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People v. Hayes

NOVEMBER 6, 1973.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

CHARLES HAYES, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE E. DOLEZAL, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Defendant, Charles Hayes, was charged in a three count indictment with aggravated battery and two counts of unlawful use of weapons. After a bench trial, defendant was found guilty on all three counts and was sentenced to six months in the Cook County Jail for aggravated battery and to three to five years in the Illinois State Penitentiary for carrying a concealed weapon within five years of a prior conviction. This appeal follows. No sentence was imposed on the misdemeanor charge of unlawful use of weapons.

Testimony at trial showed that on August 29, 1968, in the midst of the Democratic National Convention being held in Chicago, Officer Kenn, a Chicago police officer, was assigned to the Old Town-Lincoln Park area. At approximately 12:45 A.M. on that date, Officer Kenn and several other police officers were attempting to disperse a crowd which had assembled in the vicinity of 1630 North Wells Street. Upon viewing defendant standing in a restaurant vestibule off the sidewalk near the crowd, Officer Kenn asked defendant to "please move along." Defendant responded that he (defendant) was a police officer, whereupon Kenn asked defendant for identification.

Defendant, who was not wearing a policeman's uniform, said that his identification was in his car, and Officer Kenn then said both he and defendant should go to defendant's car to see the identification. As they started to walk toward the car, the officer asked defendant where he worked, and, when defendant answered, "the 47th Precinct," Officer Kenn arrested defendant for impersonating a police officer, knowing that no such police precinct existed in Chicago.

Upon searching defendant after the arrest, the pistol, which is the subject of the unlawful use of weapons charge in this case, was found under defendant's sweater. From the time the officer came upon defendant in the vestibule until the arrest, Officer Kenn was carrying a .12 gauge shotgun in his hands.

After the arrest, Officer Kenn, two other officers, and Officer Buttitta, one of Officer Kenn's partners on the morning in question, accompanied defendant to the 18th District Police Station. Defendant was taken to a second floor processing room by Officer Buttitta, while the other three officers went to a nearby room on the same floor. Officer Buttitta and defendant were alone in the room, where defendant was seated in a swivel chair near a desk, his wrists handcuffed behind him; Officer Buttitta was seated at the desk, asking defendant questions.

Officer Buttitta testified that upon defendant's refusal to answer certain questions put to him, the officer began to get up out of his chair to leave the room when defendant kicked him in the groin area. The other officers heard the commotion from the nearby room and entered the room where the incident occurred. Officer Buttitta was in uniform when he was kicked.

Defendant's version of the incident was to the effect that after his refusal to answer certain questions, Officer Buttitta began to rise from his seat. Defendant, supposing that the officer was about to leave the room, attempted to move the swivel chair he (defendant) was seated in out of the officer's path, and, in the process, fell backwards with the result that his foot hit Officer Buttitta.

Defendant alleges the following errors: (1) he did not knowingly and intelligently waive a jury trial; (2) it was erroneous to admit, over objection, prior consistent statements by a State witness; (3) evidence obtained in violation of defendant's Fourth, Fifth, and Sixth Amendment rights was erroneously admitted; (4) count three failed to allege the felony offense of unlawful use of weapons; and (5) the evidence was insufficient to sustain the findings of guilty.

I.

Defendant contends that though he signed a jury waiver, his waiver of a trial by jury was not knowingly and intelligently made; in support of his position, defendant urges that nothing in the record reflects any admonishments to defendant by the trial court regarding his right to a jury trial. At oral argument, defendant's counsel conceded that after further review of the record, he no longer strenuously urged this point.

II.

Defendant next claims that the court below committed reversible error in that it admitted into evidence, over objection of defense counsel, prior consistent statements by a prosecution witness in the form of a complaint charging defendant with impersonating a police officer. The State's argument for the complaint's admission was that the document would corroborate the State's case. Defendant urges that the complaint was improperly admitted in violation of the rule that it is error to corroborate a witness with the witness' prior consistent statements and that the trial judge's consideration of the complaint resulted in prejudicial error.

During the course of the trial, defense counsel objected to the admission of the complaint on grounds of relevancy and prejudice. The State urges that based on People v. Canaday (1971), 49 Ill.2d 416, 423-424, 275 N.E.2d 356, this point should not be considered on review, as the defendant, having made a specific objection, has waived all grounds not specified.

• 1 Where a case is tried by the court without a jury, there is a presumption that the court considered only competent evidence in reaching its decision (People v. Cox (1961), 22 Ill.2d 534, 177 N.E.2d 211). As a correlative proposition to that rule, where it appears a trial judge considered incompetent evidence prejudicial to defendant in arriving at his finding, the ...


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