APPEAL from the Circuit Court of Cook County; the Hon. JAMES
E. STRUNCK, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was found guilty of aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12-4) and sentenced to a term of three to nine years. On appeal he contends that he was denied a fair trial where the prosecutor implied in closing argument that defendant's prior conviction was evidence of guilt in the present case.
At trial the following pertinent facts were adduced.
At approximately 5 p.m. on April 22, 1976, he drove to the Kentucky Fried Chicken restaurant at 2335 W. Fullerton Avenue, Chicago, Illinois, accompanied by his 11-year-old daughter, Julia, and his common-law wife, Gladys Adams. He entered the restaurant's parking lot from Fullerton Avenue via the only entrance and parked. Julia went into the restaurant to buy chicken, and when she returned they were ready to leave. After backing his car out of his parking space, he noticed that another car "that was coming in stayed in the blocking position at the entrance." Although he "honked" to signal the car to move, the driver ignored the signal and instead went into the restaurant. He then went into the restaurant to ask the driver to move the car. The driver did not answer his first request. After the third request to move the car, the driver answered, "Son of a bitch, don't worry me. I am going out to move the car." The driver then left the restaurant and walked toward the car. Berrones followed him four or five feet behind. He observed the driver putting his right hand in his pocket. Thinking the driver was reaching for a key, he continued to walk until he was next to him. At that point the driver "turned around and he cut me" in the face. Berrones hit him in the face and a struggle ensued in which the driver "was able to cut me about an inch and a half in my stomach." The police arrived about a minute later, halted the fight and took Berrones to St. Elizabeth's Hospital where he was admitted with wounds to the face, stomach and right arm. He did not strike his assailant prior to being cut in the face and was not carrying a weapon. He identified the driver as the defendant, Vidal Rivera.
On cross-examination Berrones admitted that he continued to punch and kick Rivera after being cut and that the police had to pull him away from the fight. Although he stated he entered the restaurant about a minute after defendant, he did recall testifying at a preliminary hearing that he waited "five or ten minutes" before following defendant. He denied losing his temper and pushing defendant prior to being cut. The police did not question him or his wife concerning the occurrence.
She is the common-law wife of Eugenio Berrones. She substantially corroborated the testimony of Eugenio Berrones. As her husband started to pull out of the parking lot to return home, another car "pulled up and blocked him." The other car was pulling into the parking lot and was "a little off the street." Berrones honked the horn for the other car to move, but the driver "just got out of the car and went in the restaurant." Her husband also left his car and went into the restaurant. She identified the defendant as the driver of the other car. She observed the defendant exit the restaurant followed by Berrones. The defendant put his hand into his pocket, turned around, and cut Berrones in the face. She did not, however, see a knife. Berrones then hit the defendant and held his hand. She was in the front seat of the Berrones' automobile during this occurrence.
On cross-examination she admitted that a police officer had to pull Berrones off the defendant. Although there was "blood all over everything," she did not see any on the defendant's face.
William Ryan, Chicago Police Officer
On April 22, 1976, he was driving on patrol on Fullerton Avenue at approximately Western Avenue and was accompanied by Officer Christopher Pilafas. When at the intersection of Fullerton Avenue and Western Avenue he observed two men fighting in the parking lot of a Kentucky Fried Chicken restaurant. Approaching the parking lot, he observed two automobiles blocking the entrance. He and Pilafas exited the patrol car and separated the men who were fighting. He identified the defendant as the man he pulled away from Berrones. Defendant placed the knife which he was holding on the trunk of Berrones' car and was taken into custody. He observed that defendant had a "slight bruise on the left cheek just below the eye."
At the police station defendant admitted that he drew a knife during a fight over a parking space and also said that Berrones claimed, "I have got one, too." Defendant then stated that "I slapped him across the face and I should have killed him and I would do it again." Defendant identified a knife which was on the table in the review room at the police station as his and demonstrated how he would slash with the knife "cupped in his hand, between the fingers." However, on cross-examination Officer Ryan admitted that he did not record this demonstration when he made out his police report. Nor did he record defendant's statement that Berrones struck the first blow.
Christopher Pilafas, Chicago Police Officer
He substantially corroborated the testimony of Officer Ryan adding that at the police station defendant admitted to the fight by stating, "I stabbed him with the knife because he is bigger than I am. I fight to win. I didn't want to lose." Defendant also said, "I should have killed him." On cross-examination Pilafas stated that he did not remember seeing any blood coming from defendant's nose or mouth. He admitted that he did not examine as to whether defendant was bleeding inside the mouth or nose.
He is a medical doctor employed primarily in the emergency rooms of St. Elizabeth's Hospital and St. Anne's Hospital. He examined Eugenio Berrones at approximately 5:15 p.m. on April 22, 1976, in the emergency room of St. Elizabeth's Hospital. He discovered wounds on the face and left ...