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People v. Caliendo

OPINION FILED MAY 9, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

GERALD CALIENDO, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS J. MAHON, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 13, 1980.

Following a jury trial, defendant was found guilty of aggravated battery (Ill. Rev. Stat. 1975, ch. 38, par. 12-4) and was sentenced to a period of four years imprisonment. On appeal, defendant raises the following issues: (1) the element of "great bodily harm" contained in the Illinois aggravated battery statute and in count I of the indictment violates his constitutional rights to be informed of the nature and cause of the accusation against him and to due process of law (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §§ 8, 2); (2) count II of the indictment charging him with aggravated battery fails to allege the elements of the offense and is therefore fatally defective; (3) the State's failure to disclose statements made by defendant in violation of Supreme Court Rule 412(a)(ii) (Ill. Rev. Stat. 1975, ch. 110A, par. 412(a)(ii)) deprived him of a fair trial; and (4) the State failed to prove him guilty beyond a reasonable doubt.

On April 25, 1977, at 7:30 a.m. Frank Matarrese entered his garage to drive his car to work. He opened the overhead door to the garage and got into his car. At this time, Louis Giordano and defendant entered the garage. Matarrese had never before seen either of these men. They were wearing dark coats and stocking caps pulled down midway over their foreheads, and Giordano had a hammer in his hand. They walked to the left side of Matarrese's car where defendant told Matarrese to get out of the car. Matarrese's panic prevented him from driving out of the garage; instead, he began blowing the horn and calling for help. Giordano reacted to Matarrese's screams by breaking the driver's window with the hammer. Matarrese attempted to escape out of the passenger door, but as he opened the door, Giordano grabbed him, threw him to the ground, and began hitting him with the hammer while defendant held him against the ground. When the hammer broke, Giordano picked up a metal bar and continued to hit Matarrese on the legs with the metal bar. They also kicked him in the ribs throughout the five-minute beating. Defendant told Matarrese: "This could be worse. We could come back." Both men fled into the alley, when Anthony Laterza, Matarrese's brother-in-law, came into the garage.

From his kitchen window, Anthony Laterza watched Frank Matarrese enter the garage on the morning of April 25, 1977. A few minutes had passed when he noticed several people moving about inside the garage. He went to investigate. Upon entering the garage, he heard Matarrese moaning and hollering. He then saw Matarrese lying on the floor with two men beating him. He yelled at the assailants, and they left the garage and ran down the alley. He never saw the faces of these men, but noticed they were wearing dark coats and caps.

Laterza called the police for an ambulance which took Matarrese to the hospital. As a result of the attack Matarrese sustained three fractured ribs and lacerations and contusions of the hands and legs.

On October 31, 1977, Matarrese met with police officers Jan Francis and Hugh O'Hagan. They showed him a group of 11 black-and-white photographs out of which he picked photographs of Louis Giordano and defendant as his assailants. While defendant and Giordano had mustaches on the day of the attack, only three of the 11 photographs depicted men with mustaches. The next time Matarrese saw the defendant in person was on the first day of trial, May 18, 1978.

At trial, it was stipulated that on April 25, 1977, Frank Matarrese's car was dusted for fingerprints, and a palm print was found on the left front windshield of the car. This print matched the palm print of Louis Giordano.

Defendant testified that in April 1977, he worked as a plumber for Arrow Plumbing Company during the day, and as a short order cook for Grand Bowling Alley at night. He was neither present in Matarrese's garage on April 25, nor did he participate in the attack on Matarrese. Prior to this trial, he had never before seen Matarrese. He admitted, however, knowing Giordano since high school, but denied being related to him.

On cross-examination he admitted that on December 14, 1977, he appeared, without counsel, before Judge DeVito and told Judge DeVito that Louis Giordano was his cousin. On December 15, 1977, he appeared before Judge Mahon and again stated that Giordano was his cousin. Defendant explained that he lied about his relationship to Giordano in order to speak with Giordano and learn why he was being charged with this crime.

OPINION

Defendant maintains that the Illinois aggravated battery statute (Ill. Rev. Stat. 1975, ch. 38, par. 12-4(a)) is unconstitutionally vague. More specifically, defendant argues that the phrase "great bodily harm" of the aggravated battery statute is vague and uncertain, and constitutes the sole distinction between conviction for battery, a misdemeanor under section 12-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 12-3), and conviction for aggravated battery, a felony under section 12-4(a) of the Code (Ill. Rev. Stat. 1975, ch. 38, par. 12-4(a)). The scope of the word "great" is the target of the defendant's attack. Section 12-3 provides:

"A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an ...


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