{ "id": 2640293, "name": "THE PEOPLE OF THE STATE OF ILLINOIS et al., Plaintiffs-Appellees, v. TOMMIE DEAN CONNER, Defendant-Appellant", "name_abbreviation": "People v. Conner", "decision_date": "1976-09-10", "docket_number": "No. 62874", "first_page": "234", "last_page": "239", "citations": [ { "type": "official", "cite": "42 Ill. App. 3d 234" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "309 N.E.2d 659", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "668" } ], "opinion_index": 0 }, { "cite": "18 Ill. App. 3d 255", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2611545 ], "weight": 2, "pin_cites": [ { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0255-01" ] }, { "cite": "88 S. Ct. 2304", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "20 L. Ed. 2d 1394", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "392 U.S. 936", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6217893, 6217670, 6218215, 6217416, 6217168, 6218480, 6216829 ], "opinion_index": 0, "case_paths": [ "/us/392/0936-05", "/us/392/0936-04", "/us/392/0936-06", "/us/392/0936-03", "/us/392/0936-02", "/us/392/0936-07", "/us/392/0936-01" ] }, { "cite": "232 N.E.2d 247", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "88 Ill. App. 2d 204", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 8499184 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/88/0204-01" ] }, { "cite": "380 U.S. 609", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1524757 ], "weight": 6, "pin_cites": [ { "page": "614" }, { "page": "109-110" }, { "page": "1233" } ], "opinion_index": 0, "case_paths": [ "/us/380/0609-01" ] }, { "cite": "240 N.E.2d 595", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "40 Ill. 2d 392", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2855718 ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0392-01" ] }, { "cite": "280 F.Supp. 938", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 2782314 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "959" } ], "opinion_index": 0, "case_paths": [ "/f-supp/280/0938-01" ] }, { "cite": "259 N.E.2d 24", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. 2d 310", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2895244 ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0310-01" ] }, { "cite": "309 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "56 Ill. 2d 493", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405202 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-2d/56/0493-01" ] } ], "analysis": { "cardinality": 735, "char_count": 13761, "ocr_confidence": 0.881, "pagerank": { "raw": 1.3774387418561812e-07, "percentile": 0.6398141358820534 }, "sha256": "aec262b81a0a5827abca8128e0443026e9daeb1e8c064947e97f24a25dd0fa57", "simhash": "1:cf3e30c543405960", "word_count": 2278 }, "last_updated": "2023-07-14T15:00:19.600233+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS et al., Plaintiffs-Appellees, v. TOMMIE DEAN CONNER, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE LORENZ\ndelivered the opinion of the court:\nFollowing a jury trial, defendant was convicted of disorderly conduct and obstructing a police officer in violation of section 193 \u2014 1(b) of the Chicago Municipal Code (Chicago Municipal Code, ch. 193, \u00a7193 \u2014 1(b)) and section 31 \u2014 1 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 31 \u2014 1). He was fined *25 for disorderly conduct and sentenced to 30 days in the House of Correction for obstructing a police officer. On appeal, defendant contends: (1) he may not be convicted of both disorderly conduct and obstructing a peace officer, when both convictions are based upon the same conduct, (2) his conduct was legally insufficient to constitute the offense of obstructing a police officer, and (3) it was prejudicial error for the prosecutor during closing argument to comment on his failure to testify.\nDefendant\u2019s brother, James Conner, was tried and convicted along with defendant, however, his case is not on appeal. At trial the following pertinent evidence was adduced.\nFor the State\nGeorge Leverette\nHe is a Chicago police officer. On May 7, 1973, at about 9:30 p.m., he and Officer Nathaniel Patterson were in uniform and on duty in a marked police car approaching 71st Street and Racine Avenue. There, he observed 10 to 15 men on the southeast corner of the intersection cursing, drinking, and hollering at passers-by. He told the men to disperse and they all left except for James Conner, defendant\u2019s brother. Again, he told Conner to leave, whereupon Conner began crossing Racine Avenue. When he reached the centerline, Conner turned and said, \u201cM----f-----\u201d and then continued into Ziggie\u2019s tavern. He followed him into the tavern and asked him to repeat what he said. Conner at first denied he was speaking to him, then denied saying anything. When asked a third time, Conner replied, \u201cM-----f-----s \u2014 both of you\u201d and kicked him in the thigh. Patterson attempted to arrest Conner and a scuffle ensued. He grabbed Conner\u2019s leg and they all fell to the floor. The officers finally managed to handcuff Conner and prepared to leave, however, a group of men assembled at the door. As his partner was calling for help, Tommie Conner, the defendant, came into the tavern, saw James Conner standing between the two officers, and said, \u201cTurn him [James Conner] loose. That is my brother; or I will kill you.\u201d As he said this, he took off his jacket revealing a shoulder holster located just below his left arm pit. There was no weapon in the holster. Immediately, Officer Leverette drew his service revolver and told defendant to stay back or he would shoot him. An unknown man grabbed defendant from the rear and held him, however, defendant continued to struggle to free himself. James Conner hollered to defendant, \u201cStay out of this\u201d and others in the tavern screamed similar warnings. However, defendant \u201ckept it up,\u201d saying, \u201cTurn him loose; that is my brother; I will kill you; I will kill you.\u201d A minute ot two later assisting police units arrived and defendant was arrested.\nOn cross-examination he admitted that although he did say in his police report that defendant was wearing a shoulder holster, he failed to mention anything about defendant removing his jacket. Further, he acknowledged, he was 10 to 15 feet away from defendant when defendant was grabbed.\nOn re-direct examination he said that although four or five people were directly between himself and the tavern door he still had a \u201cclear unobstructed view\u201d of defendant when defendant entered the tavern.\nNathaniel Patterson\nHe is a Chicago police officer and was Officer Leverette\u2019s partner on May 7, 1973. He corroborated the testimony of Officer Leverette. In addition, he testified that there were 20 to 30 people in Ziggie\u2019s tavern at the time of James Conner\u2019s arrest, seven or eight of which were among those on the street corner a short time before. He estimated that the struggle with James Conner lasted four to five minutes.\nOn cross-examination he admitted defendant never reached him or his partner before someone grabbed defendant.\nZigmas Sefelras\nHe is also known as Mr. Ziggy and is the owner of the tavern at which this incident occurred. On the date in question at about 9:30 p.m. he was working alone at his store. He saw the police arrest James Conner. After struggling with Conner they handcuffed him, and defendant came into the tavern. Defendant took off his coat and it \u201clook like he [defendant] got a gun.\u201d Defendant had a leather strap in his left side. A police officer pulled a gun and said, \u201cStop. Don\u2019t move.\u201d Defendant did \u201cnothing; he just froze.\u201d Defendant was then handcuffed.\nOn cross-examination he testified that defendant spoke when he entered the tavern, but he does not know what was said because he was not paying attention.\nFor defendant\nJames Conner\nHe is defendant\u2019s brother. After the police officers handcuffed him, defendant walked into the tavern and asked, \u201cWhat\u2019s wrong JD.\u201d He replied, \u201cNothing, just stand back. Don\u2019t get involved.\u201d No dne was between the police officers and defendant. Officer Patterson drew his revolver and said to defendant, \u201cNow m----\u2014 f-----, don\u2019t stand back; come on closer so I can blow your head off.\u201d Defendant moved back to the bar and kept saying, \u201cThat\u2019s my brother.\u201d Defendant had a shoulder holster on.\nOn cross-examination he admitted defendant crossed the room to within four feet of him after entering the tavern. Defendant did not shout, but said, \u201cThis is my brother, what are you doing to my brother?\u201d\nSteven Sneed\nHe witnessed the arrest of James Conner and defendant. Prior to the incident in the tavern, he had been on the comer of 71st Street and Racine Avenue with James Conner. His direct examination substantially corroborated the testimony of James Conner.\nOn cross-examination he admitted being a close friend of both defendant and James Conner. When defendant entered the tavern he said, \u201cWhat is going on?\u201d Defendant did not threaten the officers or demand they let James Conner go. The only other thing he heard defendant say is, \u201cThat\u2019s my brother.\u201d He would have known if defendant had said anything else, because he was standing right next to defendant, three to six feet from where James Conner was being held. He and defendant had their backs to the bar and were facing Officer Patterson. No one grabbed or restrained defendant. Although defendant was upset and shouting, defendant was not shouting loudly and stood in place when he spoke. Defendant did not remove his jacket, however, defendant\u2019s shoulder holster was visible because his jacket was unbuttoned.\nDuring closing argument defense counsel told the jury:\n\u201c* * * I think I might have promised you both defendants would testify. Well, I broke that promise. One defendant, Tommie Conner, didn\u2019t testify, and why I didn\u2019t put Tommie Conner on the stand to testify, whatever my reasons were for not putting him on the stand, I don\u2019t want you to hold that against him because an individual never has to take the stand.\nAs we instructed you earlier * * * during the voir dire, that is up to the State to prove the individual guilty beyond a reasonable doubt. The people who are charged with a crime don\u2019t have to take the stand if they don\u2019t want to. I am just once again telling you so you will understand.\nft ft ft\nLet\u2019s get to the testimony about Tommie. Tommie didn\u2019t testify, and the reason he didn\u2019t \u201ctestify is because the State doesn\u2019t have a case against Tommie. They\u2019ve got the weakest possible case. Their case is so weak, \" 6\nIn rebuttal to the remarks of defense counsel, regarding defendant\u2019s failure to testify, the prosecutor commented:\n\u201cAnd I will tell you why Tommie didn\u2019t testify. He [defense counsel] says, \u2018Well, we didn\u2019t hear him testify because it was a weak case.\u2019 The inconsistencies were building up and building up. They didn\u2019t dare put him on there.\u201d\nOpinion\nThe State correctly agrees with defendant\u2019s first contention that he cannot be convicted of both obstructing a peace officer (Ill. Rev. Stat. 1973, ch. 38, par. 31 \u2014 l) and disorderly conduct. (Chicago Municipal Code, ch. 193, \u00a7193 \u2014 1(b).) Where, as here, both charges are founded upon a single act of defendant there can be but one conviction. (See People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1; People v. Stewart (1970), 45 Ill. 2d 310, 259 N.E.2d 24.) The conviction of the lesser offense of disorderly conduct is, therefore, reversed.\nDefendant next contends that his conduct was legally insufficient to constitute the offense of obstructing a peace officer. Characterizing his conduct as at most an \u201cidle threat\u201d, defendant cites Landry v. Daley (N.D. Ill. 1968), 280 F.Supp. 938, and People v. Raby (1968), 40 Ill. 2d 392, 240 N.E.2d 595, for the proposition that words alone do not constitute obstructing a peace officer. Rather, he insists there must be \u201csome physical act which imposes an obstacle which may impede, hinder, interrupt, prevent, or delay the performance of the officer\u2019s duties, such as going limp, forcefully resisting arrest or physically aiding a third party to avoid arrest.\u201d Landry v. Daley (N.D. Ill. 1968), 280 F. Supp. 938, 959.\nWhile defendant did not come in physical contact with either arresting officer, his conduct extended beyond mere words and constituted obstruction under section 31 \u2014 1 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 31 \u2014 1) and as defined by the Landry and Raby cases. Although, there was conflict in the testimony, the People\u2019s evidence, which the jury obviously chose to believe, shows that defendant entered a tavern with a marked police car parked outside and saw his brother, James Conner, standing handcuffed between two uniformed police officers. That he was being arrested was obvious. Nonetheless, defendant removed his jacket, revealing a shoulder holster and threatened to kill the officers if they did not release his brother. James Conner acknowledged that defendant walked across the room to within four feet of the officers. Moreover, it was necessary for an unknown citizen to restrain defendant, who struggled to free himself despite repeated warnings from his brother, other bystanders and the police officers who had their weapons drawn. That defendant failed to come in physical contact with the officers makes his actions no less culpable. His conduct occurring on the heels of a four- to five-minute struggle between police and his brother and in the midst of a hostile crowd, come well within the definition of obstructing a peace officer as set forth in the Landry and Raby cases. Certainly the acts of defendant impeded and delayed the performance of the officers\u2019 duties.\nLastly, defendant contends that although it may have been proper to comment on defendant\u2019s failure to testify because defense counsel raised the matter in his closing argument, nonetheless he insists that it was prejudicial error for the prosecutor to continue his remarks by stating the reason he believed defendant did not testify.\nThe prohibition against comment on defendant\u2019s failure to testify, insofar as State prosecutions, was established in Griffin v. California (1965), 380 U.S. 609,14 L. Ed. 2d 106, 85 S. Ct. 1229. The court felt there should be no penalty \u201cfor exercising a constitutional privilege\u201d and while the jury was left to draw its own inferences as to why a defendant failed to testify, it would be improper to draw those inferences for them. (Griffin v. California (1965), 380 U.S. 609, 614, 14 L. Ed. 2d 106,109-110, 85 S. Ct. 1229, 1233.) However, when counsel for defendant attempts to explain his client\u2019s silence, the issue is now before the jury and the rationale behind the rule ceases. See People v. Finney (1967), 88 Ill. App. 2d 204, 232 N.E.2d 247, cert, denied, 392 U.S. 936,20 L. Ed. 2d 1394, 88 S. Ct. 2304.\nPeople v. Carruthers (1974), 18 Ill. App. 3d 255, 309 N.E.2d 659, which involved circumstances nearly identical to the instant case, held that where defense counsel raises the subject of defendant\u2019s failure to testify he thereby opens the subject to fair comment. We agree. Where the prosecutor\u2019s remarks concerning defendant\u2019s failure to testify are in the form of a response to defense counsel\u2019s comments in. closing argument, \u201cdefendant may not predicate error on a response by the prosecutor which he himself provoked.\u201d People v. Carruthers (1974), 18 Ill. App. 3d 255, 267, 309 N.E.2d 659, 668.\nNor do we believe that the Assistant State\u2019s Attorney exceeded the bounds of proper rebuttal as defendant suggests. Counsel for defendant initially raised defendant\u2019s failure to testify and offered a specific reason for that silence. The prosecution merely responded to counsel\u2019s remarks and presented to the jury an alternative inference to be drawn from defendant\u2019s silence.\nFor the foregoing reasons we reverse defendant\u2019s conviction for disorderly conduct, and affirm his conviction for obstructing a police officer.\nReversed in part; affirmed in part.\nSULLIVAN and DRUCKER, JJ., concur.\nSection 31 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 31 \u2014 1) provides:\n\u201cA person who 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 commits a Class A misdemeanor.\u201d", "type": "majority", "author": "Mr. PRESIDING JUSTICE LORENZ" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Thomas F. Finegan, Assistant Public Defender, of counsel), for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Iris E. Sholder, and Timothy D. Quinn, Assistant State\u2019s Attorneys, of counsel), for appellees." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS et al., Plaintiffs-Appellees, v. TOMMIE DEAN CONNER, Defendant-Appellant.\nFirst District (5th Division)\nNo. 62874\nOpinion filed September 10, 1976.\nJames J. Doherty, Public Defender, of Chicago (Thomas F. Finegan, Assistant Public Defender, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Iris E. Sholder, and Timothy D. Quinn, Assistant State\u2019s Attorneys, of counsel), for appellees." }, "file_name": "0234-01", "first_page_order": 264, "last_page_order": 269 }