APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 30, 1981.
At the conclusion of a jury trial in the circuit court of Cook County, defendants, Israel Diaz and Domingo Delgado, were convicted of the aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12-4) of Jerry Johnson. Defendant Diaz was sentenced to 30 months' probation and defendant Delgado was sentenced to a two- to five-year prison term. The original indictment charged defendants with three counts of aggravated battery upon each of three victims, Jerry Johnson, Paul Hermanson and John Doyle. Prior to trial, the State entered nolle prosequis on the original indictment and reindicted defendants with one count of aggravated battery while armed with a deadly weapon (Ill. Rev. Stat. 1977, ch. 38, par. 12-4(b)(1)) and one count of aggravated battery causing great bodily harm (Ill. Rev. Stat. 1977, ch. 38, par. 12-4(a)) upon each of the three victims.
On appeal defendants contend: (1) they were not proven guilty beyond a reasonable doubt; (2) the trial court improperly refused to instruct the jury on justifiable use of force; (3) defendants were arrested without probable cause and, therefore, the trial court improperly failed to suppress their statements and the identification testimony; (4) the trial court erred in allowing the victims' identification testimony at trial since the pretrial confrontations were unduly suggestive; (5) the trial court improperly allowed impeachment of a defense witness with an old prior conviction.
Terry McCormick testified that on June 2, 1978, he and his friends, Jerry Johnson, John Doyle, and Paul Hermanson attended a Cubs baseball game. McCormick had not had anything to drink. While they were returning to Doyle's car, McCormick walked about 100 feet behind his three friends. As they proceeded on Addison Street, McCormick saw a pipe being thrown from a porch. The pipe landed behind his friends. Looking towards the porch, McCormick saw what he described as "a couple of Latino males." He identified one as the defendant Diaz. He did not see defendant Delgado on the porch. Neither McCormick nor his friends said anything; the incident of the pipe being thrown was unprovoked according to McCormick. He noticed that one of the persons on the porch walked through a gangway and was then out of eye-sight.
As McCormick and his friends walked along and turned the corner, McCormick said he saw a group of six to eight Latino males and possibly one white male. The men were carrying bats and metal pipes. Suddenly, and for no apparent reason, these men attacked McCormick's three friends. He described the height of the attacking men as varying between five feet six inches and six feet. McCormick estimated he was between 50 and 75 feet away when he first saw the defendants. Delgado came west through an alley as Doyle and Johnson ran east through the same alley. Diaz and some of the other men chased Doyle and Johnson. Hermanson ducked under a car.
McCormick then left the area, found the police, and returned to the scene. McCormick had not seen any of his friends being struck. When he returned to the scene, he did not see any of the Latino males but he did see bats and pipes on the ground.
McCormick further testified that he went to the emergency room of the hospital where his friends had been taken and while he was there, he identified the defendants as two of the assailants. McCormick also stated that after the incident, he accompanied police while they searched the neighborhood for the other men. McCormick had given the police a brief description of the assailants. However, at the trial he could not recall the exact description he had given to the police. He did remember describing the sleeveless "tee shirts" which some of the assailants were wearing. He did not think that defendant Delgado had a beard at the time of the incident.
Paul Hermanson also testified that nothing was said to the assailants prior to the time the pipe was thrown at his group on their return from the baseball game. Hermanson did not know who threw the pipe but he did see defendant Diaz at the scene. Hermanson denied that he had told police the pipe was a mop handle. Hermanson also asserted that no one, at that point, swung the pipe at him although he acknowledged that he had told Officer Epplen that defendant Delgado came towards him with a pipe.
Hermanson further related that about one or two minutes after the pipe was thrown, he saw a "gang" of males, none of whom he knew, coming towards him. They were carrying bats and pipes. He observed defendant Delgado from a distance of one or two feet. Hermanson identified two bats at trial as being similar to the bats with which he was struck.
Hermanson further testified that when he told the group of assailants that he was just trying to get into his car, one of them smashed the windshield of the car. When Hermanson's friends ran away, three of the attackers, including defendants, remained and hit him with pipes and bats. Although he crawled under an automobile, the men continued to beat him about his ankles and legs as they yelled at him. He then crawled out from under the car. He denied hitting anyone although he defended himself against the attack. Defendant Delgado struck the back of his head. Hermanson first stated he did not see the defendants hit anyone but himself, but he then asserted that they struck his friends. He saw his friends being chased through an alley by a group of males, and the defendants were in that group. Hermanson then ran for help. The police took him to a hospital where he received medical treatment. He later, while at the hospital, identified the defendants. Hermanson described Delgado as having been beardless on the day of the incident.
Hermanson denied that he or his friends threw a bike at defendant Diaz or hit defendant Delgado. He recalled that he might have given police a description of defendants, but he did not think he did. At trial, Hermanson identified the blood-stained tee shirt which had been torn off him during the attack. Hermanson described himself as six feet tall and asserted that on the day of the incident, he weighed 175 pounds. Hermanson also noted that Doyle was about the same size, while McCormick and Johnson were heavier and taller.
John Doyle also testified that nothing was said by members of his group prior to the assault. He had noticed defendant Diaz on a porch, but he did not see anyone with him. A pole was thrown towards him and then a group of people, carrying bats and pipes, came from "out of nowhere, from all different directions." Defendant Diaz and another man struck Doyle with a baseball bat. Doyle attempted to defend himself. He was not armed. None of his friends were armed. Doyle was struck on his forearm and head with a bat or pipe held by Diaz and another man. Doyle and Johnson then ran through an alley. They stopped to wait for their friends, but then Diaz, Delgado and another man chased them. Delgado hit Johnson over the head with a lead pipe. After Johnson fell, Delgado struck him across the face with a pipe. Doyle aided Johnson and then saw defendants flee. The whole incident lasted between three and five minutes.
Doyle further asserted that he saw defendants in the lobby of the hospital where the police had taken him. He spoke with investigators that day but he did not tell them that Delgado had never hit anyone. Doyle asserted he told investigators that Delgado had hit someone in the face. He could not recall any descriptions which he gave the police.
Jerry Johnson also testified to the events surrounding the incident. After a steel pole was thrown from a porch behind his friends, he looked in the direction of the porch and saw three men. He identified one of the men as Diaz. He also asserted that nothing was said before the pole was thrown.
Johnson further related that he and Hermanson were surrounded by six men, including defendants. The men were carrying bats. Diaz came from the porch or gangway area, and Delgado came from across the street with several others. Johnson did not see Delgado carrying a pipe.
Johnson further stated that after the group began swinging bats at him, he and Doyle ran through a nearby alley. He did not observe Doyle wrestling with anyone since he himself was being attacked. Johnson was hit three times on the head prior to attempting to escape by running through the alley. He did not know who hit him but the defendants were present during the assault upon him. He was again struck while he was in the alley. Two of the three men who attacked him were the defendants and they had bats and poles in their hands.
Johnson was taken to a hospital where he received 100 stitches for his head wounds. He also had a broken nose and cheekbone which required treatment throughout the summer. He did not recall any questioning by police or giving a description of the offenders to the police. Johnson stated that Delgado did not have a beard at the time of the incident. Johnson was 6 feet 1 1/2 inches tall, and he weighed 195 or 200 pounds at the time of the incident.
Officer Roger Wilson testified that on June 2, 1978, at 4:30 p.m., he and his partner, Joseph Parisi, received a radio call of a battery in progress. They arrived at the scene about the same time as Officers Catalano and Norman. He observed people lying on the ground. They were bleeding from head wounds. He also saw a pipe, a couple of bats, a fence post, and sticks on the ground. He arranged for the injured to be transported to the hospital and "very hurriedly" interviewed Johnson, Doyle, McCormick, and Hermanson. The victims described their assailants as a group of six or seven male Latinos armed with baseball bats and lead pipes. One of the subjects was described as five feet five inches to five feet eight inches tall who weighed about 190 pounds, had a stocky build and dark hair styled in an "afro." Another assailant was described as being between five feet two inches to five feet five inches tall and weighing 140 pounds, with a dark complexion and dark hair. Both subjects wore tee shirts and "wash pants" and were between 17 and 25 years of age. These descriptions were recorded in the police report. Wilson was told that the cause of the incident was that a stick had been thrown and uncomplimentary language had been exchanged. Wilson observed pipes and bats on the ground.
Wilson further testified that he and his partner searched the area where the incident occurred for about 10 minutes. While driving past the schoolyard across the street from where the incident took place, Wilson saw Delgado sitting on a bench near a shelter house. He was wearing a short sleeve tee shirt and wash pants. When Wilson approached Delgado, he observed Delgado washing his hands in the shelter house sink and rinsing off what appeared to be blood from his hands and forearms. Wilson saw that Delgado had spots on his shirt, a bump on his forehead, a mark below his left eye, and a small tear in his pants.
Wilson then asked Delgado to accompany him to the hospital. Delgado agreed and was cooperative. Wilson asserted that Delgado was not placed under arrest and he was not asked any questions. When Wilson turned the squad car around the corner, he saw two men walking down the street. One of the men was Diaz, who had blood and a fresh band-aid on his hand. Diaz was wearing a tee shirt and wash pants. When Wilson stood next to Diaz, he saw blood on Diaz' neck. Diaz was asked to go to the hospital, and he also agreed to do so.
Wilson further testified that he brought the suspects to the hospital because the victims' condition was questionable and he wanted the victims to view the suspects. At the hospital, McCormick was standing in the lobby. Wilson and his partner were standing behind the defendants and a third suspect, James Peterson, as they entered the hospital. Before the police said anything, McCormick identified the suspects as the men who had attacked his friends. *fn1 The defendants were handcuffed and Wilson left defendants in Officer Norman's custody. Wilson asserted that he later returned to the area where the incident occurred and he recovered the baseball bats which were later identified at trial. It was stipulated that the defendants' fingerprints were not detected on the baseball bats. *fn2
Assistant State's Attorney James Davidson testified that after advising defendants of their Miranda rights, they each explained what had happened. Diaz stated that he heard someone call him a "nigger," and he ran into a basement to get a mop. When he returned to the area, he saw four or five males standing on the sidewalk. Diaz ran after them and threw the mop at them. As he ran away, he tripped over a bicycle and fell on his face hurting his knee and ...