APPEAL from the Circuit Court of Peoria County; the Hon.
CALVIN R. STONE, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Having been found guilty in a bench trial of intimidation, aggravated assault and one count of the unlawful use of weapons, and having been sentenced, as a result, to 2 1/2 years in prison for intimidation and a concurrent 364-day sentence for the unlawful use of weapons, the defendant, Shawn Proctor, instituted this appeal. Charges were brought against the defendant in a four-count information.
Count I charged that the defendant committed the offense of intimidation by communicating a threat of physical harm to William Johnston with the intent to cause Johnston to perform the act of getting into an automobile. Count II charged the defendant with aggravated assault in that he knowingly pointed a gun at William Johnston, thereby placing Johnston in reasonable apprehension of receiving a battery. Count III charged the defendant with the unlawful use of weapons in that he knowingly carried concealed in a motor vehicle a .38-caliber revolver, and count IV charged the defendant with the unlawful use of weapons in that he knowingly possessed within the corporate limits of the village of Bartonville, Illinois, a loaded .38-caliber revolver.
On April 19, 1979, the defendant was arraigned on each of the four counts in the information. At this time, a copy of the information was presented to the defendant. With respect to each of the counts defendant pleaded not guilty and requested a jury trial.
However, before proceeding to trial, and after the trial judge indicated for the record that the instant case was entitled People of the State of Illinois v. Shawn R. Proctor, here on charges, by information, of intimidation in count I, aggravated assault in count II, and unlawful use of weapons in count III, the defendant, in the presence of defense counsel, waived his right to a trial by jury.
Shortly after the defendant's jury waiver the cause proceeded to trial before the court. The defendant, who resided in West Peoria and was employed as a maintenance person for King's Park Mobile Estates, testified that, in the morning, before going to work, he would regularly purchase and drink a half pint of whiskey or a twelve pack of beer. At lunchtime he would usually pick up an additional six pack of beer or a half pint of whiskey.
On the 29th of March, the defendant did not drink the usual amount at work since he had "tied one on pretty good" the night before. He did this after discovering that his wife was going to move out because she could not tolerate his drinking any longer. The defendant left work that day to go home at 4 p.m. After he arrived, he consumed an entire half pint of Yukon Jack whiskey. Around 5 p.m., he went to Arcade Liquors and bought a fifth of Southern Comfort, which he consumed until 9 p.m., drinking straight out of the bottle the entire time. Although the defendant did not know for certain the quantity of the fifth that he consumed, he drank at least another half pint, and it could have been a third of the bottle or even the whole bottle.
On the 29th of March, 1979, at approximately 9 p.m., Trooper Johnston was on duty, driving his squad car on Route 24 south of Bartonville. He turned around on Route 24 and proceeded in the direction of Bartonville after receiving a citizen's band radio report from a truck driver. At that time, he observed a yellow Ford Maverick driving in an erratic manner. The Maverick would travel from the driving lane to the passing lane, bump the curb which separates the road on this four-lane highway and then bounce off the curb, travel across the passing lane of the paved portion of the road onto the shoulder and then travel back onto the driving lane. The car covered a total width of three lanes while doing this.
After following the vehicle for about a half or a quarter of a mile, Trooper Johnston believed that the driver was intoxicated. So he turned on his red lights and pulled the vehicle over. Johnston parked his squad car approximately 15 feet behind the vehicle, put his stoplights on in the rear of his car and turned his bright lights on so he could view the vehicle. This stop occurred on Route 24, a public highway, within the corporate limits of Bartonville, Illinois.
Johnston then exited his car and walked up to the driver's side of the vehicle. He asked the driver, the defendant, to show him his driver's license.
The defendant testified that he saw a person standing outside his window but could not hear what was being said since his window was inoperable. The defendant therefore opened his door.
The defendant exited his car from the driver's side rather slowly. As Johnston finished asking the defendant to display his driver's license, the defendant was about halfway out of his car, with one foot out and beginning to raise his body. This was an awkward position since his shoulder was tilted to some extent, but he was looking up at Johnston. At this time, Johnston observed a gun in the defendant's right hand coming across in front of the defendant. Johnston was possibly six inches away from the car door, and the gun was approximately one foot away.
Although the defendant did not vocalize any threats, he told Johnston to get in the car. Johnston believed that the subject might shoot him, and, after observing the barrel of the gun pointed at his upper torso and head area, Johnston stepped backward, ran around the front of the defendant's vehicle and dove into a ditch. As he turned around, while drawing his service revolver, Johnston saw the defendant's car pull away.
The defendant testified that when he opened his door and observed no one there, he just left. He did not remember saying anything or pointing a gun. Based upon past experience, the defendant attributes his loss of memory to intoxication. He testified that he never has or never would intentionally point a gun at a police officer or hurt a police officer because he realized the ...