APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
At the conclusion of a jury trial in the circuit court of Cook County, defendants, Nicholas Brophy and Henry Doig, were found guilty of committing an aggravated battery and battery upon Brian Boyle and Kenneth Anderson. Defendants were found not guilty of the charge of attempt murder. Brophy was sentenced to a two-year prison term; Doig was sentenced to 30 months probation.
On appeal defendants contend: (1) the trial court erred in failing to properly instruct the jury that the State had the burden to prove beyond a reasonable doubt that the defendants were not acting in self-defense and defense of others; (2) the trial court abused its discretion by allowing into evidence defendant Brophy's statements made prior to the incident; (3) the trial court erroneously denied defendants' motion for a directed verdict on the attempt murder charge and thereby prejudiced their defenses as to the other charges; (4) the defendants were not proved guilty beyond a reasonable doubt; (5) the trial court erroneously denied defendant Brophy's motion for severance; and (6) the trial court erroneously imposed excessive sentences on the defendants.
We reverse the convictions and remand for a new trial. In view of our decision to reverse, we need only address defendants' contentions concerning the following alleged errors: (1) the trial court's failure to give the jury the proper self-defense and defense of others instructions; (2) the failure of the State to prove defendants guilty beyond a reasonable doubt; and (3) the trial court's improper denial of defendant Brophy's motion for severance.
Marion Gentile testified that on the evening of December 2, 1977, she hosted a surprise birthday party for Brian Boyle. The party ended the following morning at 1:30 a.m. At 2:15 a.m., she, Boyle, Kenneth Anderson, and John Jankovich left her house and went to the Markey Lounge. Shortly afterwards, the same group left the lounge and went to another lounge to meet Boyle's mother. Sometime later, Anderson, Boyle, Gentile, and Jankovich returned to the Markey Lounge. They drove there in one car.
Gentile also asserted that when they arrived at the Markey parking lot, Anderson and Boyle got out of the car. The two were arguing about whether to go to a restaurant for breakfast. At this time, Jankovich was in the driver's seat of the car and Gentile was in the front passenger seat. Gentile saw two people coming around the corner. She identified these people at trial as defendants Brophy and Doig.
Gentile further asserted that the defendants called to Boyle and Anderson and said "Stay out, its early, can't you hold your liquor * * *." Either Boyle or Anderson replied that defendants should "Stay out of it" and mind their own business. Gentile testified that the men then "approached each other." At this point, Doig ran to his car. Doig removed jumper cables from his car trunk. He then ran back to the men and began striking them with the cables. As Doig struck their heads with the cables, Boyle and Anderson protectively pulled their coats over their heads. Gentile then saw Anderson and Boyle fall to the ground. Doig then walked back to his car and placed the jumper cables into the car trunk. Gentile identified the cables which Doig had used in the incident.
Gentile further testified that as Doig was carrying the cables back to the car trunk she saw Brophy "brutally kick" the heads of Anderson and Boyle while they lay on the ground. Brophy kicked Anderson and Boyle "at least" 10 times. During this time, Gentile heard Brophy tell Boyle to get up and fight like he should and that he, Brophy, did not like cowards. Gentile also heard Brophy tell Anderson that he "didn't like fat fighters, get up and fight."
Gentile further stated that she did not leave the car until Doig was at his car putting the jumper cables in his car trunk. She also stated that she was standing five feet from Brophy while he kicked Boyle and Anderson. After seeing the kicking, she ran into the lounge to call the police. When she returned to the scene of the incident the police already had arrived. Anderson and Boyle were on the ground, bleeding profusely, and they appeared to be unconscious. Gentile also stated that during the altercation, she did not observe Boyle or Anderson strike either of the defendants. She also asserted that when Doig went to his car, she was unable to see Brophy or Anderson and Boyle.
On cross-examination, Gentile acknowledged that she had to turn her head to the right to see Anderson and Boyle standing in back of the car. She also admitted that when she said the two groups of men approached each other she meant that Doig and Brophy, who were walking in a westerly direction, continued walking west on the sidewalk. They never left the sidewalk. Boyle and Anderson were standing near the door of Anderson's car which was in the lounge parking lot. Anderson's car was near the sidewalk. Gentile acknowledged that Boyle and Anderson left the side of the car and walked up to the sidewalk where Brophy and Doig were walking.
Gentile also asserted that as Doig ran to his car she did not hear anyone call for help. She did not hear any provocative language nor did she hear defendants ask Anderson and Boyle to come to the sidewalk. She further stated that she had to put her head outside the car window to see Doig run to the trunk of his car. She was not watching the other three men during the time she observed Doig.
Gentile also testified that as Doig was running back to his car, Doig came up to Jankovich and said, "Do you want to see if you want a little taste * * *." She then saw Doig strike Jankovich. Gentile further explained that Jankovich got out of the car before she did. He went over to Boyle and Anderson who were lying on the ground. Gentile, at this point, got out of the car and went into the Markey Lounge to call the police.
Officer McCallister testified that when he arrived on the scene, both Anderson and Boyle were lying on the ground, unconscious. Their faces were very swollen. Brophy said to McCallister, "Honestly, I only used my hands, * * * I might have kicked him once or twice, but I only used my hands." Brophy also told him that Anderson and Boyle jumped him and that Doig came to his assistance and helped him get his hands free. Brophy additionally stated that he had had some boxing experience. After Brophy and Doig were brought to the police station, McCallister inventoried the jumper cables and Brophy's shoes. The shoes were blood stained. McCallister also asserted that Brophy's lip appeared to be swollen, but Brophy had said he did not need medical attention since it was a birthmark.
Brian Boyle testified that on the evening of December 2, 1977, he attended a birthday party in his honor given by his friend, Marion Gentile. He acknowledged that during the party he consumed "a couple" of beers and shots of hard liquor. He also asserted he could not remember leaving the party but only waking up in the hospital. Boyle further testified that one week before the incident, he saw defendant Brophy for the first time at the Markey Lounge. Boyle was there with his sister, Barbara Anderson, and other friends. Defendant Brophy argued with Barbara, and then broke a glass on the table. Anderson moved in front of Barbara. Someone laughed and defendant Brophy said "Something to the effect of `you won't be laughing after I'm through with your boyfriend.'" Boyle did not see defendant Doig in the lounge that night.
Kenneth Anderson testified that on December 2, 1977, he attended a birthday party for Boyle. He could not remember leaving the party; he could only remember waking up in the hospital. At that time, his face was badly swollen, and the temporary bridge on his front teeth was missing. His eyes were swollen shut, and a doctor had to remove his contact lenses.
Anderson also stated that one week before the incident here, he saw defendant Brophy in the Markey Lounge. His testimony concerning the occurrence at the lounge on that occasion was substantially the same as that of Boyle. ...