APPEAL from the Circuit Court of Cook County; the Hon. WARREN
D. WOLFSON, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Following a bench trial defendants, Michael Whalen, Daniel Coleman, Patrick Sullivan, David LaRosa, Edmund Jedry, Harris Hunter, James Gaynor, and Raymond Stazak *fn1 were convicted of aggravated battery. Each defendant was sentenced to the Cook County Department of Corrections for 18 months periodic imprisonment.
At trial seven of the eight defendants (all but Raymond Stazak) were represented by the same retained attorney. These defendants contend that such joint representation denied them effective assistance of counsel. They urge this court to establish a per se rule that trial court warnings or inquiries are required where there is, as here, joint representation of multiple defendants. A second issue is raised on behalf of all defendants pursuing this appeal. They contend the trial court should have considered evidence of provocation by the victim, as defined in the statutory provision pertaining to homicide (Ill. Rev. Stat. 1977, ch. 38, pars. 9-1, 9-2), to reduce aggravated battery to simple battery.
In December of 1977 an Israel Bond Dinner was held in Chicago at the Palmer House to honor Mayor Michael Bilandic as Man of the Year. Ralph Locker, a member of the Jewish Defense League (JDL), had been called by another JDL member to go to the Palmer House and assist those attending in entering the hotel. Locker understood that this assistance might be needed because members of the Chicago Nazi Party had threatened to picket and to impede entrance to the dinner. Locker testified that he was at one of the entrances to the Palmer House and heard a woman shout: "The Nazis are here"; "The Nazis are in a van." The next thing he remembered was waking in a hospital 10 days later with severe head and body injuries.
Prosecution witnesses testified as follows: Dr. Janet Perry Lauerman stated that she saw a large crowd gathered near the same entrance and detected black helmets "bobbing" up and down and long batons or clubs rising and falling above the crowd. She then jumped from the curb into the street and noticed a person lying motionless in the gutter. She approached and ascertained that he was bleeding profusely about the head and, from those tests that she could administer, that he was semi-comotose. Soon after an ambulance arrived.
Alan Houser, a policeman assigned to Loop Traffic Control at an intersection adjacent to the Palmer House, was called to the stand. He testified that he ran toward the hotel after his attention was drawn by the size of the crowd and the actions of four individuals, dressed in military paraphernalia, who were swinging clubs toward the ground. He saw a second group of four, similarly dressed, prodding the gathered crowd with clubs. As he continued toward the hotel, he saw the first set of four stop beating the individual on the ground. They exchanged places with the second set of four, who then began beating the victim. Officer Houser made in-court identifications of the eight defendants, placing each in one of the two groups. He also testified that the largest man in the second group of four, identified as Jedry, picked up a wire garbage container and held it over the victim's head as Houser approached. The officer drew his revolver, told Jedry to drop the can and ordered the others to put down their clubs and lie on the ground. These clubs were identified in court as the same 3' by 1 1/2-2" thick poles which initially held the Nazis' signs. Houser stated that the man remained motionless in the gutter while the eight defendants were striking him with their clubs.
Scott Schucart, who was at the Palmer House as an observer at the request of the JDL, testified to substantially the same events as the above witnesses. He added that he had seen the man, later identified as Locker, approach one of the Nazis as they left the van. Locker attempted to rip the sign off the pole carried by the Nazi, then took a step backward. The Nazi holding the sign identified in court as defendant Hunter tried to hit Locker with the pole but Locker blocked the first swing with his arm. The second blow however caught Locker on the side of the head, knocking Locker to the ground. Three other men joined Hunter and continued beating Locker. Locker did not resist at all, making no upward movements. Schucart's remaining testimony paralleled that of the above witnesses. He added that the signs bearing the Nazi slogans detached from defendants' poles as they hit Locker. In at least one case, a defendant pulled the placard from his pole, then struck Locker. Schucart saw no weapon in Locker's hands at any time.
Another witness for the State, Benjamin Lartey, a cab driver, testified that he was at the hotel during the incident. He basically affirmed the events in question as related by the other witnesses.
The defense presented a different version of the incident. Each defendant claimed that he was unaware of how Locker received his injuries. Each testified that he had neither swung at nor attempted to hit Locker, and could offer no explanation for his injuries. Defendant Sullivan testified that he was hit from the rear as he held the door to the van open for the others. When he spun around, Sullivan saw Locker holding something in his hand rolled loosely in newspaper. Defendant Whalen stated that he saw Sullivan on the ground holding his wrist (on direct testimony) or his midsection (on cross-examination). He also saw, as other defense witnesses would testify, several men in white motorcycle helmets. Similarly, as other defendants later testified, he stated that the garbage container was thrown at them and not by them, and that he saw Locker lying in the gutter but did not know what had happened to him. He further testified that the placards contained "pro-American" slogans such as "Bilandic is a Jew Stud."
The other defendants variously testified that they had been hit by the policemen, by members of the crowd in white motorcycle helmets, or by Locker.
The defense called as an occurrence witness David Rousseau. He stated that he had been at the scene in a white motorcycle helmet and had thrown the garbage container at the Nazis to protect Locker. He did not see any set of four pummeling Locker.
The trial judge, in delivering his verdict, commented that the basic issue was one of witness credibility. He briefly reviewed the testimony and noted:
"It is regrettable in my view that Locker took the first aggressive action, but his actions did not, in any way, legally justify the violence that followed."
Separate written motions for new trials were presented by both attorneys. The motion on behalf of the seven defendants raised a reasonable doubt contention alone. The motion on behalf of defendant Stazak raised other contentions, none of which are presented by this appeal. A new attorney was engaged to present a "Motion to Reconsider" on defendant Coleman's behalf. This motion was also denied by the ...