APPEAL from the Circuit Court of DeWitt County; the Hon.
WILLIAM C. CALVIN, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Defendant was indicted, tried and found guilty in a bench trial of three counts of aggravated battery and one count of disorderly conduct. After a lengthy presentence hearing, defendant was sentenced to 2 years' probation, subject to certain conditions and fined $500. Defendant appeals from his conviction. It is urged on appeal that the trial court erroneously found that defendant's belief that it was necessary to use deadly force calculated to prevent death or great bodily harm to himself was unreasonable, and that defendant's guilt was not established beyond a reasonable doubt. We do not agree.
The altercation that gave rise to this cause took place outside Mary's Tavern located in Clinton, Illinois, where defendant beat and kicked Columbus DuBois, a 78-year-old black male. The incident started inside the tavern when DuBois was verbally harassed by defendant. Defendant and his two companions were ordered to leave the tavern by the proprietress. They refused to go. Defendant persisted in harassing DuBois by demeaning his race. Finally, defendant approached DuBois, and the latter turned and pulled an open pocket knife. The proprietress took DuBois by the arm and told him to leave in order to avoid any serious trouble. He put his knife away and left the premises. Thereafter, defendant and his confederates were ordered to leave which they did.
Once outside, defendant accosted DuBois by striking him in the face with his fist. He then kicked at DuBois' head, once the latter was down. After DuBois had been beaten into unconsciousness, defendant and the other two individuals drove away in a pickup truck. The police found DuBois unconscious and bleeding from his face and head, and a knife was found under his body. DuBois sustained a permanent eye injury as the result of the incident, as well as other assorted cuts and abrasions.
Mr. DuBois was approximately 5'2" tall, having a small frame. Defendant stood 6'2 1/2" tall and weighed approximately 245 lbs.
Defendant was subsequently indicted on one count of attempted murder, five counts of aggravated battery, and one count of disorderly conduct.
At trial, the State called Joyce McGarry, the proprietress of the tavern. She related that defendant started an argument with DuBois which had racial overtones and that DuBois became hostile when defendant persisted in harassing him. She testified that after clearing DuBois and defendant out of the tavern, she observed defendant and DuBois standing outside and continuing their argument. She saw defendant hit DuBois in the face. She ran outside and observed defendant kicking DuBois in the head several times, and each time cursing, "You nigger, son-of-a-bitch, you nigger." Mrs. McGarry stated she did not observe a knife in DuBois' hand when viewing him through the window. She had seen him put away what appeared to be a knife as he left the tavern.
Next, Doug Cox was called by the State. He testified that on the night in question, he was returning from a show when he heard a commotion going on in front of Mary's Tavern. He viewed defendant kicking DuBois while he lay on the sidewalk. He had not seen a knife in DuBois' hand. He watched defendant and defendant's two companions drive away in a truck. He went over to DuBois and found that he was bleeding profusely. Cox stated that he did see a knife lying on the pavement next to DuBois. The knife was open. Cox testified that the knife was the same one Mrs. McGarry had identified as being one DuBois had when he was in the tavern.
The Stated called DuBois as the final occurrence witness. He corroborated Mrs. McGarry's testimony. He stated that defendant began harassing and directing racial slurs at him while he was at the bar in Mary's Tavern. DuBois admitted taking a knife out in the bar when he thought defendant and his two companions were "corraling" him. However, he stated he closed the knife and put it in his pocket as he left the premises. Once outside, DuBois stated that he was struck in the face by defendant's fist and then defendant kicked him while he was on the pavement.
DuBois stated that as a result of the beating he sustained indicated damage to his eye. This conclusion was corroborated in the testimony of Dr. Robert S. Baller, an eye surgeon and ophthalmologist who treated DuBois for his eye condition.
After Dr. Baller's testimony, the State called several other witnesses and then rested. Thereafter, the defendant offered a motion for a finding of not guilty as to all counts of the indictment. The motion was granted as to Counts IV and V, both charging defendant with aggravated battery.
Defendant's case consisted of the testimony of two witnesses: William Fair, a co-defendant, and defendant, who testified on his own behalf. The thrust of the defendant's case-in-chief was that defendant acted in self-defense and was forced to use force reasonably calculated to prevent DuBois from inflicting great bodily harm upon the person of defendant.
Fair's testimony was at odds with the testimony elicited from the State's witnesses. He, in effect, testified that it was DuBois who started the argument which occurred in Mary's Tavern, and it was DuBois who interjected the element of deadly force into the argument by the threatening use of a knife. According to Fair, defendant acted in self-defense.
Defendant testified that the entire incident began over a misunderstanding. He submitted that he had stated to DuBois, "Nice meeting you, Columbus, I got a lot of negro friends." According to defendant, DuBois thought he had said "nigger." ...