APPEAL from the Circuit Court of Cook County; the Hon.
RUSSELL R. DeBOW, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendant Arthur Villalobos was convicted of murder and sentenced to 14 to 20 years. Defendant argues on appeal that he was not proved guilty beyond a reasonable doubt, he was prejudiced by various prejudicial trial errors, including the improper calling of a prosecution witness as a court's witness and the improper introduction of evidence of an unrelated offense. He also raises a constitutional issue regarding failure of the prosecution to advise him of information tending to negate his guilt.
We will first consider the sufficiency of the evidence to prove the guilt of defendant beyond a reasonable doubt. Certain of the facts are undisputed. On the evening of December 23, 1972, defendant and the victim were involved in a tavern brawl. Defendant was 5 ft. 6 in. tall and weighed about 155 pounds. Deceased was 6 ft. 1 in. tall and weighed from 215 to 220 pounds. At about 7 o'clock, an argument commenced between the parties which ended in a fist fight and a struggle on the floor. The bartender threw some water on the combatants and defendant left the tavern. Defendant returned in about 20 minutes and another fight ensued. Death came to the deceased as a result of several stab wounds. Virtually every other factual element in the case is disputed.
Although six persons were present at the time, the single eyewitness called by the State was Richard Sobieraj. The only other eyewitnesses who testified were the defendant, Daniel Gonzales and James Stoner. Sobieraj testified on direct examination that when defendant initially entered the tavern he asked the deceased to arm wrestle with him. The deceased refused. The defendant struck the deceased. The first fight then commenced. The witness stated that 45 minutes after the first fight, defendant returned to the tavern. He quickly approached the deceased and gave him "a couple of karate blows." The witness later noticed that defendant was armed with a knife. He "didn't really notice anything" in the hands of deceased. He saw nothing in defendant's hand to his knowledge.
On cross-examination Sobieraj testified that during the time he was in the tavern he had from 6 to 8 beers and also a few shots of whiskey. He previously had "a few cans of beer." Shortly before defendant reentered the tavern, he heard deceased state that if defendant returned the deceased would "whip his butt." After defendant left, the deceased cleaned himself up and "started drinking" again. He also testified that he did not see defendant in possession of a knife during the second encounter until defendant and deceased were rolling on the floor. On this point the witness said rather cryptically, "When the struggle, you know, ensued then I didn't see him come in with nothing in his hand, no." He further testified on cross-examination that he believed there were broken bottles and glass on the floor after the killing.
At one point during the cross-examination of the witness, a recess was taken. Upon resumption, the State's Attorney advised the court that the witness had left the stand and spoken to other people in the corridor. The court ascertained that this fact was correct and that the witness had spoken to a man named Arthur Yzaguirre and to a brother of the defendant. Counsel for defendant stated that he was not going to call the defendant's brother to testify and that the name of the remaining witness appeared on the State's list of witnesses. Yzaguirre stated that the witness had asked him for a cigarette and did not discuss the case. The State's Attorney suggested that the only remedy was to preclude those persons who had spoken to the witness from testifying. Defense counsel then stated that he would suggest that this be done. The State made this suggestion in the form of a motion and counsel for defendant stated that he had no objection. The court then ruled that the brother of the defendant and Yzaguirre would not testify.
On redirect examination the witness testified that he could not swear that he saw a knife in the hand of defendant at any time but saw only a shiny object which glittered in the Christmas tree lights. He "assumed" it was a knife but did not see a knife. He could not see anything in the hands of the deceased.
The State's Attorney then requested that he have leave to examine the witness as a court's witness because of alleged changes in his testimony. In support of this request he read to the court sections of testimony by the witness allegedly given at a preliminary hearing held some one year and nine months prior to trial. Over objection by defendant, the court granted this motion and the State then proceeded to impeach the testimony of the witness by reading his previous testimony. The witness conceded that at the preliminary hearing he had testified that he saw a knife with a 5- or 6-inch blade in possession of defendant. He also testified that when he first saw the knife it was in defendant's hand.
Daniel Gonzales testified for defendant that he had first visited another tavern with defendant. They each had a drink for which defendant paid after he had taken his wallet from his back pocket. They then went to the tavern in question. The initial portion of the brawl commenced when deceased swung at the defendant after some preliminary conversation. After this fight, defendant was bleeding from the nose. He and Gonzales went to the latter's home where defendant cleaned himself up. Defendant and the witness then went to a restaurant and ordered food. Defendant looked for his wallet in his back pocket and could not find it. He left and said that he would look for the wallet in his car. Some 5 minutes later the witness saw defendant seated in his automobile and James Stoner standing outside the car. Defendant had blood on his jacket and on his hands. The witness testified on cross-examination that he had been a good friend of the defendant since 1962 and that they had socialized together. In his statement to the police, he did not say that deceased had started the initial fight and did not mention defendant's statement about losing the wallet.
James Stoner testified that he had spent about 2 1/2 hours in the tavern. The deceased called defendant some names, including a reference to defendant's national origin. Then an argument ensued, deceased swung at defendant who retaliated in kind and the first brawl commenced. He did not know who swung first. Defendant then left with Gonzales. Defendant and deceased were both bleeding.
Defendant returned about 45 minutes later. He had nothing in his hands at that time. The deceased seized a beer bottle, broke it and lunged at the defendant who was then 4 or 5 feet away. The witness testified that he noticed nothing in defendant's hands when the parties were rolling on the floor. He did not see the broken bottle when the parties were on the floor, did not actually see the broken bottle come in contact with defendant and did not see the broken bottle after the incident. He did not tell the police about the bottle. At a bond hearing some 4 months later he testified that deceased grabbed a beer bottle. In court, he did not recall if he then also stated that deceased broke the bottle. On cross-examination he stated, "* * * I sure know he broke a bottle." Defendant had been cut on the lip and cheek and he had blood on his jacket and his hand. He saw defendant's face during the encounter. Defendant "looked scared."
Defendant testified that when he first entered the tavern he asked the deceased if he wished to arm wrestle. Deceased swung at him but did not hit him. He swung back and struck the deceased. After the encounter he had a bloody nose and a "busted lip." He left with Gonzales and went to the latter's house where he cleaned up.
He and Gonzales then went to a restaurant to eat. Defendant said that he would pay. He looked in his back pocket and could not find his wallet. He told Gonzales he would look for it in the car and he left. Failing then to find the wallet, he returned to the tavern. As he was looking "down at the ground" for the wallet, he heard glass break, looked up and saw deceased lunging at him with a broken bottle in his hand. Defendant tried to block the blow but the bottle struck him on the left hand. He swung at the deceased up and down with his right hand. Defendant reached into his left-hand pocket and pulled out a kitchen knife which he had carried all evening. He struck ...