserts failing that “if the error of to properly jury plain instruct the is not er ror, it should be reviewed under the standard for assistance ineffective of counsel.”
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Defendant contends that the modified instruction incor- rectly stated the The statutory language law. offense reads:
“(a) person A knowingly who performance resists or obstructs by one known to to be a officer or correctional employee any institution authorized act capac- within his official ity commits a AClass misdemeanor.
[***] (a 7) A person convicted for a violation of this Section whose — violation was the an officer is added.) guilty felony.” of a Class 4 (Emphasis 720 ILCS 5/31—1 (West2006). (“the”) Defendant argues that the definite article in the statute (“a”) and the indefinite article in the instruction have different meanings being According exclusive and “a” inclusive. —“the” argument, to this when the used the cause” in (resisting peace officer), the statute referring only it was single Therefore, most immediate or direct cause. defendant contends, the use of “a the modified instruction permitted a finding guilt based on standard lower than the *4 standard required by statute. primary objective
Our in construing any statute is to determine legislature’s effectuate the Yang City intent. Ill. Chicago, 195 N.E.2d 541 A our review of use of the phrase proximate “the inescapable cause” leads to the conclusion that equate
it did not intend its use of the term to to the narrow definition argued by defendant. legislature
The “proximate has used the term cause” in 19 (West (West 2008); 2008); statutes. 65 ILCS 215 ILCS 5/11—152—1 5/4 (West (West 2008); 2008); 605 ILCS 625 ILCS 125/20 5/6 —103 (West (West 2008); 2008); ILCS 625 ILCS 5/6 —208 5/11 —501 (West (West 2008); 2008); ILCS 625 ILCS 5/11—506 5/11—610 (West (West 2008); 2008); ILCS 625 ILCS 625 ILCS 40/5—7 45/5—2 (West (West 2008); 2008); 720 ILCS 720 ILCS 45/5 —16 5/12 —21.6 (West (West 2008); 2008); 735 ILCS 735 ILCS 5/31—1 5/2— 5/2—623 (West (West 2008); 2008); 1107.1 735 ILCS 740 ILCS 5/2 —1116 180/2 (West (West (West 2008); 2008); 745 ILCS 745 ILCS 10/3—109 43/15 2008). phrase proximate The “a cause” in 10 appears of these statutes proximate and “the cause” in appears 9. Nowhere within the Illinois Compiled cause,” legislature “proximate Statutes does the define “a cause,” proximate proximate or “the cause.” However, legislature phrase has used the “more than 50% of added.) proximate (Emphasis in at In least two instances. Procedure, legislature section 2—1107.1 of the Code of Civil stated that, contributory plaintiff “[I]f the finds that the fault of the cause,” proximate plaintiff more than 50% of the then the is barred added.) (West 2008). recovery. (Emphasis from 735 ILCS 5/2 —1107.1 2(c)(2) Act, Similarly, Wrongful legislature in section of the Death again brought stated that if a an beneficiary whose behalf action is than the proximate wrongful “is more 50% of cause of the death of the added.) decedent,” recovery (Emphasis is barred. 740 ILCS 180/ 2(c)(2) (West 2008). QUERY: if legislature proximate intended “the cause, cause” to mean the “one most immediate” then how can there If phrase ever be less than 100% of “the cause”? use of the singular cause” means that there is but one cause of injury, phrase ever use the “more than why an cause,” 50% of the when to do so would render the self-contradictory nonsense? is, however,
A Il- definition of contained within 2009) Instructions, Jury Civil, (Supp. No. 15.01 linois Pattern (hereinafter 2009)), (Supp. IPI which states: Civil cause,’ expression ‘proximate I mean a cause
“When use the events, which, ordinary produced course of the natural cause, injury. only need not be the nor the last or near- plaintiffs It if it combines with another cause result- est cause. It is sufficient 2009) ing injury.” (Supp. IPI Civil No. 15.01. cause,” changing the article light
In this definition of does not cause” from “a” to “the” immediately preceding “proximate *5 change its speaks definition. It matters not whether one “the” proximate proximate meaning cause or “a” cause —the is the same.1 The definition of the term any preceding controls article it. This read- ing is consistent the phrase with use of the “more than (West proximate 50% of the 2008); cause.” 735 ILCS 5/2 —1107.1 (c)(2) (West 2008). 180/2(c)(l), ILCS Our interpretation of the statute and term support finds in our supreme Hudson, opinion court’s in (2006). N.E.2d 1078 general,
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The modified instruction at issue contained an accurate statement error, plain error. As Accordingly, of the law. there was no let alone error, establishing plain not met her burden of we must defendant has *6 Hillier, 545-46 procedural honor her default. v. (2010). issue, of counsel failure respect With to the ineffective assistance constitutionally counsel object proper to conduct cannot render Johnson, Ill. 2d ineffective. 218 at 139.
CONCLUSION reasons, judgment of the circuit court of foregoing For the County Peoria is affirmed.
Affirmed. HOLDRIDGE, concurring: specially JUSTICE
PRESIDING objective construing a statute is to determine and primary Our 2d City Chicago, 195 Ill. Yang effectuate the intent. of (2001). statutory begins an examination of the 96 This effort McGaw, language. Pipeline Texaco-Cities Service Co.
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When the was considered on the Senate floor, explained Senator Petka that “it raises the offense felony arrest to a Class circumstances where a officer suf harm Assem., fers as a result of the arrest.” 92d Ill. Gen. (statements Proceedings, Senate April at 115 of Senator Petka). Later, following colloquy occurred:
“SENATOR CULLERTON:
Senator, purposes, guess, intent, for the legislative there’s an put amendment that says person we on the bill that convicted a violation of this Section whose violation was of an guilty felony. of a Class Could you describe how proof be, the—what the burden who it would be on and what proof is the burden of in order for the State prove to—to that Section? (SENATOR WATSON)
PRESIDING OFFICER: Senator Petka.
SENATOR PETKA: all, you First of thank asking question. The burden of for— proof will the State. It’ll proof beyond be a burden of all doubt. The—I envision a instruction which would hold that the guilty individual to be found of the offense must be guilty beyond found all reasonable doubt and must that the proximately was related to the action. (SENATOR WATSON) PRESIDING OFFICER: Further discussion. Senator Molaro?
SENATOR MOLARO: you,
Thank Mr. sponsor yield President. Would the ques- for a tion? (SENATOR WATSON)
PRESIDING OFFICER: Sponsor yield, indicates he’ll Senator Molaro.
SENATOR MOLARO: arrest,
For the crime of resisting where is that classified? Is that a Class A felony, misdemeanor or is that a Class or what is resist- ing arrest? (SENATOR WATSON)
PRESIDING OFFICER: Senator Petka.
SENATOR PETKA:
Resisting misdemeanor, arrest will remain a Class A In Senator. those peace circumstances where a officer in effectuating an arrest injured is arrest, as a result of that such as situations where there’s struggle placing a for just the struggle ap handcuffs on or it’s prehending the running, individual who is the officer suffers great harm, bodily circumstances, under charge those the—the can upgraded felony.” Assem., 92d Ill. Proceedings, Gen. Senate (statements Cullerton, & Petka
April at 87-89 Senators Molaro). did not attach language indicates that the This phrase definite article in the “the significance exclusive Rather, legislature simply meant proximate cause.” the (the the State must sponsor) explained, As Senator Petka cause.” “proximately related” to the that the officer’s was making “as a result” of the arrest. defendant’s resistance or occurred result,” proximate and the explicitly Petka used the “a Senator explanation. his passed bill at issue light meaning,
In the modified instruction find Accordingly, of the contained an accurate statement law. disposi- agree error and I with the result of this court’s no reversible tion. McDADE, specially concurring:
JUSTICE affirming defendant’s majority’s I concur in the decision While resulting in an to the of- resisting conviction ficer, my with this result. separately I write to voice concerns the attention to the fact that modi- appeal,
On defendant calls our 22.14, the IPI 4th which was tendered to fied version of Criminal No. resisting act of required to find that defendant’s jury, only of Officer and not “the cause” was “a out, statutory correctly pointed injury. majority Scott’s As the has cause.” See language for the offense reads: (West 2006). 720 ILCS 5/31—1 Brown,
Recently, supreme court 382-83, (2008), stated: 892 N.E.2d statute, objective to ascertain primary our interpreting
“When Legisla- legislature. [Citation.] give effect to the intent of the statute, by considering language of the intent is determined tive purpose and ordinary meaning, as well as the given plain its remedied, law, goals necessity sought the evils to be for the word, clause and sentence of [Citation.] Each be achieved. rendered meaning and not given must be statute Assembly did not intend presume the General superfluous, and we inconvenience, injustice. [Citation.]” absurdity, that the State establish expressly requires Section 31—1 cause” of Officer was “the defendant’s act of (West 2006). (a 7) Thus, the 720 ILCS injury. Scott’s See 5/31—1 — whether appeal revolves around gravamen of this 22.14, substituted IPI 4th No. which version of Criminal modified “the,” plain article constitutes the definite indefinite article “a” for
253 ultimately not Holdridge error. While Justice Schmidt and Justice do find apply any plain analysis they error due to the fact that each altogether, apparently absence find that section 31—1 is of error both ambiguity find ambiguous. Specifically, appears Justice Schmidt light attempt of the he 19 statutes in an to define fact that cites other App. the term cause.” 404 Ill. 3d at 248. If section 31—1 unambiguous, unnecessary inappropriate were indeed it would be plain language to resort to sources outside the of the statute. See (1990).2 740, 457, App. 747, v. 200 Ill. 3d People Algarin, 558 N.E.2d 461 Holdridge expressly ambiguous Justice finds section 31—1 to be proceeds legislative history. to examine the statute’s I too find sec- tion 31—1 ambiguous. to be sources,
After careful review of I acknowledge these outside that argument an can be made that the did not attach exclusive significance to the definite article in the “the cause.” My majority’s concurrence with the decision is solely upon based this acknowledgment and the fact that we are ascertaining legislature’s ambiguous intent. troubled, however, am left principle statutory because a “ construction is that ‘the definite article “the” particularizes the subject precedes. which it It is a word limitation as opposed to the ’ ” generalizing (Emphasis “a” or “an.” indefinite original.) force of Milschewski, Sibenaller v. App. 717, 722, 379 Ill. 3d 884 1215, (2008), N.E.2d quoting Zabka, 1219 265, Brooks v. 168 Colo. 269, 653, 450 P.2d Applying 655 principle, compelling argument can be made that use language of the proximate cause” illustrates an intent to focus on the one most im mediate, efficient, and direct preceding injury. an See Robinson City Detroit, v. 439, 459-60, 307, 462 Mich. 613 N.W.2d 317 Alternatively, the language “a merely requires has, however, dropped 2Justice Schmidt asserting a footnote that he finds unambiguous. the statute legally It is incorrect to cite and discuss outside Nunez, sources where the unambiguous. People statute in is itself v. (2010) (“When 488, 495, 1083, 236 Ill. 2d 925 statutory N.E.2d language unambiguous, unnecessary is clear and it is to resort to other aids of interpretation”); Ass’n, Solon Midwest Medical Records 236 Ill. 2d (2010) (“When 1113, statutory language 925 N.E.2d is clear and unambiguous, written, applied it must be as without resort to extrinsic aids of statutory construction”); J.L., 329, 339-40, 961, In re 924 N.E.2d (2010) (“Where statutory language unambiguous, is clear and it will construction”). given written, effect as without resort to other aids of “plead Justice guilty” violating Schmidt has elected to this canon of statu tory construction rather than conform decision to the rule. contributing the State establish that the accused’s actions were a injuries. Merritt, 442, App. cause of the victim’s (2003) 797 N.E.2d (holding ag “[a] commits gravated driving DUI when his or her under the influence ‘was *** [citation], injuries’ cause of the not the sole and im *9 omitted)). mediate cause of injuries” (emphasis the victim’s Moreover, because 31—1 is susceptible section two conflicting interpretations, I holding am concerned that our lenity. supreme violates the rule of The People Perry, court 196, (2007), Ill. 2d expressly 864 N.E.2d stated: “ statutes, ambiguous, ‘[P]enal should where be construed to af- lenity circumstance,
ford [Citation.] to the accused.’ In such a penal strictly accused, statute must be construed in favor of the by nothing implication beyond taken intendment or the obvi- meaning ous or literal of [Citation.]” the statute. wary ignoring lenity simply
While am the rule of on the basis sparse other irrelevant statutes and Senator Petka’s statement that the State must “proximately the officer’s was (92d Assem., related” to the defendant’s resistance Ill. Gen. Senate 4, Proceedings, 2002, 87-89), I April acknowledge ultimately at that we do in legislative history attempting fact look to the of a statute when Powell, 123, to ascertain its intent. See In re Detention however, my hope, 839 N.E.2d It is sincere that the opportunity clarify takes the the future to its one, important intent so that other cases like this where an individual’s felony, conviction is enhanced from a misdemeanor to a are not determined on the basis of a senator’s two-word utterance. ILLINOIS, Plaintiff-Appellee, THE PEOPLE OF THE STATE OF v. CHAD LANE, Defendant-Appellant. M. 3 — 08—0858
Third District No. August 31, Opinion 2010. filed