APPEAL from the Circuit Court of Cook County; the Hon. ALLEN
A. FREEMAN, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
In a jury trial in the circuit court of Cook County, defendant Stella Voda was found guilty of the offense of battery. (Ill. Rev. Stat. 1975, ch. 38, par. 12-3(a)(1).) A judgment of one year's probation was entered on the verdict. Defendant appeals her conviction contending: (1) she was not proved guilty of battery beyond a reasonable doubt; (2) improper comments made by the prosecution during cross-examination denied her a fair trial; and (3) the trial court improperly refused to give defendant's instruction defining the crime of battery.
The incident occurred at approximately 7:30 p.m. on July 4, 1976, while complainant JoAnn Diorio and her husband John Diorio (hereinafter Mr. Diorio) were having a barbeque. Mr. Diorio explained that his house faced west and had front steps leading up to a porch. He stated that he placed the grill just east of the public sidewalk running in front of his house so that while standing behind it he faced his house. Mr. Diorio stated that Anthony Kaunas lived next to him on the north side and to the north of Kaunas was defendant's house.
While standing behind the grill, Mr. Diorio testified that he saw defendant, who was standing on Kaunas's property, throw a bottle which shattered on the pavement in front of the porch steps where those present at the barbeque, including his wife, were sitting. He observed his wife go over to Kaunas's property and heard some yelling. As he ran over in that direction, he saw defendant grab his wife's hair and pull her to the ground. He testified that when he arrived, defendant was straddling his wife's chest, with her hands around his wife's throat, and was bouncing his wife's head on the concrete. Mr. Diorio grabbed defendant by the hair and the back of her shorts when defendant failed to release his wife. The defendant's wig came off and her shorts "broke." He then grabbed defendant by the shoulders, pulled her off his wife, and pushed her against Kaunas's house. He helped his wife up and accompanied her home. He denied doing anything else to the defendant. He testified that he returned to the scene to look for his wife's glasses which defendant removed during the altercation, and found a section of his wife's hair on the sidewalk. He did not recall seeing a garden hose in defendant's yard.
Complainant testified that while sitting on the front porch steps of her house, she saw defendant walk out of a passageway separating defendant's house from Kaunas's house, and throw a bottle which landed in front of the porch steps, shattering in all directions. After checking to see if anyone was hurt, she walked over to the defendant to find out "what she thought she was doing." Defendant was standing on her own property just on the other side of a gate which was between defendant's property and Kaunas's property. Defendant then grabbed complainant by the back of her hair, and pulled her over the gate which fell underneath them. Defendant landed on top of her. The complainant heard her husband tell the defendant to take her hands off his wife, then her husband pulled defendant off of her and escorted her back to their own yard. Complainant testified that she had red marks on her throat, a bump on her head, and missed the glasses she was wearing when she walked over to the defendant. She also testified that she did not see her husband hit or kick the defendant and did not see a garden hose in the defendant's yard.
Joseph Kalenowsky, who lived to the north of defendant, testified that on July 4, 1976, at about 7:30 p.m., he was talking to his neighbor to the north who was setting off fireworks in front of his property when he heard glass shatter. At first he did nothing, but then he heard hollering and a commotion so he went to investigate. He observed defendant and the complainant on the ground in defendant's yard and Mr. Diorio was there trying to separate them. After they were separated, he observed defendant run into her house. He did not see Mr. Diorio strike defendant nor did he see him grab her by the hair. He found the struggle confusing but remembered that the complainant and defendant were lying side by side. He could not say whether defendant was on top of the complainant. He testified that he did not see a garden hose on defendant's property at that time but knew that defendant usually had one on her property.
The defendant testified in her own behalf. She stated that she was home alone on July 4, 1976, when between 7 and 8 p.m., she saw some firecrackers land in her front yard. Noticing smoke, she turned on her water hose and went outside to extinguish what she said might have been a fire. After spraying her plants, she checked her front lawn where she had laid new sod. As she was returning to her house, a bottle coming from a southern direction landed at her feet on the grass of her neighbor to the south. She picked it up and hurled it back in a southern direction. She was walking to her house by way of the gangway between her house and her neighbor to the south when complainant approached her and said, "leave my man alone," and then began hitting defendant on the head with her fists. According to defendant, she responded, "what do you mean my man" and removed complainant's glasses in hopes this would cause blurred vision and stop the complainant from attacking her.
At this point, defendant said Mr. Diorio entered her yard and called her obscene names. He then grabbed her by the hair, knocked her down, pounded her head on the sidewalk, and kicked her. He took the garden hose and, putting his thumb on the base, shoved it down her throat causing water to spray on her chest. Defendant heard complainant tell her husband that defendant had had enough and to leave her alone. Defendant testified that Mr. Diorio took the hose out of her mouth but began making racial slurs while tearing off her bra. Defendant stated that she got up, went into her house, and tried to call the police but got a busy signal. She then called her sister who gave her the number for the fire department. While looking out of her window, defendant said she saw and heard Mr. Diorio threatening her and saying she was going to pay for his wife's glasses. She also stated that Anthony Kaunas was there waving his hands and shouting racial slurs. She testified that after talking with Cathy Byrne, a family friend who came to the house after the altercation, she went to the hospital where she was examined, X rays were taken, and she was given medication before returning home that night. On cross-examination, defendant denied grabbing complainant by the hair and choking her, and stated that she did not actually see anyone throw the bottle.
Cathy Byrne testified that at about 9 p.m., she went to defendant's house to visit defendant's daughter. When she arrived, she saw people in the front yard looking for something and noticed the garden hose was on. She stated that complainant told her they were looking for her glasses and asked her if she would look in the house for them. Upon entering the house she saw defendant doubled up, her face puffy and red. According to Ms. Byrne, defendant told her she had been beaten up, mentioning the names of Mr. Diorio and Kaunas. Ms. Byrne observed defendant call the fire department for an ambulance, change her clothes, and later leave in an ambulance. She also testified that at the request of the police who arrived at the scene, she turned off the garden hose. On cross-examination she stated that she did not notice whether defendant's clothes were wet or her blouse torn.
Diane Voda, the daughter of the defendant, testified that she returned home from a friend's house at about 1:30 a.m. on July 5, 1976. She went to Mr. Diorio and asked what had happened. He told her he was having a barbeque with sausage, beer, and fireworks. He showed her a piece of broken glass from a Royal Crown cola bottle which he said her mother threw. She testified that no one in her family drank Royal Crown cola. She noticed soda bottles, broken glass, and the remains of fireworks on his front lawn.
Steven Weinger, a law student and working for the Criminal Defense Consortium, testified that he talked with Mr. Diorio after the incident. At their first meeting in July 1976, Mr. Diorio told him that a fight occurred between the defendant and his wife; that he went over to break it up; that he pulled defendant's hair and her wig came off; that he pulled her by her real hair and slammed her against the concrete. Weinger testified that he transcribed notes after this meeting, which indicated the following: "Threw her against a wall (pavement?)." Weinger stated that he was not sure if Mr. Diorio meant the pavement or a wall when he said he threw defendant against the concrete. The word concrete did not appear in Weinger's notes. Weinger also testified that Mr. Diorio said he was on his front porch when the bottle was thrown and when his wife went to the defendant's yard.
Anthony Kaunas, called in rebuttal on behalf of the State, testified that he lived in the house between defendant and the Diorios. He stated that on July 4, 1976, he did not go into defendant's yard or wave his arms and shout obscenities at the defendant. He stated that he physically could not have waved his one arm since his elbow was broken at that time. He further testified that he never said anything to the defendant that day, even when she knocked his sprinkler over, but that he did call the police.
Defendant's motion for a new trial was denied and a timely notice of appeal was filed.
Defendant first contends she was not proved guilty of battery beyond a reasonable doubt. Defendant points out inconsistencies between Mr. Diorio's testimony at trial and at the preliminary hearing as to whether defendant grabbed his wife by her throat or by her hair, whether he grabbed defendant by the arm and leg or by the shoulders, and whether or not he accompanied his wife home after the altercation. When confronted with these inconsistencies at trial, Mr. Diorio testified that questions on different and separate incidents involving defendant were asked of him at the preliminary hearing, and he was often confused as to which incident the question was directed.
Defendant argues that Mr. Diorio could not have seen defendant throw the bottle or the initial confrontation since he told defense witness Weinger he was on the front porch when these events occurred, and the photographs introduced into evidence showed that these events could not be viewed from his front porch. This must be contrasted against Mr. Diorio's testimony that he was standing behind the grill in front of his house when the events occurred.
In support of the theory that she was the victim and not the aggressor in the altercation, defendant argues that Kalenowsky, the State's witness, testified that as soon as he heard the bottle break, he walked toward defendant's house and observed complainant and defendant either lying side by side or complainant on top of defendant. However, the record indicates that Kalenowsky did not proceed toward defendant's yard immediately. He testified that when he did arrive, he saw Mr. Diorio trying to separate the women. He stated that he did not see Mr. Diorio strike the defendant nor place a garden hose in defendant's mouth. Nowhere in the record does Kalenowsky testify he saw ...