People v. Deverick

1

2024 IL App (4th) 230574-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALEX DEVERICK, Defendant-Appellant.

No. 4-23-0574

Court of Appeals of Illinois, Fourth District

October 7, 2024

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Livingston County No. 20CF264 Honorable Robert M. Travers, Judge Presiding.

JUSTICE ZENOFF delivered the judgment of the court. Presiding Justice Cavanagh and Justice Lannerd concurred in the judgment.

ORDER

ZENOFF JUSTICE

¶ 1 Held: The appellate court affirmed, holding the trial court did not err in (1) keeping the defendant partially shackled during trial without a hearing on the matter when counsel invited and acquiesced to the procedure used, (2) denying defendant's request for a self-defense jury instruction, and (3) declining to consider defendant's mental health as a mitigating factor during sentencing.

¶ 2 Following a jury trial, defendant, Alex Deverick, was found guilty of four counts of aggravated battery (720 ILCS 5/12-3.05(d)(4)(i) (West 2020)) and sentenced to four concurrent terms of eight years in prison. Defendant appeals arguing the trial court erroneously (1) kept him shackled during trial without a hearing on the matter, (2) denied his request for a self-defense jury instruction, and (3) failed to consider his mental health as a mitigating factor during sentencing. We affirm.

¶ 3 I. BACKGROUND

¶ 4 On October 2, 2020, defendant, an inmate at Pontiac Correctional Center, was charged with aggravated battery following a November 30, 2019, extraction from his cell by Department of Corrections (DOC) correctional officers after defendant became angry and refused to comply with the officers' instructions. In particular, the indictments alleged defendant knowingly made contact of an insulting or provoking nature with four correctional officers when he (1) bit Michael Oltman, (2) kicked Isaac Henderson, (3) struck Brent Sumner, and (4) struck Brandon Martinez. Before trial defendant stated as part of his pre-trial discovery compliance that he intended to assert the affirmative defense of self-defense.

¶ 5 Before trial began, defense counsel requested "that my client's restraints be removed while in the presence of the jury." The following exchange then occurred:

"THE COURT: Has [defendant] been a problem at any prior hearing?

[DEFENSE COUNSEL]: Not that I'm aware of, Judge.

THE COURT: Let me ask the correctional officers, has he been a problem this morning?

CORRECTIONAL OFFICER: No, your Honor.

THE COURT: All right. If I remove his hand shackles, will that be a problem for you?

CORRECTIONAL OFFICERS: No, your Honor.

THE COURT: All right. Then I would note that we have three deputies here and two correctional officers. [Defendant] is a large man.

[Defense counsel], what about leg shackles?

[DEFENSE COUNSEL]: Your Honor, I guess my fear here is, if we hook him to the eyebolt down here, that the rattling and everything will, I mean, jurors will know what that's all about. So, at minimum, if we could not have him attached to the eyebolt; but like I said, he has not been a problem, never, I've never felt threatened in his presence. So, I'd ask they be removed.

THE COURT: And Sergeant Durham?

SERGEANT DURHAM: No comment. I've got plenty of staff here.

THE COURT: All right. Then we'll remove the shackles from his hands; and as far as his leg shackles are concerned, you're indicating just as long as he's not attached to the eyebolt?

[DEFENSE COUNSEL]: Correct.

THE COURT: All right. Then we'll do that; he will not be attached to the eyebolt.

[Defendant], don't make any noise with your shackles on your legs please, and we'll move you around and make sure they don't see you in the shackles; but if there's a problem, then everything changes and we don't want that to happen, we want to get a fair trial for everybody.

All right. If you would please. ***

THE COURT: All right. I would note that the hand shackles have been removed. * * *

THE COURT: All right. [Defense counsel], ready?

[DEFENSE COUNSEL]: We're ready, Judge."

¶ 6 After jury selection, before the jury was brought back to hear opening statements, the trial court asked defense counsel, "[A]re you satisfied with the accommodations we've made in relation to security or are you asking for further modifications?" Defense counsel replied, "No, I think we're fine, Judge."

¶ 7 During opening statements, the State asserted the evidence would show defendant fought the correctional officers and actively resisted complying with their orders. Defense counsel stated he believed the evidence would show defendant did not make contact of an insulting or provoking nature with any of the correctional officers.

¶ 8 At trial, Officer Bradley Staley testified he led a six-person emergency response team (ERT) at Pontiac Correctional Center. The ERT responded to "[a]nything that happens in cell houses or throughout the institution that is out of the realm of the normal officers' duties." In addition to Staley, the members of the ERT included Officers Oltman, Sumner, Henderson, Martinez, and an officer who operated a camera.

¶ 9 On November 30, 2019, the ERT responded to defendant's cell in the mental-health unit because defendant would not comply with orders to remove his arm from his cell's cuffing hatch, the area through which wrist restraints were applied. As a result, officers could not close the cuffing hatch. When the ERT arrived, no one could see inside the cell because defendant had blocked the cell's windows with something. As a result, officers could not perform a routine institutional count, which was done to verify the inmates' safety and establish they were still in their cells. Defendant had also placed his mattress through the cuffing hatch, continuing to prevent officers from closing it. Staley tried to talk to defendant but got no response.

¶ 10 The ERT members were equipped with helmets and face shields. Additionally, Martinez carried a baton, and Oltman carried a shield. Because he could not see into the cell, Staley could not ascertain what defendant was doing. Staley gave defendant several orders, testifying that, "I told him to come to the front of the cell, cuff up, place his hands out and remove the blockage or extraction team and pepper spray would be used to remove him from the cell."

¶ 11 Staley testified the ERT was able to remove the mattress from the cuffing hatch. Then, after defendant ignored three direct orders to comply, the ERT deployed pepper spray through the hatch. After defendant still did not comply with orders to cuff up, the ERT forcefully entered his cell. When the ERT entered, defendant was "combative and throwing multiple closed-fist strikes to the face, heads and shields of the team." Defendant was also kicking toward Martinez, striking Martinez in the chest with the kicks. Staley observed defendant bite Oltman. The ERT had to use pepper spray multiple times because defendant remained combative.

¶ 12 The officers directed defendant to an escort chair in the hallway outside his cell, which restrains the limbs of individuals who are acting unpredictably or combatively. While Officers Oltman and Henderson were attempting to secure defendant's legs in restraints, defendant began kicking, striking Henderson in the groin. Staley testified use of force was always "the last go to." He stated, "We always try to do de-escalation and give them every chance to comply and cuff up or even in the middle of an altercation such as this, as soon as the use of force negates happenings, we will stop immediately." He added the incident with defendant "was a lengthy time of combativeness of an individual."

¶ 13 Marinez testified he was the "baton man" whose job was to stand at the door to make sure defendant stayed in the cell. Martinez described defendant as "actively combative" during the incident. Martinez testified that he was struck in the chest by defendant's foot during the incident.

¶ 14 Sumner testified that defendant's fists made contact with his and Oltman's facial regions. In response, the team "delivered closed-fist strikes to large muscle groups," such as the leg or arm, on defendant. Sumner explained, "[W]e're trained to do that because they're less vital areas and in order for us to [still] gain positive control on him."

¶ 15 The State presented video of the altercation. The video shows Staley giving multiple orders for defendant to clear the cuffing hatch. Defendant was specifically warned each time that if he failed to do so, the ERT would extract him from the cell. The video shows defendant struggling during the extraction, during which the ERT repeatedly told defendant to quit fighting, cuff up, and to give up his hands. When the ERT ordered defendant to roll over, he did not do so. During the extraction, members of the ERT could be heard telling defendant to stop biting. After defendant was removed to the hallway, a shield was placed in front of him. Defendant head butted the shield and kicked, at which point the shield was pressed against him while he was further restrained. The video shows an ERT member applying pressure to a point on defendant's neck as other members of the ERT finished restraining him.

¶ 16 Through the incident, defendant made various loud vocalizations, many of which are difficult to discern in the video. However, he stated or yelled multiple times things to the effect of "fighting," "that was fun," "do dirty s*** to you," "it's gonna be all night", "depends how long you want to go," and "I can go all day." He also called the ERT "b***." Defendant continued vocalizing such things and continued to be verbally...