Court of Appeals of Illinois, First District, Third Division
from the Circuit Court of Cook County, No. 12-C6-60111; the
Hon. Brian Flaherty, Judge, presiding.
Michael J. Pelletier, Patricia Mysza, and Michael Gentithes,
of State Appellate Defender's Office, of Chicago, for
Kimberly M. Foxx, State's Attorney, of Chicago (Alan J.
Spellberg, Joseph Alexander, and Elliot Englander, Assistant
State's Attorneys, of counsel), for the People.
JUSTICE ELLIS delivered the judgment of the court, with
opinion. Presiding Justice Fitzgerald Smith and Justice Howse
concurred in the judgment and opinion.
1 Defendant, Jermon Little, was convicted after a bench trial
of aggravated battery of a peace officer (720 ILCS
5/12-3.05(d)(4) (West 2012)) and criminal damage to
government-supported property (id. § 21-1.01).
On appeal, he challenges the sufficiency of the evidence to
sustain these convictions. And he contends that the trial
court's premature finding of guilt, announced before
counsel was permitted to argue the case, denied him his
constitutional right to make a closing argument.
2 But this case has an uncommon (albeit not unique) twist:
The trial court acknowledged its inadvertent error, reopened
the case after judgment, and promised to "keep an open
mind" while hearing counsel's (admittedly belated)
argument. In the end, the trial court stood by its initial
conclusion-that the three police officers who testified for
the State were more credible than defendant and two relatives
who testified on his behalf-and reaffirmed its findings of
3 The question thus presented is whether-and if so, under
what circumstances-reopening a bench trial after a premature
judgment preserves a defendant's constitutional right to
make a closing argument. We hold that reopening the case
preserves this right, unless the record shows that the trial
judge was unable or unwilling to give defense counsel's
belated argument all due consideration before finalizing its
judgment(s) of guilt.
4 The record here reveals quite the opposite. And the trial
court could reasonably find that the testifying officers were
more credible than defendant and his witnesses. We therefore
affirm defendant's convictions.
6 The charges in this case arose from a confrontation between
defendant and three officers of the Burnham Police
Department, on January 8, 2012, in the parking lot of a
sports bar. The details of that confrontation were thoroughly
disputed at trial. Chief Peter Belos and Officers Bolin and
Russell testified to one version of events for the State.
Defendant, his sister, and his niece testified to another.
7 Around 2 a.m., Chief Belos drove through the parking lot of
the bar while on routine patrol. He testified that he saw
defendant and a woman walking through the lot, having a
"heated argument" and a "pushing and shoving
match." He called for backup and parked his car. As he
approached defendant and the woman on foot, he identified
himself and asked what they were arguing about. Defendant
separated himself from the shoving match and walked toward
the front door of the bar.
8 Chief Belos followed defendant to the door and ordered him
to remove his left hand from underneath his coat, fearing
that he may have been holding a gun. Defendant refused and
walked back to the center of the parking lot. Chief Belos
followed him and repeated his order five or six times.
Defendant refused to comply, so Chief Belos eventually
grabbed his arm. Defendant broke free and ran back toward the
front door of the bar.
9 Chief Belos followed defendant back to the door, where
defendant eventually removed his hand from underneath his
coat. He was holding an open beer bottle. Chief Belos asked
him what the argument was about. Defendant erupted in
profanity and tried to walk away again.
10 In the meantime, a crowd of people had gathered around.
Chief Belos asked defendant to step over to his vehicle, away
from the crowd, to talk about the argument. Instead,
defendant hit Chief Belos in his left shoulder. At that very
moment, Officers Bolin and Russell were arriving.
11 Officers Bolin and Russell testified that that they
arrived at the same time but in separate cars. They both
parked at the edge of the lot and approached, on foot, a
crowd that included defendant, Chief Belos, and 8 to 12 other
people surrounding them. Defendant was wrangling with Chief
Belos. Officer Bolin testified that Chief Belos was holding
defendant by the arm or jacket, but defendant pulled away and
pushed Chief Belos. Officer Russell testified that he saw
Chief Belos "fall back," but he could not be sure,
from his vantage point, if Chief Belos was pushed in the arm
or punched in the mouth.
12 As they approached, Officers Bolin and Russell identified
themselves, and Chief Belos instructed them to arrest
defendant. They tried, but defendant resisted. He was
combative, drunk, and shouting defiant profanities at the
officers. While Officers Bolin and Russell struggled with
defendant, Chief Belos turned his attention to the rest of
the crowd, which had grown loud and unruly, and called for
13 Officer Bolin grabbed defendant's arm, but he pulled
away and started to run. Officer Bolin caught up with
defendant, grabbed him from behind, and tried to cuff him. By
this time, they were near a storefront window in the strip
mall where the bar was located. Defendant lunged backward
forcefully, ramming Officer Bolin's back into the
plate-glass window. The window cracked but did not fully
break. Defendant then fell to the ground, face-forward, and
Officer Bolin fell on top of or next to him. Officer Bolin
tried again to cuff him, but defendant kept kicking,
punching, and pulling away. At least one of defendant's
kicks landed, striking Officer Bolin in the shin.
14 Officer Russell warned defendant that he would be tased if
he kept resisting. Defendant continued resisting, so Officer
Russell gave him a "drive stun" to the arm. (That
is, he held his taser to defendant but did not put the prongs
into him-a method, he testified, that delivers a lower-level
jolt.) Apart from that, Officer Russell testified, he never
struck defendant in any way.
15 Officer Bolin testified that the rest of the crowd was
"beating on" him and Officer Russell the whole
time, hitting them from behind while they tried to subdue
16 After defendant was tased, Officer Bolin handcuffed him,
put him in the back of his squad car, and drove him to the
station. According to Officer Bolin, defendant kicked out the
rear passenger-side window of the car. Chief Belos testified
that when he saw Officer Bolin's car at the station, one
of the rear windows was broken and the frame around the
window was bent; earlier in the evening, when he saw Officer
Bolin on patrol, the window was intact.
17 Officer Bolin testified that he did not notice any
injuries to defendant at the station.
18 Defendant, his niece Kandis McMiller, and his sister
Tasheena Givens testified to a very different version of
19 Defendant and his family had gathered at the bar to
celebrate his niece Lanique's birthday. Givens was
escorted out of the bar by security guards after lighting a
cigarette inside. McMiller and defendant went outside to talk
to her. Defendant testified that McMiller left them at some
point, but he was still talking to Givens when the police
arrived. He testified that "I guess we were loud because
I'm telling her to calm down."
20 Twenty or more other people, according to the defense
witnesses, had also gathered in the parking lot by the time
the police arrived. McMiller testified that the scene was
peaceful and that nobody was arguing. Givens testified that
there was a "confrontation" brewing in another
"group of girls" in the lot, and that the
"whole lot was lit up like fireworks with noise."
21 The defense witnesses estimated that upwards of a dozen
police cars descended upon the lot. One of the officers drove
past Givens and defendant, with his window rolled down, and
said "come here." They walked away because they
didn't think the officer was talking to them. The officer
got out of his car, walked over, and said, "You heard me
talking to you."
22 Without any warning, that officer-whom defendant
identified as Officer Russell-hit defendant in the face with
his baton. The defense witnesses all denied that defendant
said anything to Officer Russell or made any contact with him
before he hit defendant. Defendant either fell to his knees
or was thrown to the ground by Officer Russell. He was
bleeding heavily from his mouth.
23 While defendant was on the ground, Officer Russell
handcuffed and tased him several times in the back. Officer
Russell then pulled defendant back up and tased him again,
this time in his chest, while walking him to the squad car.
Whenever defendant was tased, he foamed from his mouth, and
his eyes rolled back in his head.
24 Givens and McMiller testified that the police also tased
and arrested several other family members, including Givens.
According to Givens, the police "just went berserk on
25 Defendant denied that he touched or said anything to
Officer Russell. He denied pushing Officer Bolin into the
storefront window or breaking the window of the squad car. He
testified that he never had his hand underneath his coat, and
that nobody ever told him to remove his hand from his coat.
26 Defendant introduced into evidence four photos depicting
the injuries allegedly inflicted by Officer Russell. Three of
those photos, defendant's Exhibits 1 through 3 (all dated
January 11, 2012, three days after the incident), depict
swelling on his face and lip. Exhibit 4 (dated January 18,
2012, 10 days after the incident), he claims, depicts the
area on his chest ...