APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
The defendant, Herriberto Rodriguez, was found guilty by a jury of aggravated battery and attempt murder, and sentenced to a term of from 4 to 12 years. He was convicted for shooting Raymond Torres.
The shooting occurred in the defendant's tavern where Torres was a patron. Torres had arrived there with his friend, Jorge Medina, at about 9 p.m. After Torres and Medina had played pool and had several beers, they were joined by Torres' wife, her granddaughter and a friend. The shooting took place approximately 2 hours after Torres and Medina arrived at the tavern.
Torres testified that he was standing near the bar waiting for a beer when he was shot in the hand and right side by the defendant, who was not behind the bar, but on the side of the pool table opposite Torres. Torres denied that he had any weapon in his hand at the time of the shooting, and also denied that he said anything to the defendant about a stickup. He testified that he did not remember that the defendant said anything to him before or after the shooting. When the defendant started shooting at him, Torres said he tried to protect himself by crawling behind the bar.
Medina's testimony was that he observed the shooting while sitting at a table approximately 8 feet from Torres, who had nothing in his hands. He said that the defendant was about 15 to 20 feet away, and that the tavern was crowded with 25 to 30 people. He denied telling any police officer that he did not see any of the shooting because he was in the washroom.
Police officer Henry Weidebush, called as a defense witness, said he investigated the shooting immediately after it took place. His report indicated Medina told him he was in the washroom when the shots were fired. But Weidebush further testified that he realized his report was erroneous when he sat in on a statement Medina was giving to an assistant State's Attorney about 6 hours after the shooting.
The defendant's version of the incident was that shortly before 11 p.m. Torres entered the tavern and walked behind the bar. The defendant claimed that he was working alone behind the bar, that he did not know Torres had been in the tavern for 2 hours before the shooting and that he first saw Torres when Torres came behind the bar. The defendant said he never had seen Torres; nor had Torres spoken to him. Torres had a jacket on his left arm, and his right arm was in his pocket. When Torres announced a stickup, the defendant reached for his gun behind the bar and fired one shot at Torres, shooting him in his arm. The defendant immediately called the police. The defendant denied being outside the bar near the pool table when the shot was fired, insisting he was behind the bar when he shot Torres.
Carlos Vasquez, who worked as a security guard at the defendant's tavern, testified for the State in rebuttal that when he arrived at the tavern about 7 p.m., the defendant was walking around talking with customers. Another bartender was serving drinks. At about 11 p.m. Vasquez was alone in the washroom and, hearing something sounding like a shot, he looked out and saw the defendant standing near the pool table with a gun in his hand and with two men holding him, one on each side. Vasquez walked a few steps outside the washroom and saw Torres lying on the floor inside the bar. Vasquez went over to Torres, who was bleeding a great deal, and knelt beside him. Vasquez did not see any coat or jacket or anything near Torres as he was lying on the floor.
Vasquez also testified that someone other than the defendant ran toward the door with the gun, and Vasquez told the person to stop and give the gun to him. After Vasquez had the gun, the defendant in turn told Vasquez to give him the gun and said, "If you don't give me the gun I will tell the police that you shot him."
Torres testified that he had a jacket that evening but that he was not wearing it at the time of the shooting. He stated that he took off the jacket and put it on the back of a chair when he started to play pool. The jacket was offered in evidence by the State without objection by the defendant, and the defendant acknowledged that the jacket had neither bullet holes nor blood when introduced.
On appeal the defendant questions whether he was proved guilty beyond a reasonable doubt. He also objects to what he claims were the following five prosecutorial errors: a request made during the defendant's closing argument to reopen the State's case; a reference to probation during the prosecutor's rebuttal argument; inquiries into whether Torres was Catholic and received the last rites of the Catholic church; the improper rehabilitation of the State's witness Medina through the testimony of police officer Weidebush that the witness had made prior consistent statements; and comment in the prosecutor's initial closing argument on the defendant's failure to call certain witnesses. Finally, the defendant contends that the trial court erred by failing to instruct the jury that the State was required to prove beyond a reasonable doubt that the defendant was not justified in using the amount of force he did to protect his person.
In regard to the defendant's first contention that the evidence was insufficient to sustain his convictions, the State maintains that the testimony of the victim and his friend Medina, plus Vasquez's rebuttal testimony and the condition of the victim's jacket, when contrasted with the defendant's improbable version of the events leading to the shooting, establish the defendant's guilt beyond a reasonable doubt. We agree with the State's position.
The positive and credible testimony of a single witness is sufficient to sustain a conviction, even though that testimony is contradicted by the accused. (People v. Echoles (1976), 36 Ill. App.3d 845, 853, 344 N.E.2d 620.) Resolution of conflicts in evidence and a determination of the credibility of the witnesses and the weight to be accorded their testimony is for the trier of fact, whose determinations will not be reversed unless the evidence is so unsatisfactory, improbable or impalpable as to create a reasonable doubt of the defendant's guilt. People v. Akis (1976), 63 Ill.2d 296, 298-99, 347 N.E.2d 733.
Here, the evidence was sufficient for the jury to conclude that when the defendant shot Torres, he did not reasonably believe that his conduct was necessary to prevent the commission of a forcible felony. (Ill. Rev. Stat. 1975, ch. 38, par. 7-1.) There was evidence that at the time that he was shot, Torres had no weapon, was not saying ...