APPEAL from the Circuit Court of Livingston County; the Hon.
WILLIAM T. CAISLEY, Judge, presiding.
JUSTICE LONDRIGAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 30, 1982.
Defendant was charged by indictment with two counts of aggravated battery. He was found guilty by a jury and sentenced to a term of 7 1/2 years' imprisonment, the sentence to be served consecutively to his current 3-year sentences.
At trial, Ronald Salisbury testified that he was an employee of the Pontiac Correctional Center on December 11, 1980, assigned to the gymnasium. Salisbury had received a call earlier in the afternoon ordering him to "shake down" all inmates entering and leaving the gymnasium. About 2:30 p.m. Salisbury was involved in a confrontation with an inmate, Joe Lofton, who refused to be searched. Salisbury wrote a disciplinary "ticket" against Lofton and sent him to the cellhouse.
At 3:30 p.m., Salisbury blew his whistle to indicate to the inmates that it was time to leave the gymnasium. Salisbury blew his whistle first in the gymnasium area and then walked to the weight room and shouted for the inmates to leave. As Salisbury walked out of the weight room, he was struck in the back of the head by a metal object, later determined to be a barbell collar. Salisbury did not see who threw the collar. There were approximately 60 to 70 people in the gym and about 17 to 20 people in the weight room. Salisbury was taken to the hospital and received eight stitches to his head.
Donald Polizzi, a penitentiary investigator, testified that he went to the gymnasium shortly after the attack on Salisbury. The officers had locked the doors to prevent anyone from leaving. Polizzi and the other officers interviewed 59 inmates who were in the gymnasium area.
Polizzi testified that Joe Lofton's nickname was "China Joe" and that Lofton was a lieutenant in the Vice Lords, a prison gang. The other large gang at Pontiac is the Disciples. Over objection, Polizzi testified that defendant was a "soldier" in the Vice Lords. Polizzi said that it was not uncommon for a gang officer to order a soldier to do something. The punishment for refusal to obey an order varies according to each gang, but could include physical harm to the inmate or harm to the inmate's family caused by gang members outside the prison.
Eddie Taylor had been held at Pontiac between April or May of 1979 and December 1980. Taylor testified that he had been a member of a gang, the Black Gangsters Lynchmen, before his incarceration at Pontiac.
On December 11, 1980, Taylor was lifting weights in the weight room. He saw defendant throw a barbell collar at a correctional officer, striking the officer in the back of the head. Defendant jumped back inside the weight room and fled upstairs to the ping-pong room. Taylor told Polizzi that he would testify against the defendant. Two months later, Taylor was placed on work release. Taylor later violated his work release and had been confined to Joliet.
Taylor testified that the Disciples' insignia was a fork and a six-pointed star, with some members wearing crossed pitchforks as an insignia. At the request of defendant's counsel, Taylor revealed a tattoo of two crossed pitchforks on his interior right forearm. However, Taylor stated that his gang and the Disciples were "associated" and had very similar insignia. According to Taylor, the Vice Lords' insignia was a "VL" with a five-pointed star and moon.
Kevin Scott testified that he and defendant were playing basketball in the gymnasium on December 11, 1980. Scott stated that they had played basketball from the time defendant came to the gym until they were taken out after Salisbury was struck. In response to a prosecution question, Scott said that he had never been a gang member, either in or out of prison.
Defendant testified that on December 11, 1980, he began playing basketball as soon as he got to the gymnasium and quit when the officers came in after Salisbury was injured. He did not throw anything at Salisbury. Defendant did not know "China Joe" and had never talked to Lofton.
In rebuttal, the State called Desi Martin. Martin was an inmate at Pontiac, serving time for deviate sexual assault and armed robbery. Martin was in the weight room when Salisbury was struck. Martin testified that defendant was not in the weight room when Salisbury was struck. Defendant had been in the weight room earlier, Martin testified, but Martin had not seen him holding a barbell collar.
Outside the presence of the jury, the State's Attorney stated that he had been surprised by the testimony and had been told that Martin had seen defendant holding a weight collar 10 minutes before the attack on Salisbury. Over defendant's objection, the State called Martin as a hostile witness.
Martin stuck to his story and denied that he had told the prosecutor and Lieutenant Polizzi that he had seen defendant holding the collar 10 minutes before the attack on Salisbury.
Assistant State's Attorney Charles Frank, who was prosecuting the case, called himself as a witness and was questioned by another assistant State's Attorney. Frank testified that, on two prior occasions, Martin had stated that he had seen defendant with a barbell collar in his hand. Defendant's counsel asked the court to either strike Frank's ...