good morning the first case called the docket for the november term today tuesday nov fifteenth two thousand and nine thirty am his agenda number one case number one one one zero five six twenty mile c s five slash thirty one dash one in the phrase knowingly resists or obstruct the other raised in defendant's cross appeal is whether there was sufficient evidence to support his conviction specifically whether there was sufficient evidence to show that he actually impeded the officer in this case and in the execution of an authorized act interpretation must serve legislative intent and the best way to divine that intent is to look to the plain language of the statute in this case the plain meaning of the word of struck sclera lee encompasses a non physical aspect briefs demonstrating that obstructs has both a physical and a non physical aspect can be used in either sense i will not go into those uses two samples as they are laid out in a brief but the general  itself in section thirty one dash for three sections later in under the same article uses obstruct also in a nonphysical sense targeting those with intent to obstruct the prosecution or defens person clearly this is not referring to people who actually attempt to physically but bar the doors of the courtroom this is used in a nonphysical sense of clearly the word obstruct has this has this  aspect another rule statutory interpretation that comes into play here is one that this court also noted in people versus conic which is that statutory language should be given its fullest rather than its narrowest possible meaning have to impede the officer there had to be evidence that the officer was actually impeded as there is in this case confirmed that indeed her license was suspended they exited their vehicles at roughly the same time he instructed her to stop she ignored his order to stop and her home at that point sometime thereafter moments later perhaps a defendant exits the house and the deputy dyke explains that he had caught his wife driving on a suspended license and asked him to retrieve her from the house the defendant lied saying that he didn't know was going on but his wife was not home  that her license was indeed suspended until they were in front of the baskerville house so that's that that's the first moment at which he knew that her license was suspended confirming his his belief that indeed it was suspended and giving him cause to complete the traffic or initiate the traffic stop so that's why that's why he waited so long your honor i'm not sure exactly the time durations involved but i do know that he did not receive confirmation according to the record until they were favorable to the state drawing all reasonable inferences there from in favor of the state no reasonable juror would have convicted in this case there are many reasonable inferences underlying defendant's conviction the last time he knows where she is or what she's doing his defendant exits the house confronts the officer in front of the house has this conversation with him t this verbal exchange we enters the house a stance a plea although i don't think the record is exactly clear a stance of lee to confirm that indeed his wife is is is not there but as that as the trial court found to ensure that she was hidden before he offered the officer the opportunity to look he comes back outside talks to the officer again during all that time deputy dyke doesn't know impeding as well and i think you know i mean you're a fully point to the standard of proof but it is part of your argument that if the officer headed believe the line that there was no reason to go in and that was part of the impediment yes your honor that's that's that's one reason the inference that one can draw from the facts in this case that that supports the conviction of course as the united states supreme court that the crimes existence would depend on the effectiveness of the liar or the credulity of the officer seems seems strange in the words of the of the united states supreme court but that aside in answer your question yes at that point the officer deputy day could have believed could have reasonably believed or at least could have had some doubt as to whether the lie was true or not and whatever he believed it surely dissuaded him from taking further authorized steps to complete the traffic stop and ask two questions on the same line yes you're the first one is about what evidence there is in the record this was in fact a lot in other words what evidence is there in the record that in fact when the defendant said that christine was not home that she wasn't back in the home how do we know that's that was a lie well the first lie that she was not home  exit the home the record to my knowledge is not clear as to specific durations of time during which all this took place so how do we know i mean this has me was he was asleep on the couch and the court rejected that but how what evidence is there to support the state's theory that he knew she was in fact in the home well defendant concedes as much in his in his brief i'm asking you i think for purposes of the legal argument i'm asking what evidence there is  i think it's just the was the trial court's inference from the evidence that that the defendant's wife was had entered the home and she was still there and hadn't left and still was still there and had left or what the truck traffic stop and ultimately the police officer wrote a ticket correct correct so how did the defendant statement impede the officer from writing the ticket well perhaps  opinion is this is a restful offense or i'm not i don't understand the writing of the ticket versus arrest sure well your honor in illinois and i'm afraid i don't remember for speeding yes your honor and again i apologize for not having the case name but i'm happy to provide further briefings supplementary briefing if you if you would like but for whatever charge this was there was not a need i have a complaint to plimer hearing all in all that was needed to charge her with the writing of the ticket is that correct that is correct and and the that's correct if that's what the officer you know determined in his discretion needed to be done the but the fact of matter is the officer was not able to complete the traffic stop by issuing the again re offending for the very same violation driving on a suspended license that deputy dyke was able to serve so there is a material delay in deputy dykes ability to well as as well as we know in our brief your honor there were several other authorized means by which the deputy guy could have continued to pursue the traffic stop it was wrong the doorbell he could have shouted from meister in the fourth district raby its animating concern was that citizens not be subject to arrest for more mere verbal disagreement with a police officer and that police officer and lying to one and oh i beg your pardon no i want you to articulate the difference and then tell me why it should make a difference sure well again raby was explicitly concerned only with  the notion that citizens who voiced disagreement with a police action might be subject to arrest smacks of totalitarianism but in this case this is an affirmative attempt by the defendant to dash one with thirty one dash for absolutely your honor thirty one dash for the language they're in and the types of obstruction enumerated there in lend further support for argument that obstruction under thirty one dash one act that you're describing here thirty one deaths for seems to apply doesn't your honor and to answer your question one very briefly is this court expressed concern of people versus komondors that minor offenses would be punishable as officer being funneled into into the felony statute and as far as whether thirty one dash for thirty one dash fours the like that thirty one dash for sheds on thirty one dash one the best reading of thirty one obstruction so the thirty one dash for enumeration of certain types of instruction is not a reason to exclude those types of obstruction from thirty one dash warrant obstruction thank you thank you counsel for in that the state failed to prove the following elements that could could the state of charge him under thirty one days for with furnishing false information alone it could have yes so i have a situation where you could be charged with a felony for lying to a police officer forth again the elements are that the defendant committed an act that secondly prevented the officer from third performing unauthorized act within his duties so to this extent the defendant's primary three pronged argument is that one he did not lie to the officer two he did not impede the officer from performing his duties and three a lie does not constitute obstruction under section thirty one dash one the way it is set out in section thirty one dash for as obstructing justice as mr wiedeman you stated the elements i believe use the phrase an act that's correct is that in the statute it is not it is the interpretation of obstruction as set forth in landry and adopted by that the design of the act was to protect an officer on the scene from a visible encounter and part of that can be taken from the fact that his corrections officers were also covered by the statue so actually we both were landry says that five thirty one dish when a quote furthers the legitimate state interest in protecting peace officers prevented the first ration of the valid enforcement of the law and promoting orderly and peaceful resolution of disputes i mean is providing false information to a police officer who is actively engaged in an investigation is that would that be a frustration is going to contemplate under landry well it within landry went further to say that the way that the officer could be frustrated in the performance of his duty as the singlish from obstructing justice is by a physical act and strictly a physical act because the balance in landry was between the right of speech and the right of assembly particularly in that case versus the the right of the peace officer to perform his duties and to be safe in doing so and so was physical acts that were prevent d and it was specifically set forth going limp forcefully resisting arrest or physically aiding a third party to avoid arrest and it's this physical element of aiding a person from arrest is missing in the instant case in that there was no physical involvement of the defendant in attempting to obstruct the officer from arresting mrs baskerville in that mr wiegman to go back to where i was before that's that's that's the question here is about the act statute doesn't require it but the interpretation under raby i mean that's the actual holding of the third district that obstruction in this case could be to sustain it you have to have  that's correct and if the holding in raby which has been undisturbed for over forty years is that it requires a physical act and that was from a plane reading of the dictionary definition and the court was required to resort to a dictionary definition because obstruct is not defined in thirty one one the way it is and thirty one four in thirty one for several fashions of obstruction are set forth and they include physical elements they include nonphysical elements such as furnishing false information that kind of definition of obstruction was not provided in thirty one one and so the court in landry and then as it was adopted by ray b turned to a dictionary definition and then in the context of the language of the statute found that it involves the performance of an officer acts and resistance automatically looking at the dictionary definition in the context of that section requires that there be the defendant as well that it involves the actions of an officer the actions of a defendant and again the fact that a physical element is the concern is revealed as opposed to an investigation as was part or  prosecution as part of thirty one for is shown by the fact that corrections officers are provided for that the same language is now used to cover emergency management workers and to protect those who are on the scene and involved in a physical element w and and i believe that section thirty one four point five if i'm not mistaken which is which was recently enacted because of the concern that lying to a police officer about identification was obstructing an officer at the scene of a rouse it it's something that was in acted in response to a problem and goes to the concern of the legislative acquiescence that specifically set forth that a physical act must occur no action has been taken by the legislature in a forty year period to change that there was a change made by section four point five i believe fact that the act comprehensively covers any of a number of situations where there could be interference with a public official and recognizing that there may be on the scene concerns that are different from other investigative or prosecutorial type of areas the second factor is that it is set forth explicitly in some sections and not in others and the rule of griever is that where it is set forth that were defined in one fashion in one section by omission explicitly in other sections is not meant to apply in those sections getting back to the question i'm sorry whether an act is necessary was raby charged as resisting it it just runs in my mind the resisting and obstructing imply physical elements and defined both words in those terms should have struck in was actually not working or you know that that section was not resisting or not obstructing specifically just to follow up on justice karma or i know you both of you have argued this in the breeze so we just go back and reread it but like you to capsulize your position since the statute uses the phrase resists or obstructs and you're saying rab treating the both the same way i mean under statutory construction since are two different words we would not assume they mean the same thing that's correct and it has never been taken that they mean the same but but how do you how do you summarize your argument that we should  we should also continue to view obstruct as requiring a specific alack visa v or versus resist the inference that appears to have always been taken is that resisting is meant to apply to the defendant himself and obstruction involves a third party i and specifically if you look to the finding and raby regarding physically aiding a third party  if i'm the person being arrested then i'm the natural resistor but if another person comes to my assistance they would be the obvious trucker is is the fashion in which i would interpret resisting versus obstructing that it's meant to cover not simply the defendant but those who might come to the defendant's aid most instructive to this case i think is this court's recent finding in people vs commodities where in the majority talked about whether or not a defendant is materially conceding or i'm sorry concealing an item in the instant case there was no proof that the defendant in any fashion impeded the officer he gave permission to the officer to enter the premises to search and let's note that the officer did not have the authority without that permission to enter into the premises and that's where the third element of structuring peace officer comes into play is the fact that he would not have been performing an authorised act within his official capacity had he attempted to enter the premises and he didn't have the authority to require the defendant to remove his wife from the premises for the purposes of arrest van officer says go look he went and looked came out and said i don't know what's going on and in the same breath said search the place yourself if you want the officer did not take him up on that offer but had he would have been the only believe something that went contrary to what he had seen is not a reasonable response and the fact that he's provided information does not have struck him because it's his decision whether to act upon that information or disregard it and i'm certain that there are a number of scenes involving suspects or defendants where the officer is told something that he doesn't believe and doesn't rely upon that information as the basis for his subsequent actions the fact that the officer was stopped here was the officers choice and not because of anything that the london said further let's assume that the defendant had said simply yes she isn't there but you can't go when the officer still would not have been impeded because he could not have entered the premises without the defendant's authorization so to that extent the officer was not impeded in that he couldn't go into the house and he wasn't impeded because he was able to mail a ticket to the defendant and to the defendant's why and to the extent that the defendant to the extent that the state claims that the officer wanted to arrest mrs  refuted by the fact that he didn't arrest mr baskerville even though he told him at the time that he had the ability to do so or would be sending him a ticket had he intended to arrest mrs baskerville he would have arrested mr baskerville at the scene or the offense that he believed had occurred the the so the the facts of the case show that there was no lie to the officer to the extent that it wasn't demonstrated that mrs baskerville was in the premises and there was no showing that the defendant had impeded the officer one simply impeded him or to impeded him in the performance of his official duties which is essentially what teaches that the fact that there may be an attempt to conceal or to hinder is not enough if there is not in fact a material concealment and in this case there was not a material obstruction to the extent that the officer believed what he believed was believed what he saw did not believe the lie and was not impeded in any event by that li raby shows us that and the next the last thing that i think can be taken from camacho is justice freeman's assent where he notes that legislative intent can be taken from the fact that there was legislative acquiescence and in that case i believe the time period was eight years in this instance we're talking about a forty year period in which the legislature had it wished to refute the finding that a physical act is required that mere argument is insufficient that the only way a physical act can hinder an officer is where the defendant goes limp or forcefully resists or physically aids a third party to avoid arrest had the legislature meant to address that it could have at any time within the last forty some years so to that extent it is clear that rabies still holds that a physical act is required but even should this court find that a physical act is not required that a lie would be sufficient the state has failed to prove that a lie was made and that that lie in any fashion impeded the officer in the performance of his official duties and for those reasons if there are no further questions i would briefly conclude by interpretation of the word of struct or interpretation of re the as as as requiring a physical act as no there's been no legislative acquiescence to that point and more importantly neither of the statutes language which as we have discussed clearly encompasses nonphysical conduct excuse me i'm just wrong forgive me if we've already covered this point and lives that i want to make sure i'm correct about this was are quite different resisting does have a physical connotation obstruction is a much broader term which you know includes nonphysical nonphysical conduct and i believe it was to your point your  they did again i'm sorry i'll make sure i get this right but it does raise the really make that distinction or does any case maybe doesn't really distinguish between resisting and obstruction i mean it brady basically lifts  this passage from landry hole and dumps it into his own opinion there's not a there's not a whole lot of original analysis in in raby and as i recall right now your honor no i do not believe that there is any distinction any any individua will analysis of those two terms i think they're considered kind of again as as one kind of combined term that's my recollection but is the interpretation of destruction is the act of a third party whether it's not an rabies attempts to arrest him or prosecute him destroying evidence that implicates him you know barricade ing himself in a in or in a room so i think that obstruction is not in this case had not lied but said his wife was in the house what difference would have transpired in this is i think is in connection with whether or not what the defendant did actually impeded the officer in the performance of  news actually your honor well the second time defendant lied to his wife was not in house officer deputy dyke did not know whether that was true or not if he had known that it was a lie again there were numerous authorized steps he could have taken to complete or effect a traffic stop to you know  or or threaten ms baskerville into coming out of the house and and being cited being the first time i think the facts were he saw her go into the house so he knew she went in wife was an end and just as an aside the the notion that that was not a lie is put to rest by the fact that the trial court found that it was a lie the first lie you could argue that  you know it would be it would be difficult to argue and again you don't the record is not clear as to the duration between events in this case let's assume she didn't lie he said she's in the house what is the officer do with the officer if  the officer has it and that's it that's it i see are saying your honor that's that's a good question what the officer did in that case he basically treated as though it was a lie because he had just seen the wife and her was you know please try to resolve this kind of amicably peaceably please return to the house and ask your wife to come out so that was the step that deputy dyke took in that situation when he thought that the wife was indeed in the house now when he  obstructed the performance of the officer duties your honor i believe there was a there was an implicit finding because the court convicted defendant of struction  to my recollection of the record there was no specific factual finding regarding the nature of of the obstruction or anything of that nature so you know that the record does not does not feature any such information conduct between mere argument and a physical act so so that that clarity is needed your honor are there any other questions time is expired ok our thank you very much