People v. Rokicki, 2-98-0256.

• Decision Date: 28 September 1999
• Docket Number: No. 2-98-0256.,2-98-0256.
• Citation: 240 Ill.Dec. 852,718 N.E.2d 333,307 Ill. App.3d 645
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth W. ROKICKI, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

718 N.E.2d 333

307 Ill. App.3d 645

240 Ill.Dec. 852

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth W. ROKICKI, Defendant-Appellant.

No. 2-98-0256.

Appellate Court of Illinois, Second District.

September 28, 1999.

G. Joseph Weller, Deputy Defender and Paul Alexander Rogers (Court-appointed), Office of the State Appellate Defender, Elgin, for Kenneth W. Rokicki.

David R. Akemann, Kane County State's Attorney, St. Charles, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, David A. Hibben, Chicago, for the People.

Justice HUTCHINSON delivered the opinion of the court:

Defendant, Kenneth Rokicki, was charged in a single-count indictment with hate crime (720 ILCS 5/12-7.1 (West 1994)) based on the predicate offense of disorderly conduct (720 ILCS 5/26-1(a)(1) (West 1994)). Following a bench trial, defendant was convicted, sentenced to 2 years' probation, and ordered, inter alia, to perform 100 hours' community service and attend anger management counseling. Defendant timely appeals, contending that the hate crime statute is unconstitutionally overly broad and chills expression protected by the first amendment to the United States Constitution (U.S. Const., amend.I). We affirm.

FACTS

Before trial, defendant moved to dismiss the charges alleging, inter alia, that the hate crime statute was unconstitutional. The trial court denied defendant's motion. Defendant waived his right to a jury, and the matter proceeded to a bench trial.

Donald Delaney testified that he is the store manager of a Pizza Hut in South Elgin. On October 20, 1995, at approximately 1:30 p.m., defendant entered the restaurant. The victim was a server there and took defendant's order. The victim requested payment, and defendant refused to tender payment to him. Delaney, who was nearby, stepped in and completed the sale. Defendant told Delaney not to let "that faggot" touch his food. When defendant's pizza came out of the oven, Delaney was on the telephone, and the victim began to slice the pizza. Delaney saw defendant approaching the counter with an irritated expression and hung up the telephone. Before Delaney could intervene, defendant leaned over the counter and began yelling at the victim and pounding his fist on the counter. Defendant directed a series of epithets at the victim including "Mary," "faggot," and "Molly Homemaker." Defendant continued yelling for 10 minutes and, when not pounding his fist, shook his finger at the victim. Delaney asked defendant to leave several times and threatened to call the police. However, Delaney did not call the police because he was standing between the victim and defendant and feared that defendant would physically attack the victim if Delaney moved. Eventually Delaney returned defendant's money and defendant left the establishment.

The victim testified that he was working at the South Elgin Pizza Hut on October 20, 1995. Defendant entered the restaurant and ordered a pizza. When defendant's pizza came out of the oven, the victim began to slice it. Defendant then began yelling at the victim and pounding his fist on the counter. Defendant appeared very angry and seemed very serious. The victim, who is much smaller than defendant, testified that he was terrified by defendant's outburst and remained frightened for several days thereafter. Eventually, the manager gave defendant a refund and defendant left the restaurant. The victim followed defendant into the parking lot, recorded the license number of his car, and called the police.

Christopher Merritt, a sergeant with the South Elgin police department, testified that, at 2:20 p.m. on October 20, 1995, defendant entered the police station and said he wished to report an incident at the Pizza Hut. Defendant told Merritt that he was upset because a homosexual was working at the restaurant and he wanted someone "normal" to touch his food. Defendant stated that he became angry when the victim touched his food. He called the victim a "Mary," pounded on the counter, and was subsequently kicked out of the restaurant. Merritt asked defendant what he meant by a "Mary," and defendant responded that a "Mary" was a homosexual. Merritt conducted only a brief interview of defendant because shortly after defendant arrived at the police station Merritt was dispatched to the Pizza Hut.

Deborah Hagedorn, an employee at the Pizza Hut in St. Charles, testified that in 1995 defendant came into the restaurant and asked for the address of the district manager for Pizza Hut. When asked why he wanted the address, defendant complained that he had been arrested at the South Elgin restaurant because he did not want a "f______ faggot" touching his food.

Defendant testified that he was upset because the victim had placed his fingers in his mouth and had not washed his hands before cutting the pizza. Defendant admitted calling the victim "Mary" but denied that he intended to suggest the victim was a homosexual. Defendant stated that he used the term "Mary" because the victim would not stop talking and "it was like arguing with a woman." Defendant denied yelling and denied directing other derogatory terms towards to the victim. Defendant admitted giving a statement to Merritt but denied telling him that he pounded his fist on the counter or used homosexual slurs. Defendant testified that he went to the St. Charles Pizza Hut but that Hagedorn was not present during his conversation with the manager. Defendant testified that he complained about the victim's hygiene but did not use any homosexual slurs.

The trial court found defendant guilty of hate crime. In a posttrial motion, defendant again argued that the hate crime statute was unconstitutional. The trial court denied defendant's motion and sentenced him to two years' probation. As part of the probation, the trial court ordered defendant not to enter Pizza Hut restaurants, not to contact the victim, to perform 100 hours' community service, and attend anger management counseling. Defendant timely appeals.

ISSUE

On appeal, defendant does not challenge the sufficiency of the evidence against him. Defendant contends only that the hate crime statute is unconstitutional when the predicate offense is disturbing the peace. Defendant argues that the statute is overly broad and impermissibly chills free speech.

ANALYSIS

The constitutionality of a statute is a matter of law which we review de novo. People v. Fisher, 184 Ill.2d 441, 448, 235 Ill.Dec. 454, 705 N.E.2d 67 (1998). The Illinois hate crime statute is contained in section 12-7.1 of the Criminal Code of 1961, and the version that was in effect on December 20, 1995, reads in part as follows:

"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, [she or] 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 * * *." 720 ILCS 5/12-7.1(a) (West 1994).

We note that the language of the hate crime statute has been amended but conclude that those amendments have no bearing on the issue presented in this case. See 720 ILCS 5/12-7.1 (West 1998). Defendant's conviction was based on the predicate offense of disorderly conduct. A person commits disorderly conduct when she or he knowingly "[d]oes any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace." 720 ILCS 5/26-1(a)(1) (West 1994). Disorderly conduct is punishable as a Class C misdemeanor. 720 ILCS 5/26-1(b) (West 1994). However, hate crime is punishable as a Class 4 felony for a first offense and a Class 2 felony for a second or subsequent offense. 720 ILCS 5/12-7.1(b) (West 1994).

Defendant notes that the Appellate Court, Third District, was faced with a similar challenge to the hate crime statute in People v. Nitz, 285 Ill.App.3d 364, 221 Ill.Dec. 9, 674 N.E.2d 802 (1996). The Nitz court held that the hate crime statute, when predicated on disorderly conduct, was constitutional and neither infringed upon a defendant's free speech rights directly nor was overly broad because of its "chilling effect" on free speech. Nitz, 285 Ill.App.3d at 371, 221 Ill.Dec. 9, 674 N.E.2d 802. However, defendant urges us to reconsider the Nitz analysis and hold the hate crime statute overly broad.

1. Infringement Upon Free Speech Rights

The issue presented in this case highlights the limits imposed by the first amendment on a state's power to regulate its citizens' speech and thought. In a pair of cases decided in 1992 and 1993, the Supreme Court staked out the boundary between a state's unconstitutional regulation of unpopular beliefs in the marketplace of ideas and the permissible regulation of conduct motivated by those beliefs. See R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Wisconsin v. Mitchell, 508 U.S. 476, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993),rev'g 169 Wis.2d 153, 485 N.W.2d 807 (1992). Our analysis of defendant's claims is controlled by these two cases, and we will begin by examining them.

In R.A.V., the petitioner was alleged to have burned a crudely constructed wooden cross on the lawn of the residence of an African-American family and was charged with violating St. Paul's Bias-Motivated Crime Ordinance. The ordinance declared that anyone who places a burning cross, Nazi swastika, or other symbol on private or public property knowing that the symbol would arouse "`anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender commits disorderly conduct and shall be guilty of a misdemeanor.'" R.A.V., 505 U.S. at 380, 112 S.Ct. at 2541, 120 L.Ed.2d at 315; quoting St. Paul, Minn., Legis. Code § 292.02 (...