APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant, Steven Teller, was charged by indictment with the offenses of aggravated battery and robbery in violation of sections 12-4 and 18-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, pars. 12-4, 18-1). An accomplice, Gwen Cross, not directly involved in this appeal, was similarly charged, pled guilty to a charge of robbery, and was sentenced to a 5-year term of probation. Upon a jury trial, defendant was found to be guilty of aggravated battery and not guilty of robbery. Judgment was entered on the verdicts and defendant was sentenced to a term of confinement of 3 to 10 years in the Illinois State Penitentiary.
From entry of the judgment of conviction defendant appeals and contends (1) that the trial court erred in failing to hold a hearing on defendant's pretrial motion to quash the indictment and dismiss the venire due to the alleged systematic exclusion of "American Indians" from the grand jury panel; (2) that the trial court was predisposed towards defendant's guilt and erred in failing to recuse himself sua sponte; (3) that the trial court erred in permitting the State to present certain rebuttal evidence concerning defendant's post-arrest threats upon the life of the complaining witness; and (4) that the sentence imposed upon defendant was excessive in proportion to that received by his accomplice.
A review of the evidence indicates that at approximately 5 a.m. on August 7, 1973, the complaining witness, Stanley Fernandez, was walking in the company of his friend, Phillip Jobe, in the vicinity of 900 West Wilson Avenue, in Chicago, Illinois. As the men proceeded east on Wilson Avenue, Fernandez observed a girl sitting in the grass. As Fernandez and Jobe walked past the girl, she "jumped up" and began pushing Fernandez from the rear. At this point Jobe fled. Fernandez told the girl to "leave him alone" but she continued to push him across Wilson Avenue.
On the other side of the street, two men stood on the sidewalk facing Fernandez. He described the two men as well as the girl as "Indians." Fernandez testified that the girl pushed him into the two men who "came at me [Fernandez] and started beating me with their fists." They knocked him to the ground, kicked him, and continued to beat him as he lay prostrate. Fernandez also indicated that one of the men took approximately $6 in dollar bills and coins from Fernandez' shirt.
The latter individual was described as approximately 6 feet tall, weighing 160 pounds, dressed in a blue, short-sleeved denim shirt, brown pants, and bearing "pock marks" on his face and tattoos on his arms. Fernandez indicated that the assault required "a matter of a few minutes" and that the street was illuminated by both streetlights and the approaching daylight. Visibility was characterized as "good." Fernandez is "near-sighted" and wears glasses "only to read with" but was not wearing them on the night of the attack. Prior to the attack, Fernandez and Jobe had been drinking beer at two bars and spent some time at a friend's home.
Fernandez identified defendant as the man who beat and robbed him.
According to Fernandez, after defendant had stolen his money, the assailants ran from the scene in an easterly direction on Wilson Avenue. Within "seconds" a police vehicle arrived at the vicinity. Fernandez was transported to hospital facilities for emergency treatment, subsequently to the police station where he identified defendant as one of the assailants, and later was returned to the hospital. Fernandez was confined to the hospital for one week where he received treatment for scalp lacerations, two broken wrists, facial abrasions and bruises he sustained as a result of the assault.
The State also introduced the testimony of Bill McRoberts who testified that between 4 and 5 a.m. on August 7, 1973, he was driving his automobile in the vicinity of 900 West Wilson Avenue, where he had occasion to observe three persons, two males and a female, "beating up on the older fellow." The trio "had him against the building" and were "punching," "hitting," and "stomping" him. They were also "going through his pockets" as one of them said, "Get his money." McRoberts testified that one of the assailants wore a blue, short-sleeved shirt and bore tattoos on his arms.
McRoberts curbed his vehicle and sounded his horn; however, the man and his companions continued to beat their victim. McRoberts drove off in search of assistance and within 2 minutes returned in the company of three police officers. Upon his return, McRoberts observed the assailants standing on the corner "counting the money." Fernandez was left prostrate on the sidewalk.
McRoberts identified defendant as one of the assailants and noticed that at the time of the arrest on the scene, defendant "had blood all over his hands, and his shirt was all bloody." McRoberts also identified at trial a bloodstained shirt introduced into evidence as the one worn by defendant during the course of the beating and at the time of his apprehension moments after the beating.
The State also adduced the testimony of Chicago Police Officer Charles Woods who testified that he and his fellow officers, McMann and Smeraglia, were summoned by Bill McRoberts to the scene of an assault in the vicinity of 900 West Wilson Avenue. Upon arriving on the scene he observed Fernandez lying on the ground. Woods testified that Fernandez pointed to the three individuals leaving the area. Two of the individuals were male, the third was female. One of the men wore a blue denim, short-sleeved shirt and combat boots. This individual was identified as defendant. According to Officer Woods, defendant and his companions were the only persons near the scene. Woods observed that defendant had tattooed arms and blood on his arms and shirt. The officers effected defendant's arrest and that of the girl. The third assailant eluded the police as they approached. Officer Woods transported defendant to police facilities, inventoried his shirt and recovered $4.15 in bills and coins from defendant's person.
The parties stipulated that blood samples taken from defendant's shirt matched the victim's blood type.
Defendant testified in his own behalf and denied having beaten or robbed Fernandez. Defendant indicated that he bloodied his shirt the night before his arrest as a result of a bite he received on his back during the course of a fight or "rassling" with a friend and the latter's girl friend. Defendant did not seek ...