People v. Porter

866 N.E.2d 1249, 372 Ill. App. 3d 973, 310 Ill. Dec. 647, 2007 Ill. App. LEXIS 402
CourtAppellate Court of Illinois
DecidedApril 20, 2007
Docket3-05-0330
StatusPublished
Cited by15 cases

This text of 866 N.E.2d 1249 (People v. Porter) 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. Porter, 866 N.E.2d 1249, 372 Ill. App. 3d 973, 310 Ill. Dec. 647, 2007 Ill. App. LEXIS 402 (Ill. Ct. App. 2007).

Opinion

JUSTICE WRIGHT

delivered the opinion of the court:

Defendant, Jerry L. Porter, appeals from his convictions for aggravated battery (720 ILCS 5/12—4(b)(6) (West 2004)) and obstructing justice (720 ILCS 5/31—4(a) (West 2004)). We reverse and remand for a new trial.

BACKGROUND

On February 9, 2005, defendant, Jerry Porter, was charged by first superseding indictment with aggravated battery (720 ILCS 5/12— 4(b)(6) (West 2004)), and two counts of obstructing justice (720 ILCS 5/31—4(a) (West 2004)). Count I of the indictment alleged that on July 11, 2004, defendant knowingly and without lawful justification made physical contact of an insulting or provoking nature with Peter Van Gessel, knowing him to be a peace officer engaged in the execution of his official duties, by pushing him in the chest. Count II alleged that defendant, with the intent to obstruct his own prosecution for possession of a controlled substance, knowingly destroyed evidence by swallowing a baggie containing an off-white, rock-like substance. Count III alleged that defendant, with the intent to obstruct his own prosecution for possession of a controlled substance, knowingly concealed evidence by swallowing a baggie containing an off-white, rock-like substance.

At trial, Charles Palmer testified that at about 8 p.m. on July 11, 2004, he observed four young men congregated near his house at the corner of Hickory and Division in Joliet. The men were drinking beer and yelling at passing cars, “Hey, hey, hey, you straight?” When the men began arguing over money, Palmer called “911.” Police arrived within a few minutes. All Palmer could see were two men’s legs on the ground because the squad car partially blocked his view. Palmer thought the officer needed assistance because a crowd was forming and again called “911.” At least 20 squad cars arrived within minutes of Palmer’s second call.

On cross-examination, Palmer testified he was not certain if defendant was one of the four men he saw that evening. Even if defendant was one of the four men, Palmer could not say that defendant was drinking alcohol or acting aggressively or that he heard defendant say anything.

Joliet police officer Peter Van Gessel testified he responded to a radio dispatch about a fight on July 11, 2004, at about 7:50 p.m. Van Gessel was driving a squad car and was in uniform. As he drove from Division onto Hickory, Van Gessel saw defendant from the back leaning into a parked car. Defendant’s head, shoulders, and arms were inside the car and he appeared to be handing something to someone inside the car. When Van Gessel exited his squad car, defendant stood up and the car began to drive away. Van Gessel ordered the car to stop, and it did. Two men were inside the car.

Van Gessel ordered defendant back to the squad car. Defendant complied. It appeared to Van Gessel that defendant was chewing something. Van Gessel asked defendant what he was chewing. 'Defendant opened his mouth to reveal a piece of gum and then turned to his left and spit out the gum, as well as a small, clear baggie containing an off-white, rock-like substance. Defendant then pushed Van Gessel and dove to the ground, on top of the baggie. Van Gessel took a step backwards as a result of the push and then dropped on top of defendant to try and retrieve the baggie. Van Gessel claimed that defendant picked up the baggie and appeared to put it in his mouth. Van Gessel applied force to defendant’s lower jaw with his thumb to try and prevent defendant from swallowing anything, but ultimately removed his thumb after being distracted by a man who was approaching and shouting at him. Van Gessel radioed for assistance.

Van Gessel then got one handcuff on defendant, who was struggling beneath him. Shortly thereafter, Officer David Friend arrived and helped subdue and handcuff defendant. Van Gessel then pat-searched defendant and found no contraband, weapons, money, or cell phones on defendant’s person. Following the incident, Van Gessel saw the gum defendant had spit out was still on the ground, but did not see any clear plastic baggie. On cross-examination, Van Gessel admitted that he did not actually see defendant put the baggie in his mouth.

Joliet police officer David Friend testified that he was dispatched to the corner of Hickory and Division concerning a disturbance and an officer needing assistance at about 8 p.m. on July 11, 2004. When he arrived at the scene, he observed Van Gessel and defendant on the ground near Van Gessel’s squad car. Van Gessel appeared to have defendant under control and was in the process of handcuffing defendant. Friend searched the scene and found no drugs or drug paraphernalia.

Following Friend’s testimony, the State rested. The defense then called a single witness, Aisha Baker.

Aisha Baker testified she was familiar with the area around Division and Hickory. Baker and defendant were “casual friend[s].” At about 8 p.m. on July 11, 2004, Baker was outside, looking out onto the street from behind a wrought iron fence, when she saw a police car pull up. Two officers got out of the car and grabbed defendant. Defendant stepped back and “threw his hand out” as if to ask what he had done. Baker did not see anything in defendant’s hands. One of the officers asked defendant what was in his mouth and accused defendant of having crack cocaine in his mouth. The officer then threw defendant to the ground and choked him, forcing him to spit out gum. Defendant’s nose was bleeding. Defendant never pushed the officer. According to Baker, defendant “always chews gum.” Baker guessed she may have been standing about 100 feet or more from where the confrontation took place. There was nothing obstructing Baker’s view. Baker saw other people drinking beer that day, but defendant was not drinking beer.

Baker never reported what she saw to the police. The first time she told anyone what she saw was when she was contacted by a defense investigator in December 2004. Baker acknowledged she had prior misdemeanor convictions for resisting a police officer and obstructing a peace officer in early 2004. Baker failed to appear in court on those charges and, in October 2004, she was arrested on a warrant by Van Gessel. The defense rested following Baker’s testimony.

During closing arguments, one of the prosecutors told the jury that by asking “Are you straight?” defendant was asking, “Do you want any drugs?” The prosecutor also told the jury:

“If you look at the larger picture of what was going on that day, *** what the defendant had going on was basically a fast food joint for dealing drugs, and he had buddies he was with who were on the corner, and he was basically using the parking lot of St. John’s church as a position to sell drugs and flag down vehicles that were going by in the street that evening.”

In rebuttal closing argument, another prosecutor told the jury:

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Cite This Page — Counsel Stack

Bluebook (online)
866 N.E.2d 1249, 372 Ill. App. 3d 973, 310 Ill. Dec. 647, 2007 Ill. App. LEXIS 402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-porter-illappct-2007.