APPEAL from the Circuit Court of Cook County; the Hon. MARK
JONES, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Following a bench trial defendant, Ralph Montgomery, was found guilty of aggravated battery and was sentenced to the Illinois Department of Corrections for a term of two to six years. Defendant appeals and contends that: (1) he was not proved guilty beyond a reasonable doubt; and (2) the trial court erred in excluding testimony concerning the victim's violent character.
We affirm. The pertinent facts adduced at trial follow.
The victim, Benny Oliver, is his brother. On March 3, 1974, in the late afternoon, he was present in his brother's home. Bonds and his brother were gambling on the premises along with defendant and Walker. No one was drinking. He and Walker got into an argument while gambling. Walker and defendant left the premises, followed by Bonds, who went to his mother's house approximately 50 feet "down the alley" on the adjoining block. Oliver, his brother, remained at his own house.
Bonds remained at his mother's house for "about a minute and a half," and told his mother of the argument that had occurred. He then left and walked around the block back toward the front of Oliver's house. He saw defendant come across the street and hit Oliver with a pipe about three feet long "right across the eye and jaw." Bonds was approximately 15 feet from the defendant and Oliver, who "were standing in Benny Oliver's gangway," when the blow was struck. Oliver did not have a weapon in his hands when struck by the defendant. Bonds did not hear conversation between the two prior to the blow.
Bonds "thought" defendant was holding the pipe in two hands when he crossed the street to hit Oliver. After being hit, Oliver "stumbled on and went into the house," and Bonds got ready to fight with defendant. Bonds' father stopped him from doing so, however. Approximately six minutes later Bonds entered the house and saw Oliver unconscious on the living room floor. Oliver was transported to the hospital about one hour later. When police arrived on the scene Bonds did not speak with them. He later spoke with Officer Bertucci on or about March 25, 1974. He did not recall telling Bertucci that he saw defendant running away when he arrived on the scene, nor did he recall telling Bertucci that he saw Oliver lying on the sidewalk.
He had been gambling at his house on March 3, 1974, with Bonds, Walker and defendant. Oliver had been drinking while gambling. Although an argument occurred concerning the gambling, Oliver stated that he did not threaten defendant or Walker. The three other men left the premises. About 15 minutes later, Oliver went to the front of his house and stood "right at the corner of the gangway." He noticed defendant and Walker also on the street and watched them for about 10 minutes. Oliver did not possess a weapon. Defendant came charging across the street at him, with a pipe in his right hand and a gun in his left. Defendant called Oliver "some kind of name" as he approached. As defendant ran at him, Oliver heard his sister call him and he turned to her. When he looked back he saw the pipe "coming down" at him, and that is all he remembered. Defendant hit him twice, and he had no idea why he did so. As a result, Oliver lost the sight in his left eye.
Chicago Police Investigator Frank Bertucci
He arrested defendant on March 25, 1974. On that date he spoke with defendant, Oliver and Bonds. During questioning at the police station defendant admitted hitting Oliver, but claimed that Oliver had a stick in his hand at the time. Oliver told him defendant and Walker had fought with Bonds earlier, and that defendant and Walker had attacked him when Bonds fled. Oliver did not tell Bertucci that Walker struck him, only that defendant struck him. Bonds told him that he saw defendant and Walker fleeing the scene, and that Oliver was lying on the sidewalk.
Karen Kimbrough (for the defense)
She had known defendant and Oliver for five years. On the evening in question as she arrived to visit defendant, she saw defendant and Oliver arguing in the alley behind Oliver's house. Neither defendant nor Oliver possessed weapons at that time. The argument lasted about 15 minutes, after which she accompanied defendant across the street to his house and sat with him on the porch. Shortly thereafter Oliver came out of his gangway shouting obscenities at defendant. This lasted for about five minutes, during which time Oliver obtained a stick, shook it, but did not cross the street.
Defendant walked across the street unarmed when Oliver uttered a remark concerning defendant's mother. Bonds was standing approximately seven feet from Oliver after defendant crossed the street. The argument between Oliver and defendant continued, and then Oliver tried to hit defendant with a stick he was holding. Defendant dodged the blow and picked up another stick. They continued arguing and swinging at each other until finally defendant landed a blow. During this time Bonds was watching the entire proceedings. Defendant received a scrape on the jaw from Oliver during the incident. Oliver did not fall or stumble when struck by defendant. Instead, he ran toward the alley, followed by Bonds. Bonds did not challenge defendant when Oliver was hit. Ms. Kimbrough, who observed the incident from a distance of five or six feet, then walked with defendant back to his own house.
On March 3 he was gambling in Oliver's home with Walker, Bonds and Oliver. Oliver was "drunk when he got there." Arguments sprang up during the gambling; however, no threats of bodily harm were made. All the participants left together. The argument resumed in the alley and continued for about 15 minutes, at which point Oliver tried to pull a knife out of his pants and Walker hit him in the jaw. The knife flew out of Oliver's hand and into the grass. Bonds did nothing at this time. Defendant and Ms. Kimbrough then went across the street to his home and sat on the porch.
Oliver came out of his gangway yelling obscenities at defendant for about 10 minutes. Oliver held a stick but did not cross the street. Defendant crossed the street to Oliver, however, "after he called me out." As he approached Oliver, defendant had nothing in his hands and said nothing. When he was within two feet of Oliver, Oliver threatened to "bust his head" with the stick he was carrying. Oliver then swung at defendant who fell to the ground and picked up a stick of his own. They began a series of swings at each other and finally, after receiving a blow ...