Background
Kevin D. Wicker was convicted by a jury of aggravated assault, obstructing a peace officer, and resisting a peace officer. The charges arose after Wicker angrily confronted Sergeant Brian Litteral and Officer Matthew Graham over their response to an earlier call, repeatedly approached Litteral while yelling and pointing, placed his hands inside Litteral’s police vehicle, and later blocked the vehicle from leaving. Officers testified that Wicker behaved aggressively and erratically and that Litteral repeatedly moved away to avoid physical contact.
During jury selection, prospective juror Hinton disclosed that he knew Wicker, had worked on the vehicles of three law-enforcement witnesses, and was Graham’s brother-in-law. Hinton said those connections would not prevent him from being fair and impartial. The trial court denied Wicker’s challenge for cause, and defense counsel—who still had unused peremptory challenges—chose not to strike Hinton for what counsel later described as tactical reasons. Wicker received a one-year prison sentence and up to six months of mandatory supervised release.
The Court’s Holding
The appellate court affirmed. Viewing the evidence in the prosecution’s favor, it held that a rational jury could find that Litteral reasonably apprehended receiving a battery. Wicker came within striking distance, acted aggressively and unpredictably, placed his hands inside the police vehicle near Litteral, and repeatedly advanced until Litteral backed away to avoid a confrontation or physical contact. Those circumstances went beyond words alone and supported the aggravated-assault conviction.
The court held that Wicker waived appellate review of the denied for-cause challenge because he did not use all available peremptory challenges. It also rejected his ineffective-assistance claim. Even assuming counsel’s stated tactical decision not to strike Hinton was professionally unreasonable, Wicker could not establish prejudice under Strickland because the evidence of guilt was overwhelming and he did not show a reasonable probability that replacing Hinton would have changed the verdict.
Key Takeaways
- A victim’s reasonable apprehension of battery may be established by the defendant’s conduct and surrounding circumstances, without an express statement of fear.
- A defendant who leaves peremptory challenges unused waives a claim that the trial court improperly refused to remove a juror for cause.
- An ineffective-assistance claim based on jury selection fails without a showing that counsel’s decision created a reasonable probability of a different result.
Why It Matters
The order illustrates that aggressive movement into striking distance, coupled with erratic behavior and repeated efforts by the victim to create space, can prove assault even without an actual battery or an explicit verbal threat. It also underscores the preservation consequences of accepting a challenged juror while peremptory strikes remain available.
The decision was issued under Illinois Supreme Court Rule 23 and is nonprecedential except in the limited circumstances permitted by Rule 23(e)(1).