No. 3--03--0308

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

JUSTICE BARRY delivered the Opinion of the court.

The State charged defendant with three counts of resisting apeace officer. In the first count, the State alleged thatdefendant "refused to obey James Dietz' orders and resisted thehandcuffing procedure." The State subsequently added two othercounts that alleged defendant "also resisted Officers JeremyHarrison and Joseph Egizio."

At trial, Officer Harrison testified that he and hispartner, Officer Dietz, were on patrol when he observed a carbeing parked along a street. He noticed that loud music wascoming from the car. Harrison parked behind the car in order toissue the driver a citation for illegal sound amplification.

The driver, who was later identified as defendant, turnedthe music off and began to exit the car. As defendant wasexiting the car, the officers approached him and asked to see hisdriver's license and proof of insurance. Defendant replied thatthe officers did not need to see those items, and began to walkaway.

Harrison grabbed defendant by the elbow and told him tostop. Defendant put his hands in his pockets and pulled awayfrom Harrison. Harrison told defendant he was under arrest, butdefendant continued to try to walk away. The officers respondedby trying to pull defendant's hands out of his pockets. Harrisontestified that he was afraid because he thought defendant mighthave a weapon in his pocket.

Defendant managed to keep his hands in his pockets. At thatpoint, Harrison informed defendant that he would be sprayed withpepper spray if he did not comply with the command to remove hishands from his pockets. Defendant stated "f--- you, spray me." Harrison then sprayed defendant with pepper spray. However,defendant still kept his hands in his pockets.

Harrison threatened to strike defendant if he continued tostruggle with the officers. Defendant responded by stating "f---you, hit me." After Harrison hit him twice in the face,defendant removed his hands from his pockets and began "swatting"at Harrison. The officers wrestled defendant to the ground andhandcuffed him. Defendant was spitting blood at the officers andtrying to kick them. The officers eventually placed defendant ina transport van.

Officer James Dietz testified that defendant was arrestedafter he refused to produce identification for Harrison. When hewas informed he was under arrest, defendant placed his hands inhis pockets and refused to be handcuffed. After he was sprayedwith pepper spray and struck in the face, defendant removed hishands from his pockets and began flailing at the officers. Theofficers wrestled defendant to the ground. Defendant then spatblood at the officers and tried to kick them.

Officer Joseph Egizio testified that defendant was on theground struggling with Harrison and Dietz when he arrived. Egizio helped handcuff defendant.

Defendant testified that he was standing outside his carwhen the officers approached him. He told Officer Harrison thathe did not have his driver's license, but he had an insurancecard. As he began reaching into the car for his insurance card,Harrison grabbed him and instructed him to place his hands on thecar. Harrison patted him down and ordered him to place his handsbehind his back. When defendant asked why he was being arrested,Harrison told defendant not to question him. Defendant thenplaced his hands in his pockets.

Defendant testified that Harrison sprayed him with mace, buthe kept his hands in his pockets because he was upset. Harrisonthen began hitting him. Harrison also kicked him after theofficers took him to the ground. Defendant denied spitting bloodat the officers. Defendant testified that he was very agitatedand was cursing after being arrested.

Willie C. Tanzy, Jr., testified that he was riding in thecar with defendant. They stopped and got out of the car to talkto some friends. Defendant left the car running. He turned themusic in his car down and turned the car off when he saw thepolice officers approaching. Defendant was standing by thedriver's side door when the officers pulled up to the car.

The officers asked defendant for his driver's license andinsurance card. When defendant reached into his car for hisinsurance card, the officers exited their squad car and pattedhim down. Defendant "got loud" and asked why he was beingarrested. Defendant then placed his hands in his pockets. Oneof the officers told defendant that he was going to be sprayedwith mace. The officer then sprayed defendant with mace andbegan hitting him in the face. The officers put defendant on theground and placed him in handcuffs.

At the close of evidence, defendant requested that the courtinstruct the jury on self-defense. The trial court denied thisrequest, concluding that there was no evidence to support such aninstruction. The jury found defendant guilty of the counts thatcharged defendant with resisting Officer Dietz and OfficerHarrison, but not guilty of the charge of resisting OfficerEgizio. The trial court sentenced him to concurrent terms of sixmonths' conditional discharge on each conviction.

On appeal, defendant contends that the trial court abusedits discretion in refusing his request to instruct the jury onself-defense. Defendant claims that he acted with "passiveresistance" in placing his hands in his pockets, thus entitlinghim to an instruction on self-defense. Defendant also contendsthe testimony that he flailed at the officers, spat blood at themand tried to kick them was sufficient "active resistance" towarrant an instruction on self-defense.

A defendant is entitled to instructions on his theory of thecase when there is some foundation in the evidence for theinstructions. People v. Jones, 175 Ill. 2d 126, 676 N.E.2d 646(1997). Only a slight amount of evidence is required to justifygiving an instruction. People v. Brown, 150 Ill. App. 3d 535,501 N.E.2d 1347 (1986). A trial court's decision with regard toissuing specific jury instructions is reviewed under an abuse ofdiscretion standard. People v. Garcia, 188 Ill. 2d 265, 721N.E.2d 574 (1999).

A person may not use force to resist arrest by a knownpolice officer, even if the arrest is unlawful. 720 ILCS 5/7--7(West 2000); People v. Williams, 267 Ill. App. 3d 82, 640 N.E.2d981 (1994). An exception to this rule is made when the officeruses excessive force. Williams, 267 Ill. App. 3d 82, 640 N.E.2d981. Use of excessive force by a police officer invokes thearrestee's right of self-defense. Williams, 267 Ill. App. 3d 82,640 N.E.2d 981; People v. Bailey, 108 Ill. App. 3d 392, 439N.E.2d 4 (1982). Therefore, a jury instruction on self-defenseis required in a resisting arrest case only where the defendantis unaware of the peace officer's identity, or there is evidencethat the arresting officer used excessive force. Williams, 267Ill. App. 3d 82, 640 N.E.2d 981.

Initially, we find that defendant's act of placing his handsin his pockets does not warrant an instruction on self-defense inthis case. The officers had not engaged in any act that could beconstrued as excessive force at the time defendant placed hishands in his pockets. According to Harrison's testimony, at thatpoint the officers had simply asked for identification and placeda hand on defendant to prevent him from walking away. Defendanttestified that the officers patted him down and asked him toplace his hands behind his back before he placed his hands in hispockets. The actions of the officers cannot be considered use ofexcessive force under these circumstances.

The officers did engage in progressively greater use offorce as defendant continued to refuse to remove his hands fromhis pockets. In this regard, we note that Officer Harrisontestified he was afraid that defendant had a weapon in hispocket. The officers first tried to physically removedefendant's hands from his pockets by pulling on his arms. Whenthat did not work, they told defendant he would be sprayed withpepper spray if he did not comply. Finally, Harrison struckdefendant to get him to comply with the command to remove hishands from his pockets. Given the threat that defendant may havehad a weapon, we find that these progressive actions by theofficers were not excessive use of force. The officers wereentitled to use the force required to protect themselves andeffect the arrest. Because the evidence does not show that theofficers used excessive force, defendant's right of self-defensewas not triggered.

Moreover, there must be some evidence that the defendantacted out of fear for his safety in order to justify a self-defense instruction in these circumstances. See Williams, 267Ill. App. 3d 82, 640 N.E.2d 981; Bailey, 108 Ill. App. 3d 392,439 N.E.2d 4. In this case, there was no evidence that defendantacted out of fear. Defendant testified that he was upset andagitated, but never testified that he was afraid of the officers. Defendant also testified that he cursed at the officers after hewas on the ground and handcuffed. According to Harrison,defendant cursed at him and told him to go ahead and mace and hithim. Tanzy testified that defendant "got loud" and asked why hewas being arrested. This evidence does not show that defendantwas acting out of fear for his safety. Based on thesecircumstances, we conclude that the trial court did not abuse itsdiscretion in refusing to give an instruction on self-defense.

Defendant also contends that one of his convictions ofresisting a peace officer should be vacated on one-act, one-crimeprinciples. The State asserts that defendant waived this issuebecause he did not raise it at trial or in a posttrial motion. Though technically waived, an objection to a surplus convictionmay be considered as plain error. People v. Moshier, 312 Ill.App. 3d 879, 728 N.E.2d 822 (2000).

A person commits the offense of resisting a peace officerwhen the person "knowingly resists or obstructs the performanceof one known to the person to be a peace officer *** of anyauthorized act within his official capacity." 720 ILCS 5/31--1(West 2002). A defendant can be convicted of more than one crimebased on different acts in the same event or incident, even ifthey are interrelated and even when a common act is part of bothoffenses. People v. Rodriguez, 169 Ill. 2d 183, 661 N.E.2d 305(1996). When a defendant resists numerous police officers whoare attempting to arrest him, the defendant can receive multipleconvictions commensurate to the number of officers he resisted. People v. Floyd, 278 Ill. App. 3d 568, 663 N.E.2d 74 (1996).

Our review of the record reveals that the defendant's act ofresisting Officer Dietz was a separate act from the act ofresisting Officer Harrison. When asked to produce his driver'slicense and proof of insurance by Officer Harrison, the defendantrefused and began to walk away from the vehicle. OfficerHarrison then grabbed the defendant by the right arm andinstructed him to stop. The defendant responded by placing hishands in his pockets and pulling away from Officer Harrison. After Officer Harrison told the defendant he was being placedunder arrest for obstructing an officer, the defendant started topull away to walk away. At this point, Officer Dietz came overfrom the other side of the vehicle and grabbed the defendant'sleft arm. Both officers unsuccessfully attempted to pull thedefendant's hands out of his pockets. The defendant began tostruggle with the officers, culminating in Officer Harrisonspraying the defendant with pepper spray and hitting thedefendant twice in the face. A further struggle ensued in whichthe officers wrestled the defendant to the ground and eventuallyplaced the defendant in handcuffs. Under these circumstances, webelieve the defendant was correctly convicted of two counts ofresisting a peace officer.

For the foregoing reasons, the judgment of the circuit courtof Will County is affirmed.

Affirmed.

SCHMIDT, J. and O'BRIEN, J. concurring.