APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
McDONNELL, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant was convicted of disorderly conduct and resisting arrest 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 of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 31-1). He was fined $200 for disorderly conduct and sentenced to one year in the House of Corrections for resisting arrest. On appeal he contends: (1) he was denied his right to a jury trial, (2) the trial court erred when it denied his motion to exclude two police officers, (3) he was not proved guilty of disorderly conduct beyond a reasonable doubt, and (4) his sentence is excessive.
Defendant was arrested on October 8, 1974, and retained private counsel. On December 27, 1974, he demanded a jury trial and the case was re-assigned to Branch 46, the criminal jury court. After several continuances, defendant was tried on May 1, 1975. Three co-defendants, Jimmie Huffman, Margaret Huffman, and Richard Warmak were tried with defendant, however, their cases are not part of this appeal. Although the report of proceedings of May 1, 1974, makes no mention of a jury waiver, the common law record states that defendant waived a jury trial. Prior to any testimony, defense counsel requested that two of the arresting officers be excluded from the courtroom, however, the court denied this motion. Thereafter, the following pertinent facts were adduced.
Michael Cyze, Chicago Police Officer
On October 8, 1974, at about 11 a.m. he responded to a radio call that a boy had been shot at 608 West 61st Street, Chicago. There, he observed defendant walking with two other men. He approached them, informed them of the shooting, and asked defendant why he was in the neighborhood. Defendant stated in a loud voice that it was none of his "f____ business" adding, "You police don't do nothing but harass me * * *."
A crowd gathered and he told defendant to leave. However, defendant continued to scream about police harassment. He again asked defendant to stop yelling, but defendant replied "f____ you." Defendant then walked over to Sergeant Gafney, who was seated in a nearby car, and complained to him about Cyze. Gafney, however, informed defendant that Cyze was handling the call and told defendant to speak with him.
By this time about 30 persons had gathered. "Numerous" police were also in the area. He told defendant to either stop causing a disturbance or leave. Defendant replied that he did not have to listen. He then informed defendant he was under arrest and reached for his arm. Defendant pulled away. He again grabbed defendant's arm, however, Margaret Huffman pushed him and Jimmie Huffman jumped on his back. Meanwhile defendant tried to free himself. During the ensuing struggle, Margaret Huffman fell to the ground.
A call for assistance was placed and Officers Murphy and Mildice responded. Following five to six minutes of fighting, the officers arrested defendant, Margaret Huffman, Jimmie Huffman and Richard Warmak.
On cross-examination he stated that defendant "was in the process of committing the act" of disorderly conduct when defendant talked to him and Sergeant Gafney. Defendant also spoke to other persons on the street, but he does not know their names.
Officer Mildice and Investigator James Murphy, Chicago Police Officers
When Cyze approached defendant, they were parked in their patrol car 30 to 40 yards down the block. Defendant began screaming and hollering and then walked over and talked with Sergeant Gafney. As defendant walked away from Gafney, Cyze grabbed defendant's arm and a struggle ensued involving defendant, Margaret Huffman and Jimmie Huffman. They went to assist Cyze. While pulling Jimmie Huffman off of Cyze, several persons who had gathered in the area pulled Mildice from behind. Then Richard Warmak hit Murphy with a two-by-four. Mildice pursued Warmak, but was detained by someone in the crowd before he could apprehend him. Later, he arrested Warmak in an apartment nearby. They estimated that anywhere from 10 to 30 persons were present during the course of the disturbance.