APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. SULSKI, Judge, presiding.
MR. PRESIDING JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was convicted of disorderly conduct and obstructing a police officer in violation of section 193-1(b) of the Chicago Municipal Code (Chicago Municipal Code, ch. 193, § 193-1(b)) and section 31-1 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 31-1). He was fined $25 for disorderly conduct and sentenced to 30 days in the House of Correction for obstructing a police officer. On appeal, defendant contends: (1) he may not be convicted of both disorderly conduct and obstructing a peace officer, when both convictions are based upon the same conduct, (2) his conduct was legally insufficient to constitute the offense of obstructing a police officer, and (3) it was prejudicial error for the prosecutor during closing argument to comment on his failure to testify.
Defendant's brother, James Conner, was tried and convicted along with defendant, however, his case is not on appeal. At trial the following pertinent evidence was adduced.
He is a Chicago police officer. On May 7, 1973, at about 9:30 p.m., he and Officer Nathaniel Patterson were in uniform and on duty in a marked police car approaching 71st Street and Racine Avenue. There, he observed 10 to 15 men on the southeast corner of the intersection cursing, drinking, and hollering at passers-by. He told the men to disperse and they all left except for James Conner, defendant's brother. Again, he told Conner to leave, whereupon Conner began crossing Racine Avenue. When he reached the centerline, Conner turned and said, "M____ f____" and then continued into Ziggie's tavern. He followed him into the tavern and asked him to repeat what he said. Conner at first denied he was speaking to him, then denied saying anything. When asked a third time, Conner replied, "M____ f____ s____ both of you" and kicked him in the thigh. Patterson attempted to arrest Conner and a scuffle ensued. He grabbed Conner's leg and they all fell to the floor. The officers finally managed to handcuff Conner and prepared to leave, however, a group of men assembled at the door. As his partner was calling for help, Tommie Conner, the defendant, came into the tavern, saw James Conner standing between the two officers, and said, "Turn him [James Conner] loose. That is my brother; or I will kill you." As he said this, he took off his jacket revealing a shoulder holster located just below his left arm pit. There was no weapon in the holster. Immediately, Officer Leverette drew his service revolver and told defendant to stay back or he would shoot him. An unknown man grabbed defendant from the rear and held him, however, defendant continued to struggle to free himself. James Conner hollered to defendant, "Stay out of this" and others in the tavern screamed similar warnings. However, defendant "kept it up," saying, "Turn him loose; that is my brother; I will kill you; I will kill you." A minute or two later assisting police units arrived and defendant was arrested.
On cross-examination he admitted that although he did say in his police report that defendant was wearing a shoulder holster, he failed to mention anything about defendant removing his jacket. Further, he acknowledged, he was 10 to 15 feet away from defendant when defendant was grabbed.
On re-direct examination he said that although four or five people were directly between himself and the tavern door he still had a "clear unobstructed view" of defendant when defendant entered the tavern.
He is a Chicago police officer and was Officer Leverette's partner on May 7, 1973. He corroborated the testimony of Officer Leverette. In addition, he testified that there were 20 to 30 people in Ziggie's tavern at the time of James Conner's arrest, seven or eight of which were among those on the street corner a short time before. He estimated that the struggle with James Conner lasted four to five minutes.
On cross-examination he admitted defendant never reached him or his partner before someone grabbed defendant.
He is also known as Mr. Ziggy and is the owner of the tavern at which this incident occurred. On the date in question at about 9:30 p.m. he was working alone at his store. He saw the police arrest James Conner. After struggling with Conner they handcuffed him, and defendant came into the tavern. Defendant took off his coat and it "look like he [defendant] got a gun." Defendant had a leather strap in his left side. A police officer pulled a gun and said, "Stop. Don't move." Defendant did "nothing; he just froze." Defendant was then handcuffed.
On cross-examination he testified that defendant spoke when he entered the tavern, but he does not know what was said ...