APPEAL from the Circuit Court of Peoria County; the Hon.
ROBERT E. HUNT, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 24, 1980.
Following a confrontation with police officers at his place of employment, defendant Charles Pine was charged in a two-count indictment with aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12-4(b)(6)) and resisting a peace officer (Ill. Rev. Stat. 1977, ch. 38, par. 31-1). After a jury trial, he was acquitted of the former charge and convicted of the latter. He was sentenced to a 6-month term of probation, including a $100 fine and 3 days imprisonment.
The count of the indictment charging resisting a peace officer alleged:
"[T]hat [defendant] knowingly resisted the performance by Janet Lavery of an authorized act within her official capacity, being the arrest of [defendant], knowing Janet Lavery to be a peace officer engaged in the execution of her official duties, in that he hit Janet Lavery several times * * *."
Evidence at trial established that on the evening of August 11, 1978, three police officers went to defendant's place of employment, Alexander's Root Beer Stand in Bellevue, Illinois, and asked him to step outside for questioning. Officer Janet Lavery testified that when she began to question defendant concerning a previous incident, he started "screaming and cursing, flailing about." He made a statement related to her questioning, and she pulled out her Miranda warning card. At this point defendant swung at her with his arm and missed. Continuing with Lavery's testimony, she followed him into the root beer stand, put her hand on his shoulder, and told him that she wasn't through talking with him, and that he was under arrest for disorderly conduct. Defendant said she could not arrest him without a warrant and tried to put her arm into a deep-fat fryer full of hot grease. Officer Stephen Miller then grabbed defendant, and as Miller pulled him away from Lavery, defendant hit her, knocking her against the deep-fat fryer, into the wall, and onto the floor. The three officers eventually subdued defendant and handcuffed him. In the process defendant kicked or hit all three officers, and Miller slapped defendant with an open hand.
Officers Michael Williams and Miller gave testimony which corroborated Lavery's account of the incident in many respects. However, Williams testified that Lavery told defendant he was under arrest for assaulting a peace officer rather than for disorderly conduct. Williams also said he did not see defendant try to put Lavery's hand into the deep fat fryer although defendant was not out of Williams' sight during the incident.
Testifying for the State, Edward Bowers said that he interviewed defendant 4 months after the incident, and that defendant told Bowers he had no intention of allowing the police officers to arrest him. Defendant also told Bowers that none of the officers ever told him he was under arrest.
Defendant's account of the incident was quite different from that of the police officers. He testified that when he was questioned, he told Lavery he was going to telephone his lawyer. When Lavery took out her Miranda warning card, he walked toward the root beer stand. Lavery grabbed his shirt as he reached the door, and they argued about his right to make a telephone call until the other two officers pushed their way through the door, knocking him to the floor. The officers pounced on him, struck him in the face with a flashlight, and finally handcuffed him. Defendant denied striking any of the officers and said he was not informed he was under arrest until he arrived at jail.
Debbie Andrews, an employee of the root beer stand, and Anna Williams, a customer, testified for the defense that after Lavery started reading defendant his rights, he said he was going to call his lawyer but was prevented from doing so by Lavery. Deanna Mibbs, another employee, and Carol Panus, the manager of the root beer stand, testified that the officers prevented defendant from using the telephone. They said one of the officers struck defendant with a flashlight, and Panus testified that when defendant was knocked to the floor, he was still holding a drink in one hand and a sandwich in the other.
During closing argument the prosecutor stated, without objection by defendant, that police officers would risk losing their jobs by committing perjury.
The case was submitted to the jury with what defendant refers to as "appropriate instructions." Included in the instructions were the following:
"To sustain the charge of resisting or obstructing a peace officer, the State must prove ...