2023 IL App (2d) 200657-U No. 2-20-0657 Order filed December 7, 2023
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 19-CF-793 ) ERIC E. ERICSON, ) Honorable ) Donald Tegeler Jr., Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE KENNEDY delivered the judgment of the court. Justices Jorgensen and Birkett concurred in the judgment.
ORDER
¶1 Held: Defendant forfeited review of his claim that COVID-19 restrictions on the public’s access to the courtroom violated his right to a public trial, and he forfeited review of his motion for a directed verdict. Defendant’s statutory speedy trial rights were not violated. The trial court did not err in denying defendant’s request to provide a self-defense instruction to the jury. The trial court did not abuse its discretion in refusing to continue trial in order to secure attendance of absent defense witness, and in refusing to allow defendant to call the chief of police as witness. Finally, the trial court did not err in providing pattern jury instruction in response to jury’s question during deliberation. Affirmed.
¶2 Defendant (pro se) appeals his convictions for aggravated battery of a peace officer (720
ILCS 5/12-3.05(d)(4) (West 2018)) and resisting arrest (720 ILCS 5/31-1(a) (West 2018)). 2023 IL App (2d) 200657-U
Defendant’s trial was delayed as a result of the COVID-19 pandemic, and the public’s access to
the courtroom during trial was restricted. On appeal defendant argues that (1) the court’s COVID-
19 restrictions violated his right to a public trial, (2) his statutory speedy trial rights were violated
in spite of the supreme court’s administrative order allowing the circuit courts to suspend trials,
(3) the trial court erred in failing to provide the jury with a self-defense instruction, (4) the trial
court erred in denying his motion for a directed verdict, (5) the trial court denied him his right to
call witnesses in his defense when it did not continue the trial in order to locate a missing witness
or allow him to call the chief of police as a witness, and (6) the trial court erred in answering a
question from the jury by providing them with an instruction form the Illinois Pattern Jury
Instructions, Criminal (IPI) rather than answering the jury’s specific question. For the following
reasons we affirm the judgment of the trial court.
¶3 I. BACKGROUND
¶4 On April 30, 2019, police officers arrested defendant pursuant to a warrant relating to a
violation of the terms of his sentence in a prior stalking no contact order case (People v. Ericson,
No. 17-CM-1331 (Cir. Ct. Kane County)). On May 7, 2019, while in custody, defendant filed a
demand for a speedy trial pursuant to 725 ILCS 5/103-5(a) (West 2018). Defendant was
subsequently released on bond and filed a second demand for a speedy trial pursuant to 725 ILCS
5/103-5(b) (West 2018) on July 30, 2019.
¶5 On September 25, 2019, defendant filed a pro se motion to “be appointed co-counsel or
represent himself.” Up until this point, defendant had been represented by the public defender’s
office. A hearing was held on defendant’s motion on October 3, 2019, and defendant was allowed
to proceed pro se.
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¶6 Following several delays, some attributable to the State and some to defendant, a trial date
of April 27, 2020, was set.
¶7 On March 17, 2020, the supreme court entered its first administrative order regarding the
court’s response to the COVID-19 pandemic. Ill. S. Ct., M.R. 30370 (eff. Mar. 17, 2020). On
March 20, 2020, the trial court issued a second administrative order regarding the COVID-19
pandemic, which read in pertinent part,
“IT IS HEREBY ORDERED that the Chief Judges of each circuit may
continue trials for the next 60 days and until further order of this Court. In the case
of criminal proceedings, any delay resulting from this emergency continuance order
shall not be attributable to either the State or the defendant for purposes of section
103-5 of the Code of Criminal Procedure of 1963 [citation].” Id. (eff. Mar. 20,
2020).
On March 25, 2020, pursuant to our supreme court’s order of March 20, 2020, the circuit court of
Kane County entered an order continuing trials for 60 days from March 20, 2022. 16th Judicial
Cir. Ct. G.O. 20-09 (Mar. 25, 2020). On April 7, 2020, our supreme court entered another
administrative order, allowing the chief judges of the circuit courts to continue trials until further
order of court. Ill. S. Ct., M.R. 30370 (eff. Apr. 7, 2020). On April 22, 2020, the circuit court of
Kane County entered an order further continuing felony trials pursuant to our supreme court’s
April 7, 2020, order. 16th Judicial Cir. Ct. G.O. 20-09 (Apr. 22, 2020).
¶8 On June 3, 2020, defendant filed a motion to dismiss the charges against him, arguing that
his right to a speedy trial had been violated. A hearing was held on defendant’s motion on June
10, 2020. The trial court found that as of the supreme court’s administrative order entered on March
20, 2020 (Ill. S. Ct., M.R. 30370 (eff. March 20, 2020)), only 150 days had elapsed from the
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applicable 160-day term on defendant’s speedy trial demand, and it denied defendant’s motion
based on the tolling provisions of the supreme and circuit court’s orders. On appeal, defendant
accepts the trial court’s calculation that 150 days had elapsed on his speedy trial demand as of
March 20, 2020.
¶9 The matter proceeded to trial on August 3, 2020.
¶ 10 The State began by calling Detective Rick Murawski, who testified as follows. On April
30, 2019, Murawski was a uniformed patrol officer with the City of St. Charles Police Department.
At around 8:50 p.m., Murawski was in the area of 1409 South Fourth Street in St. Charles.
Murawski was aware that a warrant had been issued for defendant’s arrest, and that defendant lived
at 1409 South Fourth Street, so he decided to canvas the neighborhood to try and locate defendant.
He had not previously met defendant, but he did have a physical description.
¶ 11 The first house Murawski visited as part of his canvas was 1403 South Fourth Street, which
was the house immediately north of 1409. Murawski knocked at the door, and Justina Engel
answered. Murawski was in full police uniform. He advised Justina that he was with the St. Charles
Police Department and was looking for the man who lived at 1409. She responded that he was her
landlord, and was in the basement fixing the washer and dryer. Murawski asked if he could speak
with him, and Justina called for her father, Leland Engel. When Leland came to the door, Murawski
identified himself as a police officer and told Leland he needed to speak with defendant. Leland
said to hold on and that he would go and get defendant. Leland then walked into the rear of the
residence. Murawski asked Justina if he could enter the home, and she said yes. He then entered
the living room to wait for Leland to bring defendant.
¶ 12 While waiting in the living room, Murawski heard a loud voice yell from the basement,
“Tell him to get the fuck out of my house.” Murawski radioed for backup and went into the
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basement. As he went into the basement, he saw that the backdoor was closed. Murawski went
about halfway down the stairs and stopped on the landing. Defendant, Leland, and Jamie Engel,
Leland’s son, were downstairs. Murawski identified himself as a St. Charles police officer, and he
told defendant that he had a warrant for his arrest and to come upstairs. Defendant responded, “I’m
not going anywhere with you.” Defendant had his hands balled up by his side and was visibly
upset. Murawski decided to wait for backup to arrive and went back upstairs. Officer Steve
Woloszyk radioed that he was on the scene, and Murawski went towards the front door to let him
in. Leland then came up the stairs and told Murawski to get out of his house. Murawski told Leland
he was not going to leave.
¶ 13 Leland then went back towards the basement. Murawski was waiting for Woloszyk when
he heard quick footsteps coming up the basement stairs. Murawski went back towards the
basement stairs. The door to the basement was now closed; Murawski had left it open. He opened
the door, and Leland was standing there. Murawski asked where defendant had gone, and Leland
replied, “I don’t know.” Murawski observed that the back door was wide open, and he went outside
to look for defendant.
¶ 14 Murawski used a flashlight to look around the yard but did not see defendant. Murawski
then went to look behind a small tool shed that was near the back of the house. As he turned the
corner to look behind the shed, he saw defendant in a crouched position about two feet away from
him. Murawski told defendant to stop and that he was under arrest. Defendant got up from his
crouched position and “stiff armed” Murawski in the face below his left eye. He described the
blow as a “good shot, it was pretty hard. It hurt.” However, Murawski did not suffer any bleeding
or bruising.
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¶ 15 Defendant then tried to run away towards his home. Murawski caught up with defendant
before he could leave the yard, and grabbed his arms. They both then went to the ground.
Defendant laid on his stomach, and Murawski was to defendant’s left. Murawski told defendant to
put his arms behind his back. Defendant did not comply with the command and placed his arms
underneath his stomach. Murawski could hear that other officers had arrived, and he yelled that he
was in the backyard. Murawski tried to place defendant’s left arm behind his back, but defendant
resisted. Officer Woloszyk arrived 15 to 20 seconds later and tried to place defendant’s right arm
behind his back but was unable to. The whole time, defendant was yelling.
¶ 16 Sergeant Rich Clark arrived shortly thereafter and the three were able to handcuff
defendant. They sat defendant up in the “recovery position.” They then escorted defendant to a
police car, and at this point defendant yelled something about St. Charles Police Chief Keegan and
that he hoped the officers all died before they could get their pensions.
¶ 17 Defendant did not complain of any injuries, and Murawski did not observe any injuries to
defendant. Murawski testified that he and the other officers did not choke, strike, kick, or threaten
defendant.
¶ 18 The State next called Officer Steve Woloszyk of the St. Charles Police Department, who
testified as follows. At approximately 8:55 p.m. on April 30, 2019, he responded to a call for
backup at 1403 South Fourth Street in St. Charles. When he arrived, he approached the house and
saw someone standing in the front doorway. Before he could announce himself, he heard
Murawski call for help from the backyard.
¶ 19 Woloszyk hopped a fence to enter the backyard and saw Murawski in a struggle with
defendant. They then fell to the ground. Woloszyk went to aid Murawski in apprehending
defendant. Murawski had a hold of defendant’s left arm, and Woloszyk grabbed it. Defendant was
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flailing his arms and yelling, trying to break free. Defendant then put his right arm underneath
himself, and Woloszyk ordered him to place his hands behind his back and to stop resisting.
Sergeant Clark then arrived and helped handcuff defendant’s left wrist, and then helped Woloszyk
handcuff the right wrist.
¶ 20 The officers then put defendant in the “recovery position,” made sure he was not injured,
got him on his feet, and escorted him to the squad car. Woloszyk did not observe any injuries to
defendant, and defendant did not indicate he was injured or ask for medical attention. As they
placed him in the squad car, defendant was yelling as loud as he could and said he hoped the
officers died before they received their pensions. Woloszyk testified that he did not punch, kick,
strangle, or choke defendant.
¶ 21 Commander Rich Clark of the City of St. Charles Police Department testified as follows.
On April 30, 2019, Clark was a sergeant with the St. Charles Police Department assigned to the
evening shift. At approximately 8:55 p.m., he drove to 1403 South Fourth Street to provide
Murawski with backup. He arrived approximately 10 seconds after Woloszyk. As Clark got out of
his car, Woloszyk was approaching the front door of the home. Clark then heard Murawski yell
that he was in the backyard. Woloszyk jumped the fence to the backyard first, with Clark
following. Clark was delayed slightly when some of his equipment got caught on the fence, but he
shortly freed himself and went to assist the other officers. He observed Murawski on top of
defendant and Woloszyk to the defendant’s right. When Clark reached them, Murawski had
defendant’s left arm behind his back, and Clark assisted in handcuffing his left wrist. He then
assisted Woloszyk in freeing defendant’s right arm from underneath himself and handcuffed the
right wrist. Defendant’s demeanor was extremely aggressive, and he was shouting profanities. The
officers were all yelling at defendant to stop resisting.
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¶ 22 After they had handcuffed defendant, they rolled him onto his side and then stood him
upright. Clark did not observe any injuries to defendant. Defendant did not complain of any
injuries, and yelled, “I hope you fucking die before you ever get your pension” and “fuck Chief
Keegan.”
¶ 23 After Woloszyk left with defendant, Clark spoke with Jamie and Leland and then went next
door to check on defendant’s mother, but no one answered the door. He then spoke with the Engels
again who told him she would not answer the door without defendant there. Clark returned the
next day and spoke with Jamie and Leland Engel. They refused to give a written statement
regarding the incident as they had recently signed a two-year lease with defendant and did not
want to have any issues.
¶ 24 The State rested, and defendant moved for a directed verdict, which the court denied.
¶ 25 Defendant called Dr. Patricia Burke, who testified as follows. On May 1, 2019, Dr. Burke
examined defendant at the Kane County jail. Defendant had complained that he had tenderness in
his neck, a lump on his neck, and a sore throat. He claimed he had been choked the day before. Dr.
Burke observed a lump on defendant’s neck and a couple of scratches on his hand, but she
otherwise did not observe any injuries to defendant. He had normal range of motion in his neck,
and was able to swallow water, though he complained that it hurt.
¶ 26 Defendant next called Jamie Engel, who testified as follows. Jamie, his father Leland, and
his sister Justina had been renting 1403 South Fourth Street from defendant and his mother. On
April 30, 2019, at around 8:30 p.m., defendant had come over to fix the washing machine.
Defendant, Leland, and Jamie were in the basement troubleshooting the washing machine, when
at around 9 p.m. there was a knock at the door. Jamie went upstairs and saw Justina speaking to a
police officer. The officer asked if defendant was there, and she said yes. He did not recall the
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officer ever mentioning that he was with the police or that he had a warrant. Jamie then went to
the bathroom. When he left the bathroom, he went to the basement steps, saw the officer was in
the basement, decided he did not want to be involved, and went back upstairs.
¶ 27 He then saw the officer come upstairs and walk out the front door. Shortly thereafter, an
officer (Jamie was not sure if it was the same one) entered through the front door and headed in
the direction of the kitchen and basement stairs, but Jamie did not see where the officer went. He
then heard a commotion outside. He heard defendant yelling but could not recall hearing any
particular words.
¶ 28 He decided that he did not want to be involved and went to his room to go to bed. He did
not recall anyone coming to the door after the commotion. The next day, an officer came to the
house and asked Leland and Jamie “to sign kind of a paper.” Leland declined, and Jamie walked
away from the conversation before it ended. Jamie admitted that his memory about what had
happened was not very good.
¶ 29 Defendant then called Leland Engel who testified as follows. Leland remembered very
little about the night of April 30, 2019. He was in the basement with defendant working on the
washing machine when a police officer arrived at his home. Leland asked the officer if he had a
warrant, and the officer told him that he had a warrant for defendant’s arrest. Leland told the officer
to get out of his house, and he followed the officer upstairs. The officer left out the backdoor, and
Leland heard a commotion. He heard someone yell “I can’t breathe,” and “you’re choking me.”
Leland stayed in the house and did not go to look at what was happening in the backyard. A police
officer came back to the house later that night, but Leland did not remember how much time had
passed or what the officer wanted.
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¶ 30 Defendant then called Justina Engel, who testified as follows. On April 30, 2019, a police
officer knocked on the front door and identified himself as an officer with the St. Charles police
and gave his name, which she did not remember. He asked her if defendant was there and asked
to speak with him. Before the officer arrived, she was in the basement with Leland, Jamie, and
defendant. She told the officer that defendant was in the basement fixing the washer. The officer
asked to enter, and she let him in. Justina and the officer were standing in the living room, when
she heard someone yell from the basement, “tell him to get out of my house.” The officer then
went to the basement stairs and said in a loud voice that there was a warrant for defendant’s arrest
and that defendant needed to come with him.
¶ 31 Eventually, the officer exited through the backdoor and arrested defendant in the backyard.
Justina did not go to look in the backyard, but she heard defendant say that he was being choked.
¶ 32 Danika McGee, a registered nurse who was employed at the Kane County jail, could not
be located for testimony on the second day of trial. At a recess during Justina’s testimony, the trial
court made it clear that it would not continue the trial in order to locate McGee, even after
defendant indicated that he wanted to have her testify. McGee had examined defendant at the Kane
County jail following his arrest and had made notes pertaining to that examination. The trial court
asked defendant if there was anything he intended to have McGee testify to that was not contained
in the examination notes. He responded that he intended to have her testify regarding a railroad
track shaped bruise on the back of his leg.
¶ 33 The State was willing to stipulate to the contents of McGee’s notes from her examination
of defendant. As McGee had not been located, the trial court gave defendant the option of accepting
the State’s stipulation or proceeding without any testimony. Defendant accepted the stipulation,
which was read to the jury as follows:
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“[McGee] is a registered nurse and [she was] employed by the Kane County
Sheriff’s Office at the Kane County Jail on or about April 30th through at least May
2nd, of 2019.
She would further testify that on May 2nd, 2019, at approximately 12:36
p.m. she met with the Defendant who complained of fresh cuts being on his hands.
She noted dry skin and dirty nails but no broken skin. The Defendant also
complained of a bump on his head that he found on May 2nd, 2019, when he was
showering.
She would testify that she did palpate a bump on the right side of head,
behind the ear. There was no redness or bruising that would suggest this is a new
injury. However, Defendant states he has pain. He was offered Tylenol and denied
wanting to take any medication.”
¶ 34 Defendant then called Murawski, Woloszyk, and Clark. Their testimony did not differ
meaningfully from their testimony in the State’s case.
¶ 35 The last witness defendant intended to call was the Chief James Keegan of the St. Charles
Police Department. Outside the presence of the jury, the State objected on the grounds that calling
Chief Keegan would amount to a fishing expedition. The trial court asked defendant what he
intended Chief Keegan to testify to, and he responded that he would testify to the department’s use
of force policy. The trial court determined that Commander Clark was still in the building, and
was familiar with the department’s policy. The trial court stated that it would not allow defendant
to call Keegan but would allow him to call Clark to testify to the department’s use of force policy.
Defendant agreed to call Clark.
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¶ 36 Clark was recalled and testified that according to the St. Charles Police Department’s use
of force policy, “[a]pplying force to the arrestee’s throat sufficient to prevent him from breathing
or obstructing a person’s blood supply to [his head]” would “virtually always be unreasonable and
should not be utilized[.]” Clark testified that this policy was applicable to all arrests including
defendant’s, and that no procedure was violated during defendant’s arrest.
¶ 37 Defendant then testified on his own behalf. He testified that he had gone over to the
Engels’s house to work on the washing machine. While he was working, the Engels came in and
out of the basement intermittently. At some point he was alone in the basement diagnosing the
washer, when he became aware that there were people on the stairs.
“And then I look up or something notices me, I feel like a herd of elephants,
and that’s the best thing I could describe. And I kind of stand up and look over.
And I see what I thought was eight feet, it’s probably only six. But all this
commotion, feet shuffling and I had no idea what it was. And I looked over and I
saw this person staring at me. And I thought I saw all the tenants but I probably
only saw two of the tenants, that’s what the six feet were, instead of the eight feet.
But I saw familiar faces and I saw an unfamiliar face.
***
And I’m wondering, who in the heck is over in my basement, in the bowels
of my house while I’m working my fanny off, thinking he owns this place? I didn’t
think any quicker. In a split second I told him to get the F out of this house. I’m the
owner, you don’t come into my house. And he looked at me and he said, okay. He
turned right, to his right and walked up the stairs. It took five seconds. And Leland
and I believe it was Justina, I’m not sure, I didn’t look at them when they were
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walking backwards, all these feet went back upstairs. They all had dark pants,
clothes, whatever you want to call it, black. The tenants for some reason wear a lot
of dark clothes, black. I was in blue jeans with a long sleeve shirt.
And I couldn’t believe it. I didn’t have to use force on this person. The only
thing I thought was, this looks like a skinhead. And by that I mean, it was a he, for
that I could discern, he had like a crew cut. It was kind of blond but I don’t really
know. And it just reminded me of a skinhead.”
¶ 38 Leland returned to the basement around two minutes later, and defendant asked him if the
man had gone. Leland replied that he had not, and defendant quickly ran up the stairs.
“When I was walking up the steps, my mind was racing a mile a minute. I
thought, who is over here? And then I thought, things are going so much faster
through my mind and I’m actually talking and I’m talking pretty fast. Who is this
guy? Who is this skinhead? Who is this person? I don’t know, in my house at 9:00
o’clock, in the bowels of my basement. All I know is he doesn’t belong here.
So on the way up I thought, well I know that Jamie played pool and that
was when we were interviewing, he had to go over and play pool wherever they
play pool. I thought maybe it’s some loan shark or something. And I thought oh,
that’s stupid. And then I thought, well maybe it’s the first of the month is tomorrow,
maybe it’s someone thinking they have money and they’re gonna rob them. So at
first I was worried about trying to defend the property. Then I worried about trying
to defend the tenants.
Then on my way up the stairs, I heard the chattering, is the best description
I could say, of noise in the kitchen and it sounded like little elephants. And I
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thought, something is wrong here. I feel bad for the tenants but I have to look out
for my own self first. I don’t know what’s going on, I have got to get away from
here. None of this made any sense and it happened very quick. So the backdoor is
right there.”
¶ 39 Defendant then recounted how he went into the backyard and hid behind the tool shed. He
described someone exiting the house after him as:
“About three or four seconds later, it sounded like somebody was taking the
door off the backdoor, in other words, the storm door. I didn’t know what it was. I
didn’t know who it was. I had an idea or a guess that it was this person, skinhead
or whatever you want to call it. He then proceeded out. And as I said, I don’t even
know if it was a he, I’m just assuming. I had about five seconds exposure in the
basement. He proceeded out to the center of the yard.”
¶ 40 Defendant went on to describe how the man searched the yard with a flashlight and
eventually located him behind the shed.
“I don’t know what to do now. I’m not gonna attack him. I don’t do that. I
can’t defend my property, I have nothing to defend myself with. I’m fleeing.
As soon as he lit me up, he came at me like a mad dog. I assume, I think it
was the same person, I don’t know, it could have been somebody different, that
would be the second time.
I immediately took one step out from the shed. *** I take one step out and
two steps this way, two or three steps—one, two or three steps. It took a total of
one and a half, maybe two seconds, a distance of six feet, maybe eight, and I was
hit like a football player being tackled. I was either tackled or tripped, I don’t know,
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it happened so fast. And it would have been *** approximately two or three feet
off of the sidewalk if you extended it on the grass. That is my best recollection.
He had shined the light in my eye, and it was so dark, I basically was night
blinded. I don’t recall doing this, but instinct would tell me that I would try and
shield my hand or eye or something. I’m blind. I know where the gate is, I know
how many steps it is, I know the way I want to go to get free. I know the way I want
to go and get away from this person who’s attacking me or who may attack me or
who I perceive is, I don’t know, I just couldn’t think. Needless to say, I got stopped
here.
Quicker than I could think—quicker than I could think, I—I couldn’t see, I
couldn’t see anything. I couldn’t see black. I couldn’t see the edges of my eyelids.
I couldn’t see the edges of anything.
And then I couldn’t hear. The only reason I know that is I have tinnitus, I’ve
had it for 40 years. And I couldn’t hear it, and I could tell when it was there and
when it wasn’t and I couldn’t tell it was there. And I thought this must be what it’s
like to be dead. I’m sorry.
Some time passed but I don’t have a clue, it could have been a day, it could
have been a week, it could have been a year, it could have been a few seconds.
I remember my vision like looking through a waterfall of dark red water or
a piece of acetate, dark red. And then I could hear something, although I don’t know
what it was.
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And then I said, you’re choking me, I can’t breathe, I can’t breathe, I can’t
breathe, three times for each one of the tenants. And I just prayed that somebody
heard me. And I guess the fact that I could hear myself indicated that I wasn’t dead.
And then I remember tensing my body and summoning all the strength I
could to break this choke hold. And I understand when people say, you have the
strength of—because I used every ounce of energy I had all at once and I would
believe that I was able to break this choke hold. It’s something I never want to
experience again. couldn’t see.”
¶ 41 Defendant went on to testify that he did not hear anyone say anything while he was on the
ground. He was then handcuffed and stood up. He was walked to the end of the driveway by a man
who “looked like a wolfman jack,” and there he saw three police cars.
¶ 42 Defendant then made a remark about how he had spent 95 days in jail following his arrest,
which prompted the judge to hold a sidebar outside the presence of the jury. After admonishing
defendant not to discuss that he had spent time in jail, and while still outside the presence of the
jury, the court held the jury instruction conference. Defendant requested that the jury be instructed
on self-defense, and the State objected. The trial court determined that a self-defense instruction
was inappropriate and would not be given.
“The testimony I have before me and the statement I have before me from
Mr. Ericson is that he fled; he did not fight. There is no evidence I have in front of
me that Mr. Ericson admits that he actually landed a punch. He says that he was
running away, that he was tackled and he did absolutely nothing. The only thing
that he did do was tense his body.
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I can’t say even slight evidence of self-defense has been given in this case.
Because there is no evidence before me, nor am I going to allow you now to take
the stand and do it; but there’s no evidence before me that he ever, from Mr.
Ericson—there’s evidence that he punched the officer. But there’s no evidence that
he was defending himself when he punched the officer.
Mr. Ericson, in fact, testified he doesn’t even know if he punched anybody.
He did argue that he doesn’t know it’s an officer, which I suppose is a different
element. But in this case he had not admitted to the actual offense. And to make an
affirmative defense, you have to admit to it, which he’s not done, even in slight
evidence.
And for that reason, I’m going to deny the self-defense instruction at this time.”
¶ 43 Defendant then retook the stand and testified as follows:
“When Mr. Murawski lit me up with the flashlight, I was blinded. I knew
that I had been identified or caught, whatever you want to say. I instinctively
stepped out from the shed, turned 90 degrees to the left to try and get away from
him through the only exit available, which was the gate.
I had no intention of hurting him. I had no intention of harming him. If I
did, it was completely inadvertent.
If I inadvertently hit him, I did not mean to hit him. I don’t mean harm to
anybody.
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I was unaware that this person was a peace officer. Only later on did I find
out.
I have nothing more.”
Following cross-examination, defendant rested. He did not renew his motion for a directed
verdict.
¶ 44 While the jury was deliberating, the court received the following question from the jury:
“Your Honor, on the first proposition of aggravated battery, does knowingly need to mean
premeditated or can it be reactionary?” In response, the court instructed the jury with the definition
of “knowingly” provided by Illinois Pattern Jury Instructions, Criminal, No. 5.01B (approved
October 28, 2016).
¶ 45 The jury ultimately returned a verdict of guilty on both the counts of aggravated battery
and resisting arrest.
¶ 46 On August 31, 2020, defendant filed a motion for a new trial, which was denied.
¶ 47 On September 18, 2020, defendant was sentenced to four years’ imprisonment.
¶ 48 Defendant timely appealed.
¶ 49 II. ANALYSIS
¶ 50 Defendant raises several issues on appeal. Defendant argues that (1) the court’s COVID-
19 safety procedures violated his right to a public trial; (2) his statutory speedy-trial rights under
section 103-5(b) of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-5(b) (West 2018))
were violated, despite our supreme court’s administrative order tolling speedy trial calculations;
(3) the trial court erred when it failed to instruct the jury on self-defense; (4) the trial court erred
in denying defendant’s motion for a directed verdict; (5) the trial court erred in refusing to continue
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trial in order to locate McGee and in preventing defendant from calling Keegan as a witness, and
(6) that the trial court failed to properly answer the jury’s question regarding the term “knowingly.”
¶ 51 A. Public Trial
¶ 52 Defendant argues that the closure of the courtroom violated his sixth amendment right to a
public trial.
¶ 53 A criminal defendant is guaranteed a right to a “speedy and public trial.” U.S. Const.,
amend. VI. “Trial courts are obligated to take every reasonable measure to accommodate public
attendance at criminal trials.” Presley v. Georgia, 558 U.S. 209, 215 (2010).
“ ‘[T]he party seeking to close the hearing must advance an overriding
interest that is likely to be prejudiced, the closure must be no broader than necessary
to protect that interest, the trial court must consider reasonable alternatives to
closing the proceeding, and it must make findings adequate to support the
closure.’ ” Id. at 214 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)).
“In general, the standard of review for determining if an individual’s constitutional rights have
been violated is de novo.” People v. Hale, 2013 IL 113140, ¶ 15.
¶ 54 Defendant’s trial was among the first conducted in Kane County following the suspension
of trials during the beginning of the COVID-19 pandemic. To guard against the spread of COVID-
19, the trial court enacted various safety measures, which included excluding members of the
public from the courtroom and seating the jurors in the benches generally used by members of the
public, where they could socially distance. As the public was excluded from the courtroom, the
trial was broadcast to another courtroom, which was open to the public.
¶ 55 Defendant argues that when he arrived at the courtroom the day of the trial, he observed
that there would be nowhere for members of the public to view the trial and called his sister to tell
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her not to come to the trial. Defendant maintains that no members of the public, press, or his
relatives were permitted in the courtroom, and therefore he did not receive a public trial. He further
maintains that he did not waive his right to a public trial. The State responds that defendant was
informed of the safety protocols prior to trial and made no objection, thus forfeiting the issue.
¶ 56 The failure to object to an error at trial and include the error in a posttrial motion constitutes
forfeiture or procedural default of the issue. People v. Johnson, 238 Ill. 2d 478, 484 (2010). “A
contemporaneous objection is particularly crucial when challenging any courtroom closure.”
People v. Radford, 2020 IL 123975, ¶ 37. If there is no objection at trial, there is no opportunity
for the judge to craft an alternative solution or to explain in greater detail the justification for the
closure. Id. Here, defendant failed to make a contemporaneous objection at trial and therefore
forfeiture applies.
¶ 57 However, under the plain error doctrine, a reviewing court may consider a forfeited claim
when “(1) a clear or obvious error occurred and the evidence is so closely balanced that the error
alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of
the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the
fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of
the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).
¶ 58 Here, the trial court did not err in excluding members of the public from the main
courtroom and broadcasting the trial to another courtroom open to the public. Illinois courts and
many others have found that protecting public safety during the COVID-19 pandemic constituted
an overriding interest and that the procedure of closing the courtroom to spectators while allowing
the public to watch the trial remotely is a reasonable accommodation. See, e.g., People v. Paul,
2022 IL App (5th) 210297-U, ¶¶ 18-19 (collecting cases); United States v. Richards, 2020 WL
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5219537 (M.D. Ala.), slip order at 2-4; United States v. Huling, 542 F. Supp. 3d 144, 145-48
(D.R.I. 2021); cf. United States v. Allen, 34 F.4th 789, 798 & n.5 (9th Cir. 2022) (order closing
courtroom and allowing public only audio access was too restrictive given that “courts throughout
the country” had successfully allowed video streaming of proceedings; collecting cases).
Accordingly, defendant’s right to a public trial was not violated, and as there was no error, there
can be no plain error. See People v. Walker, 232 Ill. 2d 113, 124 (2009).
¶ 59 B. Speedy Trial
¶ 60 Defendant argues that the trial court erred in denying his motion to dismiss based on the
violation of his statutory speedy-trial rights pursuant to section 103-5(b) of the Code of Criminal
Procedure of 1963, which requires that defendants “on pretrial release or recognizance shall be
tried by the court having jurisdiction within 160 days from the date defendant demands trial unless
delay is occasioned by the defendant[.]” 725 ILCS 5/103-5(b) (West 2018). Defendant’s trial was
continued pursuant to a general order of the Kane County circuit court (16th Judicial Cir. Ct. G.O.
20-09 (March 25, 2020, amended April 22, 2020)) which was promulgated under the authority
granted to the circuit courts by the supreme court’s March 20, 2020, administrative order, allowing
the chief judges of the circuit courts to continue trials for 60 days. Ill. S. Ct., M.R. 30370 (eff.
March 20, 2020). The supreme court’s order also included a provision stating that, “any delay
resulting from this emergency continuance order shall not be attributable to either the State or the
defendant for the purposes of section 103-5 of the Code of Criminal Procedure of 1963 [citation].”
Ill. S. Ct., M.R. 30370 (eff. March 17, 2020).
¶ 61 Defendant accepts the trial court’s calculation that 150 days had passed on his speedy-trial
demand as of the supreme court’s March 20, 2020, order. Even were we to include the additional
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five days between the supreme court’s administrative order and the entry of the circuit court’s
general order continuing defendant’s trial, only 155 days would have passed on his demand.
¶ 62 Defendant argues that although Kane County’s general order stated that the continuances
were “in the best interest of the public, including parties, witnesses, and all court personnel” (16th
Judicial Cir. Ct. G.O. 20-09 (March 25, 2020)), continuing his trial was not in his best interest. He
further argues that local rules may not abrogate, limit, or modify existing law, as only the
legislature has authority to modify statutes, not the courts, and that the supreme court and circuit
court’s orders were without authority.
¶ 63 Our supreme court has already considered the issue of whether it had authority to continue
trials in contravention of section 103-5 of the Code of Criminal Procedure and held that because
the conflict between the supreme court’s order and section 103-5 “arises in the context of court
procedure, the court rule prevails.” People v. Mayfield, 2023 IL 128092, ¶ 41, reh’g denied.
¶ 64 Accordingly, the trial court did not err in denying defendant’s motion to dismiss based on
a violation of his statutory speedy trial right, where the circuit court’s general order, under the
authority of the supreme court’s order, tolled speedy trial computations due to the COVID-19
pandemic.
¶ 65 C. Self-Defense
¶ 66 Defendant argues that the trial court erred when it refused to instruct the jury on his theory
of self-defense. “The question of whether sufficient evidence exists in the record to support the
giving of a jury instruction is a question of law subject to de novo review.” People v. Washington,
2012 IL 110283, ¶ 19. It is well settled that a defendant is entitled to a jury instruction on an
affirmative defense if there is some evidence in the record, however slight, to support the defense.
Id. at ¶ 43.
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“The elements of self-defense are: (1) that unlawful force was threatened against a
person; (2) that the person threatened was not the aggressor; (3) that the danger of harm
was imminent; (4) that the use of force was necessary; (5) that the person threatened
actually and subjectively believed a danger existed that required the use of the force
applied; and (6) the beliefs of the person threatened were objectively reasonable.” People
v. Lee, 213 Ill. 2d 218, 225 (2004).
¶ 67 In the instant case, defendant was charged with resisting arrest and aggravated battery of a
peace officer. A person is not authorized to use force to resist arrest even if the arrest is unlawful.
720 ILCS 5/7-7 (West 2018). To claim self-defense when a defendant is charged with resisting
arrest or aggravated battery of a peace officer during an arrest, a defendant must show that they
were either unaware of the police officer’s identity or that the officer used excessive force. People
v. Ammons, 2021 IL App (3d) 150743, ¶ 21.
¶ 68 Regarding the aggravated battery charge, defendant’s testimony was that he was
temporarily blinded and deafened. He testified that he did not recall doing so, but it would make
sense instinctually to shield his eyes from the flashlight. He testified that he had no intention of
harming or hurting Murawski, and that if he did it was completely inadvertent. This does not
describe self-defense, but rather a reflexive or inadvertent contact, and thus no self-defense
instruction was warranted on the aggravated battery charge.
¶ 69 Regarding the resisting arrest charge, it was defendant’s testimony that after he fled from
Murawski he was tackled or tripped and placed in a chokehold. He said, “I can’t breathe” three
times, and then summoned all of his strength and tensed his body to break the chokehold.
¶ 70 While a self-defense instruction can be given in a resisting arrest case when the arresting
officer uses excessive force, “[a] self-defense instruction should only be given in a resisting arrest
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case when a defendant resists arrest after the officers resort to using excessive force. A self-defense
instruction is inappropriate *** where defendant resisted arrest and then officers used force to
effectuate the arrest.” [Emphasis added.] People v. Haynes, 408 Ill. App. 3d 684, 691 (2011). In
the instant case, defendant had fled the house, hidden from Murawski, was discovered by
Murawski, struck Murawski, and attempted to flee again, before the alleged excessive force
occurred.
¶ 71 Further, defendant’s claim that he did not know Murawski to be a police officer does not
alter our conclusion. Murawski, Leland, and Justina all testified the Murawski identified himself
as a police officer, was dressed in uniform, and informed defendant that he was there to place
defendant under arrest. “ ‘[A] defendant is entitled to an instruction as to any recognized defense
for which there exists evidence sufficient for a reasonable jury to find in his favor.’ ” People v.
Everette, 141 Ill. 2d 147, 156 (1990) (quoting Mathews v. United States, 485 U.S. 58, 64 (1988)).
¶ 72 However, in light of the other witnesses’ testimony, no reasonable jury could have believed
defendant’s bizarre and picturesque testimony that he believed Murawski to be a skinhead or loan
shark from the pool hall. Because defendant had fled from and struck Murawski prior to the alleged
chokehold, he was not entitled to a self-defense instruction regarding the resisting arrest charge.
¶ 73 D. Motion for Directed Verdict/Sufficiency of the Evidence
¶ 74 Defendant argues that the trial court erred in denying his motion for a directed verdict as
the State failed to prove him guilty beyond a reasonable doubt on both charges. Defendant seems
to be conflating the standard for a directed verdict with the standard for whether there was
sufficient evidence to sustain a conviction. Regardless, there was sufficient evidence to both
sustain his convictions and to overcome defendant’s motion for a directed verdict.
¶ 75 Section 115-4(k) of the Code of Criminal Procedure of 1963 provides:
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“When, at the close of the State’s evidence or at the close of all of the
evidence, the evidence is insufficient to support a finding or verdict of guilty the
court may and on motion of the defendant shall make a finding or direct the jury to
return a verdict of not guilty, enter a judgment of acquittal and discharge the
defendant.” 725 ILCS 5/115-4 (k) (West 2020).
A motion for a directed verdict “requires the trial court to consider only whether a reasonable mind
could fairly conclude the guilt of the accused beyond reasonable doubt, considering the evidence
most strongly in the People’s favor.” People v. Withers, 87 Ill. 2d 224, 230 (1981). For the purposes
of a directed verdict, the defendant admits the truth of the facts in the State’s evidence. People v.
Kelley, 338 Ill. App. 3d 273, 277, 788 (2003). Whether the trial court erred in denying a motion
for a directed verdict presents a question of law we review de novo. Id.
¶ 76 Additionally, “it is well settled that a defendant who chooses to present evidence after the
denial of his motion for a directed verdict at the close of the State’s case [forfeits] any error in the
trial court’s ruling on the motion unless he renews the motion at the close of all the evidence.”
Kelley, 338 Ill. App. 3d at 277. As respondent failed to renew his motion for directed verdict at the
close of all evidence, he has forfeited his claim regarding his motion for directed verdict.
¶ 77 Whereas a challenge to the sufficiency of the State’s evidence requires a reviewing court
to determine, “whether after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” (Internal quotations omitted.) People v. Ross, 229 Ill. 2d 255, 272 (2008).
¶ 78 To convict defendant for aggravated battery, the State needed to show that defendant
knowingly and without legal justification caused bodily harm to Murawski and that he knew
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Murawski to be a peace officer engaged in the execution of his official duties. 720 ILCS 5/12-
3.05(d)(4)(i) (West 2018).
¶ 79 A person resists arrest when they knowingly perform some physical act which imposes an
obstacle which may impede, hinder, interrupt, prevent, or delay the arrest, such as going limp or
forcefully resisting. 720 ILCS 5/31-1 (West 2018); People v. Raby, 40 Ill. 2d 392, 399-400 (1968).
¶ 80 “It is well established that a single, positive identification by someone who had ample
opportunity to observe the offender is sufficient to support a conviction.” People v. Conway, 2023
IL 127670, ¶ 18, reh’g denied. This is so even when such testimony is contradicted by the
defendant. People v. Morehead, 45 Ill. 2d 326, 330 (1970).
¶ 81 In the instant case, Murawski testified positively that he identified himself as a police
officer to defendant, and told him that there was a warrant for his arrest. He likewise testified that
defendant struck him after he located defendant in the backyard, and that defendant tensed up and
refused to allow Murawski and the other officers to place him in handcuffs. The testimony of
Woloszyk and Clark further corroborated Murawski’s testimony regarding the resisting arrest
charge, though not the aggravated battery, as neither were present. Accordingly, even if defendant
had not forfeited the issue, there was sufficient evidence to support the denial of defendant’s
motion for a directed verdict, and to support his convictions.
¶ 82 E. Defendant’s Witnesses
¶ 83 Defendant argues that the trial court denied him his sixth amendment right to a fair trial
and his fourteenth amendment due process rights when it refused to allow him to call McGee and
Keegan as witnesses.
¶ 84 Although defendant never formally requested a continuance to obtain McGee’s presence,
the trial court stated preemptively that it would not allow such a continuance. In reviewing the
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denial of a continuance to secure the presence of a defense witness, we consider, “(1) whether
defendant was diligent; (2) whether defendant has shown that the testimony was material and
might have affected the jury’s verdict; and (3) whether defendant was prejudiced.” People v. Ward,
154 Ill. 2d 272, 307 (1992). We review the trial court’s ruling for an abuse of discretion. Id.
“Refusal to grant a continuance may constitute an abuse of discretion when it interferes with the
ascertainment of the truth as to whether the person accused is, in fact, guilty of the crime charged.”
People v. Gardner, 282 Ill. App. 3d 209, 215 (1996).
¶ 85 The record indicates that defendant was diligent in trying to obtain McGee’s presence at
trial. He stated that he had made several attempts to call her and had secured her presence in court
the previous day. Regarding whether McGee’s testimony was material, the only thing which
defendant claimed McGee would testify to that was not contained in her notes was the presence of
a railroad track shaped bruise on the back of his leg. The primary purpose of McGee’s testimony
was to corroborate defendant’s claim that he was placed in a chokehold by the arresting officers.
The presence of a bruise on his leg does little to establish that he was placed in a chokehold.
Further, defendant himself was able to testify regarding the bruise. In light of the notes which were
read into the record, McGee’s testimony would not have been material, and he was not prejudiced
by the lack of her testimony. Accordingly, the trial court did not err in refusing to continue the
trial.
¶ 86 As for Keegan, he was not present at defendant’s arrest and was only being called to testify
to the department’s use of force policy. Defendant maintains that recalling Clark to testify
regarding the use of force policy “implicitly gave more weight to the State’s case” and that he
“was not allowed to question the veracity of three peace officers’ testimony with an independent
or disinterested party.” We do not see how recalling Clark to testify regarding the department’s
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use of force policy gave more weight to the State’s case. As for challenging the veracity of the
officer’s testimony, Keegan was not a witness to the arrest and could not testify to the veracity of
the officers’ testimony regarding the arrest. Additionally, it is not clear how the chief of the police
department could be considered an independent or disinterested party when it comes to the conduct
of the officers under his command.
¶ 87 Regardless, defendant was not prejudiced by having Clark testify rather than Keegan. Clark
testified that the use of force policy forbade chokeholds in essentially every arrest and that the
policy applied to defendant’s arrest, which was all Keegan would have been able to testify to.
Accordingly, the trial court did not abuse its discretion in refusing to continue to the trial to obtain
McGee’s presence, or in not allowing defendant to call Keegan as a witness.
¶ 88 F. Response to the Jury’s Question
¶ 89 Defendant argues that the trial court erred when it refused to answer the jury’s question,
“[d]oes knowingly need to mean premeditated or can it be reactionary?” and instead sent back the
definition of “knowingly” given in Illinois Pattern Jury Instructions, Criminal, No. 5.01B
(approved October 28, 2016). We note that defendant made no objection to the court’s response to
the jury’s question and thus forfeited the issue. People v. Lewis, 234 Ill. 2d 32, 40 (2009) (“Both
a contemporaneous objection and a written posttrial motion are required to preserve an issue for
review.”).
¶ 90 However, even were the issue not forfeited, the trial court did not abuse its discretion in
answering the jury’s question by providing them with the pattern instruction. See People v. Reid,
136 Ill. 2d 27, 39 (1990) (whether and how to answer a jury’s question is within the discretion of
the trial court). Illinois Pattern Jury Instructions, Criminal, No. 5.01B was enacted to address jury
confusion over the term “knowingly,” and following its addition in 1989, “a general rule has
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emerged: if a jury asks the court to define a mental state term, or manifests confusion or doubt
regarding such a term’s meaning, the court must instruct them accordingly.” People v. Sperry,
2020 IL App (2d) 180296, ¶¶ 15, 17. As such, the trial court acted appropriately by providing the
instruction when the jury expressed confusion, and there was no error.
¶ 91 III. CONCLUSION
¶ 92 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 93 Affirmed.
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