APPEAL from the Circuit Court of Cook County; the Hon. AUBREY
F. KAPLAN, Judge, presiding.
MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Defendant appeals from his jury conviction of voluntary manslaughter arising out of events occurring during an early morning imbroglio on June 21, 1975, at the intersection of Ogden Avenue and Rose Street in the Village of Lyons. He was sentenced to a prison term of from three to twelve years.
Defendant raises eight issues in this appeal: whether police improperly placed him in lineup without the presence of his counsel after he had been formally charged; whether it was error to tender to the jury a non-IPI instruction which did not correctly state the law; whether defendant could have caused the victim's death in the light of testimony indicating that death resulted from a skull fracture with no evidence that defendant hit the victim in the head; whether the State proved beyond a reasonable doubt that defendant attacked the victim; whether the State proved beyond a reasonable doubt that defendant's use of force in self-defense was unreasonable; whether it was error to exclude certain relevant defense evidence; whether it was error to sustain an objection to a defense question because the court and opposing counsel did not understand the medical terminology; and whether the State's failure to comply with a discovery order constituted reversible error. For the reasons set forth below, we affirm.
From the record it appears that a street brawl developed at the intersection between a discotheque, the Red Anchor Inn (hereinafter "Inn"), and the Chalet Motel (hereinafter "Motel"). Thirty or more people were milling about in this area and were engaged in the battle directly or were onlookers. Among those involved in the altercation were William Hornick, who had been a patron at the Inn, and who died several hours after the fight from injuries he sustained, and defendant Guy Giovannetti, *fn1 an employee of the Inn, variously described as a "doorman" and "bouncer". Police were called and conducted an investigation, thereafter filing a complaint charging Giovannetti with Hornick's murder. Defendant was arrested that same day.
On June 22, 1975 a lineup was held consisting of seven white males, including defendant, five with mustaches, all of defendant's approximate age and build. Giovannetti himself was 6'3" tall, weighed 310 pounds and wore a mustache at the time of his arrest. One participant had "sandy" colored hair; defendant has red hair.
Giovannetti arrived at the police station for the lineup in handcuffs, but was not seen by the witnesses prior to the lineup. Three eyewitnesses attended: Jerry Meeks and George Talley, who had been patrons of the Inn along with the decedent during the events leading to his death, and Leonard Barido, a night clerk at the Motel, who had observed the battle. The three eyewitnesses were placed in a room together with no police officers present and defendant was kept in a separate room away from where he could be seen by the witnesses.
Talley was the first witness to view the lineup; he identified defendant as having attacked the deceased. Meeks was the second witness; he identified defendant as the assailant. Barido indicated that he could not positively identify the assailant by face but that defendant fit his impression of the physical build of the assailant. The investigating police officer, Sergeant Frank Krall, testified that no photographs of defendant were shown to any of the witnesses before the lineup, that they were not told to identify the defendant, nor were they told in which position defendant would be. The lineup identifications were corroborated by photographic identification provided by a fourth witness, Earl Boswell, a week after the lineup took place. Color photographs were taken of the individuals who participated in the lineup.
On March 10, 1977, a hearing on defendant's motion to suppress the identification resulting from the lineup was held. Sergeant Krall testified to the above-described events, corroborated by the testimony of Officer John Pankow, who aided in the conduct of the lineup, as well as by the testimony of Talley, Meeks, Barido and Boswell. Each eyewitness testified that defendant was not identified as the suspect prior to the lineup and that they were not asked to select defendant as the assailant. Defendant's motion alleged, inter alia, that Giovannetti had been denied his right to counsel during the lineup and that other persons participating in the lineup did not have an appearance similar to his own. Following argument, the trial court denied the motion to suppress, holding that notwithstanding the absence of an attorney there was no showing that the police did anything in any way to suggest to the witnesses the identity of anyone or who they wanted. The court also held that the photographic identification by Boswell complied with constitutional strictures and denied the motion to suppress his identification as well.
The case went to trial on March 16, 1977. The record is replete with extensive and often contradictory testimony. The events shown by the testimony revealed that Hornick, the deceased, drove to the Inn together with a friend, Timothy Filips, at about 1 a.m. on June 21, 1975, after they had been previously drinking together for several hours. They met Meeks, Talley and Boswell at the Inn. Because the bar was crowded they were unable to find seats and stood near the bar. An argument ensued between the group and defendant over the group's obstruction of the waitresses' service area at the end of the bar. This argument developed into a personal confrontation between defendant and decedent. At about 4 a.m., Filips was involved in an argument over closing time with someone else and he was knocked down and removed bodily from the Inn to the outdoors where he was kicked and beaten by one of the bouncers other than defendant.
Meeks, Talley, Boswell and Hornick joined Filips outside and the group walked away from the Inn toward the Motel. As the group reached the parking lot of the Motel they were attacked by a second group of men who followed them there. Pieces of 2" x 4" wood were used as clubs in the fight. Defendant's actions were described by various witnesses as follows. Meeks saw Hornick lying in the street on his back, immobile and holding no weapon. He saw defendant run up to Hornick, jump in the air and land with both knees on Hornick's chest and stomach. Meeks and Talley approached defendant and told him to get off the decedent, whereupon defendant responded, "go to hell, you are lucky it's not you." Talley saw Hornick either being picked up and dropped, or else thrown to the ground by someone. Thereafter he saw defendant jump up in the air and come down with both knees on Hornick's midsection and thereafter sat on Hornick. Boswell saw Hornick lying face up on the ground after the fighting had stopped, observed defendant jump in the air twice and come down on Hornick's stomach with his knees on each occasion. Boswell admitted to being kind of "hazy or dizzy" at the time from a beating administered to him but stated that he "knew enough" and had "seen enough" to support his testimony. Barido testified that the area was excellently illuminated. From the Motel window he saw a man, slightly built, lying motionless on the ground without a weapon. He then saw defendant jump twice upon the midsection of this man, the decedent. An off-duty Chicago police officer, Robert Thomas, came upon the well-lighted scene while driving his auto at approximately 3:55 a.m. After encountering a disorderly crowd of 30 to 50 people in the street he saw defendant throw a man onto the ground, kick him, jump onto his midsection and, as he did so, let out a loud yell. No one was helping defendant; neither defendant nor decedent had any weapons. Thomas thereafter saw defendant drag decedent on the ground across the street by his belt. Filips testified that he was beaten inside the Inn and was thrown out bodily when he engaged in a dispute with someone over closing time. He walked with the group outside toward the intersection and was struck on the head and rendered unconscious. When he revived, Talley told him to run, which he did, lost consciousness again, and awoke one block away after daybreak.
Hornick was put into a green automobile when a police car arrived driven by Sergeant Krall. Krall testified that a man and woman inside the green auto told him that they were taking the injured man to the hospital. Krall examined Hornick briefly and found him battered about the face, moaning and moving his arms and legs about. He was unable to answer questions intelligibly, but did not look that badly injured to Krall. Rather than remove him, Krall ordered the driver of the green station wagon to take him to the hospital. Hornick apparently died some time before 8 a.m. at the LaGrange Community Hospital.
Dr. Joseph Claparols performed the autopsy on the body of the decedent that day. External examination revealed a blackened right eye, a small laceration of the right eyebrow, abrasions on the right forehead area going into the scalp region approximately three or four inches long and one inch wide, abrasions of the right cheek and on the left side of the face and on the neck. There was an abrasion on the left side of the chest and bruises on the back and in the pelvic area. Internal examination disclosed hemorrhages in the chest area, extensive hemorrhaging of the scalp and back of the head, contusion of the brain, two fractures of the skull and a fractured right cheek. Decedent's lungs had hemorrhaged and had sustained bruises and contusions. Rib fractures on the left side included the second, third, fourth, fifth, sixth and seventh ribs and also the second rib on the right side with hemorrhage areas on the inside surfaces and between the ribs. There was a severance of the left lobe of the liver from the right lobe, which resulted in a complete separation, except at the top near the diaphragm. A severe blow would be necessary to cause the liver laceration, but after it was damaged, cardiac resuscitation might cause additional damage. Dr. Claparols' medical opinion was that the cause of death of the victim was cranio-cerebral injury with skull fracture associated with liver laceration. On cross-examination he testified that the protocol subscribed by him after the autopsy read that the cause of death was "massive laceration of liver in association with cranio-cerebral injury with skull fracture."
The manager of the Inn, Samuel Mottlow, testified for the defense. After the fighting inside the Inn had been moved outside, he went out and told everyone to go home and then re-entered the bar. When he went back outside some time later he did not know what happened, but there were bodies all over. Richard Girdler, a customer at the time of the altercation, testified for the defense. He saw four or five men enter the Inn and sit down. They started an argument and began fighting, which defendant and two other bouncers attempted to stop. They were asked to leave but they refused and had to be escorted out. After being put out of the bar, Hornick and his companions turned back and said "we will get back at you and everybody for kicking us out of the Red Anchor." Girdler went out also to see what was happening. He saw decedent attack Giovannetti with a 2" x 4" while defendant was going away from the fight; defendant took the 2" x 4" from decedent, threw it away and just pushed decedent, who then grabbed defendant's legs and pulled him down, defendant falling forward and decedent behind him. He then left the scene to take an injured friend to the hospital.
James Paleczny, a customer at the Inn, saw the fight going on in the middle of the street involving 25 men armed with 2" x 4"s, stop-signs, crowbars and tire irons. He stood outside next to defendant and another man. Defendant was simply standing with his arms folded watching the fight when someone swung a tire iron at him. He did not know what happened between defendant and his attacker because he didn't keep an eye on them, walking away while they were still fighting. He did not see Giovannetti when the latter left the site. Don Rammon, an employee serving as doorman for the Inn, was one of a group of men helping to remove some people from inside the tavern that had been causing trouble. During the course of their removal, kicks and punches were exchanged and some people fell to the ground. He did not see the altercation outside involving decedent. Joseph Sollitt, a customer of the Inn, was outside and observed the beginnings of the fight. He was attempting to aid one of the combatants who had been struck by a 2" x 4" when defendant came by, grabbed his arm and said, "come on, let's get the hell out of here, we don't need this." His attention was never drawn to Giovannetti before that. Kenneth Pierson was a patron of the disco. He went outside and saw someone coming at defendant, who sidestepped and threw the former to the ground; they both then fell down. In an earlier statement given to police, Pierson testified that defendant threw his weight upon the man on the ground, over his chest. Dennis Kraska, a disc jockey at the Inn, but sitting as a patron in the establishment at the time of the incident in question, was outside where he observed defendant and decedent making bodily contact with each other and go down. After watching Giovannetti starting to get up, his attention was diverted; he later saw defendant walking away. He observed another individual, one Steve Messina, grab Hornick by the belt and part of his shirt and drag him out of the street where he had been lying after the fight, dropping him down on a telephone pole which had been lying on the ground. On cross-examination Kvaska testified that he did not know what occurred between defendant and the decedent while they were both on the ground.
Dr. Charles R. Rimpla, a member of the medical staff at LaGrange Community Hospital testified that he treated decedent William Hornick in the emergency room at about 4:10 a.m. He had no independent recollection of the decedent's mode of arrival at the hospital, but a copy of the emergency room record stated "walk," although he was not in the emergency room until five minutes after decedent's arrival. Decedent was unable to give him a history but revealed his name and birthdate. He was delirious and was "moving about very anxious." The emergency room record showed that Hornick sustained a cardiac arrest at 5:55 a.m. and was given cardiac shock consisting of applying two paddles causing electric current to go through the heart. Cardiac massage was also utilized. Rimpla, the nurse, a medical technician and other hospital personnel participated in administering the cardiac massage. This massage consists of applying pressure directly over the lower portion of the sternum under which the liver is situated. This procedure could have an effect upon the liver. At the time Rimpla first saw the decedent, he was of the opinion that he was in a very serious condition. Rimpla noticed two kinds of injuries at the time, one to the head area and the other to the lower left chest and upper abdomen left.
Dr. Steven Medgyesey testified for defendant. In answer to a hypothetical question, it was his opinion that one who had sustained injuries resulting in a massive laceration and partial evulsion of the liver could survive for a period of time less than an hour; probably minutes. Further testifying on a hypothetical basis, it was his opinion that resuscitation efforts could have considerably increased the size of a much smaller liver injury. Once the capsule of the liver is torn, even a mild injury could result in an extension of the tear and further hemorrhage. On cross-examination, he testified that a 250- to 300-pound man who had jumped up in the air and come down upon a body with his full weight in the area of the chest, lower chest and upper abdomen could have caused the laceration of the liver.
Defendant Guy Giovannetti testified that a fight broke out between Hornick, his companions and some of the personnel of the Inn, resulting in the removal from the bar of the decedent and his party. The Inn was closed sometime thereafter when a customer returned and advised that "they" were waiting for the owner and manager outside and were going to kill him. Defendant and other employees paid no attention, but continued to clean up. Thereafter defendant went outside and noticed a commotion down the street where men were fighting and striking others with metal barricades and 2" x 4"s. As he watched the fight continuing he saw one of their patrons become endangered and headed toward the fight. Upon hearing a warning, "Guy, look out," he turned to his right and saw Hornick coming at him with a 2" x 4" stake, swinging it. He grabbed his shoulder, pulled him to his right, while decedent held him around the stomach. The two fell to the ground, defendant attempting to push decedent behind and away from him. Another man, Steve Messina, then grabbed Hornick by the belt and was picking him up; decedent fought back and was being kicked in the face and in the chest by Messina as he was being dragged across the street. Defendant thereafter got up and left the scene, returning to the Inn to clean himself up.
The jury found Guy Giovannetti guilty of the voluntary manslaughter of William Hornick, having rejected murder as an alternative.
The first argument for the defense is that Giovannetti was denied due process in his having been placed in a lineup without the presence of counsel and that the defense motion to suppress his identification should have been allowed. The law is clear that with the filing of the complaint charging Giovannetti with murder, defendant was entitled to counsel, a point which the State concedes, pursuant to Kirby v. Illinois (1972), 406 U.S. 682, 32 L.Ed.2d 411, 92 S.Ct. 1877, and People v. Burbank (1972), 53 Ill.2d 261, 291 N.E.2d 161.
1, 2 The error in failing to provide counsel to defendant at the lineup in the instant case, however, does not necessarily vitiate the subsequent identification or the conviction. A similar contention was made and overruled in People v. Marshall (1977), 47 Ill. App.3d 784, 365 N.E.2d 367, and in People v. Shorter (1978), 59 Ill. App.3d 468, 477-78, 375 N.E.2d 513, wherein the courts> held that the absence of counsel at the lineup was error but did not require reversal. In Marshall the court stated (47 Ill. App.3d 784, 786):
"It is well established that the requirement of counsel's presence is based upon consideration of due process and that if all the circumstances surrounding the identification procedure taken together clearly indicate that due process was followed, the absence of counsel at the ...