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People v. Walker

OPINION FILED MARCH 17, 1978.

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

v.

DERRICK S. WALKER, A/K/A DERRICK STEVE WALKER, A/K/A FREDERICK G. HARON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT L. SKLODOWSKI, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

After a bench trial, defendant was found guilty of aggravated battery with a deadly weapon and aggravated battery resulting in great bodily harm, and was sentenced to serve two concurrent terms of one to three years. He was acquitted of attempt murder and of another charge of aggravated battery. On appeal, he contends (1) the State failed to prove beyond a reasonable doubt that he was not acting in self-defense; (2) the prosecutor's conduct in making an offer of proof denied him a fair trial; and (3) he was improperly convicted and sentenced on two aggravated battery counts where they arose from a single act.

The testimony of the State's three witnesses was substantially the same. Robert Wright, Perry Wright, and Samuel Williams all testified that Williams drove Robert, Perry, and one Marcus Schaeffer to a neighborhood grocery store; that Williams parked the car near the entrance but remained in the car with Robert while Perry and Schaeffer entered the store to purchase four bottles of soda pop. Williams and Robert saw defendant enter and later come out of the store and stand in front of it. Both said that Perry then came out of the store and, when defendant grabbed his coat lapels, Robert left the car and tapped defendant on the shoulder. Robert also testified that not knowing what the argument was about or whether defendant and his brother were friends, he tapped defendant on the shoulder and, when he asked him what he was doing, defendant turned and stabbed him with a knife. Williams, who had remained in the car, also testified that when Robert tapped defendant's shoulder he turned and stabbed Robert.

Perry testified that defendant approached him in the store, grabbed him by the coat lapels and said, "Give me my money, punk," and he replied that he did not owe defendant any money. At this point, the owner of the store intervened, and defendant left. Perry said that when he walked out, defendant grabbed him by his coat lapels and again asked him for money; that Robert then got out of the car and tapped defendant on the shoulder and, when he asked defendant what he was doing, the latter pulled out a knife, spun around, and stabbed Robert. Marcus Schaeffer did not testify.

Defendant was the sole witness in his defense, and he testified that he followed Perry into the store where he asked him for payment of a $30 gambling debt that Perry owed him from a dice game. The conversation continued outside the store, where defendant said he and Perry grabbed each other, but when he was grabbed from behind by Robert he released Perry, who proceeded to break a bottle of soda pop and approached him with the broken bottle. To protect himself, he said he reached into his pants pocket, took out his pocket knife, pulled it open with one hand, turned and stabbed Robert.

OPINION

Defendant initially contends the State failed to meet its burden of proving beyond a reasonable doubt that he did not act in self-defense.

• 1 Section 7-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 7-1) provides as follows:

"A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony." (Ill. Rev. Stat. 1975, ch. 38, par. 7-1).

Once defendant presents some evidence of self-defense, the State must overcome it by proof beyond a reasonable doubt to sustain a conviction. (People v. Wood (1974), 24 Ill. App.3d 15, 320 N.E.2d 32; People v. Halley (1973), 13 Ill. App.3d 719, 300 N.E.2d 645.) Whether one acted in self-defense is a question to be determined by the trier of fact (People v. Owens (1977), 45 Ill. App.3d 1012, 360 N.E.2d 481; People v. Spriggs (1974), 20 Ill. App.3d 804, 314 N.E.2d 573), and its determination is not to be disturbed on review unless it is so unsatisfactory as to raise a reasonable doubt of defendant's guilt (People v. Rowe (1977), 45 Ill. App.3d 1040, 360 N.E.2d 436; People v. Owens).

In the instant case, the only evidence of self-defense was defendant's testimony that Robert grabbed him from behind and, when Perry came toward him with a broken bottle, he pulled out his knife and stabbed Robert. This testimony was in direct conflict with that of the three State's witnesses, who testified that Robert merely tapped defendant on the shoulder and, when he did so, defendant swung around and stabbed him.

A reviewing court should not substitute its judgment for that of the trier of fact on the credibility of witnesses unless the proof is so unsatisfactory as to warrant a reasonable doubt of guilt. People v. Stewart (1973), 12 Ill. App.3d 226, 297 N.E.2d 391.

• 2 Here, in finding defendant guilty of two charges of aggravated battery, it is obvious that the trial court chose to believe the testimony of the State's witnesses. This was within its province, as the trier of fact need not accept as true the testimony of defendant on the issue of self-defense. (People v. Muldrow (1975), 30 Ill. App.3d 209, 332 N.E.2d 664.) By its finding, the court necessarily found that the State's evidence overcame its burden of establishing beyond a reasonable doubt that defendant was not acting in self-defense. We believe the record supports this determination of the court.

• 3, 4 Moreover, a person seeking to avail himself of the defense of self-defense must not be the aggressor. (Ill. Ann. Stat. 1975, ch. 38, par. 7-1, Committee Comments, at 364 (Smith-Hurd 1972); People v. Oliver (1973), 11 Ill. App.3d 152, 296 N.E.2d 70.) An ...


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