APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. CURRY, Judge, presiding.
MR. PRESIDING JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 6, 1978.
The defendants, Bob N. Jovicevic, Rajko Jovicevic and Raymond J. Strama were each charged with attempt (murder), aggravated battery causing permanent disability, aggravated battery causing permanent disfigurement, and aggravated battery causing great bodily harm. The aggravated battery count alleging permanent disfigurement was dismissed on the defendants' motion for a directed verdict at the close of the State's case. Following a jury trial, all three defendants were found guilty of aggravated battery causing great bodily harm and not guilty on the remaining counts. Bob Jovicevic was sentenced to 2 to 6 years in the Illinois Department of Corrections; Rajko Jovicevic and Raymond Strama were each sentenced to 1 to 3 years. The defendants appeal from these judgments and sentences. The Jovicevic brothers, who were represented by the same attorney at trial, raise the following issues on appeal: (1) whether Rajko Jovicevic was prejudiced by being represented by the same attorney as his brother Bob Jovicevic; (2) whether the trial court failed to adequately and fully instruct the jury on the law of accountability; and (3) whether the trial court acted arbitrarily and abused its discretion in denying the defendants' request for probation. Defendant Raymond Strama, in addition to arguing, as do the Jovicevic brothers, that the trial court erred in imposing the sentences and denying probation also questions: (1) whether the trial court erred in holding that section 115-4(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 115-4(f)) was unconstitutional and thereby denied the defendant his statutory and substantive right to conduct voir dire examination of prospective jurors; and (2) whether the State sustained its burden of proving the defendant guilty of aggravated battery causing great bodily harm beyond a reasonable doubt. The Jovicevics adopt Strama's arguments insofar as they apply to them.
At around 1:30 a.m. on December 1, 1974, four persons, three of whom were identified as these defendants, were observed beating Craig Morrissey outside Papas III, a tavern on North Lincoln Avenue in Chicago. The fourth person was not identified. The State presented five witnesses who had been patrons of Papas III that night and who went outside to observe or to attempt to break up the fight.
Gene Harris, an off-duty Chicago police officer, was in the bar that evening. He testified that he saw the defendants and a fourth man dragging Morrissey toward the front of the bar. He saw the owner of the tavern, Mr. Dispensa, trying to push the defendants and the other man away from Morrissey. Harris did not see Morrissey throw a punch. The four then continued to drag Morrissey out of the tavern. At that point a waitress came up to Harris and said there was a fight going on outside and that he had better break it up. Officer Harris then went to the front window of the tavern where he could see the three defendants and the fourth individual beating Morrissey outside on the curb by a parking meter. He testified that all three defendants were punching Morrissey as Morrissey stood and attempted to cover himself.
The State's four other occurrence witnesses were also in the bar at this time and testified to seeing the defendants and another man beating Morrissey. William Block, Steven Kern, Lawrence Moore and Andrew Groveman were in the front area of the bar. Andrew Groveman testified that as he stood at the bar he noticed someone being escorted out the door. He then noticed a commotion outside through the front window of the bar. He saw the three defendants and a fourth individual beating Morrissey by punching and kicking. He stated that Morrissey was outside in front of the bar between two parked cars leaning on the trunk of the car.
William Block also saw the defendants and the fourth man beating Morrissey. He stated that they were throwing punches at him "like a punching bag." He did not see them kick Morrissey and did not see Morrissey strike them back.
Lawrence Moore testified that one of the four held Morrissey while the others struck him with their fists in the midsection. Moore identified the defendants Strama and Bob Jovicevic as two of the assailants.
Steven Kern testified that he saw the fight through the front window and saw four men striking Morrissey. They punched him from his head to his waist and when he slumped over they kicked him. He stated that the victim did not throw any punches. Kern identified the defendants as three of the assailants.
Block, Moore, Kern and Groveman all went outside to intercede. They testified that it was snowing and slippery out. Block and Kern tried to pull the defendants away from Morrissey, but were pushed aside. They then went back into Papas III and asked someone to call the police. When they came back outside, Harris was there. Harris testified that when he came out of the bar Morrissey was on the ground and that the defendants were kicking him. Harris identified himself as a police officer and told the defendants to break it up. Two or three of the assailants led by Strama then started to go after Harris. Harris again identified himself as a police officer and pulled his gun out and held it in the air. Block testified that Strama and Rajko Jovicevic and another man were moving toward Harris with clenched fists. Harris testified that Strama said, "Shoot me" and continued toward him. Harris stated that he hit Strama across his face with the barrel of the gun as Strama was trying to grab him. At that point Block and Kern approached Strama and attempted to pull him away from Harris. Strama then punched Block in the jaw and Kern wrestled Strama to the ground.
While this secondary altercation ensued, Morrissey was standing where he had been attacked. Moore described him as being semiconscious. Block testified that Morrissey was "out of it" and "punch drunk." Harris stated that Morrissey was dazed and holding himself up by leaning against a parking meter. At this point, Bob Jovicevic walked up to Morrissey and "cold cocked" him. Block testified that Bob Jovicevic struck Morrissey in the face causing him to fall flat on his back to the street. Morrissey was unconscious after receiving this blow to the head. Moore testified that Bob Jovicevic used his whole body in hitting Morrissey in the face. Uniformed police then arrived and Morrissey was taken to Illinois Masonic Hospital. None of the State's witnesses knew or had seen Craig Morrissey before the night of this occurrence.
Dr. Jose Salazar, a neurosurgeon, treated Morrissey at Illinois Masonic Hospital. Dr. Salazar testified that he first observed and examined Morrissey on December 2, 1974, in the intensive care unit. Dr. Salazar was informed by Dr. Smith, a resident neurosurgeon who had initially examined Morrissey in the emergency room, that Morrissey had suffered a grand mal seizure in the emergency room. Dr. Smith had initially diagnosed a head injury with a possible fracture at the base of the skull and mentioned that Morrissey had the smell of alcohol on his breath. Drs. Smith and Salazar discussed the possibility that Morrissey had alcoholic withdrawal seizures, but ruled this out because such seizures only occur after an alcoholic has been deprived of alcohol for several days. Dr. Salazar diagnosed the seizure as grand mal seizure resulting from a dysfunction of the brain following trauma. On cross-examination, Dr. Salazar admitted that in the case of a person with epilepsy, a seizure could be precipitated by the use of alcohol but that he had no knowledge that Morrissey had been an epileptic. Morrissey denied any prior history of epilepsy. When Dr. Salazar examined Morrissey he noted that Morrissey complained that his head hurt. Dr. Salazar described him as confused, lethargic, restless, thrashing around and very uncooperative. He had a discoloration behind his left ear and also had black and blue marks around the eyes and lids. There was a weakness of the left side of Morrissey's face and blood behind the left eardrum. This indicated head injury or dysfunction of the nervous system. Dr. Salazar diagnosed a fracture on the left side of the base of the skull. On December 6, 1974, an angiogram was performed which showed a swelling on the left side of the brain. The doctor also noted that Morrissey had difficulty speaking because of the injury to the left side of the brain which controls speech. He was given medication to reduce the pressure on his brain and to prevent seizures. Morrissey was discharged on December 21, 1974, to his father's care. Dr. Salazar testified that tests had shown changes in Morrissey's brain and that these changes indicated the possibility of future seizures. Dr. Salazar could not say whether these changes were temporary or permanent.
All three defendants testified on their own behalf. The Jovicevics' sister, Mary Feher, and Bob's wife, Victoria, were also present on the night in question and testified for the defense. At approximately 10 p.m. on November 30, 1974, Bob and Victoria Jovicevic and Andrew and Mary Feher arrived at Papas III. They joined Rajko Jovicevic, Ray Strama, Mike and Judy Marroquin and Patrick Witke and sat at a table near the bar. The men had four or five pitchers of beer between 9 p.m. and 1 a.m. and the women drank Coca-cola. The witnesses had noticed Morrissey sitting with a group of five or six people at a nearby booth.
Victoria Jovicevic testified that at about 12:45 a.m. she was playing a game on the bowling machine with Andrew and Mary Feher when Morrissey came up to her and said "Hey, baby, what's that on your chest?" She ignored him and he continued past her to the men's restroom. He returned a few minutes later and repeated something to the same effect and she again said nothing.
When they finished the bowling game, they returned to their table. Victoria's husband, the defendant Bob Jovicevic, told her he was going to the washroom and left. Victoria testified that she was standing next to her chair and was telling her brother-in-law Rajko that she wanted another Coca-cola, when Morrissey came up behind her, forcibly put his hand down the back of her pants and grabbed her. At this point, her husband was still in the washroom. When Rajko told Morrissey to get his hands off Victoria, Morrissey laughed and grabbed harder. Morrissey then swore at Rajko and struck him on the shoulder. Rajko testified that he then grabbed Morrissey and pushed him back. Mary Feher was at the table and testified that after Morrissey hit Rajko, Rajko hit him back. Victoria stated that they shoved each other. Both Rajko and Victoria testified that at this point the defendant Raymond Strama grabbed Rajko. However, Strama denied that he ever touched Rajko or Morrissey. A crowd formed and everyone was pushed toward the front door. The group continued out onto the sidewalk in front of Papas III. Morrissey and Rajko fell down to the ground and were rolling around, grabbing each other and trying to strike one another. Strama grabbed Rajko in an effort to pull him off Morrissey. Strama testified that as he was grabbing Rajko, Harris grabbed him from behind and told him to break it up. Strama said to Harris that he was trying to break it up, but when Harris pulled a ...