*1 ILLINOIS, THE THE Plaintiff-Appellee, PEOPLE OF STATEOF v. STOKES, Defendant-Appellant. EDWARD (5th Division) First District No. 1 - 87-0005 31, 1989. Opinion filed March *2 PINCHAM, J., dissenting. Associates, Howard, Howard, George Ltd. & of Chi-
George C. C. cago, appellant. Kim Chicago (Inge Fryklund and Daley, Attorney,
Richard M. State’s Novi, counsel), People. A. for the Attorneys, Assistant State’s of the court: opinion
JUSTICE COCCIA delivered *3 his 1986 bench trial con appeals Defendant Edward Stokes He to aggravated viction sentence for was sentenced two battery. 38, 4(b)(1). Rev. ch. years’ probation. par. Ill. Stat. 12 — Defendant, for Chicago fighter, attempted a fire was indicted murder, violence, aggravated battery causing great bodily armed harm, disfigurement, ag- aggravated battery causing permanent an following while armed a Au- gravated battery deadly weapon, an earlier trial gust Chicago Following 1984 incident in a fire station. violence, of armed by jury, guilty charges defendant was found harm, aggravated bat- aggravated causing great bodily battery filed motions Defendant then tery deadly weapon. while armed with a had failed to that the State grounds for a new trial based in on part complainant, a statement of the prior make available to him written his of Straman, Straman related version fire Kenneth which fighter month after superiors one Chicago the incident to his fire department trial, motions for a new granted it The trial court had occurred. assigned judge. and the matter was to a different trial, the second at a right jury The defendant waived his aggravated battery he found of guilty conclusion of which was for a new trial while After a motion deadly weapon. armed with denied, brought appeal. defendant conviction, that contending now seeks a reversal of his Defendant that he did not the State failed to a reasonable doubt prove beyond of force under the circum- degree justified act self-defense with the to the pertain sufficiency stances. He raises several issues which guilt. the evidence to sustain his oc- giving charges against
The incident rise to the the defendant 15, 1984, depart- on in a morning August Chicago curred and the complainant ment firehouse at 2827 North Pulaski. Both the on that In fighters assigned day. defendant were firehouse heard the of a addition to their the court also testimony, of eyewitnesses. number witness, complaining
Fire Kenneth testified call, a.m. roll he entered the firehouse kitchen at trial that after the 8 According of steak. to Stra- opening package and saw the defendant man, 6, 1984, bought August the steak was one that he had when He further stated that designated day. he had been the cook for on a August 6, the defendant had been sent to another firehouse the fund “change of and therefore had not contributed to quarters,” used for food on that Straman told the defendant purchasing day. it if (Straman’s), the steak was his but that defendant could have this, agreed him what it was worth. Defendant and Stra- paid get pen paper. left the room for a short time to He re- man to collect from the fire began money turned to the kitchen and food, purchase designated so that he could as he was the cook Eck, Urbanski, Isa, time, 15. At this Ted Leonard Fakhri and the defendant were also in the kitchen. Harper Russell and the defendant after argument An ensued between Straman food fund $7, the latter Straman each man’s share toward the gave him that he also for the steak day. for the Straman told wanted $3 part Straman told defendant preparing. which defendant was defend- to someone else. When preparing belonged steak oven, took ant the steak in the microwave proceeded put out, garbage it and then it into a can. put threw on to return his escalated. Defendant asked Straman argument $7, day. that he did not want to be “the club” saying counter, the other for the steak. keeping back $3 $4 *4 money. return the rest of his Stra- Defendant insisted that Straman collecting money that as soon as he had finished man told defendant At others, point, defendant his give money. from the he would in his holding cup right a coffee Straman had observed defendant to the left side of his head. When Straman felt a blow Suddenly, hand. then picked he looked defendant had in his hand. Straman up, nothing defendant, can and it at who knocked it up plastic garbage threw other,” fight- down with his hands. The two men then went “at each hitting fell the kitchen As defend- ing began floor. they over,” ant “all Ted Eck him him in a “full nelson” grabbed and held Then, as co-workers as Straman was attempted fight. break telling Eck to let him he felt a back repeatedly go, sharp pain then his head and saw a silver come across his shoulder object “get” him across chest and stomach.
Straman further testified that Eck let him he turned go, as Ted and saw defendant standing with a knife his hand and saying, “Come on. Come on.” Straman then it in picked up a toaster and held front of his chest and stomach to defend himself as he walked toward leading door out of the away kitchen and from the defendant. He was screaming hysterically, “Why you holding were me?” On his way kitchen, out of the the toaster on a placed table. He then wandered out onto the apparatus floor and sat in a chair. Paramedics arrived shortly thereafter and took Straman to Northwest where he Hospital, was treated for lacerations and remained hospitalized approxi- mately three days. cross-examination,
On Straman testified that when Ted Eck held him in the full nelson refrigerator, he was three or four feet away where the defendant was As he was standing. being held, he felt area, ribs, several blows to his side and stomach near his but could not recall seeing anyone either side of Eck. He described himself as being 5 feet 11 tall inches and described Ted Eck as being about the same height.
Straman’s courtroom was consistent signed with his written report 15, 1984, to September his The statement superiors. relates Straman’s version of the incident in further detail. It the argument steak, described over the throwing steak away, and his feeling “hard blow to left ear where [his] [he] been struck aby cup coffee thrown at head Stokes.” The re- [his] port also states that he threw a trash can in front of the plastic defendant and wrestled him to the The statement in floor. evidence further described that as his breaking up fight, co-workers were one of grabbed them in a “full nelson” while the defendant was hitting him in the stomach The other fire “furiously and back.” down,” told him to telling “cool but Straman was him to let him go Then, as he wanted to from the get away defendant. seconds he first felt a apart, blow to the back of his head from a knife and then coming saw a knife down slashed him in the chest “while which *5 being was still held a full nelson.” [he] Eck, State,
Fire Ted fighter testifying for the about recalled incident, 13 men in- working were the firehouse on the day call, kitchen, three cluding officers. After roll he went to the sat down Isa, Urbanski, Straman, and read a Fire the newspaper. fighters defendant were also in the kitchen. He collecting money. saw Straman He argument heard an Straman and the defendant between about steak, but did not hear details of the After about five any argument. minutes, he left the kitchen to avoid the then returned argument, about three to five minutes later. After giving money, Straman some he into the area the He eating newspaper. went kitchen with his up something breaking floor, looked when he heard and saw Straman a two-foot tall can it at the pick up garbage and throw defendant, who warded off. He could not recall whether the can ac- hit the met the tually defendant. Then Straman and the defendant floor, inside of the kitchen counter and fell to out of Eck’s view. Eck testified he then walked over to the area where Straman and the were, kneeing defendant Straman punching observed defendant get about the torso as the defendant Straman trying time, off him. At in the Leonard was also Urbanski cooking along fight- area of kitchen with the two men who were ing. Urbanski asked for Straman and the defend- help separating him ant. Eck tak- by pulling assisted Straman off the defendant and ing area, him he him in a “full refrigerator over to the where held All resisting telling nelson.” the while Straman was Eck and him to go. arm, eight let him Then Eck an a knife of holding saw about in length, inches come over his shoulder. he saw the blade be- When him ing chest, slashed at go. Straman’s he let As Straman backed Eck around and away, saw blood on face. Eck then turned Straman’s saw area with a standing the defendant in the middle of the kitchen turned, kitchen knife in his had his back right hand. When defendant knife, Eck hug drop around his shoulders and told him which At came into the defendant did. that time other kitchen. Eck left the kitchen and went out onto the apparatus sitting where he observed Straman in a chair and observed blood the left side of his face. cross-examination,
On Eck that while defendant with lay stated midsection, him, his back to the floor with Straman over defendant’s (Eck) He chest and stomach struck times” Straman. “many were else do anyone he did not see did not kick or the defendant and punch reached attack, defendant stating so. He the knife described times. knife, at Straman several him but slashed over once with knife, began letting the defendant reached over Once him the time he was he had. not released go, yet fully tall, himself as six feet slashed. He described both Straman and as taller than the defendant. and both of them (cid:127) 15, 1984, Eck’s to his dated report superiors, brief written during the ar- report was also admitted into evidence. His states steak, Straman to return gument about defendant asked It identifies that Straman did so. money paid club and It Isa, makes fight. Urbanski and himself as those who broke ini- no punching striking reference to defendant or otherwise mention or a coffee at him. It does not tially, throwing cup specifically a nelson hold used to restrain but it does include the being *6 statement, “I off to the side and then fire- pulled firefighter Straman fighter firefighter Stokes came after Straman with a knife.”
Fire the fighter during argument, Leonard Urbanski testified that defendant had a coffee in it at cup his hand and threw Stra- man. The hit Straman’s As cup fighting left ear. the two men were floor, the in punched defendant his side and face. After the two had been separated, holding and while Eck was Straman in a nel- son, holding Urbanski was defendant in a bear his hug, with arms manner, around defendant’s arms and chest. While held in this being the defendant reached the Although knife drawer. tried Urbanski to hold time, both defendant and the knife drawer at the same defendant managed- get into the At he point, drawer. released defendant, the knife, who at ran Straman with the hit him once in the head, then, back of the reaching shoulder, and over Eck’s cut Stra- man in the Straman, chest and stomach area. Eck then released who then went for the toaster, counter and the he picked up which held in front of his abdomen. down, When Straman the toaster Urbanski noticed he had been cut in the stomach and chest area and was bleeding from the ear. He also recalled that Eck reached around knife, defendant from behind and told him to the he drop which did. He further stated he was 5 feet 10 inches tall and that defendant “a little taller.” He described as than he was being bigger defendant in both and height weight. cross-examination,
On Urbanski testified that from where he was standing about feet eight away, good swing” Straman had “a pretty as he fought with the defendant on the kitchen floor. while defendant, straddling the him struck in the side of the head and in the face. Urbanski summoned Eck and Isa to in the help breaking up fight. grabbed behind, nelson, Eck Straman him in a full placed and him pulled over the refrigerator. got up, defendant him sink, and held immediately grabbed Urbanski but managed get his arm free knife and into the drawer. Urbanski backed off” defendant “just while ran over toward Straman Eck. not He did have time to warn enough them.
Urbanski’s one-paragraph report, written for his fire department incident, on the superiors date of at comports his trial matters relates. In the written report Urbanski states he saw the defendant strike Straman in the face argument. time The report was silent as to a coffee After cup. he and one or more not persons, named, specifically had succeeded in breaking up the fight, defendant then opened drawer and striking started Straman with a knife.
Fire Isa’s Fakhri testimony substantially corroborated that of the State’s other witnesses. He testified that he saw defendant right Straman with arm punch after Straman threw money some counter, where standing, but from he was see did not defendant’s hand connect with did not Straman and observe whether defendant had anything During that hand. fight Straman kneed defendant the head him in punched the side upper tried to body. punches, Defendant fend off did Straman. punch Then grabbed try Urbanski defendant’s hand to him while same help up, at the time to Isa for calling help breaking fight. Isa went over and Eck helped pull off defendant, Eck, then assisted Urbanski with the defendant. mean- while, grabbed Straman and held him in nelson. mov- Straman was ing all the while Eck held him in that ob- position. When defendant drawer, tained a knife from the Urbanski released him. The defendant reached Stra- right then over the shoulder Eck and the shoulder of *7 once, stabbing man and made and down motions. two to was regarding
Isa’s written his the incident report superiors written on the date of the incident and the facts in summary stated detail, It lacking fashion. was also introduced into evidence. While in Isa’s written is not his at trial. statement inconsistent with steak, a It states that after a 10-minute over the defendant argument floor. began Straman and the two kitchen punched fighting report The states that after the two had been specifically separated, drawer, knife, pulled into the knife out a and the defendant reached “hacking at Straman. began away” ex- Mitsos, surgeon, licensed testified that he general
Dr. Albert a the emergency Hospital amined Straman in the room of Northwest in his morning right of the incident. had a wound chest immediately to his .left on Straman’s chest operated a wound ear. He
651 perform to sur- surgeon in a plastic after called his examination ear as having left Dr. described Straman’s on the ear. Mitsos gery the external ear exterior of part On the front or two distinct wounds. was caused In this wound opinion, a Dr. Mitsos’ satellite wound. that would instrument, or club or anything such as a fist blunt in wound was This not a cut. The other cause an wound was impact. wound, at about the ear, the first directly the back the same behind of Dr. characterized joins the ear the head. Mitsos place where two cut, or a linear wound approximately wound as a laceration the caused wound opinion, inches In his the instrument which long. the to the of ear. the ear did not cause wound back front of instrument, cutting of the ear was caused aby wound to back damage knife. testified that the consistent with a He further to create a through- ear from front and back wounds combined both hole, or in the ear. and-through injury, and abdomen
Dr. described the to Straman’s chest injury Mitsos wound, long, as a linear 10 inches approximately slash “superficial” right two extending nipple chest about inches below inches down to the abdomen two below breast bone. upper one-quarter deep, extending This wound was inch approximately through coating tissue to of the muscle. It was the skin the outer sim- ilar to ear, the wound on back of Straman’s with the same consist- encies.
The defendant testified on his own behalf and stated had at Chicago years been for G1^ the time of incident. approxi Straman and the other witnesses had been fire mately length time, the same he was to all of He senior them. years, had also served the United States Marine for four in Corps cluding He testified that he 13 months Vietnam. duty combat tall the time of weighed pounds feet 9 inches incident, incident. Prior to the he had had with Stra disagreements man The first occurred earlier on two occasions. about two weeks argument in the firehouse. The was heated. concerning priorities bunk Stokes, had rationale seniority, explained who select Although basis, nonetheless ing Straman’s on that Straman threatened to bed place. attack Stokes. No altercation took physically physical incident about one involving The second occurred week incident, the men were at the scene of a prior knifing when around, defendant, grabbed swung cursing fire. Straman loudly, accused him of which Stra- carrying piece equipment his, previously man but which Stokes selected use said was that day.
652 problems
In addition to with Lieutenant Donald Ellwood had not to the spoken defendant for 8V2 months to the prior August 15 incident. Stokes this to attributes what the defendant described as a “racial that problem” Ellwood had with him. also stated that he had had a with fire problem Isa. Stokes had wanted to be transferred a fire station to where there at least some other were black fire He fighters. put two transfer to requests Chief Robert Poder to for this prior August purpose although he had not stated for making his reason these requests. version
Defendant’s of the 15 incident differed several significant from those the respects other witnesses. He testified that the steak around which argument the centered was one that had been left from August 12, over last day the Stokes’ service as the cook. Straman the When insisted that steak was his and that he (Stokes) it, to eat was not the defendant told Straman that there were have, two other in the steaks that he could if refrigerator it, Straman to he argue wanted would cut this steak in half. Af- ter the of the he taking portion steak had cut for himself out of the oven, he placed plate microwave it on a Straman counter. then the walked around counter from where he standing, had been picked up plate, floor, steak from threw it on the on it stomped it in placed garbage can.
Stokes then told Straman that he no longer wanted to in the be club and asked for his money back. Straman took threw into $3 dishwater sink. Stokes reached into the sink with left his hand, picked money dishwater, of the up cup out his coffee down and reached his hand for the of his right rest Stra- money. man give refused to the rest of the After more money. words were he told to exchanged, going Straman walk around to the other side counter and when he there he got wanted his walking The men started each Then Straman picked toward other. $4. can up and threw it at him. He both hands garbage try- threw moment, At ing to deflect it. one of the fire who was him, side of his arm knocked it standing grabbed down. The corner of in the forehead. garbage can hit Stokes left As the counter, defendant Straman go charged started back toward and both fell flat and Straman with Stokes back top of him. him,
As felt himself trying being also punch kicked in his and in the his head. He knew the kicks side back from Then he tee coming grabbed could be Straman. Straman’s it, shirt, against the counter. twisted slammed Straman’s head behind, he let Straman being badly Because he was still kicked get up, started to go. up, Straman stood and as also toaster. them and grabbed to the counter in back of reached over *9 if he to come going Straman raised the toaster over his head as were hold the toaster this Seeing down and hit Stokes with it. Straman counter, knife, on the sitting the butcher still way, grabbed directly held the knife which he earlier had used to cut the steak. He him with coming out in front his chest to from at keep the knife, holding the still up toaster. Then Straman walked to hit him He the knife down” “pulled toaster and with it. trying him, back, him. Straman walked and off up pushed cut, in After Straman had been Stokes stood there with the knife said, “Now, me, his all of to come on and you jump hand and want on me while I have the knife in hand.” No one said jump my any- knife, kitchen, thing. Defendant then walked out of the dropped face, went to a washroom to rinse his then out onto the and walked Straman, Eck, Urbanski, Isa, Ellwood, apparatus floor. There he saw and another fire A fighter, compartment Russell side of a Harper.
truck open and for the other fire were except going taking into the and out compartments pipes, poles, crowbars and sledgehammers. saw, Startled he the defendant his by what ax, hand on the handle of fire department leaning his which was near the wheel of a truck. He said he was not a going beating to take any him engineer Ralph more. Then Gamberdella came to him and told out of things gotten go kitchen, hand and to back into the In which he did. the kitchen he down near the bent counter and picked up Isa, the rest of his and told money standing who was now kitchen, in the guys “You shouldn’t have kicked me and me punched like that.”
Defendant presented photographs several evidence of the in- juries which he said he received He a during fight. indicated con- tusion on his forehead as a result of the full heavy, fiberglass garbage him, can striking bruise under his left arm where he was kicked in the ribs while he was on the and to his left to bruises side and kicking. back of his head which he stated also resulted from the during Stokes further testified that the time he was in police custody, a.m. to next approximately approximately 8:45 1:15 a.m. the he day, injuries, never received medical treatment for his al- any treatment from detectives Michael though requested police Brogan Attorney and Robert Doelker and also from Assistant State’s John After his release from he received medical Hynes. police custody, this clinic Chicago treatment at a Humana clinic in and returned to about four times for He treatment. was also treated fire de- partment physician about times not five and did return work for four weeks after photographs incident. defendant’s injuries clothing and his were taken after eight hours his release from police custody nearly firehouse, and 24 hours after the incident it and was so noted On court. cross-examination defendant also a.m., admitted that was until following his re- approximately police lease from after custody, he had first gone the fire station to his pick up paycheck, sought medical treatment.
Defendant also presented the of two fire department personnel as to reputation for quietness truthfulness. Chief Robert Poder stated had worked in same station as prior defendant incident question that defendant had good being for reputation peaceful law-abiding citizen. He also had a for good reputation truthfulness. Lieutenant John Para- Wesley more, a fire who had known the defendant since May and who had worked with firehouse, another testified that a good Stokes had reputation peacefulness and that his reputation *10 However, for truthfulness “impeccable.” cross-examination, on Poder stated requested also that had Stokes a as- transfer his signed house, station the transfer would through have had to him go in the normal chain of command. He did not recall or seeing either transfer signing any request 15,1984. from defendant prior August Engineer Gamberdella, an Ralph eyewitness ap- to events on the incident, paratus immediately following floor the knifing testified for not put State that defendant his on only department hand his ax while he was on apparatus up but also picked ax and held it with the of the ax head shoulder level he (Gam- while berdella) asked him ax several times down. Stokes eventu- ax, lowered the ally having released it Ted Eck completely only after walked and grabbed over the ax handle. At no time morning that did see any sledgeham- Gamberdella or crowbars mers in their hands.
The State also Police presented several rebuttal witnesses. officer Brogan, who was called firehouse after the immediately fight, testified that the he a injury noticed was bruise over defendant’s only eye. Doelker, Detective also called to the that Robert firehouse morn- ing, told him he stated defendant never medical at- required tention or showed him his shirt. Police any injuries under officer Zielinski, on 6 2 duty keeper Robert from a.m. until lockup p.m. 15, 1984, not did notice that defendant had injuries and any further stated that never him if lockup he would have taken into
655 order, an police department general he had under a injuries, because must taken to a first. injured suspect hospital be John an assistant Cook State’s and a fel- Hynes, Comity Attorney events, assistant at the time of these testified that when ony review incident, he interviewed defendant on the he noticed day only slight red mark on He not defendant’s forehead. did recall defend- cross-examination, ant requesting any medical attention. On he also recalled that defendant feeling had told him about kicks to his side punches to head as he on the kitchen floor and that some- lay one other than Straman had him. Stokes also Hynes kicked told he had reached grabbed “something” from the counter and once, him swung did not tell that Straman Hynes advanced holding a toaster over his head.
Opinion
Defendant contends on that he acted in appeal self-defense. He reasons that he reached for the knife on the counter after he only had been attacked by more than one and then saw Straman person coming toward with the toaster to strike. the affirm poised Once ative defendant, defense of self-defense is raised the State has of proving doubt, burden beyond reasonable all the ele offense, ments of the but also that the defendant’s act not in self-defense. (Pe ople 1038, v. Ross Ill. (1981), 1033, 100 3d App. 955, 959; N.E.2d People v. (1979), 9, 13, Seiber 76 Ill. App. 3d 1044, N.E.2d 1048.) The State will have carried its when any burden of the evidence produced at trial an negates element of the defense beyond a reasonable People doubt. v. Wilks 175 Ill. (1988), App. 3d 68, 72, 690, 693; 529 N.E.2d People v. Seiber (1979), App. 9, 76 Ill. 3d 1044,1048. 394 N.E.2d
The elements of self-defense are defined section 7—1 of the Criminal Code of 1961:
“A is person justified in the against use force another when and to the extent that such reasonably believes conduct is *** necessary defend himself such against other’s imminent *11 use of However, justified unlawful force. he is in the use of force which is intended to cause likely great or death or bodily harm if only he that such reasonably believes force is necessary prevent imminent death great or harm to bodily himself (Ill. 1985, 38, ***.” Rev. Stat. par. 7-1.) ch.
This court has more delineated the elements specifically justifying the use of force in defense of a person (1) follows: force is threat- ened a against person; (2) that the not the person ag- threatened is
gressor; (3) that the danger imminent; of harm is (4) that the force unlawful; threatened is (5) person that the threatened must actually (a) exists, believe: that a danger (b) that the use of force is necessary danger, avert the (c) that the kind and amount of force which he uses is necessary; (6) that the above beliefs are reasonable. Fur thermore, the use of deadly force is limited to those situations in (a) which the threatened force will cause death or great harm bodily (b) or the force is threatened a forcible felony. (People v. Williams (1965), 56 Ill. App. 159, 165-66, 2d 749, 205 N.E.2d 752.) A trial court’s findings the elements of self-defense raise question fact, which a reviewing court will not disturb unless the evidence sup porting the is finding so unsatisfactory as to justify reasonable of guilt. doubt v. People Wilks (1988), 68, 73, 175 Ill. 3d App. 690, N.E.2d 693.
The facts of this case establish, clearly and the do parties not dis- pute, that defendant’s use of a large kitchen knife under the circum- stances was use of deadly force. There is question also no that defend- ant’s testimony, more than one man assaulted him and that Straman came toaster, toward him with a was sufficient to raise the issue of self-defense. proceed We therefore to consider each of the above elements of the defense as applied defendant’s actions.
First, the court heard uncontroverted that a testimony gar bage can was thrown at defendant complainant just before the two men wrestled to the floor. It was also the testimony of the com batants, and every eyewitness, that Straman punched the defendant at least several times as he lay floor. As such conduct Stra man tortious, was at least if criminal, it is evidence that unlawful forcé was against threatened the defendant. Defendant further main tained at trial that more than one him person assaulted as he lay that he received ribs, kicks to his head and and that Stra man then toaster, advanced on him with a threatening further force. However, the other eyewitnesses presented different version of the fight. They testified that only Straman administered blows to the defendant and that three co-workers cooperated separating They combatants. further testified that Straman only briefly held toaster front of his to protect abdomen himself after Stokes had slashed with a knife. The two versions of the incident are irrecon cilably conflicting, and the trial court was not required to accept defendant’s version. v. (People (1988), 68, 73, Wilks 175 Ill. App. 3d 529 N.E.2d 693.) court was also free to consider that defend ant presented no corroborating as to the and extent type injuries he suffered during the incident and that the State presented
657 to him persons spoke shortly rebuttal who saw and testimony by consideration, Taking thereafter. all of the into the trier of evidence fact conclude that after the two combatants had reasonably could been several co-workers who were still on scene separated by them harm actively engaged keeping danger further apart, to the defendant was not imminent at the time he a knife retrieved and attacked complainant.
In addition to threatened unlawful force and imminence of harm, another element which must in order to present justify be use of force in defense of is that the is not person person threatened the aggressor. The evidence element relating was also conflict ing, defendant testifying punched never or threw a cof Straman, fee at cup and the State’s eyewitnesses stating otherwise. Fire fighter Isa testified at trial and also indicated in his written re port thrown, before the can garbage the defendant had punched Furthermore, Straman. Urbanski corroborated Straman’s that the Thus, defendant threw a coffee cup him. there was sufficient evidence for the trier of fact to find that the defendant aggressor. was the initial There was also evidence ample support conclusion that even if Stokes were not the initial aggressor, he be came the aggressor his act of reaching for a knife and advancing after fight been broken and Straman had been disabled Eck’s nelson hold. The use of force deadly generally cannot justified be as self-defense once the has aggressor been dis disarmed, abled or right nor does the of self-defense an act of justify retaliation or revenge. v. People (1981), 692, Chatman Ill. App. 3d 700, 257, 263; 430 N.E.2d People 537, v. (1980), 543, Woods 81 Ill. 2d 866, 410 N.E.2d 869.
To satisfy the fifth defense, and sixth elements of the it must (1) be determined that Stokes actually existed, believed that a danger and that the use of force deadly necessary the danger, avert (2) that, if he believe, did so these beliefs were A reasonable. defendant is not required to be correct in his assessment of the dan ger presented by circumstances, set of and a belief may be reason if he able even is mistaken. (People (1965), v. Williams 56 Ill. App. 2d 159, 166, 749, 205 N.E.2d 753.) is question whether facts as they appeared to the defendant at the time and under the circum stances there were present him, such as to indicate to as a reasonable person, that he was in danger losing his life or suffering great bodily injury. People 106, 111, v. Duncan Ill. (1924), 315 145 N.E.
812.
Applying case, these to the instant principles we hold that the totality evidence presented trier of fact awith sufficient ba- sis for concluding defendant did not actually believe actions were necessary to avert his imminent death or great bodily harm; believe, also that if he did so this belief was not reasonable under the circumstances.
Three eyewitnesses testified that the two combatants had been separated by co-workers. According accounts, to their had assaulted defendant during fight, no one was threatening *13 the defendant when made two attempts to retrieve a knife from a closed Furthermore, drawer. no one else in apparently the room was time, armed at this including the complainant. The incident took place in daylight hours among fire of fighters the same company, their station, when, at a time according Eck, to fire fighter there were approximately station, 13 men in the including Also, three officers. based upon defendant’s own he was a testimony, Marine vet- combat eran weighing about 185 pounds at the time and able to handle clearly himself in a fight with one other person. all the Taking evidence into consideration, the trial court could have reasonably determined that of defendant’s use deadly force was not based upon a ap- reasonable prehension of death or great harm in of bodily light his assessment of the situation at the time he used such force against complainant. the
Therefore, we conclude that the evidence presented at trial was sufficient to negate any of the four following elements of self-defense beyond (1) reasonable the nonaggressor; doubt: defendant as (2) the harm; (3) imminence of the defendant’s actual in the danger belief of death or serious bodily harm and the necessity using of force deadly it; to avert and (4) the reasonableness of such belief under the circum- stances.
Defendant also contends that the evidence presented by State is First, insufficient in respects. two he maintains that it was if highly improbable, not for him impossible, to have cut Straman in the manner witnesses, i.e., described the State’s over the shoul he, ders of two men taller than and while the victim being held in a full Second, nelson the other man. he asserts that each of the State’s eyewitnesses changed his account of the altercation to com port with Straman’s written statement superiors, to his one compiled month after the incident. He contends that the other fire fighters’ 15, 1984, written statements of to mention totally failing that Straman was in a including held full nelson and not other details trial, to which these same fire fighters testified at thoroughly impeach these witnesses. waived,
It is well established where a is it is a jury function
659 witnesses, of credibility of the court to determine trial drawn inferences to be and the testimony, to their given weight be irreconcilably conflict is evidence, where the evidence from the Ill. 3d (1980), App. Mays truth. v. (People ing, to ascertain is all evidence 1159, On 1165-66.) appeal, 1090, 1098-99, 401 N.E.2d the rele prosecution, most favorable weighed light in the trier of rational any court is whether reviewing for the question vant a rea beyond the crime to exist of fact could found the elements have judgment its court will not substitute reviewing doubt. A sonable of wit credibility evidence or trial court on questions or conviction unless evidence cannot a criminal nesses and reverse unsatisfactory or is so improbable of the witnesses credibility (1985), 106 Ill. v. Collins guilt. (People to raise a reasonable doubt of Ill. 261, 267, 277; Mays (1980), App. v. 237, People 2d 478 N.E.2d 1159, However, it has held 1099, 1165-66.) been 3d 401 N.E.2d inflexible, support the record does that this rule is not and when v. determinations, People must reverse. a court of review factual 135, 137. 519, 522, 430 N.E.2d 102 Ill. 3d McCarthy (1981), App. case, including in this
After a careful of the record review and their and the other fire complainant written statements summary the fire brief testimony, fighters’ in-court we conclude the nature are consistent with reports concerning incident both testi are more related in their courtroom sequence fully events as are consistent They written statement. mony complainant’s *14 the defend with the of a nelson hold to restrain Straman and with use same by eyewit ant’s a knife in the manner testified to these grabbing Furthermore, credibility their and as corrobora weight nesses at trial. Eck, fire fighters is enhanced the trial by tive evidence reports which the and Isa as to the circumstances under Urbanski other, in sepa each were wrote the isolated from They reports written. Eck Isa testified rooms, specifically rate no others and present. fighters prior to the other fire had no to they opportunity speak the short, the to eyewitnesses their summaries. In none of writing to statements, written by prior their materially impeached incident were event, highlighting the same accounts of merely which are abbreviated man’s unique perspective. from each various observations the of defend the of whether manner There remains issue and the State’s attack, complainant the by ant’s knife as described to raise a defendant’s question was so as eyewitnesses, improbable that although at trial testimony presented clear from the guilt. It is defendant, they than the Eck were taller admittedly Straman and physical ability of defendant’s taller in terms were not significantly reach over and the around shoulder of one or both of them. This is when it especially so is considered based on the testimony of Eck and Isa, that Straman was struggling and to release trying himself from Eck’s hold during attack, the and not necessarily standing upright and in one altercation. the any position during Perhaps sig- most nificant testimony Mitsos, was that of Dr. a disinterested witness. His testimony is consistent entirely with the State’s version of how Stra- inflicted; man’s injuries were it is totally inconsistent with the defend- ant’s using version of the knife only ward off an attack with the toaster, Straman, as he faced pulled the knife down and across Straman, the chest of as the complainant upon advanced him.
We therefore that the conclude evidence is not so improbable a reversal of the trial require court’s factual conclusions in this case. hold that the We evidence in the record was sufficient to permit the trier of fact to conclude that the State met its two-fold (1) burden: that of proving beyond reasonable all the doubt elements of offense, the (2) also that the defendant’s actions did not constitute self-defense as defined the Criminal by interpreted Code and courts of this State. Accordingly, judgment of the trial court is af- firmed.
Affirmed.
LORENZ, J., concurs. PINCHAM, dissenting:
JUSTICE I dissent. A review the trial record before us reveals the fol- lowing: (1) despicable racism preceded permeated altercation between Kenneth Straman and the complainant defendant Ed- Stokes; ward (2) Straman, neither the the defendant complainant Stokes, nor the witnesses to the altercation were candid in their ver- sions of what it was transpired; (3) practically physical impossibility for the Stokes to inflicted the Straman’s complainant defendant have witnesses; for these chest manner related injury fails to of the defendant be- (4) prove guilt reasons the evidence doubt. yond reasonable the defendant Stokes and
Tragically, complainant order, highest witnesses, servants of fighters, public all fire relies, exceedingly dangerous and whose society daily whom upon *15 survival, demand fierce and dedi- duties, very their frequently another, control, one were unable to support cated to and for loyalty and hostilities against their racial animosities exasperated but indeed defendant, he, was vigorously argues each other. Stokes involved, the com- persons that all the other involved and black officers, the police fire fighters, all the other plainant and testified witnessed, investigated who Attorney, assistant State’s attorney be- Stokes’ all Defendant altercation, were white. about the candidly admitted attorney, trial court, who was also his fore this case that the was established that the trial evidence argument oral denied racism, unconvincingly which and festered with but putrid of the A review argument. oral State’s Attorney the assistant attor- the defense evidence, however, substantiates unfortunately trial the first case in This is and, prosecutor. refutes the regretfully, ney is so prevalent racism legal profession in the which years 40my not be bur- Its should grotesque presence glaringly apparent. and so rather, for record, exposed it should be ied and concealed the future commission see, against as a deterrent beacon the world to deplorable of similar behavior. RACISM-THE ALTERCATION’S PRELUDE years testified that he served four
Defendant Edward Stokes and that Marines, a Nam combat veteran the United States was Viet Chicago Authority a Transit bus honorably discharged. he was He was a as job which time he also worked second years, during driver for 13 accepted He had Chicago a for the Board of Education. been janitor the Chicago police department’s as a and was in Chicago policeman he em- training period for a brief before became academy program fire At the time Chicago department fighter. fire ployed City bar, fire occurred in the case at Stokes had been a altercation Poder testified that he was a battalion fighter years. for seven Robert fire for fighter Chicago department chief and had been a fire the defendant Stokes for four He related had known years. the altercation occurred and that prior to date on which years cit- being peaceful law-abiding for good reputation truthful. being izen and for in, that he was a lieutenant Wesley
John Paramore testified with, since 1977 Chicago department fire fire fighter had been a Stokes had a that he knew defendant Stokes and that (seven years), being abiding. and law good reputation peaceful years that he was 28 Kenneth Straman testified Complainant fire Chicago department as a age employed and that had been occurred, In the altercation for 61k when years. Chicago to truck 14 at the and Pulaski assigned Diversey at this fire station for fire station. Straman had worked department *16 662
about six months to a year prior August 15 altercation. Stokes was already assigned to that fire station when Straman arrived there. Straman also related that he and Stokes worked same shift.
Defendant Stokes testified that about two weeks before the alter- cation on August 15, 1984, he argument had an complainant Kenneth Straman one about of fire station bunk beds. Under the station, rule at seniority a fireman with more than seniority Stokes, Stokes taken had Stokes’ bunk. who had one month seniority Straman, over then took Straman’s bunk. Straman threw bed linen on the stepped on it and told Stokes he going to kick his ass. Straman argument admitted that he had this with Stokes bunk, about the but denied that he threatened to kick Stokes’ ass.
Stokes testified that after shortly argument, the bunk scene a fire to which they extinguish, been called called names a fire dirty pole, piece fire equipment that Stokes had chosen to use. Straman also admitted that this argu- ment occurred. related, contradiction,
Stokes further eight without altercation, months prior Chicago department Lieutenant testified, Donald Ellwood to him. Stokes spoke never “It was a racial He problem. had a with that. I problem [Lt. Ellwood] don’t know Stokes had made why.” requests two for a transfer to an- other fire station of racial in the problems because Pulaski and Diver- fire station. sey
THE FOOD PURCHASING AND COOKING CUSTOMS AND PRACTICES THE IN
FIRE STATION Straman testified that there were three shifts at the fire working station, shift; 13 men to each that each shift had its own refrigerator shifts. and that there was a fourth used all the refrigerator On from, men, each shift each among a cook is selected and on day each shift the cook for the collects a day money pot from each man on the shift.
“Q. is, Mr. my question what were the rules con- leftover, rule cerning general uncooked food a shift? as to purchased? uncooked food is food, if there it is not Usually usually
A. is uncooked any the next cooking day. touched until the cook decides what he is he is for the meal. Other than cooking Until decides what it, that he doesn’t use else will for them- somebody prepare selves [sic].” testified: further
“Q. the people August] Could on the 9th have eaten the [of food left over from the 6th? the generally Would have been acceptable practice? occasions,
A. General on certain practice Certain occa- yes. sions.”
Complainant Straman’s and the uncontradicted testi- mony the other State’s witnesses and defendant clearly es- 15, tablished that on August preceding the alterca- immediately them, tion between Straman not only ignored but indeed affirmatively violated deliberately foregoing custom of the fire station re- garding leftover food and maliciously instigated affray with Stokes.
THE LEFTOVER STEAKS *17 6, Straman testified that on August he was the shift, cook on his that he collected money from the men on his shift with which he pur- chased the food for that day. Included in the food he were purchased steaks, approximately 10 number, did not know the exact one of the steaks belonged to him. Straman prepared meal, one meal, lunch that day, but he did prepare not the steaks for lunch. The steaks were purchased for the evening meal. Straman did recall who prepared the meal evening 6 August because he was not in the station at that time. Some of the steaks were left over after the evening meal and the shift refrigerator. The steaks did not have any kind label on them.
Straman testified that he was off the next two days, August 7 8, and that he returned to August work on 9 but he could not remem- ber whether he cook on that Nevertheless, day. Straman tes- tified that when he 9, returned to work on August he saw the steaks he purchased August on 6 and at that time it to him appeared there were three steaks left.
Straman did not work on August 10 or 11. He returned to work 12, on August but he was unable to if remember he was the cook on that day. When Straman came 15, to work on August nine days had passed since he purchased the steaks for the shift on August 6. noted,
As previously Straman also testified that it was the gener- ally accepted practice for the firemen to prepare for themselves and eat food left over from previous days. Straman also testified that the uncooked food that he purchased August on 6 could have possibly been eaten some of the firemen on his next shift on workday Au- gust 9. More importantly, State witness fighter fire Gamberdella testi- fied that the steaks in the refrigerator on August 15 had pur- been August engine
chased on 12 for the whole which included company, Stokes, who contributed to their purchase. STRAMAN CONFRONTS STOKES
Straman testified that when he for work reported August agreed be shift cook for that He entered the kitchen day. standing and observed Stokes near the opening package microwave of steaks which Straman claimed were a of the steaks he part pur- August Stokes, chased on 6 when he was shift cook. Straman told steak,” him my “That’s and that Stokes could have it if Stokes gave the steak worth what and Stokes said Straman left the okay. kitchen and went to his locker for a pen paper to make out the list and to collect grocery keep gave tabs who and the amount given. of money kitchen, Straman returned to the gave
When Stokes Stra- $7. Stokes, man said to “How three more dollars for the steak?” said, “I thought were you joking.” Straman told Stokes that said, he was not “I told the steak joking you was mine.” Urbanski, witness, Leonard a State’s years age, Chicago fighter for 6V2 years assigned also to the Pulaski and Diver- station, sey testified that in the 6V2 a fire years had been leftover, he had never a fellow fireman un- paid any money for cooked food and that no fireman had ever made such demand any upon him. that during years likewise testified his entire 6V2 as a
fireman, he had money any never before demanded fellow fire- food, man for to his prior leftover demand of Stokes on 15. Straman also testified that he did not know of other fireman hav- any made such ing any upon demand a fellow fireman. *18 Isa, witness,
Fakhri a Chicago fighter State’s a fire for 6V2 years and also to the and Pulaski fire station for assigned Diversey five testified, on years, cross-examination:
“Q. 6th, 1984, If some steak was it purchased August and was with each man in the shift purchased making contributions steak, and let’s assume that not all of it on the was consumed 6th, left, it morning that some of was of the 15th of Au- work, gust, when if wanted to you you prepare arrived refrigerator, you some of the steak that was in shift would your had to one of the firemen for it? pay have (Emphasis added.) A. No.” Eck, witness, a fire for 61k Chicago fighter years
Ted State’s station, to the and Pulaski fire testified that on assigned Diversey August 15 he did not know the rule in the to firehouse relative un food, cooked if but that a steak was in the refrigerator found shift August 15 which left August 6, was ask the simply would cook on if August 15 he could have steak before he cooked it.
Ralph Gamberdella, also witness, a State’s fire Chicago for 25 years assigned station, Diversey Pulaski testified the 25 that years he had been a Chicago fighter, he had paid never fellow fireman for leftover food from a shift re- frigerator, and he could if any remember such demand had ever been made of him.
These foregoing testimonies for the State unequivocally estab- lished that the complainant in absolute contravention of the established fire station customs and practices, deliberately and hos- tilely confronted defendant steak, Stokes about a which did not be- long to Straman. The following testimony of Stokes is further illustra- tive of Straman’s obnoxious behavior.
Stokes testified that he reported work at the Diversey and Pu- laski fire station on August 15 about 7:30 in the morning, went roll call, thereafter gave cook, the day’s $7, Kenneth Straman, his share to purchase food for the shift for later in the that he day and then went into the kitchen to prepare his morning meal. Fire fighter Leonard Urbanski was also in the kitchen cooking toast. Stokes looked into the refrigerator and noticed some leftover steaks from August 12, the day Stokes last cooked. Stokes took one steak from the refrigerator and prepared to place it in the microwave. Straman entered the said, kitchen and “Stokes, that’s steak.” my Stokes told Straman that the his, steak was not that there were more steaks in the refrigerator and if he wanted a steak he could have one of those. I Parenthetically, note that Stokes’ there were other steaks in the refrigerator is uncontradicted undenied, indeed, disclosed, hereinafter it is corroborated Straman and other State witnesses.
Stokes further testified that Straman told that he was not go- ing eat the steak and Straman began to argue with him about the steak. Stokes told Straman if he wanted to argue about that steak, he could cut the steak in half. It the practice at the fire- house buy large sirloin steaks so that two men could share one steak. Stokes used a butcher knife to cut the half, steak in wrapped up one-half and put back in the refrigerator. Stokes then other half he cut for himself in the defrost, microwave to during which Straman continued to argue about the steak and told Stokes not going to eat it. *19 events, related the harmonious and following by unrefuted Straman, of the all the other
corroborating complainant testimonies Stokes, Straman’s State’s witnesses and the defendant further reveal conduct. insulting provocative reprehensible, cook the steak and Straman testified that Stokes proceeded microwave, he, Straman, that when Stokes took the steak out of the steak, floor, it on the it and threw it in the picked up took threw poise.) Stokes retained his Straman related garbage. (Nevertheless, the shift took out the other half refrigerator, that Stokes then went to it I put Again, paren- of the steak he had cut and microwave. Straman note that knew thetically him, if refrigerator that there was at least another steak in the it, cooking he threw the steak that Stokes was wanted when into the garbage. floor and fighter
State’s witness fire Fakhri Isa also testified when microwave, to the microwave Stokes a steak in went put out, it in the and took the steak threw it on the floor and then threw refrigerator another steak garbage, got after which Stokes out it in the microwave. offensive Stokes related Straman’s abhorrent and behav- similarly off, he took the ior. Stokes stated that when the microwave bell went counter; out laid it on the that Straman walked around the steak steak, it, counter, stomped picked up took the threw it got that Straman then garbage. and threw it in the Stokes added him, motherfucker, ain’t you said to “You right in his face and I mean that.” gonna eat that fuckin’ steak and immediately conduct which followed is Straman’s obnoxious uncontradicted, it is admitted Straman and corroborated Stokes. witnesses, fire and the defendant the other State to argue in the and continued garbage After Straman threw steak Stokes, Straman testified: “Q. arguing? the defendant while were still say you What did this, I said, ‘If going cry baby
A. He be you’re dollars.’ my want out of the club. Give me back seven Q. him give any money? Did back you Yes, I A. did.
Q. give did him? you What gave
A. I him four dollars.
Q. it? you put Where did A. the counter in front of him.” On Stokes, continued to given Straman having Straman related that $7 him, give it to and that refused demand the balance $3 mak- finished after he money give told Stokes would the list. ing up stated that Leonard Urbanski fighter
State’s witness and wanted to be in the club told that he did not want related that Isa also witness Fakhri money State’s back. *20 it on the microwave and threw the out of after Straman took steak the money threw some the floor and then in Straman garbage, me me. Straman, fuck with Give said to “Don’t counter and Stokes told Isa that Straman I out of the testified get will club.” my money. for the money price the rest of Stokes that would keep steak. of complainant this
According foregoing witnesses, Isa, Urbanski and defendant and fire State’s tol- restraint, admirable forbearance and Stokes exercised remarkable temperance. erance and floor testified that when Straman threw steak to eat going told he wasn’t garbage
and then in Stokes that if he was steak, that, and that he Stokes asked Straman meant that with him. Stokes stated having wrong a tantrum and what was that he did money and told Straman asked Straman his back day eat club, not want to. in the that he would not that because be his to return repeatedly Straman was the cook. Stokes asked Straman told that he out of the kitchen area money and would leave that not to see each other. Stokes related they so would have in the further testi- Straman threw in dishwater sink. Stokes $3 fied:
“Q. then? happened What said, give ‘I a fuckin’ going you
A. am [Straman] is for the steak.’ thing. This
Q. Then happened? what him, said, ‘Well, the one who you’re I I A. explained why in can. Now garbage on the floor and threw steak I me don’t give my money, I have to for the steak? Just pay do trouble, I the kitchen.’ any and will leave want Q. what happened? Then side of him, I around the other coming
A. I I said am told my I four dol- get and when I around there want the counter lars.
Q. then? happened What to- walking I me and started walking A. He towards started wards him.” this scenario following point
It disdainful is at testimonies of the State complainant Straman and other witnesses Likewise, are dispute, contradictory unconvincing. a fair as- sessment of of portions Stokes’ testimonial version the events which followed is that it is also unpersuasive.
THE STATE WITNESSES FIRE FIGHTERS’ REPORTS witnesses, Eck, Each the State’s Chicago fighters Ted Gamberdella, Ralph Isa, Leonard Urbanski and Fakhri indi- prepared vidual written to his reports superiors what he of and his observed incident, involvement in the after the incident had immediately oc- Straman, however, curred. Complainant without explanation, did not his prepare written of the incident report to his until superior Sep- 1984, 15, 15, tember over a month after its on August occurrence September 1984. On complainant when his re- prepared stated, port, Straman was the who person and for the first time September report, was cut defendant Stokes as he, Straman, was held in a full being nelson hold other fighters. Stokes vigorously argues the fire State’s wit- nesses altered their changed versions of the incident stated their written to their reports different trial testimonial versions to co- *21 with, aid, incide protect to to and to corroborate Straman’s be- 30-day September lated 15 report and Straman’s trial concomitant version. Therefore, Stokes vehemently urges, testimony the belated trial of the State’s witness fire fighter was contrived. It is that at noteworthy trial, the defendant Stokes’ first he testified that could not remember whether he made a the report written of incident for his supervisors. trial, At another point during Stokes’ first that did testified he not make such a It report. was after the defend- ant’s first trial that the defendant’s first attorney discovered Straman had his postponed September incident, made the report which the granting was the basis for of Stokes’ motion for a new trial. Eck, is majority quite stating correct in that fire Ur other,
banski and Isa “wrote the from reports sepa isolated each rooms, rate no present,” with and “that had no they others opportu nity speak prior to to the their summaries.” writing (185 others Ill. App. 659.) 3d at The majority’s conclusion “that the fire fighters’ reports brief with summary concerning incident are consistent both the nature and their sequence events as more related in fully testimony” glaringly (185 courtroom is erroneous. Ill. grossly Moreover, App. 659.) ingenuously 3d at as quite uniquely just relies on the fire isolation in fallaciously, majority fighters’ prepar- re their justification reports of their brevity and in the ing ludi utterly is This justification omissions and contradictions. ports’ contra ill-founded and disclosed, majority’s crous. As hereafter incident the eyewitnesses that “none of dicted summations statements, which their written prior materially impeached were event, vari highlighting accounts of same are abbreviated merely inaccurate are perspective” each man’s unique ous observations were 659.) at These witnesses (185 App. Ill. 3d nonsensical. really con testimonial others’ reports their own and each impeached by the al contrary Their numerous versions tradictions and omissions. or inferentially logically, factually, tercation cannot be consistently, reconciled. reasonably I THE FIGHT: ROUND testimony with Straman’s
Beginning complainant Stokes, after which Stokes in front of defendant on the counter $4 cup had a coffee him his the defendant give money, told Straman Stokes, “As then said to hand. Straman testified that he right money.” writing give you your I am done this down I will soon as a sudden painful thereafter he felt immediately Straman related and Stokes was up the left side of his head. He looked blow to hand. nothing Apparently front of him with in his struck Straman with establish that Stokes designed inferentially ear, the alterca- injured during on his left cup coffee which counter, on the other side of tion. Straman related that went it Stokes, who knocked down can and threw it picked up garbage his hands. that he heard Stra- Ted Eck testified State’s witness steak, he left in the kitchen over arguing man and Stokes opposite and Stokes were on kitchen he returned Straman and when began related that he counter still Eck further arguing. sides of the again, ostensibly, something breaking, and he heard reading paper and saw Straman Eck testified that he looked cup. Stokes’ coffee who, Stokes, again, blocked can and throw it at garbage pick up with his hand. *22 that Straman but he did not see Stokes strike
Eck admitted that and stomach. his chest upper Stokes in he did see Straman strike not that he did to admit compelled Eck was importantly, More inci- after the shortly him on the date of by report, prepared his he saw breaking noise before 15, that he heard a August dent on omission is by impeachment This garbage can. pick up Straman quite significant. fighter
State’s witness fire testimony Leonard Urbanski’s of this phase the altercation is similarly impeached. Urbanski swore that he cup saw Stokes throw the coffee and strike on the left Straman ear. did if cup Urbanski not know Stokes the coffee picked up it or it already throw whether was in his According hand. to Ur- banski, Straman picked up Stokes, then can garbage and threw at who, again, with blocked it his hands.
Urbanski, Eck, like also compelled was to admit that in writ- his ten report of the incident to his supervisors, prepared by incident, after the he promptly never stated that he saw Stokes strike Moreover, Straman on the ear or in the face with a coffee Ur- cup. banski further confessed that report he never stated his that Stokes the garbage blocked can when Straman it. im- threw This peachment omission is likewise material.
State’s witness fire Fakhri testimony Isa’s facet of flatly the incident contradicted the testimony of State’s witnesses fire fighters Eck and sim- Additionally, Urbanski. Isa’s trial impeached his ilarly report to his Isa testified superiors. that Straman money when threw the on the counter and told Stokes that he would the rest of the keep price steak, money Stokes said to my money. “Give me Don’t fuck with me.” on Straman was the outside and the inside counter, facing each other. Isa stated that Stokes then struck Stra- man a right punch. Unlike did testimony, Urbanski’s Isa not tes- tify fact, that Stokes and/or hit cup. threw Straman with the coffee In Isa testified on anything cross-examination he did not see Stokes’ hands when Stokes struck in the face with his fist and that he never cup saw Stokes throw coffee and strike Straman on the head.
Defendant Stokes testified that he not strike did Straman with a cup. Stokes related that when he told Straman that he was coming got around the other side of the counter when around counter, $4, give wanted Straman to him his he started walk- ing walking towards Straman and Straman him. At started towards that point up a. can and threw it at Stokes. picked garbage Stokes said that he threw his try garbage hands to to ward off can but the corner of the hit him on garbage can his forehead. II THE FIGHT: ROUND
Straman, Eck after Stra- immediately and Urbanski testified Stokes, garbage man threw the can at Straman and Stokes came to- gether back fighting and fell to the with Stokes *23 on position in that on the and while top, and Straman bottom face, head and Stokes about the beat repeatedly floor Straman him. to Straman off of get and that Stokes tried body, him and hit threw however, that when Straman Stokes, testified to- Stokes, go to back can, he, turned garbage on head with the counter and counter, came over at which time Straman wards floor, kitchen to fall to the him, caused them both plunged on which him. Stokes re- Straman on top flat on his back and with Stokes floor, began in on the position lated that as were they the collar of Stra- grabbed him in the face and head. Stokes beating Straman’s head T-shirt, it and slammed repeatedly man’s twisted in- door, insisted caused the against the counter cabinet which Stokes to Straman’s ear. jury THE III FIGHT: ROUND alterca- during
It from the it was later appears evidence that chest, in a manner as related tion that Stokes cut Straman across his have argues possibly the State’s witnesses the defendant could rea- occurred. is unclear and is not a physically proven beyond What doubt, indeed, befuddled, disputed contradicted and sonable what is and of the State’s witnesses are impeached contrary testimony knife; (1) acquisition facts and circumstances of Stokes’ knife. infliction of (2) injury Stokes’ Straman’s with the State’s testified that as Stokes was fighter witness Urbanski him top punching was straddled Stokes and Stokes to Straman off of him attempting get by pushing and Eck to Eck held away. fight. Urbanski went over break Straman in position pulled a nelson Straman off of Stokes while Urbanski, hug. According Urbanski held Stokes a bear to Stokes then into to a knife attempted go get to a counter drawer but Ur- nevertheless, managed banski knocked his arm Stokes somehow away; knife. Urbanski, get away go get into the drawer and Ur- that Stokes ran over to where Eck was holding banski further related twice, Straman in a nelson hold. Stokes hit Straman once in the back head, then, Urbanski, Stokes reached over according (in attempted Eck manner to be purported and Straman which described, cut Straman in the chest herein), as hereafter set forth area. to his
Significantly, nothing report superi- there was Urbanski’s drawer, never ors a knife out of a and Urbanski getting him in a stated in his that Stokes cut Straman while Eck held report that, report not in nelson. Not but also was Urbanski’s saw Straman with a at all. Stokes strike knife Urbanski so acknowl- edged. Urbanski further admitted that he did not write in his report any of the which things during material he testified the trial. These recondite omissions in Urbanski’s these material report highly mat- ters impeached clearly Urbanski’s trial on these matters.
Urbanski related after Stokes cut Eck released Straman, Straman picked up toaster from the counter and held it himself, front of and that after Straman down, toaster Ur- banski could see that Straman was cut in chest area.
State’s Isa witness testified that after Straman threw *24 he, the garbage Stokes, Isa, can at and Urbanski in grabbed Straman a full nelson and Urbanski held Stokes in bear hug behind. Isa drawer, related that Stokes then took knife out ran over and hacking “started away shoulder,” at Straman over Eck’s right which time ran yelled, Isa out of the kitchen and is stabbing “Stokes stated everybody.” Isa did not and no one said anything else way warning attempted to Straman or Eck as Stokes to go into knife, get drawer to or as ran to Stokes over with the knife Straman and Eck. statement,
Isa report was shown his of the incident that he occurred, wrote after it cross-examined, on which he was shortly testified, and as follows:
“Q. 15th, 1984, In the out you made report in say did about Mr. Eck you anything report grabbing Mr. in a Straman Nelson?
A. No.
Q. you anything holding Did Mr. Eck Mr. Stra- say about man?
A. No.
Q. you anything report Did in that about the fact that say holding Eck at the time Straman was cut? Straman A. No.
Q. you anything report Did in that about Stokes reach- say in cutting Eck Straman Straman the chest ing over and area? abdomen A. No.
Q. in that Urbanski at- you anything report Did about say Stokes from a drawer? tempting prevent getting No, I A. didn’t.” see cut Straman. then that he did not Stokes penitently
Isa admitted Ted Eck testified that Stokes was State’s witness top punching on the and Straman was on floor bottom Eck stated that off of him. him, get tried to Straman kneeing Stokes off Eck fight, pulled up he and tried to break Urbanski Eck resisted. in a full nelson hold. Straman of Stokes and held stabbing a knife an arm come his shoulder with said that he saw over Stra- on Straman and let at Straman and he released his nelson hold nothing Stra- man fled out of the kitchen. Eck said go. Straman released. Eck upon being man a toaster off the counter picking up of the floor standing and saw Stokes in the middle turned around his shoulder knife in Eck grabbed with a kitchen his hand. him to the knife and Stokes did so. drop told to his of the incident su- report Eck was shown his statement and too after the incident occurred and periors prepared shortly which he testimony. which to further omission Eok’s trial impeach by was used if Straman After on cross-examination that he did not know stating hold, Eck acknowl- was cut when he was in the of Eck’s nelson grip trial that he said in his re- edged, contrary testimony, nothing port cutting about Stokes Straman while Eck held him in a nelson hold. Eck further admitted that his statement he likewise did not Stokes cut say any injuries saw Straman or that he saw Straman. Stokes,
Straman stated that after he threw the can at garbage and Stokes fell on the Stokes was on the bottom and he was on Stokes as top hitting they lay grabbed on the floor. Some co-workers fight. and broke Eck held him a full nelson and go Straman told Eck to let him because “I wanted to Stra- get away.” *25 man related that he then felt his head sharp pain a back of and object saw a silver come across his shoulder onto his chest. Eck let go and when turned around he saw Stokes there with standing a knife in his hand. Straman said that when he saw Stokes with the knife he a toaster it in front picked up and held of his chest and stom- ach. Straman walked out of the kitchen. acknowledged prepared that he first a written report later, admitted, August September incident a month on 15. He
however, on cross-examination that he was offi- questioned by police cers the incident it He testi- shortly after had occurred. further fied on cross-examination:
“Q. tell this you during argument Did Officer Doelker that you that was had between and Stokes that he and you punched fell you grabbed two each other and to the floor?
A. I recall. don’t
Q. you you And did also Doelker that as were tell Officer being you and slashed separated picked up knife the abdomen?
across A. I don’t recall.” (Emphasis added.) Stokes rigidly foregoing contends that not does the im- peached and trial of the State’s witnesses fail contradictory doubt, also, prove guilt and more im- beyond reasonable Stokes insists that it was for him to portantly, physically impossible have inflicted the cut on Straman’s chest in the manner described by in their trial testimony. witnesses belated chest, to the trial the scar across his displayed judge then running right nipple diago- which was described as from the on a nal to Mitsos, the center of his chest. Doctor a State’s Albert witness room emergency physician Hospital Northwest who treated Straman at described Straman’s chest hospital wound as a linear superficially length. slash wound about 10 inches Eck, nelson,
Ted who testified he held Straman in the full also testified that he was 6 feet tall and several inches taller than Stokes. height Straman stated that he and Eck were about the same and that shorter than of them. Stokes was both of Eck Straman in a full purported positions holding nelson
when Stokes reached over Eck’s shoulder and inflicted the cut on Straman’s chest were demonstrated State’s witnesses to the trial and were also on oral before judge displayed argument argues considering court. Stokes these also displays, Straman, that he was several inches shorter than both Eck and it is behind, apparent that he could not have Eck from reached approached over his and then over Eck shoulder reached while held Straman in a full nelson ten-inch position, diagonal, and inflicted su- perficial right slash wound Straman’s chest from his toward nipple the center of Straman’s chest. THE THE UNJUST DECISION. LOSER-STOKES may validity, this contention of Stokes have some is
Although on this unnecessary appeal and I do not decide merit of Stokes I that the contradicted foregoing basis. It is clear to me and conclude on the facts and the of the State’s witnesses impeached testimony prove guilt acrimonious circumstances this case fail to defendant of the offense of a reasonable aggravated battery beyond doubt.
It is of the trial to determine the credibility the function court the in witnesses, to be to their weight given testimony, *26 v. 81 (People Mays (1980), ferences to drawn from the evidence. be Moreover, 1090, 1098-99, 1159, 1165-66.) a re- Ill. 3d 401 N.E.2d App.
675 of the trial for that viewing judgment court will not substitute its evidence, a court of court on the of witnesses or on credibility the evidence and/or must a criminal conviction where review reverse unsatisfactory or so improbable of the witnesses are so credibility 81 Ill. People Mays (1980), as to v. guilt. raise reasonable doubt 1159, 1165-66; McCarthy v. 1090, 1099, People 401 N.E.2d App. 3d 135, 137; v. 519, 522, People N.E.2d (1981), App. 102 Ill. 3d 929. (1979), Comer 78 Ill. 3d 397 N.E.2d App. I that are involved agree legal principles
The on majority con- majority’s in and to the instant case. to the applicable Contrary justifies clusion that of those affirmance application legal principles offense, I am of aggravated battery defendant’s conviction of the applied the firm that those same when opinion legal principles of the State’s witnesses in the case at bar demand reversal. testimony Stokes’ of the facts circumstances of his infliction testimony unconvincing of Straman’s chest wound is as the just Stokes, however, the State’s witnesses. not to required prove innocence, doubt, or beyond reasonable otherwise. burden Stokes’ prove guilt beyond permanently reasonable doubt the State.
Stokes testified that while he was on the floor and Straman was him, of him top beating against he slammed Straman’s head door, he, Stokes, counter during cabinet which time was repeatedly stated, clear, kicked. Although expressly never so it is how- ever, that he intended to infer that it fighters, was the other who kicked him. Stokes stated that he was be- because back, ing kicked from the he let of Straman. Straman go got up, he, Stokes, so, started to get up. As Stokes did Straman reached on counter, toaster, grabbed the raised the toaster over his head to come hit down and Stokes with it. Stokes stated that he then grabbed the butcher knife on the counter which he had used to cut held the him keep steak and knife out front of Straman from on him with the toaster. of the immediate coming up Stokes’ version events somewhat subsequent appears implausible: be “Q. manner, After you happened? held the knife what
A. He right upon trying walked knife with toaster to hit me with it.
Q. What, if did do? anything, you I I pulled pushed A. the knife down like that and back off of me.
Q. swung You the knife? it, I swing A. No. Didn’t but had the knife like actually *27 this, and I came down with the knife like that when he up, walked on me.
Q. then? happened What just A. It was like a still came over the kitchen.” complete Straman had cut and he left the kitchen. Stokes dropped been knife on the kitchen walked out of the kitchen into the bunk room and rinsed his face. fire fighter Ralph
State’s witness Gamberdella testified that after kitchen, altercation between Straman and Stokes was over he saw Stokes on the floor an ax and hold it shoul- apparatus pick up der level. He asked Stokes to the ax down and Stokes released grabbed First, the ax after Ted Eck it. this does not only testimony proof alleged contribute to the offense for which Stokes was on Second, trial. Stokes denied these acts to him by attributed Gamber- Third, della. inci- testimony apparatus Gamberdella’s room-ax he, too, like the impeached dent was Gamberdella’s admission that events, regarding other State’s witnesses other never mentioned this significant report superiors. event in his of the incident to his disagree I that I
Finally, point vehemently am constrained out that the of Straman’s majority’s hospi assessment Mitsos, tal room Dr. “is consistent with emergency physician, entirely the State’s version of how Straman’s were inflicted” and “to injuries using inconsistent with the defendant’s the knife tally version off the Ill. 3d at (185 App. 660.) ward attacker with the toaster.” of Dr. is My analysis testimony just opposite. review and Mitsos’ I firm supreme am of the conviction that one of the obeisant and most revered issues to a court of review for presentable determina- guilt tion is whether under law evidence establishes the of a bar, convicted defendant a reasonable doubt. In the case at beyond guilt aggravated under the law the evidence fails to establish Stokes’ a reasonable and Stokes’ of conviction battery beyond judgment doubt therefore I Accordingly, should be reversed. dissent.