People v. Davis

                                              SIXTH DIVISION
                                              December 13, 1996

















No. 1-94-4262

THE PEOPLE OF THE STATE OF ILLINOIS,   )  Appeal from the
                                       )  Circuit Court of
     Plaintiff-Appellee,               )  Cook County.
                                       )
          v.                           )
                                       )
JAMES DAVIS,                           )  Honorable
                                       )  Loretta Douglas,
     Defendant-Appellant.              )  Judge Presiding.

     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 on a parked car. At no time did Whitlow swing at
or hit defendant.
     Detective Robert Petit testified that he administered
defendant's line-up on March 18, 1994, six days after the
assault. He noticed that defendant's eye was bruised and his
upper forehead was cut. Both Whitlow and Henry identified
defendant.
     Officer McSharry testified that he responded to the call of
a disturbance at Joe Bailey's and received information from Henry
and Whitlow that they were attacked for no apparent reason and
that they had fought back during the attack.
     Soraghan testified that he was overseeing a Budweiser
promotion at Joe Bailey's on the night in question. Defendant, a
friend of Soraghan's, was also at the bar. Defendant was escorted
out of the bar by a bouncer after one or more female patrons
complained of receiving unwanted advances. Soraghan followed
defendant outside, where he observed defendant standing in the
parking lot roughly 40 yards away. Defendant was approached by
Whitlow and Henry, and Soraghan heard "vulgarities" and racial
slurs exchanged, including, "F--k you white boy," and "F--k you
nigger, I'll kick your ass." Whitlow was "dancing around like he
wanted to fight." Whitlow and defendant exchanged punches before
defendant "pinned" Whitlow to the ground. Whitlow then struck
defendant in the head with a beer bottle. 
     Soraghan separated defendant and Whitlow and observed that
defendant was "covered in blood" and had glass fragments in his
hair. Soraghan told defendant to meet him at Bruebaker's bar,
approximately two blocks away.
     Defendant's testimony indicated that the altercation was
precipitated by Whitlow's comment, upon seeing defendant in the
parking lot, "Talk about a dumb mother f--ker." Defendant
responded with the line made famous in "Taxi Driver," "You
talking to me?" Whitlow replied, "I'm talking to you." Words were
exchanged, including, "What the f--k are you going to do white
boy" and "Watch it nigger, I'll kick your ass."
     While engaged with Whitlow, defendant was struck from behind
with what he believed to be a bottle. Soraghan pulled defendant
off Whitlow and told him to meet him at Bruebaker's bar.
Defendant sustained several facial lacerations that did not
receive medical attention. A passing police car stopped defendant
and gave him a ride to the 22nd district station, where he called
a friend to take him home.
     In rebuttal, Guillermo Ibarra (Ibarra), a busboy employed at
Joe Bailey's, testified that as he escorted a waitress to her
car, he observed two white men leave the restaurant, followed a
short time later by a black man and a white man. The black man
and the white man were laughing. Ibarra heard defendant say,
"What are you laughing at?" The black man did not respond.
Defendant punched Whitlow and kicked him in the head and
midsection. Whitlow was rendered unconscious. Defendant did not
appear to be injured.
     The trial court found defendant guilty of aggravated battery
and hate crime. The court's finding was based on resolving the
credibility issues against defendant. Defendant now appeals the
conviction for hate crime, alleging that the evidence was
insufficient to prove him guilty of that crime beyond a
reasonable doubt.
     The most recent amendment to the hate crime statute upgraded
the offense from a Class A misdemeanor to a Class 4 felony, in
addition to adding the words "actual or perceived" to encompass
situations in which the perpetrator directs his hate crime
against a person he believes to be a person of a particular race,
color, religion, etc., but who is actually not a member of that
class. Section 12-7.1 provides:    
               "A person commits hate crime when, by reason of
          the actual or perceived race, color, creed, religion,
          ancestry, gender, sexual orientation, physical or      
          mental disability, or national origin of another       
          individual or group of individuals, he commits assault,
          battery, aggravated assault, misdemeanor theft,        
          criminal trespass to residence, misdemeanor criminal   
          damage to property, criminal trespass to vehicle,
          criminal trespass to real property, mob action or
          disorderly conduct as these crimes are defined in ***
          this Code ***." 720 ILCS 5/12-7.1 (West 1994).
     Section 12-7.1(c) further provides a civil remedy to victims
suffering injury or damage as a result of a hate crime,
independent of any criminal prosecution. 720 ILCS 5/12-7.1(c)
(West 1994). The hate crime statute has recently survived
constitutional challenge on grounds of freedom of expression, due
process and equal protection. See In re Vladimer P, 283 Ill. App.
3d 1068 (1996) (relying on Supreme Court's decision in Wisconsin
v. Mitchell, 508 U.S. 476, 124 L. Ed. 2d 436, 113 S. Ct. 2194
(1993)). No cases, however, have examined in detail the issue of
proof beyond a reasonable doubt -- basically, what words and
conduct constitute a hate crime.
     On review, a criminal conviction will not be set aside on
the grounds of insufficient evidence unless the proof is so 
improbable or unsatisfactory that there remains a reasonable
doubt of the defendant's guilt. People v. Stanciel, 153 Ill. 2d 218, 235 (1992). The relevant question is whether, after viewing
the evidence in the light most favorable to the State, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. People v. Kitchen, 159 Ill. 2d 1, 25 (1994).
     There is no doubt that defendant perpetrated a battery upon
Whitlow. However, whether he did so "by reason of" Whitlow's race
is less clear. There is very little precedent dealing with hate
crime and its predecessor, ethnic intimidation. A look to other
jurisdictions, however, indicates that hate crime convictions are
generally the result of more extreme or premeditated racial
animus then may be present in the instant case. See People v.
MacKenzie, 34 Cal. App. 4th 1256, 1264, 1266, 40 Cal. Rptr. 2d 793, 796-97 (1995) (before brandishing a .45-caliber handgun at a
black family, white defendant said: "This is my [f---ing]
neighborhood, I'm sick of you mother [f---ing] bozo niggers; 
Nigger bitch, you're dead; "You are just as [f---ed] as those
f---ing nigger dope dealers in Oakland"); People v. Superior
Court (Aishman), 32 Cal. App. 4th 1350 (1993) (group of white
men, one tattooed with a swastika and "Thank God I'm White," talk
about "hitting home runs with Mexicans" before driving to a
Hispanic neighborhood and beating three Mexican men with baseball
bats); Mitchell, 508 U.S. 476, 480, 124 L. Ed. 2d 436, 442, 113 S. Ct. 2194, 2196-97 (After seeing the movie "Mississippi
Burning," a member of a group of young black men said, "Do you
all feel hyped up to move on some white people?" and "You all
want to [f--k] somebody up? There goes a white boy; go get him,"
before the group beat a white 14-year-old causing brain damage);
Richards v. State, 608 So. 2d 917 (Fla. App. 1992) (before
assaulting a black man, white assailant said, "I am tired of you
[f---ing] niggers being down here. Got a job? Boat people ... You
niggers down here playing music and keeping me up); Dobbins v.
State, 605 So. 2d 922 (Fla. App. 1992) (group of "skin-heads"
beat Jewish youth, saying, "Die Jew boy"); Ayers v. State, 335
Md. 602, 611, 645 A.2d 22, 26 (1994) (group of white men decided
to "go nigger hunting"); People v. Prisinzano, 1996 N.Y. Misc. 2d
301 (1996) (white neighbor constructed and burned cross on the
lawn of the neighboring home as black prospective buyers visit).
     In an Illinois decision, two black teenagers were picked up
by Chicago police officers while waiting for a bus following a
night White Sox game and were driven to a "white neighborhood"
where they were attacked by a group of white teenagers shouting,
"Let's get those niggers" and "Niggers don't belong in our
neighborhood." People v. Johnston, 267 Ill. App. 3d 526, 529
(1994).
     In the case at bar, the only explicit reference to racial
animus or motivation was defendant's comment, "Watch it nigger,
I'll kick your ass," or "F--k you nigger, I'll kick your ass."
While either comment is reprehensible and per se racist, there is
less indication that the assault was motivated by racial animus. 
     Defendant had five beers in less than an hour, had just been
expelled from the bar after a "problem" with a female patron, and
claims to have believed Whitlow and Henry were laughing at him.
Moreover, Ibarra testified to defendant's question, "What are you
laughing at?" suggesting that a race-neutral "reason" may have
existed to confront Whitlow and Henry. Finally, neither Whitlow
nor Henry told the responding officer that the attack was
racially motivated. This case may be, as defendant suggests, an
aggravated battery that is transformed into a hate crime by
reason of the spoken word "nigger." While we do not suggest that
premeditation is a requirement under the hate crime statute, we
observe that these facts present a liberal application of its
terms.
     These observations aside, we rule to affirm defendant's
conviction. The trial court specifically found that defendant and
codefendant Soraghan were not credible witnesses. The court found
further that Ibarra'a testimony "corroborated" Whitlow's. The
evidence indicates that defendant attacked, and seriously
injured, Whitlow after uttering a racial slur. Moreover, even
assuming that defendant's decision to initially confront Whitlow
and Henry was based on his perception that the two were mocking
him, defendant directed his words and assault at Whitlow, an
African-American, rather than his white companion. Viewing this
evidence in the light that most favors the prosecution, we cannot
say that defendant did not assault Whitlow "by reason of his
race." Accordingly, defendant's conviction for hate crime is
affirmed.
     Affirmed.
     TULLY, P.J., and CERDA, J., concur.