People v. Dyer

Mr. JUSTICE KARNS

delivered the opinion of the court:

Defendant, Melvin Dyer, was convicted at a jury trial in the Circuit Court of Montgomery County of the offense of aggravated battery in violation of section 12 — 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 12-4(a)).

Defendant raises two issues on appeal: (1) whether the jury was properly instructed on the issue of self-defense and (2) whether the closing argument of the prosecutor deprived defendant of a fair trial. Defendant has failed to file any post-trial motion, oral or written; therefore, the issues are deemed waived for purpose of this appeal. (People v. Hammond, 48 Ill. App. 3d 707, 362 N.E.2d 1361 (5th Dist. 1977).) Nevertheless, we will discuss the issues.

The court, over defendant’s objection, gave the following issue instruction:

“To sustain the charge of aggravated battery, the State must prove the following proposition:
That the defendant knowingly or intentionally caused great bodily harm to Leroy Roehl.
If you find from your consideration of all the evidence that this proposition has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that this proposition has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.”

Defendant’s objection was that the instruction forecloses jury consideration of justification. The court gave defendant’s tendered instruction, IPI Criminal No. 24.06, use of force in defense of person, which states:

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.
However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent great bodily harm to himself * °

It has long been held that the jury is properly instructed if the series of instructions construed as a whole, fully and properly inform the jury of the law applicable to the case. (People v. Allen, 35 Ill. App. 3d 342, 341 N.E.2d 431 (5th Dist. 1976).) We hold that the above-quoted instructions when considered with IPI Criminal No. 2.03, presumption of innocence, and the State’s burden of proof instruction sufficiently informed the jury of the law applicable to the defendant’s theory of defense, self-defense, and the State’s burden of proof.

Defendant’s second contention of error is more difficult to resolve. Defendant alleges that the following statement in the prosecutor’s closing argument was so prejudicial that he was denied a fair trial:

“* ° 6 the defendant was under arrest at the Litchfield Police building and that the defendant screamed and hollered and became beligerant and became more violent even after Deputy Wilson came to take him over to the County Jail. He jumped up on a chair and said he was a killer and threatened to get them all. Put up an abusive stream of language throughout and laughed at the fact that he was in jail. Also Mr. Shade observed when he first came to the police station that Mr. Dryer was not injured in anyway or any manner, no cuts or bruises or anything like that on his face. Deputy Chuck Wilson testified to the defendant’s actions at the jail also. Officer Hand also testified to the violent conduct of the defendant that same evening at Owen’s Gas Station.
Mr. MCGRADY: We object, Your Honor, the Court has ruled on that and Mr. Long knows he has ruled on it and he is bringing it out prejudicially. We ask for a mistrial.
THE COURT: It will be denied, proceed, Mr. Long.
MR. LONG: Mr. Hand testified that Mr. Dyer struck the attendant at Owen’s Gas Station and that he was also not cooperative at the time he was placed under arrest, that he attempted to hit Officer Hand with his elbow ow [sic] was just turning around.”

While defendant alleges error in the closing argument, we tend to take a broader view of the issue. Pursuant to pretrial discovery, the prosecutor was informed that defendant’s defense at trial would be self-defense. In the State’s case in chief, the State introduced evidence tending to show that defendant was in “an aggressive mood” on the evening of the offense; therefore, the jury was to conclude that the defendant was the aggressor and had not acted in self-defense. Four police officers and one fireman testified that after defendant had been arrested for aggravated battery and was in the process of being transferred from the Litchfield city jail to the county jail, the defendant “started yelling and striking around and he jumped up on a chair and had to be drug off the chair and handcuffed.” One police officer testified that on the night of the aggravated battery, he received a call from a liquor store where the proprietor alleged that defendant and his companions had attempted to leave the store without paying for the beer. Two police officers testified that the defendant had been involved in a battery at a service station on the evening of the aggravated battery. The general rule is that evidence of crimes other than the one for which the accused is being tried is not admissible. However, exception is made for evidence which shows motive, intent, identity, absence of mistake and modus operandi even though it may show the commission of other offenses. In fact, it has been broadly held that evidence of other offenses is admissible if relevant for any purpose other than to show a propensity to commit a crime. (People v. Marine, 48 Ill. App. 3d 271, 362 N.E.2d 454 (5th Dist. 1977).) We fail to see how evidence of theft is relevant to establish that defendant was in an aggressive mood as theft is not a forcible or violent crime as defined in section 2 — 8 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 2 — 8). Likewise, the evidence of defendant’s actions at the city jail should not have been introduced into evidence as they were not relevant to the issues in this case. Although error was committed in this case, we find that the error was harmless. (See People v. Moore, 35 Ill. 2d 399, 220 N.E.2d 443, cert, denied (1967), 389 U.S. 861, 19 L. Ed. 2d 128, 88 S. Ct. 112). The State’s evidence indicated defendant, without provocation, called to the victim, who was walking on the other side of the street. The victim crossed the street, and defendant beat him with his fists causing great bodily harm to the victim. In order to establish the defense of self-defense, defendant testified the victim pulled a machette out of his pocket and that defendant acted in self-defense. Defendant kicked the machette out of the victim’s hand and threw it onto the roof of a nearby building. The defendant made no attempt to retrieve the machette for trial and as far as he knew it was still on the roof. In rebuttal, a police officer testified that he had just completed a search of the roof of the building and did not find a machette. A witness for the defendant testified that it was not a machette the victim pulled out of his pocket but a butcher knife. The incredible testimony of defendant and his witnesses rendered any error harmless beyond a reasonable doubt in view of the overwhelming evidence of defendant’s guilt. (People v. Delk, 36 Ill. App. 3d 1027, 1040, 345 N.E.2d 197, 208 (5th Dist. 1976).) We do not believe that these errors in the admission of evidence and argument could possibly have affected the jury in its consideration of defendant’s guilt.

For the foregoing reasons, the judgment of the Circuit Court of Montgomery County is affirmed.

Affirmed.

JONES, J., concurs.