NOTICE 2026 IL App (5th) 240199-U NOTICE Decision filed 04/07/26. The This order was filed under text of this decision may be NO. 5-24-0199 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Vermilion County. ) v. ) No. 21-CF-584 ) TONY E. BOSWELL, ) Honorable ) Charles C. Hall, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE SHOLAR delivered the judgment of the court. Justices Moore * and Boie concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion by denying defendant’s request to instruct the jury on self-defense. Additionally, the trial court’s ruling barring defendant from cross-examining the arresting officer regarding a prior finding of misconduct did not deny defendant’s right to a fair trial.
¶2 Following a Vermilion County jury trial, defendant, Tony E. Boswell, was convicted of
aggravated battery and driving while license revoked. On direct appeal, defendant contends that
the trial court abused its discretion by denying his request to instruct the jury on his claim of self-
defense. Defendant also argues that he was deprived of his right to a fair trial when the court denied
his pretrial motion seeking to cross-examine the arresting officer regarding a prior act of
* Justice Moore fully participated in the decision prior to his retirement. See Cirro Wrecking Co. v. Roppolo, 153 Ill. 2d 6 (1992). 1 misconduct, wherein the officer was disciplined for lying about a different officer’s failure to
report an off-duty traffic accident that should have been reported to the police department. For the
reasons that follow, we affirm.
¶3 I. BACKGROUND
¶4 Defendant was charged by information with two counts of aggravated battery to a peace
officer (counts I and II) in violation of section 12-3.05(d)(4) of the Criminal Code of 2012
(Criminal Code). 720 ILCS 5/12-3.05(d)(4) (West 2020). Defendant was also charged with driving
while license is revoked (count III) in violation of section 6-303(d-3) of the Illinois Vehicle Code
and resisting or obstructing a peace officer in violation of section 31-1(a) of the Criminal Code.
625 ILCS 5/6-303(d-3) (West 2020); 720 ILCS 5/31-1(a) (West 2020). Defendant was later
indicted on the same charges.
¶5 Prior to trial, defendant filed a motion in limine seeking permission to impeach the arresting
officer, Troy Nipper, with a prior act of misconduct that involved lying to internal affairs regarding
another officer’s off-duty motor vehicle accident that should have been reported to the department.
In support of his motion, defendant argued that Officer Nipper used excessive force during
defendant’s arrest, and that this was a new act of misconduct. According to defendant, since Nipper
lied about the previous misconduct, he had a motive to lie about the alleged misconduct in this
case to avoid further discipline. Finding it irrelevant, and because the jury was going to see the
incident on video, the trial court denied defendant’s motion.
¶6 The jury trial began on August 31, 2023. The State’s evidence at trial consisted of the
testimony of two law enforcement officers: Officer Troy Nipper of the Village of Tilton and
Captain Tye Pasquale of the Vermilion County Sheriff’s Department. Officer Nipper testified that
on October 12, 2021, he was in uniform and in a marked squad car when he noticed a motorcycle
2 parked in a fire lane in front of an auto parts store. He first ran the registration and then ran
defendant’s name. After the motorcycle and defendant left the parking lot and drove north on
Route 1, Officer Nipper stopped the motorcycle as it neared the eastbound on ramp to Interstate
74.
¶7 Officer Nipper testified that, after telling defendant that he was stopped because his driving
privileges were revoked, defendant stated he “knew” and asked “for a break.” Officer Nipper asked
defendant to step to the back of the motorcycle and told him that he was going to be arrested. At
the back of the motorcycle, defendant initially turned away from Officer Nipper and started putting
his hands behind his back. Nipper took ahold of defendant’s left wrist and started to reach for his
handcuffs when defendant started to pull away and said, “No.” According to Officer Nipper,
defendant then told Nipper that he was “lucky” that defendant “didn’t whoop [his] ass.” Defendant
slipped Officer Nipper’s grip, and Nipper grabbed defendant’s left arm again while he
simultaneously called for backup using a lapel mic. As defendant continued to threaten him “and
took an aggressive stance,” Officer Nipper drew his taser. Nipper testified that defendant continued
to threaten him before defendant again pulled away and started “jogging or running” towards the
ramp to Interstate 74.
¶8 Officer Nipper further testified that in response to defendant’s flight, he told defendant to
stop several times before deploying his taser. One of the barbs made contact with defendant’s left
triceps; the other barb did not make contact with defendant. Defendant immediately turned around
and swiped at his left triceps. According to Officer Nipper, defendant then started to advance
toward him in an aggressive stance and “took a swing” at him. Officer Nipper backed away from
defendant, creating some distance between the two men.
3 ¶9 Officer Nipper testified that defendant walked past him, and he “re-engaged [defendant]
from behind” in an effort to “[g]et him down to the ground.” Nipper testified that he wrapped his
right arm around the top of defendant’s right shoulder and that he was “targeting [defendant’s]
collarbone” so he could “bear [his] weight down” and take defendant to the ground. Officer Nipper
said that as the two men started to go to the ground, defendant slipped from his grip and Nipper
brought his right arm up and across defendant’s chest to block any attack, and at that point,
defendant pushed Officer Nipper away. Nipper tried to pull defendant toward him to gain “some
type of contact” but only had ahold of defendant’s shirt. Defendant shoved him. As Officer Nipper
was going backwards, defendant pushed him and then landed partially on top of him. He was able
to get out from underneath defendant and was able to flatten defendant out on the ground. An
officer from the Vermilion County Sheriff’s Department arrived, and the two officers took
defendant into custody. Officer Nipper testified that as defendant lay on the ground, he complained
that he could not breathe, so they rolled him to his side and eventually were able to escort defendant
to the squad car.
¶ 10 Without objection, the squad car video was played for the jury. 1 It does not have any audio.
The video is largely consistent with Nipper’s testimony. The video shows defendant cooperated
with Officer Nipper up to the point that Nipper took defendant’s left hand behind his back.
Defendant then pulled away from Officer Nipper. Officer Nipper grabbed defendant’s arm again,
and defendant pulled away from Officer Nipper’s grip again. After some discussion between the
two men, defendant ran away from Officer Nipper. After Officer Nipper deployed his taser,
defendant turned and advanced on Officer Nipper, causing him to retreat. Defendant walked past
Officer Nipper, and Nipper approached defendant from behind, appearing to attempt to take ahold
1 The video is a part of the record on appeal and has been reviewed by this court. 4 of defendant’s left arm. After defendant pulled away again, Officer Nipper wrapped his right arm
over the top of defendant’s right shoulder and tried to move defendant away from the traffic and
toward the side of the road. They two men then struggled and fell to the ground, with defendant
shoving Officer Nipper as he tried to regain his footing. Defendant then appeared to lunge at
Officer Nipper, and the two men fell off the right side of the video. A few seconds later, Captain
Pasquale entered the video from the left and ran toward where the two men fell before the video
ended.
¶ 11 Continuing with his testimony, Officer Nipper told the jury that he was “targeting”
defendant’s collarbone and trying to get a grip under defendant’s shoulder, but that his arm did
come in contact with defendant’s neck. Nipper testified that he did not try to use that position to
his advantage, and he was not trying to put a chokehold on defendant.
¶ 12 On cross-examination, Officer Nipper testified that the squad car video equipment was
older and that the audio was “hit or miss.” Nipper told defense counsel that his arm contacted
defendant’s neck but denied putting defendant in a chokehold. Officer Nipper maintained that
defendant swung at him, but stated, “I don’t know that you can see it clear on the video.” Officer
Nipper admitted that defendant did not initiate physical contact with him until Nipper had his arm
against defendant’s throat.
¶ 13 Captain Pasquale testified that he was southbound on Route 1 when he noticed flashing
lights in the distance. He heard a radio call asking for assistance. As Pasquale neared the scene, he
saw the subject run away from the officer. As he got closer, Pasquale saw the subject turn around
and “kind of run” toward the officer. Pasquale described the subject as appearing to be “in an
attack position, getting ready to attack the officer.” Pasquale had to focus on parking his squad car
in the heavy traffic, and when he next focused on the two individuals, he saw them fall to the
5 ground in the grassy area off to the side of the road. Pasquale jumped the concrete barrier between
the northbound and southbound lanes, ran across the lanes of traffic while “trying not to get hit by
a car,” and assisted Nipper with taking defendant into custody. Pasquale and Nipper then placed
defendant into a squad car. On cross-examination, Pasquale stated that he never heard defendant
threaten anyone. The State rested.
¶ 14 Defendant testified on his own behalf. He admitted that he should not have been driving
his motorcycle but disagreed with Officer Nipper’s version of their encounter. He denied ever
threatening Officer Nipper. Regarding the portion of the video where he started to run, but then
turned back around to face Nipper, defendant testified that he “was coming back towards the
officer to give up.” He denied swinging at Officer Nipper and stated that he never made any contact
with Nipper before being placed in a “chokehold.”
¶ 15 Regarding the portion of the incident when Officer Nipper approached defendant from
behind and put his arm around defendant’s neck, defendant testified that “it was hard for him to
breathe a little bit there.” Defendant testified that he was choking, he “was starting to panic,” and
“I just tried to get his arm off of my neck and throat.” Defendant told the jury that after the two
men fell to the ground, Nipper pulled him down. Defendant also told the jury that he pushed Officer
Nipper because he “was afraid that he was going to continue choking me” and that he was trying
to catch his balance. Regarding the second time the men fell to the ground, defendant stated that
he fell because he was being pulled. Defendant denied lunging at or jumping on Officer Nipper.
¶ 16 On cross-examination, defendant stated that he “figured” he was about to be arrested for
driving on a revoked license. He stated that while he initially put his hands behind his back, he
decided that he was not going to get handcuffed and pulled away from Officer Nipper. Defendant
testified that he told Nipper that his mom was “bad off” and that he needed to go see his mom and
6 he “thought we was going to lose her.” Defendant admitted that he ran because he did not want to
get arrested, and he did not want to be locked up when something happened to her.
¶ 17 Defendant told the prosecutor that, after running, he turned toward Officer Nipper because
he “just wanted to get it over with, *** resolve it peacefully.” Defendant said it was after he turned
around that Officer Nipper tried to “tase” him. Defendant told the jury that after he was tased, he
asked, “Dude, what are you doing? I said I just want to get this over with peacefully.” It was after
he walked past Officer Nipper that Nipper choked him. Following this, defendant then told the
prosecutor that he stopped running from Officer Nipper after he got tased. Defendant then testified,
“I know I stopped at one point, which your video ain’t going to show, you know that. My hands
were behind my back. I tried to go peacefully.” Defendant denied approaching Officer Nipper
menacingly. Defendant admitted that Officer Nipper was not touching him when he pushed Nipper
but reiterated that he did it “to keep from getting choked any more.” Following defendant’s
testimony, the defense rested.
¶ 18 Defendant tendered jury instructions on the issue of self-defense. Defendant argued that
Officer Nipper had applied a chokehold and cut off his ability to breathe, and that this was an
excessive use of force. Because of his fear of being choked again, defendant argued that he was
justified in pulling Nipper’s arm away from him and pushing Nipper after the men fell to the
ground. The trial court noted that defendant was resisting arrest at the time that Officer Nipper’s
arm came in contact with defendant’s neck and found that any contact between Officer Nipper’s
arm and defendant’s neck was incidental and did not depict a chokehold. The trial court further
stated that it did not believe defendant feared Officer Nipper. The court denied defendant’s request
to instruct the jury on self-defense.
7 ¶ 19 The jury ultimately found defendant guilty of both aggravated battery to a peace officer
and driving while license revoked. Defendant filed a posttrial motion alleging the trial court erred
by failing to instruct the jury on the issue of self-defense and by denying him the ability to cross-
examine Officer Nipper with the prior disciplinary matter. Defendant’s posttrial motion was
denied, and defendant filed a timely notice of appeal.
¶ 20 II. ANALYSIS
¶ 21 As noted above, defendant raises two issues on appeal. First, he argues the trial court
abused its discretion by refusing to instruct the jury on defendant’s claim of self-defense. Second,
defendant argues that he was deprived of his constitutional right to a fair trial when the court denied
his request to cross-examine Officer Nipper regarding the prior act of misconduct wherein Nipper
was disciplined for lying about a different officer’s failure to report an off-duty traffic accident
that should have been reported to the police department. For the reasons that follow, we affirm.
We consider each allegation in turn.
¶ 22 First, we consider defendant’s contention that the trial court erred by failing to instruct the
jury on his theory of self-defense. The justifiable use of force is an affirmative defense. 720 ILCS
5/7-14 (West 2020). If the State establishes the elements of the offense charged, a factfinder can
consider a defendant’s claim of self-defense only if the defendant has established some evidence
of the elements acknowledged by the Illinois Supreme Court in People v. Jeffries, 164 Ill. 2d 104
(1995). Those elements are as follows:
“(1) force is threatened against the person; (2) the person threatened is not the aggressor; (3) the danger of harm was imminent; (4) the threatened force was unlawful; (5) he actually and subjectively believed a danger existed which required the use of the force applied; and (6) his beliefs were objectively reasonable.” Id. at 128.
8 The six-element Jeffries test comports itself with sections 7-1(a) and 7-4 of the Criminal Code.
720 ILCS 5/7-1(a), 7-4 (West 2020); People v. Vesey, 2026 IL 130919, ¶ 43. 2
¶ 23 There are other factors that must be considered when a defendant’s use of force is against
a police officer. For example, section 7-5 of the Criminal Code “allows a peace officer to use any
force he reasonably believes, based on the totality of the circumstances, to be necessary to effect
an arrest or defend himself or another from bodily harm while making the arrest.” Vesey, 2026 IL
130919, ¶ 43. “[A] police officer’s use of force can be unlawful *** under section 7-5 if the officer
uses more force than reasonably necessary to effectuate an arrest or protect himself or others.” Id.
¶ 44. Additionally, a police officer’s use of force can be unlawful under section 7-5.5, which
prohibits police officers from using different kinds of force, including chokeholds and restraints
above the shoulders “with risk of asphyxiation” unless deadly force is justified. 720 ILCS 5/7-
5.5(a) (West 2020). As used in section 7-5.5, “ ‘chokehold’ means applying any direct pressure to
the throat, windpipe, or airway of another. ‘Chokehold’ does not include any holding involving
contact with the neck that is not intended to reduce the intake of air such as a headlock where the
only pressure applied is to the head.” Id. § 7-5.5(c).
¶ 24 Notwithstanding these additional considerations, when a defendant is claiming the
justifiable use of force against a police officer, “the defendant must first establish that the record
contains some evidence of each of the elements listed in Jeffries.” (Emphasis added.) Vesey, 2026
IL 130919, ¶ 46. In this matter the defendant’s argument is based upon his claim that Officer
Nipper used excessive force—the fourth element from Jeffries. “In reviewing the fourth element,
that the threatened force was unlawful, if there is some evidence from which a jury could conclude
2 Defendant cited the Fourth District’s decision in People v. Vesey, 2024 IL App (4th) 230401, in his brief, acknowledging that the Illinois Supreme Court had granted leave to appeal. Since the Fourth District’s decision has now been reversed, we rely upon the Illinois Supreme Court’s decision. 9 the police officer used excessive—and therefore unlawful—force, the self-defense instruction
should be given if there is some evidence of the other elements.” (Emphasis added.) Id. ¶ 47.
¶ 25 “When the trial court, after reviewing all the evidence, determines that there is insufficient
evidence to justify the giving of a jury instruction, the proper standard of review of that decision
is abuse of discretion.” Id. ¶ 52. “An abuse of discretion occurs only where the trial court’s decision
is arbitrary, fanciful, or unreasonable to the degree that no reasonable person would agree with it.”
Id. “It is an abuse of discretion for the court to refuse to give an instruction that is supported by
the evidence and accurately states the legal principles applicable to the case.” Id. “In deciding
whether to give a self-defense instruction, the court must determine whether there is some
evidence, even slight evidence, to support the theory of self-defense without weighing the
evidence.” Id. ¶ 65. “Where self-defense is not supported by the evidence, a self-defense
instruction may properly be refused.” Id.
¶ 26 Defendant contends that he met all the Jeffries elements required for the self-defense
instruction, and that Officer Nipper’s conduct of placing his arm around defendant’s neck and
obstructing defendant’s airway was an escalation of force that a jury could find to be excessive
and unlawful. The State argues defendant did not meet any of the Jeffries elements, and that the
video evidence defeats any claim that self-defense was relevant under the facts of this case.
¶ 27 Vesey requires us to first evaluate whether “the record contains some evidence of each of
the elements listed in Jeffries.” Id. ¶ 46. If a defendant fails to establish that the record contains
some evidence on any one of the Jeffries elements, then the jury should not be instructed on self-
defense. Id. We first consider the second Jeffries element, whether defendant was the initial
aggressor. In doing so, we find that defendant was the initial aggressor and that he invited the use
of force by resisting arrest.
10 ¶ 28 As the video shows, although defendant initially cooperated with Officer Nipper, he pulled
his arm away from Officer Nipper as he reached for his handcuffs. As the two men stood in the
grassy area on the side of the road, Officer Nipper again took ahold of defendant’s left wrist, and
defendant again pulled free of Nipper’s grip before turning and running away. After Officer Nipper
deployed his taser, defendant turned toward Officer Nipper and took an aggressive stance before
advancing on Nipper. At this point, Officer Nipper retreated despite not being required to do so.
720 ILCS 5/7-5(a) (West 2020) (“A peace officer *** need not retreat or desist from efforts to
make a lawful arrest because of resistance or threatened resistance to the arrest.”).
¶ 29 Officer Nipper testified that defendant swung a fist at him, and although the video is not
perfectly clear and the view of defendant is blocked by the officer’s body, it is apparent that
defendant’s arms are moving. It is only when Officer Nipper retreated to the side of the road that
defendant moved past him. The video shows Officer Nipper again approached defendant and
attempted to engage him from behind, appearing to again reach for defendant’s left arm or wrist.
In response, defendant appeared to pull away again. It was only at this point that Officer Nipper
wrapped his right arm around the top of defendant’s right shoulder and tried to move defendant
away from traffic and to the side of the road.
¶ 30 While initially pulling away from Officer Nipper on two occasions and running away are
not acts of aggression in the traditional sense, they certainly are not peaceable, particularly since
“[a] person is not authorized to use force to resist an arrest which he knows is being made *** by
a peace officer.” Id. § 7-7. Defendant’s actions in turning on Officer Nipper, taking an aggressive
stance, and then advancing on Officer Nipper to the point that he felt the need to retreat backwards
and then to the side of the road, however, are acts of aggression.
11 ¶ 31 We note that although defendant then walked past Officer Nipper, thereby “retreating”
from Nipper, this cannot be considered an act of retreating by an initial aggressor in the traditional
sense. While defendant’s testimony was that he wanted to “get it over with peacefully,” his actions
in the video demonstrate otherwise. All defendant needed to do to “get it over with peacefully”
and to avoid further escalation was to stop and allow himself to be arrested. As noted, defendant
instead continued to walk away from Officer Nipper and toward his motorcycle, and defendant
again appeared to pull away from Officer Nipper’s grasp.
¶ 32 It is against the backdrop and based upon the totality of the circumstances that Officer
Nipper was “justified in the use of any force which he reasonably believe[d] *** to be necessary
to effect the arrest and of any force which he reasonably believe[d] *** to be necessary to defend
himself or another from bodily harm.” Id. § 7-5(a). We further note that, under these
circumstances, the law allows Officer Nipper to use “force likely to cause death or great bodily
harm” if “he reasonably believes, based on the totality of the circumstances, that such force is
necessary to prevent death or great bodily harm to himself or such other person.” Id. Given
defendant’s continuous acts of noncompliance, coupled with the two men’s close proximity to a
busy road that posed a safety hazard to both men, the evidence supports the conclusion that
defendant was the initial aggressor and that Officer Nipper was justified in his use of force. For
this reason, and based upon defendant’s continued resistance to a lawful arrest, we find defendant
failed to present any evidence that he was not the initial aggressor. Given that defendant failed to
meet this Jeffries element, we need not consider the remaining elements. Vesey, 2026 IL 130919,
¶ 46.
¶ 33 Succinctly stated, the record demonstrates that defendant resisted arrest and invited the use
of force by pulling away from Officer Nipper on at least two, and perhaps three, occasions.
12 Defendant ran from Officer Nipper, turned on Nipper, took an aggressive stance toward Nipper,
and advanced toward Nipper, causing Nipper to retreat. Defendant never surrendered to Officer
Nipper but instead continued to walk away from him. It was only after all this that Officer Nipper
forcefully directed defendant away from traffic and took him to the ground. Failing to satisfy any
one of the Jeffries factors means that defendant’s claim of self-defense fails. Id. Accordingly, the
trial court did not abuse its discretion in denying defendant’s request that the jury be instructed on
self-defense.
¶ 34 Defendant also contends that in deciding whether to instruct the jury on self-defense, the
trial court improperly engaged in fact-finding and therefore invaded the province of the jury.
Defendant is correct that the trial court is not allowed to weigh the evidence in determining whether
there is some evidence supporting a defendant’s claim of self-defense, as doing so would invade
the province of the jury. Id. ¶ 48.
¶ 35 Defendant specifically points to certain comments made by the trial court as proof that it
improperly weighed the evidence. For example, defendant notes that in discussing whether Officer
Nipper’s use of force was unlawful, the court stated:
“Now my viewing of the tape over and over and over all morning, I didn’t see a chokehold applied. I saw an arm bar go up over the shoulder blade. I say a brief touching, perhaps of the neck, in that area, and an attempt to get over to the other shoulder or armpit, and then both gentlemen tumbled to the ground.”
In discussing whether defendant feared for his safety at the time that he shoved Nipper, the court
stated:
“Defendant was already resisting arrest, and in those situations, the law seems pretty clear that unless you can show there’s some evidence that [defendant] was acting out of fear for his safety, but he was, if you believe the officer, he was threatening the officer. If you believe him, he wasn’t. But I didn’t see any evidence, based upon his running away, or then approaching, or then fighting with the officer, and evidence that he was in fear, and it was clear that he knew he was dealing with a police officer that was in uniform, and the fact that the defendant even testified
13 he knew he was going to jail, and he didn’t want to go to jail. I don’t see, based on all the circumstances, enough facts here to justify the self-defense.”
¶ 36 To the extent the trial court may have weighed the evidence by considering whether Officer
Nipper employed an “arm bar” or a “chokehold,” we find it irrelevant to the resolution of this
appeal. Based upon the evidence before the court, including the video, the trial court did not need
to consider whether the hold Nipper applied was an “arm bar” versus a “chokehold.” As noted
above, because of defendant’s repeated acts of resistance, Nipper was justified in his use of force,
including potentially deadly force. 720 ILCS 5/7-5(a) (West 2020). To the extent that the court
considered defendant’s fear, we need not consider defendant’s argument in light of this court’s
finding that the record lacks evidence that defendant was not the initial aggressor. This alone
precludes defendant from receiving a self-defense instruction. As noted above, defendant’s failure
to present any evidence on any one of the Jeffries factors means that defendant is not entitled to
have a self-defense instruction. For these reasons, we find that the trial court did not abuse its
discretion by denying defendant’s request that the jury be instructed on the issue of self-defense.
¶ 37 Defendant next argues he was denied his right to a fair trial because the trial court barred
him from cross-examining Officer Nipper with a prior act of misconduct. As stated above, Officer
Nipper was disciplined for lying about a different officer’s failure to report an off-duty traffic
accident to the police department. The State argues the trial court properly rejected defendant’s
attempt to introduce a prior disciplinary matter that was unrelated to the facts of this case. We
agree with the State.
¶ 38 Prior to trial, the State tendered discovery revealing that in August 2018, a fellow officer
was involved in an off-duty motor vehicle accident that should have been reported to the officers’
then employer, the Danville Police Department. When Officer Nipper was interviewed by the
internal affairs department, he denied knowledge and involvement. When later confronted with
14 contrary evidence, Officer Nipper admitted that his previous statement was a lie. As a
consequence, Officer Nipper was found to be in violation of departmental policies and was placed
on administrative leave pending dismissal. Officer Nipper resigned his position from the Danville
Police Department prior to being dismissed.
¶ 39 Defendant filed a motion in limine seeking to impeach Officer Nipper with the prior
misconduct, contending that Nipper’s use of excessive force during defendant’s arrest was a new
act of misconduct. According to defendant, since Officer Nipper lied about previous misconduct,
he had motive and bias to lie about the claimed use of excessive force during defendant’s arrest.
¶ 40 At a hearing on defendant’s motion in limine, the trial court asked defense counsel what lie
he thought Officer Nipper told in the instant case that would justify the impeachment. Defense
counsel told the court that the use of force was excessive. When asked how Officer Nipper’s 2018
conduct related to defendant’s 2021 arrest, defense counsel offered that because Officer Nipper
was previously disciplined, he knew that he could face discipline again for new misconduct. For
this reason, defense counsel concluded that Officer Nipper therefore had a motive to lie about the
use of force to avoid the jury finding that he had, in fact, used excessive force. After lengthy
argument on the matter, the court ultimately concluded that because the jury was going to see the
“actual incident” on video, Nipper’s 2018 incident was not relevant for cross-examination.
¶ 41 On appeal, defendant argues that Officer Nipper’s credibility as a witness was “central to
the jury’s evaluation of the facts” and that “[i]nquiry into Nipper’s prior misconduct would have
spoken directly to Nipper’s bias and motive to lie.” The State argues that the court properly noted
that Officer Nipper’s 2018 disciplinary matter “[did not] have anything at all to do with the proof
in this case.” The State also contends defendant’s argument that a police officer’s prior willingness
to lie about a fellow officer’s off-duty accident means that the officer would lie to the jury to avoid
15 another disciplinary matter for the excessive use of force is both remote and uncertain and was
properly excluded. We agree with the State.
¶ 42 “A defendant has a fundamental, constitutional right to confront the witnesses against him,
which includes a reasonable right of cross-examination to inquire into a witness’s bias, interest, or
motive to testify falsely.” People v. Nelson, 235 Ill. 2d 386, 420-21 (2009). “However, the evidence
used to impeach must raise an inference that the witness has something to gain or lose by his
testimony; the evidence must not be remote or uncertain.” Id. at 421. “Generally, a decision on an
evidentiary motion, such as a motion in limine, is committed to the trial court’s discretion and a
reviewing court will not disturb that decision absent an abuse of discretion.” Id. at 420. “An abuse
of discretion occurs where the circuit court’s decision is arbitrary, unreasonable, or fanciful or
where no reasonable person would have taken the position adopted by the circuit court.” People v.
Heineman, 2023 IL 127854, ¶ 59.
¶ 43 Here, defendant maintains that the proper standard of review is de novo. In doing so,
defendant relies on People v. Adams, 259 Ill. App. 3d 995 (1993). The portion of the opinion
defendant quotes states: “Although the trial court has no discretion to prohibit *** impeachment
[regarding a witness’s interest, bias, or motive] entirely, it can control the extent of the cross-
examination, assuming a proper subject matter.” Id. at 1004. Adams also notes that “ ‘[e]vidence
showing bias must be direct and positive, not remote and uncertain.’ [Citation.]” Id. The State
maintains that the standard of review is abuse of discretion. We agree with the State.
¶ 44 In support thereof, we find People v. Coleman, 206 Ill. 2d 261 (2002), instructive. In
Coleman, the court addressed the defendant’s claim that the circuit court erred in denying him the
right, during a postconviction evidentiary hearing, to cross-examine a police officer regarding
allegations of his prior misconduct. Id. at 278. While noting that a defendant has the right to inquire
16 into a witness’s bias, interest, or motive to testify falsely, the court also noted that “[t]he evidence
used to impeach, however, must give rise to an inference that the witness has something to gain or
lose by his testimony. Accordingly, the evidence must not be remote or uncertain.” Id. The
Coleman court ultimately concluded that the matters the defendant sought to impeach the officer
with were irrelevant and that the circuit court did not abuse its discretion in denying the defendant
the opportunity to cross-examine the officer with the prior allegations of misconduct. Id. at 282-
83. Accordingly, we find that it is proper to review the trial court’s ruling regarding relevance of
defendant’s proffered cross-examination against Officer Nipper under an abuse of discretion
standard.
¶ 45 In support of his argument that the trial court erred in denying him the opportunity to cross-
examine Officer Nipper with the disciplinary matter, defendant relies primarily on People v.
Phillips, 95 Ill. App. 3d 1013 (1981). In Phillips, the defendant was charged with attempted
murder, four counts of aggravated battery, and one count of armed violence. Id. at 1014. The victim
was an off-duty police officer who had been suspended 15 times in the 10-year period leading up
the defendant’s charges. Id. at 1015. Two of the officer’s suspensions were based upon him
improperly displaying his weapon and filing a false report. Id. The defendant claimed that he only
shot the victim after he had seen the victim retrieve a gun from his car and threaten his brother. Id.
at 1018. The defendant claimed that he was afraid the victim was going to shoot his brother. Id.
The trial court granted the State’s motion in limine restricting the defendant from cross-examining
the victim with his 15 prior suspensions from the Chicago Police Department. Id. at 1019. The
appellate court reversed the trial court. Id. While the Phillips court asserted that “[t]he trial court
has no discretionary power to deny the defendant the right to cross-examine the witness to show
interest, bias, or motive,” the court also acknowledged that “[e]vidence of bias, interest or motive,
17 however, must not be remote or uncertain.” Id. at 1020. The Phillips court found that the evidence
of the victim’s prior suspensions was not remote because the victim could have been motivated to
testify falsely to avoid a further suspension or termination, or to ensure that he continued to receive
medical benefits and compensation. Id. at 1021.
¶ 46 We find Phillips distinguishable. While there was evidence that Officer Nipper had been
suspended, that is where the similarities end. Officer Nipper was suspended one time for lying
about his knowledge of a fellow officer’s failure to report an off-duty accident. By contrast, the
officer in Phillips had been suspended 15 times in the 10-year period leading up to the incident in
question, and two of those suspensions were based upon the same type of misconduct the defendant
alleged: that the officer had improperly displayed his weapon. In other words, the officer’s
previous misconduct in Phillips was directly related to the defendant’s defense. By contrast,
Officer Nipper’s previous misconduct had nothing to do with the use of excessive force, or indeed
even the arrest of another person, and therefore had very little to do with defendant’s defense.
¶ 47 Defendant’s contention that Officer Nipper had a motive to lie about his use of force, or
the circumstances giving rise to the need to use the force employed, was based upon his argument
that Nipper would face discipline for his actions during defendant’s arrest. Although this argument
may raise an inference that Officer Nipper had something to gain or lose by his testimony, it is
based upon speculation and therefore can fairly be considered remote and uncertain. Officer
Nipper’s prior misconduct—lying to help a fellow officer regarding an off-duty motor vehicle
accident—did not involve the excessive use of force. Defendant failed to show how the fact that
Nipper was once disciplined for lying about an act that occurred while off duty would translate to
a need to lie to the jury about his actions while arresting defendant that were preserved by his
squad car camera. Defense counsel made no indication to the trial court that he had information
18 showing that Nipper would face departmental discipline for his use of force in arresting defendant
nearly two years prior to the start of the trial. There was nothing to suggest that defendant made a
complaint to the department regarding Officer Nipper’s actions, or that there was or even would
be an investigation. Defendant’s suggestion regarding the same is speculative and uncertain. The
evidence used to impeach a witness must raise an inference that the witness has something to gain
or lose by his testimony, and that “evidence must not be remote or uncertain.” Nelson, 235 Ill. 2d
at 421. The trial court found that Officer Nipper’s 2018 discipline “doesn’t have anything at all to
do with the proof in this case” and that “[t]here’s really no authority for allowing [the
impeachment], other than the general authority that [defense counsel] cite[s] about wide latitude
and cross examination.” In light of the fact that the jury would “see the interaction, the physicality
or lack thereof” on the video, the court concluded that Officer Nipper’s 2018 disciplinary matter
was irrelevant. We agree with the trial court’s assessment.
¶ 48 For these reasons, we cannot conclude that the trial court’s decision was arbitrary, fanciful,
or unreasonable to the degree that no reasonable person would agree with it. Vesey, 2026 IL
130919, ¶ 52. Accordingly, the trial court did not abuse its discretion in denying defendant the
opportunity to cross-examine Officer Nipper with his prior discipline.
¶ 49 III. CONCLUSION
¶ 50 For the foregoing reasons, we affirm defendant’s Vermilion County conviction where the
trial court did not abuse its discretion by denying defendant’s request for a self-defense instruction
or by denying defendant’s request to impeach the arresting officer with a prior disciplinary matter.
¶ 51 Affirmed.