People v. Robinson

416 N.E.2d 793, 92 Ill. App. 3d 972, 48 Ill. Dec. 520, 1981 Ill. App. LEXIS 2031
Appellate Court of Illinois·Decided February 5, 1981·No. 79-493·Published·Cited by 18 cases

Opinion

Mr. JUSTICE JONES

delivered the opinion of the court:

Defendant is a resident of the State of Illinois Department of Corrections prison at Menard. Following a jury trial he was found guilty of aggravated battery upon Tom Bowles, a correctional officer, and armed violence. Judgment was entered only as to the armed violence verdict. Defendant was sentenced to 14 years’ imprisonment, the maximum sentence possible under extended term sentencing provisions.

The incident in question occurred in the segregation unit at Menard. According to witnesses for the State, there had been a disturbance in the segregation unit during which fires had been set. Employees attempting to put out the fire were repulsed by thrown objects. When the fire hose was recovered it was discovered that the brass nozzle was missing. A prison tactical unit including Bowles was dispatched to locate the nozzle. During the search members of the tactical unit were struck by human excrement thrown by defendant, who was hiding behind a mattress in his cell. Defendant refused to come to the front of the cell to be handcuffed. When officers opened the cell door, defendant charged the door and struck Bowles, who was in the lead, with the nozzle, which defendant had tied to his wrist. Both Bowles and defendant were injured before defendant was cuffed and taken to the institution hospital.

The first issue raised on appeal is that the trial court erred in requiring that several of defendant’s witnesses who were his fellow residents at Menard testify in shackles. The State urges that the issue was waived because defendant failed to file a post-trial motion. Such a motion was filed, but it was withdrawn on the request of defendant. Defendant urges that he made an oral post-trial motion. It appears that defendant actively sought a new trial in his oral comments prior to sentencing and that the trial court was given ample opportunity to order a new trial. It is well established that a general oral motion for a new trial, in the absence of an objection by the State, preserves all errors which appear properly preserved on the record. (People v. Hammond (1977), 48 Ill. App. 3d 707, 362 N.E.2d 1361.) No objection to the oral motion appearing, we deem the issue preserved for appeal.

We find no fault with the trial court’s decision to permit shackling of the witnesses in question. Our supreme court has condemned the general policy of shackling prison inmates. (People v. Boose (1977), 66 Ill. 2d 261, 362 N.E.2d 303.) However, the inmates in question were not mere inmates. All were housed in the segregation unit at Menard, referred to by defendant at trial as a “jail within a jail” and “a hole,” “[b]ack as far a place as [one could] go already.” Bowles testified segregation was for residents who could not function in the general resident population, for whatever reason. A Menard incident report form on file in the trial court indicates that in the disturbance surrounding the events in question two of the five witnesses in question struck correctional officers. The instant trial took place less than two months after those events. Also to be considered was the fact that defendant was not shackled at trial. His unrestrained presence posed a substantial Security risk even in absence of those witnesses. The trial judge was entitled to consider the threat of concomitant or concerted action on the part of defendant and his witnesses in evaluating the need for shackling those witnesses. In light of People v. Sullivan (1977), 48 Ill. App. 3d 787, 362 N.E.2d 1382, aff'd (1978), 72 Ill. 2d 36, 377 N.E.2d 17, and People v. Boose, cited by defendant, the record must “clearly disclose the reason underlying the trial court’s decision for the shackling.” (Boose, 66 Ill. 2d 261, 267, 362 N.E.2d 303, 306.) We find ample reason in the abovementioned facts to justify shackling these witnesses at trial. Also to be noted is the fact that each of those witnesses testified he was (or was referred to as) a segregation unit resident. This reference was unavoidable since the occurrence in question allegedly occurred in the segregation unit. The fact that they were shackled was merely another indication of that residency. “The jury thus was bound to know that they were dangerous men, whether shackled or not.” (Loux v. United States (9th Cir. 1968), 389 F.2d 911, 919.) Accordingly, the fact that those witnesses were shackled could not have detracted from the fairness of the trial.

The next issue raised by defendant is the trial court’s refusal to instruct the jury per defendant’s tendered self-defense instruction. We find no basis for giving such an instruction on the proof in this record. According to the State’s witnesses, defendant hid behind a mattress in his cell, from which he threw cupfuls of human excrement through the bars. He refused repeated requests to put his hands through the bars to be handcuffed. When one officer opened the cell door, defendant rushed the opening, striking officer Bowles with the brass fire hose nozzle for which the officers had been searching. Bowles and defendant exchanged further blows before defendant was subdued.

Defendant testified that he was threatened by the officers before they opened his cell, that he feared for his life, and that they rushed inside the cell as soon as the door was opened and beat him senseless without justification. None of defendant’s occurrence witnesses claimed to have seen any physical contact between defendant and the officers prior to the time defendant was taken away from his cell. Defendant notes he did not expressly deny possessing the fire hose nozzle or striking Bowles with it. Indeed, defendant, who conducted his own examination of each witness including himself and conducted his own closing arguments though his court-appointed attorney was present as an advisor, refrained from any mention of the nozzle in his own testimony. He was not cross-examined. Defendant did question residents Michael Isom and Ike Larry as to whether they had seen defendant with the nozzle. Both replied in the negative. Defendant attempted to establish through Isom’s testimony that the hose was kept locked in a metal box which was not accessible to the residents. Finally, defendant argued in his closing argument to the jury: “I haven’t attempted to hurt that man with no firehose nozzle. * * * That hose is kept in a box with a lock on it.” We find, contrary to defendant’s assertions on appeal, that defendant did deny striking Bowles with the nozzle.

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People v. Robinson, 416 N.E.2d 793, 92 Ill. App. 3d 972, 48 Ill. Dec. 520, 1981 Ill. App. LEXIS 2031 (Ill. Ct. App. 1981).

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