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People v. Marichec

OPINION FILED AUGUST 13, 1976.

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

v.

RAFAEL MARICHEC, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN J. MORAN, Judge, presiding.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Defendant was found guilty in a bench trial of the battery of John Luckett and the aggravated assault of his wife, Maggie Luckett. He was sentenced to a term of 180 days, and in this appeal he contends (1) that the State failed to prove his guilt beyond a reasonable doubt; and (2) that the court improperly restricted his cross-examination of the complaining witness, John Luckett.

Involved here is an incident in which defendant allegedly pistol-whipped Luckett and threatened to shoot the latter's wife. Four witnesses testified for the State — Luckett, his wife Maggie, his niece Minnie Harris, and his nephew Henry Baldwin.

Luckett testified that he told defendant's girl friend, Brenda Williams, she wasn't welcome in his house and, because defendant didn't like the way Luckett had spoken to his girl friend, he struck Luckett on the head with a pistol and shoved him through the doorway leading to the latter's second floor apartment. When his wife came out of the apartment, Luckett said that defendant pointed the gun at her and threatened to shoot if she came downstairs. After striking Luckett two or three more times, defendant then left with Brenda Williams.

Luckett's wife substantiated this testimony, stating that she heard a disturbance, and when she opened the door she observed defendant beating her husband with a pistol. Defendant pointed the gun at her and said that if she didn't get back upstairs he would kill her. She went upstairs and called the police.

Minnie Harris, who lived in an apartment on the first floor, stated that she opened her door after hearing a commotion and saw defendant with a gun against her uncle's head. After she had closed the door, she heard defendant threaten to shoot her aunt, Mrs. Luckett. Henry Baldwin testified that he saw defendant leaving the house with a gun in his hand and then, after he entered the house, he saw his uncle bleeding from the head.

Defense witnesses gave a contradictory version of the altercation. They testified that the incident had occurred in front of the house and that Luckett had been the aggressor. Fannie Staley, a neighbor of defendant, said she, defendant and Brenda Williams had left a card game to get something to drink at a local liquor store. After buying a drink, Brenda Williams crossed the street to Luckett's house and, when Luckett cursed her and raised a bottle near her, defendant crossed the street and began to argue with Luckett. She then saw Luckett raise the bottle as if to strike defendant. She didn't see Luckett strike defendant but did observe defendant repeatedly hit Luckett.

Two other friends of defendant, Barbara Davis and Brenda Williams, testified in substance that Luckett was the aggressor. Davis stated that Luckett brushed up against the shoulder of defendant with a bottle, and defendant then struck him three or four times. Williams said Luckett attempted to punch defendant — who then struck Luckett repeatedly, knocking him to the ground.

The trial judge, in finding defendant guilty, concluded that the defense version of the incident was "unworthy of belief."

OPINION

Defendant first contends that the State failed to prove him guilty beyond a reasonable doubt. He argues that the State's evidence was so unsatisfactory and unreasonable as to raise a serious doubt of his guilt.

• 1 The question of the credibility of witnesses is left to the discretion of the trier of fact, who is in a superior position to observe the demeanor of the witnesses and to evaluate their testimony (People v. Hampton, 14 Ill. App.3d 427, 302 N.E.2d 691), and this court will not reverse such a determination unless the evidence presented is improbable, unconvincing or contrary to human experience. People v. Smiley, 32 Ill. App.3d 948, 337 N.E.2d 290.

Defendant attacks the prosecution testimony as being improbable and contrary to human experience. He questions the fact that Ms. Harris "just happened" to open her door when defendant was pointing a gun at her aunt and that Baldwin "just happened" to arrive at the same time defendant was leaving the building. We note, however, that Ms. Harris opened the door for only about five seconds because of a disturbance she heard in the hall, and it was after she closed the door that she heard defendant threaten her aunt. We see nothing in this testimony or the fact that Baldwin arrived on the scene as defendant was leaving that is so incredible or contrary to human experience as to require a reversal of defendant's conviction.

• 2 Neither do we believe, as defendant argues, that because the aggravated assault and battery complaints were not filed by the Lucketts until a few weeks after the incident, their testimony was unworthy of belief. *fn1 It appears uncontradicted that the police were called by Mrs. Luckett and that they arrived shortly after the altercation. We think that these facts would tend to ...


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