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People v. Nowak





APPEAL from the Circuit Court of Cook County; the Hon. ROBERT F. NIX, Judge, presiding.


Following a bench trial defendant was convicted of battery (Ill. Rev. Stat. 1977, ch. 38, par. 12-3) and sentenced to a term of one year supervision, fined $240 and assessed court costs of $10. On appeal, he contends that (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court prevented introduction of relevant evidence to show motive and bias of the complaining witness and his family; and (3) the trial court erroneously precluded the defense from showing that the complaining witness' father had offered to terminate the charges for the payment of $300.

The incident in question occurred about 3:30 p.m. on January 25, 1978, in a northwestern suburb of Chicago. Defendant lived across the street from complaining witness and his family.

The complaining witness, Todd Monasterio, age 10, testified that he and Robert Alfonso were playing with some warning lights on a barricade near a hole in the street. As they left and began to walk to Robert's house, Todd touched a bush on defendant's property but did not break it. Defendant approached and asked Todd where he lived. At the same time he grabbed Todd from behind by the hair. Defendant walked him to the bush and asked him if he had broken it. Defendant hit him on the face with an open hand and while still holding him by the hair, took him to a group of broken bushes. When Todd denied breaking those bushes, defendant struck him on the head. After Todd denied breaking still another bush, defendant again hit him.

Todd further testified that, after being hit, he called to Robert Alfonso and they went to the latter's home where Robert's mother wiped away blood from his nose and upper lip.

On cross-examination, Todd testified that defendant had treated him about 5 years ago for an eye condition. However, a State objection was sustained as to whether Todd knew what defendant told his parents about the eye condition approximately 4 years prior. Todd admitted that he broke a reflector from the safety barricade before defendant stopped him. He denied, however, that he jumped on several bushes on defendant's property and that he was stopped by defendant from jumping on other shrubbery. He also testified that, after leaving defendant, he fell in the snow in attempt to catch his friend. He further denied that he had no blood on his face when he stood up.

Robert Alfonso, who also was 10 years old, confirmed that he and Todd were walking down the street near the defendant's house when Todd touched a bush. Robert testified that when defendant called Todd over, Robert walked a short distance away because he was scared. He turned and saw defendant strike Todd. Todd called him and then ran toward him. Todd's nose was bloody. He and Todd went to his home where Robert's mother later treated Todd.

Rick Monasterio testified that he is Todd's brother; that on the day of the incident he gave his brother permission to go to Robert Alfonso's house, where he later picked him up after receiving a telephone call. Later he went to defendant's home at about 4 p.m. and spoke to defendant near the front door. Defendant admitted to him initially that he hit Todd. He told defendant that he should have spoken to Todd's parents and that defendant might now be in trouble. Defendant then said that he did not hit Todd but indicated that Todd had fallen to the ground.

On cross-examination, Rick testified that defendant had previously treated members of Todd's family. He also stated that on the day of the incident, defendant told him that Todd had previously broken several of defendant's bushes and showed him the shrubbery. Defendant also showed him where Todd had fallen in the snow. No blood was discernible in the snow.

The defendant called Richard Monasterio, Todd's father, as a witness. Monasterio testified that Todd had been defendant's patient 5 years ago and had diagnosed his son's condition as "lazy eye." Although defendant suggested that Todd do eye exercises, Todd stopped taking treatments from defendant. Monasterio denied that he knew or had knowledge that 3 years before the incident in question Todd purportedly spray painted defendant's house and stated that he did not see any spray paint marks on that structure at that time. He denied defense counsel's suggestion that a neighbor named Mr. Stein had, in fact, seen Todd spray paint defendant's home. He further denied knowing any neighbor by that name. He admitted, however, that there was a college student named David, who lived nearby, but denied David told him that he saw Todd spray-paint defendant's residence or that he was ever advised that Todd pulled out a newly planted tree from defendant's front lawn more than 2 years before the incident.

Upon defense counsel's inquiry, Monasterio referred to an incident which occurred about a year before involving Rick Monasterio's car. Todd had apparently released the emergency brake, causing the car to roll down the driveway, across the street and onto a portion of defendant's lawn. Because the ground was soft from a recent rainfall, some tire marks were left on the grass. Monasterio denied that a tree was destroyed or that the car even came close to defendant's garage. He testified further that he offered to repair the damage to the grass but defendant said to forget the matter. When the trial court sustained the State's objection to the question of whether Monasterio had threatened defendant, defense counsel withdrew the question. On further direct examination, Monasterio testified that he had spoken to defendant in the hallway of a suburban police station after the incident. He denied advising defendant that, unless he received a payment of $300, he would have defendant prosecuted.

An objection by the State was sustained to a question of whether he later contacted defendant's attorney and reiterated his demand for the payment. Defense counsel then informed the trial court that attempts had been made to "extort" money from defendant under threat of prosecution as well as threats concerning his medical license. Counsel also stated that he had informed the State's Attorney's office of the matter. The trial court, however, would not modify its ruling prohibiting further questioning in this regard.

Defendant testified that he was an ophthalmologist. On the date in question he went to the window to look outside and saw Todd and his friend come across the street toward the house. Todd jumped on a safety barricade near a hole in the street and broke a reflector. Because of prior damage to his shrubbery, defendant decided to go outside. As Todd's friend went down the street, Todd got up on a stone on defendant's property and jumped on one of the bushes. Defendant proceeded toward Todd, who appeared ready to jump on another bush, and placed his hand on Todd's shoulder. He did not strike Todd or pull his hair. Defendant stated that he decided to speak to Todd's parents about the matter.

Defendant spoke briefly with Todd and obtained his promise not to break any more bushes. Todd then left and walked toward his friend. Defendant then saw Todd fall in the snow. When Todd got up, he did not seem ...

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