                                      2017 IL App (1st) 160025
                                           No. 1-16-0025

                                                               FIRST DIVISION
                                                                 August 21, 2017
______________________________________________________________________________

                                     IN THE
                         APPELLATE COURT OF ILLINOIS
                            FIRST JUDICIAL DISTRICT
_________________________________________________________________________________


THE PEOPLE OF THE STATE OF ILLINOIS,                  )       Appeal from the Circuit Court
                                                      )       of Cook County.
           Plaintiff-Appellee,                        )
                                                      )
v.                                                    )       No. 11 CR 4949
                                                      )
GEORGE BROWN,                                         )
                                                      )       Honorable Clayton J. Crane
           Defendant-Appellant.                       )       Judge Presiding.


           JUSTICE SIMON delivered the judgment of the court, with opinion.
           Justices Harris and Mikva concurred in the judgment and opinion.

                                             OPINION

¶1         Defendant George Brown was charged with aggravated battery to a police officer. After a

bench trial, defendant was acquitted of committing that offense, but found guilty of resisting a

police officer as a lesser-included offense. Newly discovered evidence caused the trial court to

vacate the conviction for resisting a police officer and order a new trial on the resisting charge

only. This time, defendant opted for a jury trial and was found guilty again for resisting a police

officer.

¶2         Defendant raises a number of issues on appeal. We find that there was no violation of

defendant’s right to be free from double jeopardy and that the resolution of the issues in his second
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trial was not precluded by collateral estoppel. We also find that the trial court did not err when it

denied defendant’s motion to quash arrest. We do, however, find that defendant should have been

recharged and that he was denied a fair trial because the trial court refused to give a jury instruction

that was amply supported by the evidence. Accordingly, we reverse and remand.

¶3                                           BACKGROUND

¶4      Defendant George Brown was driving down a one-way street when a police car

approached head on and effectuated a stop of defendant’s vehicle. Defendant got out of the car and

ran. Officer Joseph Lopez exited his police vehicle from the passenger side and chased defendant

down. Defendant was hit with a Taser four times, and then he was handcuffed. That is where the

undisputed facts end.

¶5      The State charged defendant with aggravated battery to a police officer. The State claims,

through Officer Lopez, that the officers were driving on Laramie Avenue 1 when, approaching the

intersection with Quincy Street, Officer Lopez spotted a black SUV with its headlights turned off

on Quincy. The officers turned their vehicle down Quincy, going the wrong way down the

one-way street so that they were facing defendant head on. The officers situated their vehicle in

front of defendant’s vehicle to block its path, at which point both vehicles came to a stop. Then,

defendant put his vehicle in reverse at an angle and traveled a few car lengths backwards before he

could not go any further in reverse. The officers exited their vehicle and drew their weapons.

Defendant did not comply with the officers’ verbal commands, and defendant then exited his

vehicle on foot and began to flee.

¶6      The State’s case continued with Officer Lopez being in foot pursuit of defendant. When
        1
         In the first trial, Officer Lopez testified that the police were driving northbound on Laramie, and in
the second trial he testified they were driving southbound.


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Officer Lopez got within a couple feet of defendant, defendant turned around, charged Officer

Lopez, and struck the officer in the face. The two individuals struggled for a bit longer until other

officers arrived. When the officers were trying to gain control of defendant, he was flailing and

putting up a fight so Officer George Moussa deployed his Taser to try to subdue defendant. After

the third time tasing defendant, Officer Moussa did a “dry stun” on defendant, meaning that the

Taser was placed directly against defendant’s body to stun him. At that point, the officers were

able to handcuff him. Defendant was taken into custody and to the hospital per department

procedures for when a Taser is deployed. Officer Lopez was also taken to the hospital and

examined regarding the punch he received from defendant.

¶7     Defendant was charged by information with aggravated battery to a peace officer. The

State pled that defendant committed that offense, in that he committed a battery, intentionally

causing bodily harm to the victim when he “struck Police Officer Lopez star #15739 in the face

with a closed fist” while knowing Officer Lopez to be a police officer.

¶8     The version of events offered by defendant is strikingly different. Defendant claims that he

was driving east on Quincy Street after picking up his friend Grover Tucker, who lived on that

block. His headlights were on. All of the sudden, a vehicle approached them head-on going the

wrong way down the one-way street. The occupants of the vehicle got out and pointed guns at him,

yelling for him to get out of the car. Defendant, not recognizing that the people were police,

panicked, got out of the car, and ran in the opposite direction—west down Quincy. Defendant

claims that as he was trying to run away, he was knocked to the ground and someone began

punching and choking him, and he was tased multiple times. He said that he never punched Officer

Lopez. Defendant was arrested and taken to the hospital.



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¶9     At the bench trial, although defendant was only charged with aggravated battery to a police

officer, the court found him guilty of resisting arrest, a misdemeanor, but not guilty of aggravated

battery to a police officer. Defendant was sentenced to 300 days in prison, the time he had already

served. He did not appeal.

¶ 10   In the meantime, however, defendant’s mother filed a complaint with the Chicago Police

Department for police brutality because her son was tased four times. Defendant also filed a civil

lawsuit for excessive force. During discovery in his civil case for excessive force, it was uncovered

that a police observational device (POD) camera captured some of the events relevant to

defendant’s criminal case. The video shows the police car occupied by Officer Lopez turning from

Laramie onto Quincy and approaching a vehicle head on. The vehicle has its headlights turned on.

¶ 11   Based on this video, defendant filed a petition to vacate his conviction. The basis for the

petition was that defendant would have filed a motion to quash his arrest because, according to

Officer Lopez’s own testimony, the only reason the officers stopped defendant was because his

headlights were not turned on. The trial court viewed the video and heard arguments from the

parties. The trial judge explained, “I’ve had occasion to review that video. The lights are on, the

officer is coming up the wrong way on a one-way street when he encounters him.” The trial court

vacated defendant’s conviction and ordered a new trial.

¶ 12   With his conviction vacated, defendant filed a motion to quash arrest and suppress

evidence based on the fact that it was an illegal arrest. According to defendant, the video showed

that his headlights were on, so the only legal justification the officers claimed to have had for the

arrest had been refuted. The trial court held an evidentiary hearing on the motion to suppress. At

the suppression hearing, for the first time, Officer Lopez explained that when the officers turned



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onto Quincy, they actually encountered two black SUVs. He stated that they encountered one

black SUV that looked similar to defendant’s vehicle that had its headlights on, but they went

around that vehicle to get to a second vehicle that was down the block and out of range of the POD

camera that had its headlights off. The second black SUV, he testified, was defendant’s vehicle.

Defendant again testified and asserted that the vehicle in the video was his black SUV. Because the

POD cameras scan the area and look in different directions, the video does not show the entire

event. The trial court found the video to be inconclusive to establish that it was defendant’s vehicle

that had its headlights turned on.

¶ 13   The case was, therefore, headed toward trial again, this time before a jury. The State never

amended the charging document under which defendant was only charged with aggravated battery

to a police officer, even though defendant had already been acquitted of that offense. But since

defendant was found guilty of resisting arrest, the State was set to proceed to trial for that

offense—a misdemeanor for which the sentence was already discharged.

¶ 14   The State filed a motion in limine to preclude the admission of the POD video. The State

argued that the only issue for the jury to decide was whether defendant resisted arrest and, thus, the

video and the issue of whether defendant’s headlights were turned on were irrelevant and would

only confuse the jury. The trial court agreed and ruled that the video would not be admitted into

evidence.

¶ 15   Defendant, meanwhile, moved to dismiss the case on the basis that the State never

amended the information and the statute of limitations had run for the State to file a charge for

resisting arrest. Defendant also argued that he was entitled to dismissal because the only act set

forth in the information on which the charge against him was based was that he struck Officer



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Lopez in the face—a fact necessarily adjudicated in his favor when he was acquitted of aggravated

battery of a police officer. The trial court denied the motion to dismiss.

¶ 16   At the second trial, the testimony was basically the same as the testimony adduced at the

first trial. Instead of Officer Moussa testifying for the State, it was Officer Arturo Bracho, another

officer on scene the night of the arrest. But there were no differences in their testimony material to

this appeal. Again at the second trial, neither officer testified about encountering two vehicles

when they turned onto Quincy. Defendant filed a motion for a directed verdict at the close of the

State’s case and renewed the motion after the defense presented its case. Defendant maintained

that he could not be found guilty for the only charged crime—striking Officer Lopez in the

face—because he had been acquitted of that offense in the first trial. He also argued that his right to

a fair trial was violated because there were many facts introduced in the second trial that were

beyond the scope of the crime charged in the information. Those motions were denied.

¶ 17   Defendant also requested a jury instruction on self-defense. Defendant maintained that,

because there was a use of excessive force by the police, he was entitled to an instruction on

self-defense under which the jury could find that defendant’s actions were justified. The trial court

refused that instruction. When it came time to instruct the jury, the instructions were that, “[t]he

charge against the defendant in this case is contained in a document called the information.”

However, the jury was instructed on the elements of resisting arrest, not aggravated battery of a

police officer. The jury instructions state that “[t]he defendant is charged with the offense of

Resisting or Obstructing a Peace Officer.”

¶ 18   During deliberations, the jury asked “What classifies use of force versus protective

defense?” The jurors also sent a note that said “Please clarify mistake as to a matter of fact, give



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examples and being, feeling panicked at the moment whether it was police or not.” The trial judge

did not answer the questions, and instead told the jury to continue deliberating. The jury found

defendant guilty of resisting arrest. There is no indication that there was a second sentencing

hearing held. Defendant now appeals that conviction.

¶ 19   On appeal, defendant argues that (1) he was subjected to double jeopardy during his second

trial for the same conduct; (2) collateral estoppel bars the relitigation of certain facts necessarily

decided in the first trial; (3) resisting arrest is not a lesser included offense of aggravated battery

under these circumstances; (4) a charge for resisting arrest is barred by the statute of limitations;

(5) the trial court should have granted the motion to quash arrest and suppress evidence; (6) the

trial court improperly excluded the POD video, at a minimum for impeachment; (7) his due

process rights were violated because the information did not match the crime of which he was

convicted; and (8) he was entitled to the jury instruction he proposed on self-defense.

¶ 20                                        ANALYSIS

¶ 21   There are multiple standards of review in this case, shifting among the different issues. For

example, where the trial court makes no factual findings that pertain to whether there was a

violation of the double jeopardy clause, we review the issue de novo. People v. Griffith, 404 Ill.

App. 3d 1072, 1079 (2010). However, we review a ruling on a motion to quash an arrest and

suppress evidence to determine whether the trial court’s findings and credibility determinations

are against the manifest weight of the evidence, but we review the court’s ultimate legal rulings

de novo. People v. Bond, 2016 IL App (1st) 152007, ¶ 15. We will point out the attendant standard

of review where necessary. Also, for ease of explanation and clarity, we address defendants’ eight

arguments in a different order than he presented them—sometimes combining issues and not fully



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addressing others.

¶ 22                        I. Double Jeopardy and Collateral Estoppel

¶ 23   Defendant argues that he was improperly subjected to double jeopardy when he was tried

for a second time following his conviction being vacated. The fifth amendment of the United

States Constitution provides that no person shall “be subject for the same offence to be twice put in

jeopardy of life or limb.” U.S. Const., amend. V. The Illinois Constitution likewise provides that

no person shall “be twice put in jeopardy for the same offense.” Ill. Const. 1970, art. I, § 10.

¶ 24   Defendant argues at length that he was subject to double jeopardy because he “was tried

twice based upon the same facts in the Information.” But that is not what the double jeopardy

clause protects against. The double jeopardy clause provides three categories of protection for a

defendant: (1) protection against a second prosecution after an acquittal for an offense, (2)

protection     from   a   second    prosecution    after   a   conviction,    and   (3)    protection

against multiple punishments for the same offense. People v. Gray, 214 Ill. 2d 1, 6 (2005). None

of those scenarios exist here. Additionally, when a defendant is successful in having his original

conviction set aside based on a defect other than the sufficiency of the evidence, whether it be by

direct or collateral attack, the conviction is nullified, and the defendant’s right to be free from

double jeopardy is not violated if he is retried. People v. Crutchfield, 353 Ill. App. 3d 1014, 1025

(2004) (citing North Carolina v. Pearce, 395 U.S. 711, 721 (1969) (overruled on other grounds by

Alabama v. Smith, 490 U.S. 794 (1989))); see also 720 ILCS 5/3-4(d)(2) (West 2012) (a second

prosecution is not barred if proceedings subsequent to the conviction result in the vacating of the

conviction).

¶ 25   At his first trial, defendant was acquitted, based on the evidence, of aggravated battery of a



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police officer. So it is true that defendant could not be retried for that offense. People v. Mink, 141

Ill. 2d 163, 173-74 (1990). However, defendant was convicted of resisting arrest, so there is no

prohibition against trying him for that offense again after the original conviction was vacated

based on the discovery of new evidence—an outcome that could only benefit defendant.

¶ 26    Defendant also argues that collateral estoppel bars his second conviction because he was

acquitted of the same conduct in the first case. Defendant focuses particularly heavily on the

language of the charging document under which he was charged with aggravated battery to a

police officer—the allegation that he struck Officer Lopez in the face. Defendant maintains that

because he was acquitted of aggravated battery, he was necessarily acquitted of striking Officer

Lopez in the face, and thus, he could not be convicted of striking Officer Lopez in the face in a

second trial.

¶ 27    In criminal cases, collateral estoppel is a component of the double jeopardy clause. People

v. Krstic, 292 Ill. App. 3d 720, 723 (1997). “[C]ollateral estoppel applies when: (1) the issue

decided in the prior adjudication is identical to the one presented in the suit in question; (2) there

was a judgment on the merits in the prior adjudication; and (3) the party against whom estoppel is

asserted was a party or in privity with a party to the prior adjudication.” Id.

¶ 28    For collateral estoppel purposes, defendant’s view of the issue is too limited. He was not

acquitted of the act of punching Officer Lopez. The trial court made no finding in that regard. The

trial court merely found that the proof at trial warranted a conviction for resisting arrest rather than

aggravated battery. Determining whether defendant resisted arrest by his action is not the same

consideration as whether he committed aggravated battery. Compare 720 ILCS 5/12-3.05 (West

2012) with 720 ILCS 5/31-1 (West 2012). The trial court was not required to find that there was no



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punch in order to acquit defendant of aggravated battery. Trial judges and juries alike often convict

on lesser included offenses whether it be for sympathy or avoiding other injustice. See People v.

Knaff, 196 Ill. 2d 460, 476-77 (2001). We have no idea what the basis was for the court to find

defendant not guilty of aggravated battery, but the judgment itself cannot be equated with the

finding of a specific fact—that defendant did not punch Officer Lopez. See People v. Jones, 207

Ill. 2d 122, 140 (2003). Collateral estoppel did not bar the adjudication of the issues in the second

trial.

¶ 29                                 II. Motion to Quash Arrest

¶ 30     After discovering that there was a POD camera video showing some events relevant to this

case, the video was the subject of a petition to vacate under section 2-1401 of the Code of Civil

Procedure (735 ILCS 5/2-1401 (West 2012)). At the first trial, Officer Lopez testified that “if

[defendant] had his lights on, I would have never pulled him over.” The trial court reviewed the

POD video and, after hearing argument, stated “the lights are on,” and vacated defendant’s

conviction. The parties proceeded on a motion to quash the arrest based on a lack of probable

cause, which defendant now argues the trial court erred in denying.

¶ 31     At the hearing on the motion to quash the arrest, there were some significant revelations. At

the first trial, Officer Lopez testified, “we were driving north on Laramie” and that he was in the

passenger seat when he noticed the headlights were off on a vehicle driving east on Quincy. He

testified that when the officers made that observation, they activated the lights on their police car.

They drove westbound, the wrong way down Quincy, where they came face to face with

defendant’s car.

¶ 32     What the video shows is that the officers’ vehicle clearly turned onto Quincy from



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traveling south on Laramie. The officers turn down the street and come head on with a vehicle that

looks like defendant’s vehicle. The vehicle has its headlights on, and the officers’ vehicle’s

emergency lights are turned off.

¶ 33   So, at the hearing on the motion to quash the arrest, after the POD video was discovered

and for the first time, Officer Lopez testified that their police vehicle was traveling south on

Laramie and that he was in the passenger seat. The officers’ vehicle turned onto Quincy and

confronted a black SUV with its headlights on, but they passed the vehicle by going around it and

then they traveled halfway down the double block to confront the second black SUV—defendant’s

vehicle.

¶ 34   At the first trial, there was no testimony at all that the officers had to pass a vehicle with its

headlights on when they turned on Quincy. Instead, the testimony at the first trial seemed to

convey some immediacy—that they turned onto Quincy and confronted defendant’s vehicle.

Officer Lopez also testified at the first trial that Quincy is a “pretty narrow street” and there were

cars “[parked on] both sides.” Officer Lopez was impeached with his testimony from a deposition

in the civil case that defendant filed against the police where the officer was asked about the

possibility of his vehicle going westbound and passing a vehicle going eastbound in that location.

The question was, “and so a car coming in the opposite direction could not get through if there’s

another car going eastbound, is that correct?” To which Officer Lopez responded “correct.”

¶ 35   Also, and while the trial court did not have access to the testimony from the second trial

when ruling on the motion to quash arrest (but it did at later stages like when presented with

defendant’s motion for a directed verdict), there was once again no mention by the officers of a

second vehicle at the second trial. There was no mention by Officer Lopez of passing a vehicle on



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the narrow street with cars parked on both sides in order to get to defendant. The testimony at the

second trial also gave off the impression of some immediacy in confronting the vehicle with no

headlights on. Unlike at the hearing on the motion to quash arrest, the testimony reverted to that

the officers “turn[ed] onto Quincy and we see the vehicle with no headlights on, our marked

vehicle goes head on with that vehicle.” Officer Lopez was asked, “Now, when your car turned on

Quincy, again going the wrong way, when you confronted the vehicle George Brown—the black

SUV that he was driving—at any time was there another car in between you two?” Officer Lopez

responded “When we went head on with him, no, there was no car between us.”

¶ 36   Officer Lopez’s testimony from the first trial also seems more consistent with the spatial

evidence observable from the video than does his testimony at the hearing on the motion to quash

arrest. At the first trial, Officer Lopez testified that when they confronted defendant’s vehicle,

defendant reversed a couple of car lengths back before he was at an angle that he could not reverse

any further. At the hearing on the motion to quash arrest, Officer Lopez testified that they did not

even first confront defendant until halfway down a double block (which he testified is a quarter

mile in length) and then defendant reversed a couple of car lengths back. However, when the POD

camera video pans back around and shows where the police cruiser is stopped, the vehicle is just a

short distance west of where it encountered the vehicle in the video with its headlights on. The

police car is stopped just a couple car lengths from where it confronted the initial vehicle on

Quincy, not several hundred feet further down the road as it would have been consistent with

Officer Lopez’s testimony at the hearing on the motion to quash arrest. The distance is readily

determinable because of the cars parked on both sides of the street.

¶ 37   Officer Lopez’s testimony from the first trial also seems more consistent with the temporal



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evidence observable from the video than does his testimony at the hearing on the motion to quash

arrest. Consider that, in the POD video, the second police vehicle that appears reverses off of

Quincy and onto Laramie almost immediately after Officer Lopez’s vehicle was face to face with

the vehicle that had its headlights on. At the first trial, Officer Lopez’s testimony was that they saw

the vehicle with no lights on, turned onto Quincy, and confronted that vehicle. At the hearing on

the motion to quash arrest, Officer Lopez testified that they had to go around one black SUV and

travel several hundred feet down the block at which point they confronted defendant in a second

black SUV. Officer Lopez then testified that defendant tried to reverse for a short time until he

could no longer do so at which time the officers exited their vehicle and gave defendant orders to

“stop the car, park it, park it.” Officer Lopez testified that then “after a few minutes or so he

jumped out of—Mr. Brown jumped out of the driver’s seat and proceeded running westbound on

Quincy.” Based on the video, there was not time for all of that to occur before the second vehicle

reversed off of Quincy. That testimony likewise does not square with Officer Moussa’s testimony

from the first trial or with the mere seconds of the video before Officer Moussa’s vehicle backed

off of Quincy allegedly in response to a radio call that defendant was already fleeing on foot.

¶ 38   So there were a lot of considerations that militated in favor of quashing the arrest. The

significant inconsistencies in the testimony, especially in how the narrative of the arrest evolved

after the POD camera video was discovered, raise some significant red flags. Viewing the video in

conjunction with all the testimony in the record, there are reasons to believe that the first vehicle

the officers confronted was defendant’s vehicle with its lights on and, therefore, that the officers

lacked a legal basis to arrest defendant.

¶ 39   All that being said, the trial court heard the testimony, observed the witnesses, and found



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the video to be inconclusive. Under the manifest weight of the evidence standard, we are not to

reverse a trial court’s ruling just because we might have ruled differently. In re S.K.B., 2015 IL

App (1st) 151249, ¶ 28. We cannot say that a conclusion opposite to the one adopted by the trial

court was “clearly evident” (Bond, 2016 IL App (1st) 152007, ¶ 15). It is true that there is not

incontrovertible proof that defendant’s vehicle is the vehicle in the video, and the video does not

affirmatively disprove the officers’ testimony. On appeal, defendant merely states reasons why the

trial judge should not have believed Officer Lopez, but he did. The trial court heard both sides and

found that defendant had not met his burden, and we cannot say that such a ruling constitutes

reversible error.

¶ 40                                  III. The Charging Instrument

¶ 41   Defendant was charged with one count of aggravated battery to a police officer. The State

pled that defendant committed that offense, in that he committed a battery, intentionally causing

bodily harm to the victim when he “struck Police Officer Lopez star #15739 in the face with a

closed fist” while knowing Officer Lopez to be a police officer. He was acquitted. But he was

found to have resisted a police officer and convicted of that offense. His conviction for resisting a

police officer was then vacated. He was never recharged with anything.

¶ 42   The State claims that there is no issue with the charging instrument because defendant was

convicted of a lesser-included offense of resisting arrest. The State relies on a few cases for the

general and accepted proposition that, although a person cannot be convicted of an offense that he

has not been charged with committing, he may be convicted of an offense not expressly included

in the charging instrument if that offense is a lesser-included offense of the crime expressly

charged. Knaff, 196 Ill. 2d at 472.



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¶ 43   Under the circumstances in this case, resisting arrest is a lesser included offense of

aggravated battery of a police officer. See People v. Sanchez, 2014 IL App (1st) 120514, ¶ 23. The

Sanchez case is directly on point for resolving this issue. Illinois courts use the “charging

instrument approach,” under which the court examines the indictment (or the information in this

case) and determines whether the factual allegations provide a “broad foundation” or “main

outline” of the lesser offense. Id. ¶ 20. If the charging instrument describes the lesser offense, the

court then considers whether the evidence at trial sufficed to uphold a conviction on the lesser

offense. Id.

¶ 44   A person is guilty of the offense of resisting a peace officer if the person “knowingly resists

or obstructs the performance by one known to the person to be a peace officer *** of any

authorized act within his official capacity.” 720 ILCS 5/31-1(a) (West 2012). Allegations in the

information that defendant knowingly struck what he knew to be a police officer in the face

broadly defines the offense of resisting that police officer, and the testimony lined up with the

allegations. Id. ¶¶ 22-27; Compare 720 ILCS 5/12-3.05 (West 2012) with 720 ILCS 5/31-1 (West

2012). So those principles explain the validity of defendant’s first conviction for resisting arrest.

¶ 45   However, what the State does not adequately explain is the propriety of never recharging

defendant after he was acquitted of the only charged offense and its course of then proceeding to

trial on an uncharged offense. Defendant never received formal notice of what the State would

attempt to prove or convict him of at the second trial. A defendant cannot be prosecuted for

charges that are not brought by grand jury indictment or pursuant to a preliminary hearing. People

v. Stafford, 325 Ill. App. 3d 1069, 1074 (2001). After his acquittal for aggravated battery, and in

light of the new evidence that caused his conviction for resisting arrest to be vacated, defendant



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should not have been prosecuted under a stale charging instrument that arguably did not meet even

the lowest standards required. See People v. Abrams, 48 Ill. 2d 446, 459 (1971). Defendant was

forced to defend himself against a charge that was not even pending against him at the time of his

jury trial. Neither party points us to precedent where the situation is the same as the one presented.

Without deciding whether the issue constitutes reversible error, it seems apparent that due process

would demand more.

¶ 46   It is not just that defendant was convicted of an offense with which he was never charged;

he went to trial only charged with an offense that he could never be convicted of committing. After

defendant’s conviction was vacated, there was really no pending charge against him. The only

criminal charge that ever existed was for aggravated battery of a police officer, and there was a

final judgment on that charge—acquittal. It was a charge on which the State could never have

secured a conviction. Generally, a court cannot permit a defendant to be tried on charges that are

not brought against him. Stafford, 325 Ill. App. 3d at 1073 (citing Stirone v. United States, 361

U.S. 212, 215-17 (1960)).

¶ 47   In response to defendant’s motion to dismiss the information, even the State acknowledged

the need for action. The State instructed the court that “[t]he physical copy of Count 1 of the

Information in the court file needs to be amended in the same manner as the Clerk’s records to

reflect the Court’s finding of the lesser included offense of ‘Resisting.’ ” However, the

information was never amended, and defendant was never recharged. The State also proposed an

allegation to be used in the information that would have materially changed the pleading to state

that defendant “knowingly resisted or obstructed a peace officer’s performance of any authorized

act within his official capacity” by striking officer Lopez. The charging document was never so



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amended, and defendant was never charged under the proposed language. The State also proposed

amending the statutory citation for the offense charged in the information. That was never done.

¶ 48   Regardless of the State not amending the charging document or recharging the defendant,

the court instructed the jury as if defendant had been charged with the crime he was on trial for

committing, even though he had not. The jury instructions state that “[t]he defendant is charged

with the offense of Resisting or Obstructing a Peace Officer. The defendant has pleaded not

guilty.” That was untrue because defendant was never arraigned on that charge. The instructions

go on to state that “[t]he charge against the defendant in this case is contained in a document called

the information. This document is the formal method of charging the defendant and placing the

defendant on trial. It is not any evidence against the defendant.” It is unclear what charging

document was provided to the jury, but it obviously was not one under which defendant had ever

actually been charged. The State treated the charging document as though it was a mere

technicality that was dispensable. Because the error discussed below (infra Part IV) is a reversible

error, we do not need to decide whether the failure to recharge defendant before taking him to trial

on an uncharged offense would be grounds for reversal, but it sure seems that way. The interests of

justice would clearly have been better served by defendant being charged for the offense he was

being prosecuted for committing.

¶ 49                                    IV. Jury Instructions

¶ 50   Defendant also argues that the trial court erred when it denied him the right to have the jury

instructed on the use of excessive force, which would have allowed it to consider 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,



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¶ 19.

¶ 51    The use of excessive force invokes the right of self-defense. 720 ILCS 5/7-1(a) (West

2012). Hence, an instruction on self-defense is required in a resisting arrest or battery case when

the defendant has presented some evidence of excessive force on the part of the arresting officer.

People v. Sims, 374 Ill. App. 3d 427, 432 (2007). Only a “slight amount” of evidence is necessary

to justify giving an instruction. People v. Haynes, 408 Ill. App. 3d 684, 690 (2011). The trial court

erred when it refused to give this instruction.

¶ 52    The only crime defendant was accused of committing at the outset of his interaction with

the officers was that he did not have his headlights on. Officer Lopez’s own testimony was that

when they stopped defendant after he tried to back away, four officers got out of the vehicle and

weapons were drawn. He did not remember if he identified himself as a police officer. He testified

that defendant fled and punched him and that four officers were amid the scuffle, but they had to

tase defendant four times to subdue him.

¶ 53    Defendant meanwhile testified that he did not know the people who pulled up in front of

him were police officers. When the people got out of their car and pulled out weapons, he was

scared so he got out of his car and ran. When one of the people caught up to defendant and tackled

him, the person started punching him in the head and choking him. Defendant claims that he was

resisting in response to that violence—he balled up covered his head to avoid being hit. Then he

was tased four times. To accept the State’s position on this issue, we would be required to dismiss

defendant’s testimony entirely and accept the officers’ testimony entirely. Because if you give any

credence to defendant’s testimony, which the trial court was required to do at the jury instruction

phase in a case of contested credibility, defendant was entitled to an instruction on self-defense



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where any resisting that he may have done could have been the product of the violent

confrontation.

¶ 54   Moreover, and while not determinative, defendant’s position must have appealed to the

jurors in some way because they asked “What classifies use of force versus protective defense?”

The jurors also sent a note that said “Please clarify mistake as to a matter of fact, give examples

and being, feeling panicked at the moment whether it was police or not.” This is not just an

intellectual exercise. The jury clearly gave some consideration to the use of force and defendant’s

rights in such a situation, yet they were prevented from having an instruction that would have

directly addressed the issue. There was sufficient evidence in the record to support instructing the

jury on self-defense and not having it deprived defendant of a fair trial. People v. Ayers, 331 Ill.

App. 3d 742, 754 (2002).

¶ 55                        V. Admissibility of the POD Camera Video

¶ 56   Defendant argues that the trial court erred when it prevented him from introducing the

POD camera video at trial. However, a defendant is not entitled to relitigate the issues raised in his

motion to quash arrest. Where a defendant makes no offer of proof as to exceptional circumstances

or new evidence, he has no right to relitigate the substance of his pretrial motion to quash arrest

before a jury or to an additional hearing on subsequent motion to quash arrest. People v. Mathis, 55

Ill. App. 3d 680, 685-86 (1977). It was clear from the questions defense counsel asked and from

the arguments made during sidebars that it was counsel’s intention to insinuate to the jury that

defendant’s arrest was without probable cause. Defendant was not entitled to admit the video for

that purpose.

¶ 57   The video could potentially be used for impeachment purposes. However, there was



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nothing in the video that actually impeached any of the testimony offered by Officer Lopez, and

the video addresses an issue distinct from the crime for which defendant was being tried. See

People v. Abrams, 260 Ill. App. 3d 566, 579 (1994) (contradictory evidence may not be offered if

it is merely collateral to the issues in the case). In addition, the State was correct when it argued

that the video could confuse jurors about the issues to be decided, especially in light of the

intimations made by defense counsel aimed at prodding the issue of whether the officers acted

wrongfully and without probable cause when they stopped defendant. So the trial court did not

abuse its discretion when it prohibited defendant from introducing the POD camera video.

However, if the case is retried and there is testimony subject to impeachment by the content of the

POD camera video, the video might be admissible for that purpose. The trial judge will have to

exercise discretion to rule on that issue should the situation come to pass.

¶ 58                                      CONCLUSION

¶ 59   While our precedent demands that we remand this matter for a new trial based on the

above-asserted problems with defendant’s prosecution (Ayers, 331 Ill. App. 3d at 754), we urge

the State to consider whether retrial in this case is really worthwhile. Defendant can only be

recharged with a misdemeanor and his sentence has already been discharged. This opinion is not a

vindication of the defendant in any way, but it is clear that there are a number of problems with the

case. In any event, we reverse defendant’s conviction and remand the case for further proceedings.

¶ 60   Reversed and remanded.




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