People v. Johnson

No. 2--95--0988
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, ) No. 93--CM--5844
v. )
)
WAYNE JOHNSON, ) Honorable
) Judith M. Brawka,
Defendant-Appellant. ) Judge, Presiding.
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JUSTICE HUTCHINSON delivered the opinion of the court:

A jury found defendant, Wayne Johnson, guilty of resisting or
obstructing a peace officer (720 ILCS 5/31--1(a) (West 1994)), and
the court ordered him to pay fines and costs equal to the amount of
the bond posted. Defendant appeals pro se and raises two issues
for review: (1) whether the trial court erred in limiting the
scope of defendant's examination of the police officers; and (2)
whether the court erred in modifying a jury instruction after the
jury retired to deliberate.
Before we address these contentions, we need to address the
trial of this Class A misdemeanor by a jury of less then 12
persons. This court recognizes that a defendant may waive the
right to have a 12-member jury and then may allow the trial to
proceed before a jury of a lesser number. People v. Pierce, 369 Ill. 172 (1938). The record and briefs initially submitted were
not clear concerning how a six-person jury was seated in this case.
However, upon this court's request, the parties specifically
addressed this issue. We acknowledge and accept defendant's
statement that he acted voluntarily and purposefully in requesting
only six jurors. Therefore, we determine that defendant did waive
his right to a jury panel of less than 12 to hear and resolve this
case.
We cannot review the first issue raised by defendant because
he has failed to provide a transcript of the trial. The appellant
has the duty to supply a sufficient record for review, and any
doubts arising from the incompleteness of the record will be
resolved against the appellant. People v. Kirkpatrick, 272 Ill.
App. 3d 67, 70 (1995). Without a transcript or bystander's report,
we cannot determine whether the trial court limited the proposed
questions or why. We must therefore assume the trial court ruled
appropriately.
Defendant next contends that the trial court erred in
modifying the jury instruction. The complaint alleged that
defendant resisted a peace officer in that he knowingly resisted
the performance of an authorized act by Charles Davis, that being
the "search during temporary questioning of [defendant], knowing
Charles Davis to be a peace officer engaged in the execution of his
official duties, in that [defendant] pushed and twisted requiring
hand cuff [sic] restraints in order to be searched." The State
tendered an instruction based on Illinois Pattern Jury
Instructions, Criminal, No. 24--25.20 (3d ed. 1992) (IPI), that
provided, "A person is not authorized to use force to resist an
arrest which he knows is being made by a peace officer, even if he
believes that the arrest is unlawful and the arrest in fact is
unlawful." Defendant did not object to this instruction, and it
was given to the jury. During deliberations, the jury sent back a
note that asked, " 'May we substitute "authorized act" for the
"arrest" in the above phrase?' " The State, although believing the
modification would make its case stronger, ultimately took no
position on the jurors' question. Defendant objected because he
believed that it was lawful to resist an authorized act. The court
overruled the objection, noting that an authorized act is not
necessarily a lawful act. The court concluded that a correct
statement of the law is that a person is not authorized to use
force to resist an authorized act or an arrest which he knows is
being made by a peace officer. Therefore, the court amended the
instruction to state "authorized act or arrest."
Defendant argues that an authorized act and an arrest are not
interchangeable concepts; as such, the court erred in modifying the
instruction. Defendant was charged with "knowingly resist[ing] or
obstruct[ing] the performance by one known *** to be a peace
officer *** of any authorized act within his official capacity."
720 ILCS 5/31--1(a) (West 1994). In People v. Villarreal, 152 Ill. 2d 368 (1992), the supreme court considered section 31--1 of the
Criminal Code of 1961 (Code) (720 ILCS 5/1--1 et seq. (West 1994))
in conjunction with section 7--7 of the Code (720 ILCS 5/7--7 (West
1994)) that mirrors the language of the pattern instruction. The
court determined that "the legislature intended to prevent
individuals from using force in obstructing police officers in
their performance of authorized acts." Villarreal, 152 Ill. 2d at
374. "Authorized" describes an act " 'endowed with authority.' "
People v. Hetzel, 176 Ill. App. 3d 630, 633 (1988), quoting People
v. Shinn, 5 Ill. App. 3d 468, 472 (1972). Here, the authorized act
is a Terry stop (see Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889,
88 S. Ct. 1868 (1968)), as a peace officer is endowed with the
authority to stop a person in a public place for temporary
questioning (725 ILCS 5/107--14 (West 1994)).
Most of the convictions under section 31--1 arise in the
context of an arrest, rather than a Terry stop. See, e.g.,
Villarreal, 152 Ill. 2d at 370; People v. Lauer, 273 Ill. App. 3d
469, 470 (1995); People v. Peck, 260 Ill. App. 3d 812, 816 (1994).
In those cases, giving a pattern instruction based on section 7--7
of the Code accurately and adequately states the law. However,
here the pattern instruction failed to adequately state the law as
applied to resisting an authorized act other than an arrest. Where
the IPI contain an applicable instruction, the court should give
the pattern instruction unless the court determines that it does
not accurately state the law. 134 Ill. 2d R. 451(a); People v.
Novak, 163 Ill. 2d 93, 116 (1994). The decision to draft and give
a nonpattern instruction is entrusted to the trial court's
discretion. People v. Bush, 157 Ill. 2d 248, 253 (1993).
Accordingly, we conclude that if the court may draft an entirely
new instruction, the court may also modify an existing instruction
to bring it into conformity with the law. We also conclude that
the court properly amended the instruction to include the term
"authorized act." Therefore, we affirm defendant's conviction.
The judgment of the circuit court is affirmed.
Affirmed.
GEIGER and RATHJE, JJ., concur.