APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
ENGELSTEIN, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Herman Pickett, defendant, tried by a jury, was found guilty of resisting arrest (Ill. Rev. Stat. 1971, ch. 38, par. 31-1) and acquitted of a battery charge. Defendant was sentenced to one-year probation.
On appeal defendant raises the following issues for review: (i) was the complaint legally sufficient; (ii) did the trial court improperly exclude a photograph of the defendant and evidence of a subsequent beating inflicted on defendant by one of the arresting officers; (iii) did two contradictory jury instructions confuse and prejudice the jury; (iv) was the evidence presented sufficient to support the jury verdict of guilty of resisting arrest; and (v) was the acquittal of battery inconsistent with a verdict of guilt of resisting arrest.
Defendant was arrested during an episode resulting from a conflict over a parking space and charged with battery and resisting arrest. The complaint charging defendant with resisting arrest read:
"* * * Herman PICKETT has, on or about 16 June 1971 at 1758 West Harrison committed the offense of Resisting Arrest in that he knowingly resisted Patrolman Allan SCACCIA in the performance of his duties as apeace [sic] officer by punching and kicking Patrolman SCACCIA knowing at the time he resisted Patrolman SCACCIA a peace officer [sic]."
The State was granted a pretrial motion in limine, over objections of defendant, to exclude as irrelevant any events subsequent to the incident on the street which resulted in the charges before the court. As a consequence, the defendant was prevented from introducing any evidence of a beating allegedly administered to defendant by Officer Schmidt, one of the arresting officers, sometime after defendant left the scene of the incident.
Prior to trial defendant moved to have the resisting arrest complaint dismissed for failure to sufficiently allege the elements of the offense. The trial court in denying the motion ruled the words "in the performance of duties" presupposed the officer was performing an authorized act.
At trial Juliette Vartanian testified that on June 16, 1971, she brought her husband to Presbyterian-St. Luke's Hospital, left him at the door of the hospital and proceeded to look for a place to park her car. As she attempted to back her car into a vacant space on Harrison Street, a black Chevy with three black youths pulled frontward into the same space. She got out of her car, which was partially in the space, and went back to the Chevy and asked the boys in the car why they pulled into her space. Vartanian identified the defendant as a passenger in the back seat of the Chevy. She testified that he and the other boys merely laughed at her and someone in the back seat said "go ____ yourself." She testified she waved at a police car which stopped, and explained her situation to the uniformed patrolmen in the car, Officers Schmidt and Scaccia. Officer Schmidt went over to the Chevy and had a conversation with the youths; that she heard the officer tell the boys they were under arrest; and that the boys got out of the Chevy and a struggle occurred between defendant and the officers. She further testified that defendant told the gathering crowd that she had taken his parking space; that when defendant was told he was under arrest, defendant told the officer to come and get him; and that defendant hit Schmidt when he tried to hold him, and when Scaccia tried to stop the fight, defendant also hit and kicked him. Several assist police cars came, summoned by the arresting officers, and defendant was eventually handcuffed and taken away.
Vartanian identified defendant as the only person in the car wearing his hair in pigtails and identified him as the person pictured in a photograph introduced by the State. On cross-examination Vartanian testified she didn't hear much of the conversation between the officer and the youths, but she knew it was a heated argument; that she heard the officer say something to the effect that the boys were under arrest. She was cross-examined concerning an earlier statement to an investigator that she never heard the officer tell the boys they were under arrest and her description of the incident to the Department of Internal Affairs in which she made no mention of the defendant being put under arrest. On redirect examination she again stated she did hear one of the officers tell defendant he was under arrest prior to the ensuing struggle.
Officer Scaccia, a Chicago police officer, testified he and his partner were flagged down by a woman near the hospital about 3 p.m. on June 16, 1971; that his partner was Officer Schmidt; that both were in uniform and driving a marked police car; and that the police car stopped about three to five feet from the Chevy. The woman spoke to his partner, Officer Schmidt, the driver, and told him what had happened. The persons in the black Chevy were allegedly yelling statements to the effect the police were going to make them move because they were black and the lady was white. Scaccia identified the defendant as the person he saw in the back seat of the Chevy; he testified that defendant wore his hair in pigtails as did the driver of the car. This officer identified the driver as the person pictured in the State's exhibit identified by Vartanian as defendant. Scaccia testified his partner went over to the car and talked with the boys and told them to be quiet or he would have to arrest them. Scaccia got out of the police car, but when the yelling continued, he returned to the police car and called for help. At this point the witness allegedly heard the defendant say it would take more than two of them to arrest him. The witness heard Schmidt tell defendant he was under arrest, the boys got out of the car, and a struggle ensued between the officers and defendant. Defendant was telling the gathering crowd it would take more than two to arrest him, and he dared them to place him under arrest. The officer alleged the defendant kicked and punched him in the head and chest and kicked him in the groin during this struggle. After a group of other officers summoned by the witness arrived at the scene, defendant was subdued, handcuffed and taken away. Scaccia testified his inner lip was bleeding and his clothes were ripped as a result of the struggle. The witness was not questioned on cross-examination about placing defendant under arrest.
The State presented two other witnesses, one a Chicago police officer and the second a hospital employee, who also testified to the events surrounding the defendant's arrest, but neither of these witnesses testified they actually heard the officer place defendant under arrest.
Officer Redding, a Chicago police officer, testifying on behalf of the defendant, testified he was called to the area around St. Luke's Hospital on June 16, 1971, to assist a patrol car; that when he arrived at the scene with his partner there were two struggles going on about 30 feet apart; that one struggle involved defendant and about three officers; that he assisted in the arrest; and that the defendant did not offer any resistance to him. Redding could not recall defendant's hairstyle, but he did recall defendant's nose was bleeding when he was taken away.
Larry Morris testified on behalf of the defendant that he was with the defendant and one Columbus Jones when they attempted to park on Harrison Street; that the lady got upset and flagged down a squad car which pulled next to them; that Officer Schmidt came over and asked Jones for his license and no one said anything; that he then returned to his car to make a call; that the officer returned and asked them to vacate the parking space, but they refused; that the defendant started arguing with Schmidt and Schmidt told defendant to shut up; that Schmidt got a billy club and put on black gloves and they again refused his request to move on but got out of the car when told to do so, but that no one had told them they were under arrest; that thereafter a general brawl took place and defendant was trying to evade Schmidt but never tried to hit Schmidt; that Scaccia was not in the fight; and that they were never placed under arrest.
Three eyewitnesses, one occupational therapist and two nurses, testified on behalf of the defendant that the police asked the defendant and companions to move, and when they refused, an officer put on a glove and a struggle followed; that defendant did not wear his hair in pigtails, and that he did not strike the officers; and one of the witnesses testified that she did not hear the words "under arrest" prior to the struggle.
Columbus Jones testified he was driving a black 1961 Chevy that afternoon; that the defendant had a low cut natural hairstyle that afternoon; that Larry Morris had a large natural hairstyle; and that Plaintiff's Exhibit 1 was a picture of himself in pigtails. The balance of Jones's testimony concerning the incident corroborated that given by other defense witnesses.
Defendant's mother testified she had seen the defendant prior to the alleged incident and that his hair was not in pigtails; she also identified a photograph of defendant with a hairstyle the same as it was on defendant June 16, 1971.
The defense also made an offer of proof as to the testimony defendant's mother would give regarding her son's condition in the hospital after the alleged incident. Offers of proof were also made as to the testimony of the physician and nurse who attended defendant subsequent to his arrest and the injuries sustained by the defendant. The latter offer of proof by the defendant was offered to affect the credibility of Officer Scaccia.
The testimony of the defendant as to the incident was similar to other defense witnesses in most respects. The defendant testified that Officer Scaccia did not tell him or seek to place him under arrest and did not hit him during the incident; and that he was trying to keep out of Officer Schmidt's way.
The defendant attempted to introduce a photograph of defendant taken by the police crime lab two days after the incident. The purpose of the photograph was to refute the State's testimony regarding defendant's hairstyle. The court ruled this photograph was not admissible because sufficient evidence had already been presented on that issue.
The court gave two instructions on the elements which must be proved to find defendant guilty of resisting arrest. As commented on later in this opinion, one of these instructions contained the element of compulsion and the other did not. The same procedure was followed for the battery instructions.
The jury returned a verdict of guilty as to resisting arrest and not guilty as to battery. Defendant thereafter moved for an order in arrest of judgment asserting that the complaint failed to set out an offense, and also moved to vacate the jury's verdict. After each motion was denied, the trial court sentenced the defendant to one-year probation.
We first consider the sufficiency of the complaint. The Illinois Criminal Code of Procedure, section 111-3 (Ill. Rev. Stat. 1971, ch. 38, par. ...