APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendants, Joseph Pietrzyk, Joseph Krentkowski and Richard Perez, were each indicted for two counts of aggravated battery. They were tried jointly by a jury in the circuit court of Cook County and each was found guilty of both counts of aggravated battery and one count of battery. Each defendant was sentenced to imprisonment for from three years and four months to 10 years. The sentence imposed on defendant Perez was subsequently reduced to imprisonment for from one to three years.
On appeal, defendants contend that (1) they were not proved guilty beyond a reasonable doubt because the evidence showed that defendants acted in self-defense; (2) the trial court erred in refusing to admit into evidence on behalf of defendants two out-of-court declarations which allegedly are admissible under exceptions to the hearsay rule; (3) portions of the prosecutor's closing argument were so prejudicial as to deprive defendants of a fair trial; and (4) as to each defendant one of the two aggravated battery convictions and the battery conviction must be vacated.
The charges and the convictions arose out of the beating and stabbing of Richard Gray on October 20, 1973, at about 1:30 a.m. Gray testified that he left his job in Niles to go home at about 1 o'clock in the morning, traveling south on the Edens Expressway. He left the expressway at Diversey and California in the city of Chicago to enter a gas station to purchase gas. He did not immediately drive into the station, but rather waited in the driveway because he observed a fight taking place among five people, some of whom apparently were station attendants. After a few minutes, four men left the premises and two attendants came over to service Gray's car. Gray went into the station house to pay for his purchase with a credit card and was returning to his car when the four men returned. Gray pointed out defendants Pietrzyk, Krentkowski and Perez in court as members of the group; the fourth man was not present in court.
Gray testified that he was about to enter his car when this group approached him; Krentkowski called him a nigger, a black motherfucker and asked if he was "bad." Gray testified that he said, "No, I'm trying to get home." Krentkowski continued to call him names as the group approached Gray, who was backing away towards the gas pumps for 20 to 30 feet. Pietrzyk said, "Be cool, he might have a knife" and Perez tackled Gray. Gray stated that Krentkowski began to hit him with his fists. He saw something metallic flash in Pietrzyk's hand. He fought back "for life." The station attendants came and pulled the defendants off of Gray momentarily and Gray punched and knocked down the fourth man, who was not in court. Gray himself was then struck on the head, knocked to the ground, kicked in the side and stabbed in the back. The fourth man was still on the ground at the time Gray was stabbed. The defendants were again pointed out in court as the persons who had attacked him that night. Gray was dragged by the collar across the pavement for five or six feet and then was released as his assailants ran off.
Gray testified he had received 20 to 30 blows from the defendants' fists, stab wounds in his back and the side of his face and a cut on his forearm. The police took him to the hospital, where his wounds were closed with stitches and he was required to stay for 48 hours. Two photographs of the victim taken one week after the assault were admitted into evidence.
On cross-examination, Gray testified he never indicated to defendants that he had a gun that night. He could not say for certain what the metal object he saw in Pietrzyk's hand was and he could not see who specifically had cut him, because his face was down at the time. The attendants were able to keep defendants away from him for only a matter of seconds. On redirect, he testified that the whole encounter took five or 10 minutes in all. All four of the attackers did strike him and he knew "for certain" that all three defendants hit him after the fourth man was knocked down.
Police officer Salvi testified that he arrived at the station after receiving a call on his radio at about 1:30 a.m. He saw Gray, who was wearing a green and white uniform, and noted his injuries. Gray had no weapon. He also saw three gas station attendants wearing blue shirts as part of their uniforms; they were not armed. The attendants were holding Perez, who did not appear to be hurt at the time. On cross-examination, the policeman stated that at the time he arrived the fight had ended.
Police officer Kunz testified that he saw Gray at his home on October 25, 1973. Gray picked three photos from a stack of 12 which Kunz had produced. Defendants Pietrzyk, Krentkowski and Perez were the persons in the photographs.
Defendant Krentkowski testified in his own behalf that he, Pietrzyk, Perez, Michael Estrada and Richard Cisnero were in Cisnero's car on the expressway when the muffler fell off. They left the expressway and went into the station in question, where the attendants put the car up on the lift. Cisnero stayed with the car, while the other four went to a tavern down the block, where they drank beer. Estrada and Pietrzyk left the tavern and Krentkowski and Perez left five or 10 minutes later. When Krentkowski arrived back at the station, he saw an attendant bleeding from his mouth. Another attendant was about to hit Estrada on the head with a tailpipe when Krentkowski and Perez stopped him; Perez was hit instead with the pipe and a fight began involving everyone present. The fight shortly broke up and the defendants walked away from the station. Defendants and Estrada went back to the station five minutes later to get the car and Cisnero and were confronted by the attendants standing in front of the door holding wrenches and pipes in their hands and beckoning the defendants to fight. Krentkowski then saw Gray pumping gas into a car. According to Krentkowski, Gray said to the attendants, "Do you need some help?" Krentkowski testified that he then called Gray a nigger and said, "You can get somebody to fight too, nigger." Gray reached his hand toward his back pocket and Krentkowski told Perez, "Watch it, he has got a gun." Perez tackled Gray and they fought until the attendants began to hit defendants and Estrada with tools. Krentkowski stated he had no weapons and saw no weapons on his friends. He denied stabbing Gray and testified he saw no one else stab Gray. He did hit Gray five or six times and was hit by Gray in return. Then Estrada started fighting with Gray. Then they all jumped into the car and drove off. Krentkowski testified he sustained bruises from the blows he received.
On cross-examination, he admitted he went to no hospital that night for treatment of his injuries and did not report the incident to the police. He testified he was six feet tall and weighed 160 pounds; Cisnero was "heavy set"; Estrada was over six feet tall and weighed about 200 pounds; Pietrzyk was five feet seven inches tall and Perez was five feet four or five inches tall, while the biggest of the three attendants was five feet nine inches tall and 170 pounds, and other two were about the size of Perez. He and his companions that night were friends and frequently met together to drink; before the incident they had consumed a case of beer and a half-gallon of wine. He did see a knife in Estrada's possession at the station. He did call Gray a motherfucker and nigger at the station because Gray was offering to help the attendants. They did drive off leaving their friend Perez at the scene, but, he testified, they later returned, only to keep on driving when they saw five or six police cars in the station. He admitted they could have stopped and told the police what happened.
Defendant Perez then testified and corroborated Krentkowski's version of the events, including the loss of the muffler, pulling into the station, going to the tavern, the order in which they had left the tavern, the threat to Estrada, Perez being hit with the pipe by the attendant and the interference of Gray. Perez testified that he tackled Gray after Krentkowski said Gray had a gun. Perez testified that he saw no weapons in the possession of Krentkowski, Pietrzyk or Estrada, and he had none himself. He did not stab Gray or kick him and he did not see anyone else stab Gray. He saw no blood on Gray before he himself was hit on the head and lost consciousness.
Perez, on cross-examination, testified that he, Pietrzyk and Krentkowski were friends and had been drinking that night, but the drinking did not affect his memory. He was not himself treated at the hospital that night for his injuries. From the uniform Gray was wearing, he thought Gray was one of the attendants at the gas station. He never saw a weapon in Gray's hand. Cisnero got the car down from the lift by himself and never got involved in the fight. Perez did tell the police officers when he was arrested that he was attacked by the attendants. He admitted telling a policeman that a person named Bill Scott was involved in the fight, but that this statement was not true. He never saw his friends come back for him that night.
The defense called Herman Nelms, who testified that he saw Estrada at 2:40 a.m. on October 20, 1973, and at that time Estrada had blood on his boots, knuckles and mouth. Estrada was holding a pair of scissors, eight to 10 inches in length, when Nelms saw him. Nelms admitted on cross-examination that Krentkowski was a friend and that he and his wife had posted bond for Krentkowski twice ...