APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
ENGLESTEIN, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Defendant, Renault Robinson, and a companion, Nathan Silas, both Chicago policemen, were charged with disorderly conduct in violation of section 193-1(a) of the Chicago Municipal Code. *fn1 After a first trial ended in a hung jury, a second jury found defendant guilty and Silas not guilty. Defendant was fined $200 plus costs of $10. Defendant's post-trial motion for judgment notwithstanding the verdict on evidentiary, constitutional and abuse of process grounds was denied. This appeal is from that denial and from the judgment entered on the verdict.
On appeal, defendant contends:
(1) the city did not prove that defendant "knowingly" performed an act "in such an unreasonable manner as to provoke * * * a breach of the peace";
(2) that convicting him under this ordinance renders the ordinance void for vagueness and overbreadth as applied; and
(3) that the ordinance was applied in this case in such a discriminatory manner as to render defendant's conviction unconstitutional.
The form complaint, in pertinent part, charges:
"Dean Welshhons complainant, now appears before the Circuit Court of Cook County and states that Robison [sic] Renault has, on or about 9 May 70 at 151 E. Monroe Chicago, Cook County, Illinois Committed the offense of Disorderly Conduct in that he knowingly
[x] a) Did any act in such unreasonable manner as to provoke, make or aid in making a breach of peace." (Underscored matters filled in.)
The evidence established that, on the evening of May 9, 1970, the Young Artists Studio presented a mixed media satire at the smaller (hereinafter studio) of the two theatres at the Goodman Theatre (hereinafter Goodman) in downtown Chicago. The satire included film contributed by the defendant as a representative of the Afro-American Patrolman's League, *fn2 in return for which the management had provided defendant with four complimentary tickets. Defendant and his wife were planning to go to the satire with two friends. The friends having not shown up, defendant and his wife were driven to the Goodman by another friend, Nathan Silas, in whose car they arrived at the theatre parking lot shortly before 10 p.m. The car was parked in a place allowed by Dean Welshhons, the chief of security for the Goodman, who then gave defendant's party directions to the Goodman. Welshhons then called Russell Tutterow, the Goodman manager who was taking tickets at the door. A defense objection to inquiries concerning why Welshhons had called Tutterow was sustained. Welshhons testified he observed all three members of the party to be amiable and in good spirits.
By the time defendant, his wife and Silas arrived at the Goodman lobby, the performance in the studio and in the larger theatre where a play was being presented (hereinafter theatre) had long since commenced. Tutterow testified that, when he asked defendant for the party's tickets, defendant spoke with a "slurred" diction and appeared to have been drinking. Defendant, he further testified, in looking for the tickets in his pants pockets, had pulled back his suitcoat revealing a gun stuck in the waistband of his pants. Tutterow asked the party if they would wait ten minutes until intermission which they said they would do. Defendant testified that he, his wife and Silas did briefly enter the studio prior to intermission.
Tutterow called Welshhons. An objection to the content of that conversation was also sustained. Welshhons subsequently called the police and later proceeded to the Goodman. The police arrived, as did Welshhons, before intermission ended. During intermission 700 people from the theatre and 150 from the studio came into the lobby. After intermission defendant's party entered the studio to look for seats, having waited, defendant testified, until most of the people had returned to their seats. The party encountered difficulty in finding seats.
When the City of Chicago police arrived, Tutterow described the defendant to the police who then entered the studio where the party was looking for seats. The participating officers testified that an Officer Stanley, who claimed to know the defendant and who did not testify at trial, volunteered to speak to defendant to "see if he could talk him out of the [studio] theatre." After Stanley greeted the defendant and shook hands, an Officer Dillan, dressed in plainclothes, thought he observed defendant passing a gun to his wife and, therefore, without identifying himself, grabbed defendant's hand. In so doing Dillan fell against defendant's wife causing her to stumble and fall against an aisle seat. Dillan testified Mrs. Robinson did not fall. Defendant, aware that his wife had a year earlier fractured her hip for which she was still receiving medical treatment exclaimed, apparently to Silas, "Who was that white mother fucker in the blue sportscoat who pushed my wife?"
Defendant testified that after this incident, Stanley asked him to go into the lobby which he proceeded to do. Defendant and his wife both testified that in the lobby when Stanley told him of the "man-with-a-gun" complaint, defendant opened his coat to show that he had no gun. Sergeant Clancy, the arresting officer, testified that when he arrived at the Goodman, defendant was talking with Stanley in the lobby in the presence of several other officers. Clancy further testified that he went up and asked Robinson and Silas if they were police officers and, if so, to produce credentials. Robinson refused to respond to either of these requests, whereas Silas, though he did not ...