Appeal from the Circuit Court of Cook County. Honorable Loretta Douglas, Judge Presiding.
Released for Publication January 29, 1997.
The Honorable Justice Greiman delivered the opinion of the court: Tully, P.j., and Cerda, J., concur.
The opinion of the court was delivered by: Greiman
JUSTICE GREIMAN delivered the opinion of the court:
Following a bench trial, James Davis (defendant) was convicted of aggravated battery and hate crime and received concurrent two-year prison terms and a $5,000 fine. On appeal, defendant challenges only his hate crime conviction. For the reasons that follow, we affirm.
On March 12, 1994, Michael Whitlow (Whitlow) went to Joe Bailey's Restaurant with a friend, Marc Henry (Henry), to check that night's basketball returns. Each had one drink at the bar before leaving. Whitlow is an African-American, while Henry is Caucasian.
Whitlow testified that, as the two friends exited Joe Bailey's, he was confronted in the parking lot by an unknown person, later identified as the defendant, who yelled, "Nigger, I am going to kick your black ass." Whitlow responded, "What's going on? Why don't you get the f--k away from me, man." Defendant then proceeded to beat Whitlow, literally, senseless.
Whitlow "awoke" in his own bed at approximately 4:30 a.m., to discover the full extent of his injuries. He had huge bumps across his forehead and blood was coming out of his ears and nose. He had a "big chip" out of his nose, a "big gash" out of his chin, and his left arm was immobile.
Whitlow went to the emergency room, where he found that he had a rock imbedded in his nose and his skull was fractured. A resident placed his arm in a sling and advised Whitlow to "follow up" with a specialist. Whitlow sustained scarring to his nose and damage to his rotator cuff, which required him to see a physical therapist on a weekly basis.
Henry testified that he was walking four or five paces behind Whitlow in the parking lot when he observed someone approach from the alleyway. The parking lot was well-lighted and Henry had no trouble seeing Whitlow. The approaching man, identified later as defendant, was "yelling and screaming stuff that was incomprehensible." Defendant confronted Whitlow, blocking his path. Defendant then said, "I'm going to kick your black f/--ing ass." Defendant then proceeded to beat Whitlow, slamming him face first into the pavement. As Henry attempted to intervene, defendant's companion, codefendant Matthew Soraghan (Soraghan), hit him in the face and ribs, knocking him to the ground. Soraghan said, "What are you doing with a nigger? Don't you know that it's St. Patrick's day?"
Henry watched while defendant slammed Whitlow's head into a car bumper, rendering Whitlow unconscious. Defendant proceeded to repeatedly (between 5 and 15 times) kick Whitlow in the head, face, ribs and arm. Henry screamed, "Man, he's killing him ... you gotta stop him." Henry was told to, "chill out."
Both men then continued to kick Whitlow's prone body, and when Henry again tried to stop them, he was "punched out" by Soraghan. Patrons began to come out of Joe Bailey's and the two men fled.
Henry described Whitlow's condition as "a bloody mess." Whitlow, Henry estimated, had been unconscious for about 15 minutes. The police arrived 20 minutes later and an ambulance shortly thereafter, although apparently Whitlow declined treatment.
On cross-examination, Henry testified that defendant had been standing in the parking lot "doing gyrations" for about 30 seconds before there was actual physical contact. After Whitlow had been rendered unconscious, defendant slipped and fell, hitting his head ...