APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
CROWLEY, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Defendant was charged by complaint with the battery of Ben Spinato. (Ill. Rev. Stat. 1977, ch. 38, par. 12-3.) Following a bench trial, defendant was found guilty and sentenced to one year probation. On appeal, he contends that (1) the State failed to prove, beyond a reasonable doubt, that he was not acting in self-defense, (2) the trial court erred in refusing to consider the unexplained failure of the State to produce a material witness. We affirm.
Ben Spinato, the complainant, testified that he was employed as a truck driver for the city's Department of Streets and Sanitation. On April 11, 1977, at approximately 9:30 a.m., he and three laborers were working in the alley in the 2400 block of West Haddon. Spinato was in the process of backing the truck when he noticed a car parked in the alley. He stopped approximately 10 feet in front of the car and honked his horn twice. A man identified as defendant approached the driver's side of the truck where Spinato was seated, and told him to watch out for his car. Spinato replied that he had a job to do. Defendant became "abusive" and stated that he was a taxpayer, that he would move the car when he was ready to do so, and that he would call the police. Spinato started to roll up the window and defendant who was standing on the running board spat at him and hit him in the eye. Spinato got out of the truck in order to defend himself and noticed an old woman standing in his way. Defendant hit him two or three more times. Spinato did not hit defendant, and returned to the truck. As Spinato placed his hand on the door of the truck he turned around and saw defendant holding a chair in his hand. Defendant hit him over the back with it and Spinato fell. He subsequently stood up, got into the truck, and drove to a store where he went inside and called the police.
Thomas Tortortinllo testified that on April 11, 1977 between 9 and 10 a.m. he was working as a laborer emptying garbage cans in the alley on West Haddon when he heard noises. He started walking towards the garbage truck which was about 50 feet or 10 to 15 buildings away, and he observed a man identified as defendant pick up a chair. The driver and defendant ran in front of the truck and Tortortinllo's view was obstructed. He also noticed a woman standing in a gangway about 3 feet away from the driver. The truck was running during these events.
During cross-examination, Tortortinllo stated that his attention was brought to the incident because another employee named Adolph approached him and the other laborers and told them that there was "something going on" between the driver and defendant.
William Bracy, another laborer working in the alley, testified that from 50 feet away, he observed the truck back into the alley and stop. He noticed that defendant and the driver were having trouble, although he could not hear or see anything over the loud noise of the truck. He further observed a woman in the alley close to a fence and to the north of the truck.
During cross-examination, Bracy stated that he heard the disturbance over the sound of the truck. He further approximated that within the 50-foot distance from where he was standing to the truck, there were three buildings.
Chicago Police Officer McCarthy testified that he was on duty on April 11, 1977. At approximately 10 a.m. he proceeded to the 2400 block on Haddon where he and his partner "broke a verbal argument" between defendant and Spinato. Spinato was bleeding and they took him to the hospital. Defendant was placed under arrest. During cross-examination McCarthy stated that defendant and his mother were also taken to the hospital.
Defendant, testifying in his own behalf, stated that he lived with his mother at 2449 West Haddon. At 9:30 a.m. on April 11, 1977, he, his mother and Bacillio Alvarez, a neighbor, left their building and proceeded to the garage. Alvarez went to find tools; defendant went to get the car; and his mother waited next to the garage, inside the gate near the alley.
Defendant pulled his car out of the garage and drove down the alley about 12 feet. He then exited from the car in order to close the overhang door of his garage. Before he reached the door, he noticed that the driver of a garbage truck was driving down the alley at a fast rate of speed and almost hit his car. The driver, identified as Spinato, began to call defendant and his mother "dirty names." After the onslaught of foul language, defendant told him to behave himself or he would call the police. Spinato continued to call them names and defendant repeated that he would report him and that he was "sick."
Spinato jumped out of the truck and swung, and defendant ran inside the gate. Spinato tried to force his way through and defendant's mother tried to close the gate. Spinato pushed her, picked up sticks and hit her with the sticks. He then hit defendant with a stick and punched him. Defendant tried to protect himself, and admitted that he might have punched Spinato.
Defendant proceeded through the gangway to the front of his house in order to look for the police but could not find them. When he returned to the alley, Spinato was attempting to back up the truck. Defendant told him that he was not going anywhere because defendant intended to report him to the police. Spinato jumped out of the truck and chased him down the street but did not catch him. Spinato went to the corner in order to make a phone call. When defendant returned to the alley, he put his car back into the garage and went upstairs and called the police. When the police ...