People v. Hand

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People v. Hand

State: Illinois

Court: 1st District Appellate

Docket No: 1-08-2637 NRel

Case Date: 03/31/2011

Preview:SECOND DIVISION MARCH 31, 2011

1-08-2637 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KAREN HAND, Defendant-Appellant. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County. No. 07 MC6 000278 Honorable Thomas J. O'Hara, Judge Presiding.

PRESIDING JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justices Karnezis and Connors concurred in the judgment and opinion. OPINION In August 2008 a jury in the circuit court of Cook County found the defendant, Karen Hand, guilty of: (1) the offense of resisting or obstructing a peace officer (720 ILCS 5/31-1(a) (West 2006)) for which she received a sentence of one year of conditional discharge; and (2) the offense of aggravated assault of a peace officer (720 ILCS 5/12-2(a)(6) (West 2006)) for which she received a concurrent sentence of one year of supervision. The defendant filed a timely appeal. Ill. S. Ct. R. 606 (eff. Mar. 20, 2009). On appeal, she raises the following issues: (1) whether the trial court erred in denying her motion to quash arrest and suppress evidence; and (2) whether she was legally justified in her use of force against the police officer who was attempting to enter her home. For the following reasons, we affirm the defendant's convictions and sentences.

1-08-2637 BACKGROUND The evidence at trial reveals the following sequence of events that took place starting at approximately six o'clock in the evening of December 5, 2006. Frank Hand (Frank), the defendant's husband, left the apartment he shared with the defendant in Riverdale, Illinois, and called the police. Frank reported that he had concerns about his wife and his two children who were in the apartment with his wife. Officer Mark Kozeluh of the Riverdale police department responded to the call and spoke with Frank outside the apartment building. Kozeluh testified that Frank had been drinking, but "absolutely" was coherent. Frank asked for assistance in retrieving some personal items from the apartment. Kozeluh, dressed in full police uniform, went by himself to the defendant's apartment door and knocked. A female inquired who was knocking and Kozeluh responded that it was the Riverdale police. Nothing happened, and Kozeluh knocked two more times. Kozeluh then verified with Frank and a neighbor that Frank lived in the apartment with the defendant and the children. Frank gave Kozeluh the keys to the apartment. Kozeluh returned to the door of the apartment, knocked again and announced his name and office. After waiting for a response and hearing none, Kozeluh used the key to open the deadbolt lock. A chair had been propped against the door so that it only opened approximately six to eight inches. Kozeluh made eye contact with the defendant and again told her who he was. The defendant told Kozeluh that if he closed the door, she would remove the chair. After the door was closed, however, the defendant locked the door. Kozeluh used the key again but felt resistance as if someone was holding the lock from the other side of the door. He was able to unlock the door but again could only open it six to eight inches. Kozeluh stuck part of his head and shoulder into the door opening and could see inside 2

1-08-2637 the apartment. Kozeluh again told the defendant to open the door, but she picked up a baseball bat that was nearby and swung it toward his head. Kozeluh ducked and the bat hit the door and door frame. Kozeluh testified that at that point, he deployed a Taser gun at the defendant which delivered a high voltage stun through two darts. The defendant dropped the bat and ran away from the door, screaming. Kozeluh testified that because the defendant was able to move, the Taser gun had not deployed effectively. If it had been effective, it would have resulted in the defendant's

immobilization. Kozeluh then kicked the door open and pursued the defendant. He told the defendant she was under arrest and that she needed to get down on the floor. Kozeluh testified that the defendant did not cooperate. She began yelling, kicking at him and swinging her arms as he attempted to place her under arrest. The defendant struck Kozeluh's chest and kicked his leg several times. The two struggled for approximately a minute or two until Kozeluh forced her to the floor. At this point, the defendant reached into her right rear pocket and Kozeluh could see a metal object in her pocket. Kozeluh testified that he used his Taser gun "at least twice" to apply a dry stun to the defendant's back. Once Kozeluh was able to handcuff the defendant, he recovered a knife in a leather sheath from her rear pocket. Additional police officers arrived and one spoke with the children while Kozeluh took custody of the baseball bat and the knife. The defendant testified at trial that three times during the two weeks prior to December 5, 2006, several men that she did not know came to her apartment door. The men banged on the door, the window in the kitchen and the window in the children's room and told the defendant to open the door. The defendant testified that she felt afraid for herself and her children. 3

1-08-2637 On the night in question, Frank had been home a short time and he and the defendant argued over money. Frank had been drinking and the defendant told him to leave because he was not contributing financially to the children's needs. Approximately 15 or 20 minutes after Frank left, the defendant heard a knock on the door. A person who identified himself as a police officer told her to open the door. The defendant, however, did not believe that it was a police officer at her door. The person went away, but then returned about 10 to 15 minutes later and knocked again. The defendant became apprehensive of the stranger at the door. She had been keeping a chair propped against the door knob because the door did not lock properly and she was afraid someone would break in. The defendant had a knife with her and a baseball bat nearby that Frank had given her for protection against intruders. The porch area was dark, which prevented her from seeing the person who was knocking and she did not have a working phone in the apartment. The defendant could see that the door was being opened by someone using her husband's keys. She testified that she felt like she was being invaded and that she had to protect her children. After the person opened the door about six inches, the defendant pushed the bat through the space to push him back. She did not believe she had hit him. The intruder tried to push his way through the door, backed up, and the defendant saw that he had a gun. After the intruder shot her in her left shoulder, she experienced excruciating pain. She saw that there were wires coming from where she had been shot, and she knew that she had not been hit by a bullet. She testified that "I figured no one would have a gun like that other than a policeman." Screaming in pain, the defendant walked toward the back of the apartment in order to direct the intruder away from her children's room. 4

1-08-2637 Kozeluh pushed the door open and shot her in the back with the Taser gun. The defendant testified that there was "[a] good five minutes of shocking" while she was standing, and that Kozeluh said to her, "Get down on the ground, bitch." She testified that she tried to get to the floor but was in pain. She never reached for the knife in her back pocket. Kozeluh shot the defendant on her chest with the Taser gun after she was on the floor. Kozeluh told her to turn over and shot her in the back with the Taser gun. These shots were not done with the wires coming from the gun, but with the gun pressed to her body. The defendant stated that Kozeluh tried to break her wrist and eventually got her into handcuffs. As she was being handcuffed, other police officers arrived. The entire incident from when Kozeluh entered her apartment to when she was handcuffed lasted approximately 15 to 20 minutes. The defendant testified that when she asked a female police officer in the apartment to help her, the female police officer stated that they were helping her. The defendant's knife was removed from her pocket by the police. The defendant stated that she never intentionally struck Kozeluh or tried to resist him. At the time she picked up the baseball bat, she thought he was a home invader. Prior to trial, the defendant filed a motion to quash arrest and suppress evidence based upon a violation of her fourth amendment rights. At the hearing on the motion, Kozeluh's testimony was similar to his trial testimony, with the addition of Frank's statements to him when he arrived on the scene. Kozeluh stated that Frank was concerned that, based on past experiences, his children were not eating properly or being cared for properly by the defendant. Frank was also concerned that the defendant had mental and emotional issues because she had stated that she talked with the dead and she was involved with sorcery and witchcraft. Frank was not a witness at trial, and the hearsay 5

1-08-2637 statements were not allowed into evidence by the trial court.1 The trial court denied the defendant's motion to quash arrest and suppress evidence, and denied her subsequent motion to reconsider the ruling. The trial court found that Kozeluh was engaged in a community caretaking function and that exigent circumstances justified his warrantless entry into the apartment. Thus, the trial court concluded that the police officer acted reasonably and there was no violation of the defendant's fourth amendment rights. After deliberations, the jury found the defendant not guilty of the battery of Kozeluh; guilty of aggravated assault of Kozeluh; and guilty of resisting or obstructing a peace officer. The trial court denied the defendant's motion for a new trial and sentenced her to a one-year term of conditional discharge on the resisting arrest conviction, concurrent with one year of supervision on the aggravated assault conviction. The defendant filed a timely notice of appeal. ANALYSIS The first issue that the defendant raises on appeal is whether the trial court erred in denying her motion to quash arrest and suppress evidence because there was no justification for the police officer's warrantless entry into her apartment. The United States and Illinois Constitutions guarantee the right of an individual to be free from unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I,

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