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05/24/89 the People of the State of v. George White

May 24, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GEORGE WHITE, JR., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

539 N.E.2d 456, 183 Ill. App. 3d 838, 132 Ill. Dec. 146 1989.IL.789

Appeal from the Circuit Court of Rock Island County; the Hon. John Donald O'Shea, Judge, presiding.

APPELLATE Judges:

JUSTICE STOUDER delivered the opinion of the court. SCOTT, J., concurs. JUSTICE HEIPLE, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

The defendant, George White, Jr., pled guilty to burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19-1(a)) and was sentenced to a three-year term of probation. The State subsequently filed a petition to revoke the defendant's probation, alleging that he had violated the terms of his probation by committing an aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12-4(b)(1)). The trial court found the defendant guilty of violating his probation and sentenced him to four years in prison. The defendant appeals.

At the hearing on the petition to revoke the defendant's probation, LaRue Jackson testified to the following. On March 20, 1988, he, the defendant, and two other people were in a parked car. A fight broke out between the defendant and Jackson. The defendant then pulled out a knife and cut Jackson's right wrist. The defendant exited the car and started toward Vickie Micheal, who had exited the car on the opposite side. Micheal picked up a bottle and threw it at the defendant. The defendant picked up the same bottle and threw it back at the car, where it broke. The defendant then ran across the street and into an Elks Club.

Micheal testified that after the fight, the defendant exited the car and threw a soda bottle at her. In response, she threw a bottle at him. She then heard Jackson yell that he was cut. Micheal stated that Jackson never fell while he was outside the car. She admitted, however, that she could not see him when the bottles were being thrown. Though she saw the defendant make a jabbing motion at her, she never saw a knife. Micheal testified that the car's dome light was not working.

Debbie Davis, the remaining person in the car, testified that during the fight she was pinned against the steering wheel. At one point, she heard a click and blood splashed on her shirt. She then saw the defendant holding a knife. After she, the defendant, and Micheal exited the car, she saw the defendant and Micheal throwing bottles at one another and saw a bottle break. She stated that she could see by the glow from the car's dome light that Jackson's arm was already hurt when he exited the car.

Laura Beers testified for the defense that at the time of the incident she was parked five or six cars behind the car in question. She saw the fight and saw the defendant exit the car. Jackson then got out of the car, and he and the defendant began throwing bottles at one another. She heard at least one bottle break, but could not tell where it was. At one point, she saw Jackson fall. She never saw a knife in the defendant's possession.

The defendant testified that after he exited the car Jackson got out. Jackson threw three bottles at him, and he threw two bottles at Jackson. He saw Jackson try to dodge the bottles and saw him fall where the bottles had broken. The defendant denied having a knife or stabbing Jackson.

Following closing arguments, the trial Judge examined the cut on Jackson's arm. The Judge discussed the discrepancies between the witnesses' testimonies, then turned to the physical evidence. He noted that the wound had been caused by either a knife or a piece of broken bottle and stated:

"Now the Court can take into account its own observations and experiences of life. Most broken bottles [are] round -- if there is a flat part it's on the bottom and normally when a bottle breaks it doesn't break in a perfectly straight line.

Glass tends to break in a jagged fashion. The Court notes the position of the wound. The wound is not on the palms. It's not on the heel of the palms. It's down two and a half to three inches down the wrist. One would think that if a man fell the likely thing to do would be to put your palms out and break the ...


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