APPEAL from the Circuit Court of Peoria County; the Hon.
CHARLES M. WILSON, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 21, 1975.
Terry R. Reynolds, the defendant, after trial by jury in the Circuit Court of Peoria County, was found guilty of the crime of aggravated battery and was sentenced to the penitentiary for a term of not less than 3 nor more than 10 years.
The prosecution of the defendant resulted from a melee which occurred at approximately 4 o'clock A.M. on November 11, 1972, in an establishment known as the Talk of the Town Tavern in the City of Peoria. At this time, date and place a State trooper, David Elmore, while in plain clothes and in the course of an investigation, was struck across the face with a beer bottle with such force and violence that his nose was almost severed from his face. The victim Elmore had entered the tavern at approximately 3:30 A.M. in the company of one Gene Beaty, an informant, and another individual named Jack Warster. An argument soon ensued between Beaty and a Donna Adams as to the ownership of a dollar bill which was lying on the bar. Beaty struck Donna Adams, knocking her to the floor and immediately thereafter a brawl erupted during the course of which Trooper Elmore, as we have stated, was seriously injured.
The police were called to quell the brawl, and the patrons in the tavern were individually interviewed in an effort to determine who had committed the assault upon Trooper Elmore. Initially the police arrested Jacob Parks, a Negro who participated in the brawl, and charged him with committing the crime of aggravated battery upon the person of Elmore. The charges against Parks were subsequently dismissed, and the defendant was arrested and charged with the crime.
From the testimony adduced during the course of the defendant's trial it is clear that great confusion prevailed at the time of the brawl and that testimony concerning the incident did little to clarify the matter.
The defendant in this appeal first raises the issue that he was denied certain constitutional rights by the content of the prosecutor's closing argument to the jury. In his brief the defendant then attempts to support this contention by arguments that he was not proven guilty beyond a reasonable doubt. We note that the "reasonable doubt" issue was raised in the defendant's motion for a new trial, and hence we deem that question properly before this court.
In examining the record we find a number of witnesses were called by the prosecution, and we can only conclude that their testimony was far from being definitive or convincing. The victim, Trooper Elmore, at the trial testified that he did not know who had struck him across the face with a bottle; however, an Officer Hoffman who investigated the incident testified that Elmore, while at the hospital, had identified his assailant as being a black man, with Afro haircut, wearing granny glasses and a solid dark jacket. This description fits Jacob Parks who had originally been arrested for the crime. It is significant in analyzing the testimony to note that at the time of the brawl Parks was the only Negro man in the tavern.
A student at Bradley University, one Mike Novelle, testified that he watched the fight and saw Elmore struck with the bottle and that the hand holding the bottle was white. Novelle admitted to having been drinking steadily at various places for some 7 hours prior to the fight. He had been drinking gin tonics and beer. He readily stated "I had quite a lot to drink." Also unexplained is why this witness waited 5 days before coming forth with his statement.
Witness Carlos Dean Melvin was an owner of a 50-percent interest in the Talk of the Town. He testified that he didn't see who had struck Elmore but acknowledged that just subsequent to the striking, Elmore stated that he was hit by a colored guy.
Geri Crawford, a dancer working at the Talk of the Town at the time in question, testified that she didn't see who wielded the bottle but did see Jacob Parks hitting Trooper Elmore with his fists.
A Jack Warster testified that he didn't see anyone wield a bottle but that he was hit by Parks with such force that he lost two teeth.
Jacob Parks readily admitted that he was involved in the brawl and that he struck Beaty, Elmore and another fellow. He denied using a bottle and identified the defendant as the one who used such a weapon. Such identification, however, loses its credibility when we find from the record that Parks initially told the police that he didn't know who struck the victim with a bottle and then changed his story so as to identify the defendant after he himself was charged with the crime.
A William Cockrell, who was collecting admissions at the door of the Talk of the Town, identified the defendant as the party who hit Elmore with a bottle, but this testimony can be held in suspect since Cockrell on November 12, or 1 day after the incident, stated to a ...