People v. Fetter

591 N.E.2d 474, 227 Ill. App. 3d 1003, 169 Ill. Dec. 301, 1992 Ill. App. LEXIS 565
CourtAppellate Court of Illinois
DecidedApril 10, 1992
Docket2-90-0024
StatusPublished
Cited by24 cases

This text of 591 N.E.2d 474 (People v. Fetter) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Fetter, 591 N.E.2d 474, 227 Ill. App. 3d 1003, 169 Ill. Dec. 301, 1992 Ill. App. LEXIS 565 (Ill. Ct. App. 1992).

Opinion

JUSTICE BOWMAN

delivered the opinion of the court:

Following a jury trial, defendant, John Fetter, was found guilty of two counts of aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(b)(6)) and not guilty on counts charging burglary and a third aggravated battery. He was sentenced to seven years in the Department of Corrections on each of the aggravated battery convictions. The sentences were ordered served consecutively. On appeal, the defendant urges that the trial court erred by (1) failing to have the jury instructions specify which aggravated battery count applied to which victim; (2) refusing defendant’s tendered self-defense instructions; and (3) imposing consecutive sentences.

The relevant facts indicate that the charged burglary occurred on June 24, 1989, at Hanson Engineers, Inc., in Rockford. Officers Hoshaw, Vandiver and Dock of the Rockford police department encountered defendant during their investigation of the burglary. As a State’s witness, Officer Vandiver testified that, on June 24, 1989, while talking to defendant inside his hotel room, evidence linking defendant to the Hanson Engineers burglary was observed. When Vandiver grabbed defendant’s arm in an effort to control his movement, a struggle ensued during which defendant bit Vandiver’s arm, drawing blood, and later requiring medical attention in the form of antiseptic and a bandage. Vandiver denied hitting or striking defendant. On direct examination, Vandiver testified he grabbed defendant’s arms when defendant attempted to quickly exit the room. On cross-examination, Vandiver stated he grabbed defendant’s arm when he attempted to answer the telephone in his room. On redirect examination, in answer to the question, “Any injuries to you?” Vandiver stated, “Not to my [sic] personally.”

Officer Hoshaw testified that, during the conversation with defendant in his hotel room, Officer Vandiver grabbed defendant’s arm as he turned to answer the telephone whereupon defendant started to fight. During the five-minute struggle to restrain him, defendant bit Hoshaw’s hand causing him great pain and leaving a circular pattern of tooth marks which were visible for the following six to eight weeks. On cross-examination, Hoshaw stated that defendant bit him on the hand after Hoshaw applied to defendant’s wrist a pain compliance technique called a “gooseneck hold.” Hoshaw stated that, when his hand was bitten, he used his head to butt the top of defendant’s head. Hoshaw further stated that during the struggle to subdue defendant he observed Officer Dock hit defendant in the upper chest and face area.

Officer Dock testified that, after defendant was handcuffed and escorted outside, he was searched. During the search defendant forcibly ran into the officer. As Dock pushed him away, the defendant bit Dock’s wrist. To release defendant’s bite hold, Dock used his knee to strike defendant three times in the head/neck area. The bite caused swelling and left a bruise lasting several days but did not break the skin.

The defendant did not testify at the trial. However, his oral confession to the burglary was admitted as part of the State’s case in chief. The aggravated battery charges were not addressed in the confession.

The aggravated battery charges against defendant were based on the bite wounds sustained by the police officers. However, defendant contends that the court erred in failing to instruct the jury as to which aggravated battery count pertained to which police officer. Defendant correctly points out that the headings of the jury verdict forms do not specifically provide the name of each officer but refer only to respective counts. For example, the guilty verdict form for count II stated:

“No. 89 — CF—887—(Count II)
We, the jury, find the defendant, John Fetter, guilty of Aggravated Battery, as charged in the Information.”

There was a similar not guilty verdict form for count II and similar guilty and not guilty verdict forms for counts III and IV.

Defendant further emphasizes that the written instruction given to the jury did not help to clarify the victim involved in each count. In pertinent part, the issue instruction was in the following form:

“To sustain the charge of aggravated battery, the State must prove the following propositions:
1. That the defendant knowingly or intentionally without legal justification caused bodily harm to John Horshaw [sic]-, and
2. Knows the individual harmed is a peace officer engaged in the execution of any of his official duties; and
3. That the defendant was not justified in using the force which he used.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

Similar form issue instructions containing the names of Officers Van-diver and Dock were read to the jury. However, nowhere in the written instructions was the jury informed that count II pertained to Officer Hoshaw, count III pertained to Officer Vandiver, or that count IV pertained to Officer Dock.

Defendant argues that the written instructions and verdict forms confused the jury as evidenced by their not guilty verdict as to Officer Vandiver on count III, which, according to defendant, was the strongest case against him. The State responds initially that defendant has waived this issue on appeal by failing to raise the objection at the conference on instructions, to tender instructions without the claimed error, or to raise the claimed error in his post-trial motion. The State further argues that, even if there was no waiver, the instructions and verdict forms were proper. We agree that the issue of unclear instructions confusing the jury is waived.

The general rule with regard to criminal jury instructions is that the burden of preparing instructions is primarily on the parties, not the trial court. The trial court is under no obligation to give instructions not requested by counsel or to rewrite instructions tendered by counsel, and no party may raise on appeal the failure to give an instruction unless he has tendered it. (People v. Carlson (1980), 79 Ill. 2d 564, 583-84.) In addition, the failure to object at trial to an asserted error in jury instructions generally waives the issue on appeal (People v. Tannenbaum (1980), 82 Ill. 2d 177, 180) as does the failure to raise the issue in a written post-trial motion (People v. Enoch (1988), 122 Ill. 2d 176, 186). We need only review issues a defendant raises for the first time on appeal if the record reflects “plain error.” (Enoch, 122 Ill. 2d at 190-91.) Plain error is an error which deprives the defendant of a fair and impartial trial or any substantial error which occurs in cases where the evidence is closely balanced. People v. Schmidt (1988), 168 Ill. App. 3d 873, 878.

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Cite This Page — Counsel Stack

Bluebook (online)
591 N.E.2d 474, 227 Ill. App. 3d 1003, 169 Ill. Dec. 301, 1992 Ill. App. LEXIS 565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-fetter-illappct-1992.