APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
JEMILO, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Defendant was charged in two separate complaints with the assault of Alice Keeling and Richard Moreno in violation of section 12-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12-1(a)). Following two successive bench trials, defendant was convicted of each crime and sentenced to two concurrent one year terms of probation along with a fine of $150 for each conviction plus court costs.
Defendant appeals from both convictions and raises the following issues: (1) whether the State proved him guilty of the crime of assault beyond a reasonable doubt; (2) whether the trial judge erred in failing, on his own motion, to recuse himself from the second trial involving the assault of Richard Moreno; (3) whether the trial court erred in failing to properly apprise him of his right to a jury trial for the assault of Richard Moreno; and (4) whether he was denied the effective assistance of counsel.
Defendant's convictions for the crime of assault arose from two separate incidents, the first occurring on March 14, 1979, and the second on March 21, 1979. The pertinent facts forming the basis of each crime are as follows.
On March 14, 1979, Alice Keeling, a polio victim confined to a wheelchair, went to visit her friend who resided at an apartment building located at 12517 S. Ashland Avenue in Calumet Park, Illinois. At the time, she was accompanied by her father George Keeling, Sr., her brother George Keeling, Jr., and Richard Moreno. As she approached the apartment building on the front sidewalk, defendant drove his car within a few feet of her and shouted, "Get your ass off." He then exited the car, advanced to within about one foot of her and threatened to "beat her head in." These actions caused her to believe that defendant was going to strike her. Defendant, who stood six feet tall and weighed 240 pounds, was her landlord in another building. He had previously been involved in litigation with her stemming from her association with a senior citizen's group that had received over 300 complaints from its members concerning defendant. Alice Keeling's account of the incident was substantially corroborated by the testimony of her father and Richard Moreno.
The testimony of defendant, who owned the property at 12517 S. Ashland Avenue, differed from that of the State's witnesses in several aspects. When he observed Alice Keeling in front of the apartment building, she told him to "get out of there," and he responded by calling the police. Defendant at no time left his car and was never closer to her than 10 to 12 feet. He never threatened her with physical harm.
The second incident occurred on March 21, 1979, at 12545 S. Ashland Avenue in Calumet Park, Illinois. The complainant, Richard Moreno, had just concluded a conversation with the president of the County Improvement Association of Calumet Park in his office at that location when he noticed defendant, who was screaming at him from an adjacent parking lot. Moreno ignored him, but defendant came to the office and knocked on the door. Moreno opened the door and defendant advanced toward him, screaming: "where is the rent * * * I am going to get you * * * I am going to break your f____ head in, stupid Mexican. I am going to get you for this." At this time, defendant stood within inches of Moreno, who was about 5 feet, 6 inches tall and weighed 200 pounds. Moreno then asked him what he was talking about, to which defendant replied, "You don't know what type of people you are talking with." Moreno asked defendant what kind of people he was referring to. Defendant stated, "You know what kind of people you are f____ with." After making similar threats for a period of about five minutes, defendant left. Throughout this ordeal, Moreno, who had been under a doctor's care for treatment of heart and back conditions, believed that defendant was going to strike him.
Defendant, Moreno's landlord, testified that he went to the office that day to collect rent, but never threatened him. Moreno steadfastly refused to pay the rent and threatened to throw defendant out of the office. Defendant, 56, had been hospitalized with a heart ailment a few months before the incident.
Defendant initially contends that the State failed to prove him guilty beyond a reasonable doubt of the crime of assault in each case. As to the alleged assault of Alice Keeling, he specifically raises the following two assertions: (1) his conduct was justified as a lawful exercise of his right to expel Keeling, a trespasser who intended to harm his property (Ill. Rev. Stat. 1979, ch. 38, par. 7-3); and (2) the evidence was insufficient to prove that Keeling was placed in reasonable apprehension of receiving a battery (Ill. Rev. Stat. 1979, ch. 38, par. 12-1(a).) Defendant also relies on this second assertion in challenging his conviction for the assault of Richard Moreno. We first turn to the March 14, 1979, occurrence.
Defendant argues that he was lawfully justified under section 7-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 7-3) for his conduct with respect to Alice Keeling because he reasonably feared that she would interfere with his real property. That section provides:
"A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other's trespass on or other tortious or criminal interference with either real property (other than a dwelling) or personal property, lawfully in his possession or in the possession of another who is a member of his immediate family or household or of a person whose property he has a legal duty to protect. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent the commission of a forcible felony." Ill. Rev. Stat. 1979, ch. 38, par. 7-3.
At the onset, we note that Keeling was on defendant's property at the express invitation of a tenant on the property and therefore cannot be deemed a trespasser as a matter of law even if defendant misapprehended that an invitee of a lessee could be guilty of a trespass. (Karow v. Student Inns, Inc. (1976), 43 Ill. App.3d 878, 357 N.E.2d 682.) Likewise, his possible belief that she was not visiting one of the tenants was not reasonable since the apartment building which he owned contained over 16 units, and each tenant possessed the right to entertain social guests. Our focus is therefore directed to whether defendant reasonably believed that she would tortiously or criminally interfere with his real property.
• 1 A review of the testimony conclusively demonstrates that defendant unreasonably believed that Keeling intended to harm his property. He was therefore not justified in attempting to expel her. Keeling, who was confined to a wheelchair, testified that she was approaching defendant's apartment building to visit her friend when he advanced toward her and verbally threatened her with physical harm. Although defendant denied threatening her in any fashion, he allegedly felt justified in ordering her to leave the premises due to her association with a group that he had sued for the nonpayment of rent. The mere fact that defendant had been involved in litigation of this sort cannot serve as a reasonable basis for believing that Keeling intended to harm his property. Nor does it sanction the use of force to terminate the peaceful visit by Keeling, an invitee on defendant's ...