APPEAL from the Circuit Court of Jefferson County; the Hon.
ALBERT McCALLISTER, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 20, 1977.
Defendant, Melvin Taylor, was found guilty of aggravated battery after a jury trial in the circuit court of Jefferson County in which the jury found him guilty on three counts of a four count information. Defendant Taylor was subsequently sentenced to three years probation, one condition of which was that he serve six months periodic imprisonment. He appeals.
Defendant presents four issues for review which we feel should be quoted in full rather than paraphrased or summarized by this court:
"(1) Whether the court lost jurisdiction of the cause by reason of there being no evidence to support the jury's findings as to a material allegation in each of three counts on which the jury brought in guilty verdicts?
(2) Whether the interest of the State in pursuing the path of this 75-CF-130 prosecution was abated when, prior to being afforded post-arrest judicial hearing, the defendant sued the alleged victim and the venue's sheriff jailer for falsely arresting and imprisoning the defendant from the time of the alleged victim's violent tackle stop of the defendant's locomotion.
(3) Whether the State's action or inaction deprived defendant of his constitutionally secured substantive right to a fundamentally fair jury trial?
(4) Whether, as a matter of law, there was reasonable doubt that defendant used the degree of force he used without justification and also as a matter of law, there is no doubt the defendant appellant was unduly detained in this event making appellant due the exercise of this court's Rule 366(a), power to enter a judgment in favor of Melvin Taylor and against the venue party in the amount of $10,000.00."
At trial the State's evidence showed that around 7:15 p.m. December 11, 1975, police officer Mark Drake was alone in a squadrol, making a routine patrol in the south district of Mt. Vernon. He saw a man, the defendant, walking down an alley. The officer then saw a group of men run out of a parking lot. One of these men whistled and shouted at the officer, requesting him to stop the defendant. Officer Drake parked his marked police vehicle beneath a street lamp and got out. He was dressed in full uniform. The defendant was then running toward Officer Drake. The officer twice asked the defendant to stop, but in the words of the officer, "he refused, and tried to get past me." The officer attempted to stop him by grabbing defendant. According to Officer Drake, defendant's momentum carried them to the ground and a scuffle ensued in which defendant hit the officer on the chin with his fist. The officer told him to calm down as all he wanted to do was talk to him. The defendant continued to struggle, kicking the officer in the shins. Officer Drake testified that when it became evident that the defendant was not going to calm down but continue to resist, he told defendant he was under arrest. An attempt to handcuff defendant while on the ground was unsuccessful. The officer then got him up on the trunk portion of the squadrol but was not able to get handcuffs on defendant until some onlookers assisted him at his request.
Officer Drake testified that as he put defendant into the back seat of the police car, the defendant kicked him twice in the groin area. Drake further testified that he then got behind the wheel of the car. As he was radioing for assistance, defendant kicked him in the back and the back of the head. The defendant next kicked his way over and into the front seat. Several police officers subsequently arrived on the scene in response to Officer Drake's call. Sergeant Ray Bravard and Assistant Chief Irwin helped Officer Drake return defendant to the rear seat. Officer Drake got behind the wheel, but before he could drive off, defendant again kicked him in the back of the head. Officer Drake helped restrain defendant until Sergeant Bravard had adequately pinioned defendant's legs with his own leg. They thereafter transported defendant to the county jail.
The State also presented testimony from four occurrence witnesses and Sergeant Bravard. Their testimony basically corroborated Officer Drake's account of the incident. Three of the onlookers confirmed that Drake, while using the radio, was kicked in the back of the head or shoulder area. Two of these witnesses testified they saw his head move forward after these blows were delivered. Witness Mark Harris further testified that he attracted Officer Drake's attention by whistling and yelling, "Stop him, he is the one." Sergeant Bravard corroborated Officer Drake's testimony that the defendant kicked him in the back of the head as he was preparing to drive to the police station.
Defendant put on several witnesses. One witness, who apparently viewed the incident almost in its entirety, testified that a policeman was choking defendant, beating him with his fist, and "throwing" him into the police car. This witness further related that a person other than the officer hit defendant with a nightstick and that the defendant never struck the officer, having no chance to do so. Two other defense witnesses, who both arrived after defendant was handcuffed, testified about the defendant's treatment. One testified that a policeman was choking defendant and that a nonuniformed person brandished a nightstick but did not strike the defendant. The other witness testified that one policeman was beating defendant with his fist while another policeman and "civilian" both hit the defendant with nightsticks.
Three rebuttal witnesses for the State related that they saw no one hit, choke or strike defendant with nightsticks.
On December 12, 1975, the day after this incident, an information was filed charging defendant with aggravated battery (Ill. Rev. Stat. 1975, ch. 38, par. 12-4(b)(6)). Counts II, III, and IV of this information, the counts the jury found defendant guilty of, described respectively the kick to the groin area, the kick to the back and back of the head, and the second kick to the back of the head. Also on December 12, bail was set and an arrest warrant issued and returned. Defendant was ...