People v. Hill

2020 IL App (1st) 162119

169 N.E.3d 1048

446 Ill.Dec. 191

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Marcus HILL, Defendant-Appellant.

No. 1-16-2119

Appellate Court of Illinois, First District, First Division.

Opinion filed July 13, 2020

Modified on denial of rehearing October 19, 2020

JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 On trial for aggravated battery to a peace officer, among other charges, Marcus Hill's attorney requested the court instruct the jury on the lesser-included offense, resisting a peace officer. The trial court declined. The jury found Hill guilty of aggravated battery. Hill now argues the trial court erred by failing to give the requested instruction. The State concedes that resisting arrest constitutes a lesser-included offense of aggravated battery as it is charged here but, nonetheless, contends the evidence supports the trial court's decision to deny the instruction. We disagree and hold the trial court should have given the jury the instruction for resisting a peace officer. We reverse and remand for a new trial.

¶ 2 Background

¶ 3 A Cook County grand jury returned a multicount indictment against Marcus Hill that alleged, among other things, he committed aggravated battery of a peace officer:

"Marcus Hill committed the offense of aggravated battery in that he, in committing a battery, other than by the discharge of a firearm, knowingly made physical contact of an insulting or provoking nature to Anthony Lafata, to wit: kicked Anthony Lafata about the body, and Marcus Hill knew the individual battered to be a peace officer, to wit: Chicago police officer, while Anthony Lafata was performing his official duties."

After a trial, the jury found Hill guilty of aggravated battery of Lafata but acquitted Hill of every other count. We focus our discussion on the facts giving rise to the relevant aggravated battery count.

¶ 4 Chicago police officers Taras Bilyj and Lafata received a call about a domestic disturbance. Lafata drove to the area behind 4860 West Patterson Avenue and saw Hill leaving out of the back door of the house at that address. The officers watched as Hill crossed the alley and went through the back door of a different house. They followed him inside.

¶ 5 Immediately inside the door, a staircase led up to the second floor. Both Bilyj and Lafata climbed the stairs to look for Hill. Not seeing anyone, they went back down. Both officers saw movement through a crack in the stairs. They went to the base of the staircase, where a "cubbyhole" door led to a crawlspace under the house. The door, and crawlspace beyond, were only three to four feet high.

¶ 6 Bilyj and Lafata looked into the crawlspace. Bilyj saw Hill under the stairs with his legs pointed toward the officers. Hill ignored both Bilyj's and Lafata's orders to come out from the crawlspace. According to Bilyj: "We were trying to get [Hill] out of there. He is not exiting. He is not coming out, and he just kept kicking his legs, kicking his legs." Hill's legs hit Bilyj's left leg and left hand. Lafata described the encounter similarly, explaining that Hill curled up in the fetal position and "he resisted by kicking at both me and [Bilyj] with his feet, pushing us away." Hill's feet hit Lafata "multiple times in the leg and in the chest area." The officers eventually got Hill to cooperate by deploying a taser two times.

¶ 7 Chicago police Sergeant Philip Banaszkiewicz watched the interaction after arriving to back up Bilyj and Lafata. From his vantage point, he could only see Hill from the thighs down. Banaszkiewicz confirmed that Hill refused to comply with the officers' orders. He also saw Hill's legs "kicking up and down" for 10 to 20 seconds. Hill would stop kicking and then start again when the officers approached him. Banaszkiewicz saw Hill's legs hit Bilyj and Lafata a couple of times.

¶ 8 Hill testified in his own defense. He denied intentionally hitting either Bilyj or Lafata with his feet. He admitted hiding under the porch but testified that he came out voluntarily after the officers ordered him out and one of the officers "just tased [him]." Hill explained that the taser prong did not go all the way in and so he "faked like [he] was shaking" and the officers tased him a second time.

¶ 9 After both parties rested, Hill's counsel asked the court to give the jury the following instruction on the offense of resisting a peace officer:

"A person commits the offense of resisting or obstructing a [peace officer] when he knowingly resists or obstructs the performance of any authorized act within the official capacity of one known to him to be a [peace officer]." Illinois Pattern Jury Instructions, Criminal, No. 22.13 (approved May 4, 2018) (hereinafter IPI Criminal No. 22.13).

Hill's counsel contended that the offense of resisting a peace officer constitutes a lesser-included offense of aggravated battery to a peace officer. The trial court disagreed, finding: "I don't believe it's a lesser-included offense or applicable in this case factually and, accordingly, that request will be denied."

¶ 10 The jury found Hill guilty of aggravated battery of Lafata but found him not guilty of aggravated battery of Bilyj. The jury also found Hill not guilty of all the remaining counts with which he had been charged.

¶ 11 Hill's counsel reasserted the issue of jury instructions in her motion for a new trial, arguing that the trial court erred in denying the resisting instruction. The State responded that, based on the indictment, as a matter of law, resisting a peace officer was not a lesser-included offense of aggravated battery to a peace officer. Alternatively, the State argued the evidence did not support an instruction on the lesser offense because Hill testified that he did not touch the officers. The trial court denied Hill's motion, simply saying, "I will stand on all of my rulings."

¶ 12 The trial court sentenced Hill to 14 years in the Department of Corrections (DOC).

¶ 13 Analysis

¶ 14 Hill primarily argues the trial court erred when it declined to instruct the jury on the lesser-included offense of resisting a peace officer. He argues both that the aggravated battery charge in the indictment included the broad outline of the lesser-included offense and that the facts supported instructing on the lesser-included offense. The State concedes that resisting a peace officer constitutes a lesser-included offense of aggravated battery as charged. The State argues, however, that the evidence did not support giving the instruction because no rational jury could have convicted Hill of the lesser-included offense while simultaneously acquitting him of the greater offense. Alternatively, the State argues any error harmless. We find error and reverse.

¶ 15 Ordinarily, a defendant has a fundamental right to be convicted only of the offenses with which he or she is charged. People v. Clark , 2016 IL 118845, ¶ 30, 401 Ill.Dec. 638, 50 N.E.3d 1120. A limited exception exists for "lesser-included" offenses. Id. Under the charging instrument approach, which Illinois employs, a lesser-included offense encompasses the "broad foundation" or "main outline" found in the "facts alleged in the charging instrument." Id. ¶ 31. Once a court determines that an offense is a lesser-included offense of the one charged, the question becomes whether "the evidence adduced at trial [* * *] rationally support[s] a conviction on the lesser-included offense and an acquittal on the greater offense." Id. ¶ 39.

¶ 16 Both parties assert that the abuse of discretion standard applies to our review of the trial court's decision to decline the lesser-included offense instruction. We agree that is the standard we will ultimately apply, given the State's concession on the first prong of the analysis. We find it useful, however, to put it slightly more precisely.

¶ 17 In the context of jury instructions for lesser-included offenses, decisions from our supreme court indicate a bifurcated standard of review. As to the first prong of the analysis—determining whether an offense is a lesser-included of the greater offense—our supreme court has repeatedly said this involves a purely legal question and our review is de novo . Id. ¶ 32 ("Whether an offense is a lesser-included offense of a charged offense is an issue of law that we review de novo ." (citing People v. Kennebrew , 2013 IL 113998, ¶ 18, 371 Ill.Dec. 297, 990 N.E.2d 197 )). Then, as to the second prong of the analysis—determining whether the evidence at trial supports giving the lesser-included instruction—our supreme court has said, as the parties acknowledge, that our review requires the demonstration of an abuse of the trial court's discretion. People v. McDonald , 2016 IL 118882, ¶ 42, 412 Ill.Dec. 858, 77 N.E.3d 26.

¶ 18 Hill argues that resisting arrest is a lesser-included offense of aggravated battery. The State agrees. But this court is not bound by party concessions ( People v. Carter , 2015 IL 117709, ¶ 22, 398 Ill.Dec. 62, 43 N.E.3d 972 ), and because our review of this prong of the test is de novo , we will briefly explain our agreement with the parties.

¶ 19 As indicated, Illinois uses the "charging instrument" approach to determine whether a lesser uncharged offense falls within a charged offense. People v. Novak , 163 Ill. 2d 93, 112-14, 205 Ill.Dec. 471, 643 N.E.2d 762 (1994), abrogated on other grounds by People v. Kolton , 219 Ill. 2d 353, 364, 302 Ill.Dec. 386, 848 N.E.2d 950 (2006). Under that approach, we must determine whether the allegation in the charging instrument (here, an indictment) describes the greater offense in a way that contains a "broad foundation" or "main outline" of the purportedly lesser-included offense. Kolton , 219 Ill. 2d at 361, 302 Ill.Dec. 386, 848 N.E.2d 950. The indictment need not lay out every element of the lesser offense; it suffices that the elements of the lesser offense can be "reasonably inferred" from the description of the charged...