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People v. Nard

OCTOBER 3, 1975.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

LEON NARD, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lake County; the Hon. FRED H. GEIGER, Judge, presiding. MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

The defendant was charged with attempt murder and aggravated battery, was tried by a jury, was acquitted as to Count I, attempt murder, and was convicted of aggravated battery. He was granted three years' supervised probation on May 25, 1973. On June 11, 1973, the State's Attorney filed a petition for revocation of defendant's probation on the ground that the defendant did, on June 9, 1973, stab one Lovie Whitfield in the throat with a screwdriver. On August 27, 1973, in a hearing before the trial court, the defendant was found guilty of the violation of the terms of his probation and was sentenced to 3-10 years in the Illinois State Penitentiary. The defendant has appealed, alleging errors in both the trial and the revocation of probation proceedings.

On the night of November 7, 1972, the defendant had a fight with one Virgil McSorley in the Tick Tock Tavern in Waukegan, Illinois. McSorley was taken to the hospital and in surgery, requiring 3 1/2-4 hours, more than 300 stitches were required to repair the cuts on the scalp, face, behind the ear and on the chest. The doctor testified that the condition was caused by a sharp instrument. The defendant was apprehended in a nearby tavern approximately one-half block away. He was taken to the Waukegan police department and was interviewed by Detective Joiner who advised him of his constitutional rights. Defendant replied that he understood the same and admitted that he was sitting at the bar in the Tick Tock Tavern when he got into a dispute with a white man by the name of Jim which resulted in a fight. When the detective asked the defendant how the subject received the lacerations the defendant replied he did not know and he did not wish to continue the conversation. The interview was then concluded. The victim did not see the knife in the defendant's hand. A witness for the State testified, however, that immediately after the scuffle took place that he saw the defendant go over to the pool table and that he had a knife in his hand. The knife was not recovered.

• 1 The first contention of defendant is that he was denied a fair trial due to the introduction of testimony that the defendant refused to answer any further questions after being advised of his constitutional rights, as indicated above, and further that the State's Attorney referred to this in his final argument. The State's Attorney stated:

"And then, he questioned him. He questioned the defendant. And the defendant admitted he had gotten into a dispute with a large white man over at the Tick Tock. But then when they got down to the point where Joiner asked him how did Virgil get cut, the questioning stopped and the answers stopped."

Defendant contends this is plain error. No objection to this testimony was made. We do not find this to be plain error. Defendant has cited the case of People v. Hughes (1973), 11 Ill. App.3d 224, 296 N.E.2d 643, a case from this court, wherein we held that a comment by a witness on defendant's refusal to speak after being warned of his constitutional right to remain silent, constituted error. We do not find that case to be applicable to the one before us. In People v. Newbury (1972), 53 Ill.2d 228, 238, 290 N.E.2d 592, 598, the supreme court, in considering a case where the police officer testified that the defendant refused to make a statement after being warned of his constitutional rights, and where no objection was made to the officer's testimony about defendant's refusal, stated:

"Since there was no pertinent objection at the trial, the defendant cannot now assert that the admission of this testimony violated his constitutional privilege against self-incrimination. People v. McCorry (1972), 51 Ill.2d 343, 351; People v. Linus (1971), 48 Ill.2d 349, 354-55."

We therefore hold that the statement of the police officer and the comment thereon by the State's Attorney does not constitute reversible error. See also People v. Pruitt (1974), 16 Ill. App.3d 930, 938, 307 N.E.2d 142, 149, and People v. Etten (1975), 29 Ill. App.3d 842, 331 N.E.2d 270.

Defendant further contends that the trial court "compounded" the alleged error by the giving of the following instruction (IPI Criminal No. 3.06.):

"You have before you evidence that the defendant made the admissions of facts relating to the crimes charged in the indictment.

It is for you to determine whether the defendant made the admissions, and, if so, what weight should be given to the admissions. In determining the weight to be given to an admission, you should consider all of the circumstances under which it was made." (Emphasis added.)

The defendant admitted he was at the Tick Tock Tavern and had the fight with McSorley. As the instruction states, it was for the jury to determine what weight should be given to the admissions.

• 2-4 The next contention of the defendant is that the evidence of the victim's injuries and condition and treatment at the hospital was irrelevant and inflammatory and denied the defendant a fair trial. In support of this contention the defendant has cited People v. Nickolopoulos (1962), 25 Ill.2d 451, 185 N.E.2d 209, and People v. Carpenter (1964), 49 Ill. App.2d 101, 199 N.E.2d 457. We find neither of these cases to be in point. In both Nickolopoulos and Carpenter the charge was assault with intent to commit murder. The court there held that the extent of the wounds or injuries inflicted was not an issue and the introduction of the same constituted error. As the supreme court said in Nickolopoulos:

"The specific intent required by the charge is found, not from the nature or seriousness of the injury inflicted, but from the proof of the reckless character and manner of the assault, the instrument made use of by the assailant, and other facts and circumstances shown by the evidence as indicating a malicious heart and mind." (25 Ill.2d 451, 454, 185 N.E.2d 209, 210.)

That is not the situation in the case before us where the defendant was charged with aggravated battery, that is, that he caused great bodily harm to the victim, as well as attempted murder. The nature and the seriousness of the injury is an essential element of aggravated battery and the proof thereof is proper. Additionally, no objection was made to the introduction of evidence of the seriousness of the victim's injuries. Further, defense counsel introduced, upon cross-examination, the extent of the injuries and commented upon the same in his closing arguments. It is fundamental ...


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