Appeal from Circuit Court of Livingston County No. 01CF153 Honorable Harold J. Frobish, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
Defendant, Lynda Smith, was an inmate at Dwight Correctional Center. The State charged her with aggravated battery (720 ILCS 5/ 12-4(b)(6) (West 2000)) in that she "threw a liquid substance upon Randall Toliver, knowing [him] to be a correctional institutional employee who was engaged in the execution of his official duties." Smith waived a jury. After a bench trial, the trial court found Smith guilty of aggravated battery but also found that Toliver had "provoked" her. Although the trial court did not deem the provocation to be a defense to the aggravated battery, it took the provocation into account when imposing a sentence, a two-year consecutive prison term.
Smith appeals, arguing that the finding of provocation negated an essential element of the offense, namely, that Toliver was "engaged in the execution of any official duties." 720 ILCS 5/12-4(b)(6) (West 2000). We disagree. Even though Toliver wrongfully provoked Smith, the trial court found he had done so while performing his duties as a correctional officer. On its face, section 12-4(b)(6) of the Criminal Code of 1961 (720 ILCS 5/12-4(b)(6) (West 2000)) makes no exception for mere provocation. Therefore, we affirm the trial court's judgment.
At the bench trial on November 26, 2001, the State called Toliver as its first witness. He testified that on January 3, 2000, he was employed as a correctional officer at Dwight Correctional Center. At 4:20 a.m., he was delivering breakfast to the inmates in the north hallway of the mental health unit, as it was his duty to do. He came to Smith's cell, cell No. 5, and pulled open the "chuckhole." The "chuckhole" was a metal door, approximately 4 by 12 inches, mounted in the thick glass door of the cell. It pulled down toward the correctional officer so the officer could hand items to the inmate in the cell. Behind the glass door were bars. Toliver handed a milk carton to Smith and turned to pick up a breakfast tray to hand to her also when a foul-smelling liquid- 1 -sprayed out of the "chuckhole," dousing him "all over [his] uniform and [the] back of [his] head." He never actually saw Smith throw the liquid. Gagging, he went to the health care unit and changed his uniform. He felt insulted and provoked.
During cross-examination, Toliver admitted that although he was an employee of the Illinois Department of Corrections, he was not presently working. The State had brought criminal charges against him for making a personal long-distance call, at the State's expense, on a telephone in the prison. Apparently, his job depended on the verdict in the criminal case against him, which had not been handed down yet. No one had promised him anything for his testimony in the present case.
The State called another correctional officer, Robert Shelton, as its next witness. He testified he was on duty in the "panel" of the mental health unit when Smith assaulted Toliver. The "panel" was a kind of glass booth in the center of the unit, in which a correctional officer kept an eye on the wings and fielded telephone and radio calls. He saw Toliver delivering breakfast to Smith. He saw the "liquid come out of the chuckhole, hit [Toliver] center mass, which would be about the middle of the body[,] *** and *** spray clear up to the ceiling. *** [I]t had some velocity behind it." Toliver turned toward Shelton in amazement, as if to say, "I can't believe she did that." Dark stains of moisture were on his uniform. Shelton telephoned the shift sergeant, Ernest Jefferson, and told him what had happened.
Jefferson testified that when he came to the mental health unit and asked Smith what the problem was, she complained to him of a white powder on her french toast. It looked to Jefferson like powdered sugar. Jefferson asked her for the breakfast tray, but she refused to relinquish it. Instead, she scraped the white powder off the french toast and onto a paper towel and gave the towel to Jefferson, who in turn took it to his shift commander. Normally, the prison served french toast only with syrup, not with powdered sugar.
The State called, as its final witness, Luella Flynn, food service supervisor at Dwight Correctional Center. She confirmed that french toast was served, in the prison, without powdered sugar or any other white substance on it. The State rested.
The bench trial was continued until December 6, 2001, when Smith put on her case. She first called Linda Caldwell, an inmate who occupied a cell across the hall from her. Caldwell testified:
"[Toliver] had started harassing [Smith] the night before[.] [Toliver] and Shelton had come down to her and was calling her names ***. And the next morning[,] when he came to her door with her tray ***[,] *** [h]e was messing with her, calling her names and stuff. *** And then I heard him tell her[:] *** [']I will bet you a hundred bucks you won't throw that on me.['] And *** the next thing I knew, I heard a noise[,] something splashing."
During cross-examination, Caldwell admitted she was in prison for forgery and deceptive practices.
Defendant next called Debbie Winters, a correctional lieutenant, who testified she had worked at Dwight Correctional Center since January 3, 2000, and had been acquainted with Toliver, in a professional capacity, for approximately a year. She did not have a high opinion of him. He was "very immature from what [she had] seen of him" and "flippant" in his interaction with inmates. "I feel he's not a very credible officer," she testified.
Defendant then took the stand. She testified the harassment began on January 1, 2000, when Shelton "kicked [her] food *** all the [way] from North 1 to North 5. And then[,] when he got to North 5, he opened [her] door, kicked it in to [her,] and called [her] a [']black nigger bitch.[']" She testified that Shelton and Toliver harassed her when she used the washroom, ...