Appeal from the Circuit Court of Cook County; the Hon.
Cornelius J. Houtsma, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendant was convicted and sentenced to 10 years for attempted murder. He contends on appeal that (1) the State failed to prove beyond a reasonable doubt that he did not act in self-defense; (2) his claim of self-defense, even if insufficient to warrant acquittal, should have reduced the charge to attempted voluntary manslaughter; and (3) the sentence imposed is excessive.
At trial, John Perez, Jr., testified that he worked as a part-time doorman at a lounge in Crestwood, Illinois. He was not scheduled to work on March 16, 1981, but went to the lounge between 12:30 and 1 a.m. to wait for his fiancee, who was working as a waitress. The lounge closed at 4 a.m., and by that time he had consumed three or four drinks. The only employees present at closing were his girlfriend and a female bartender; there was no doorman on duty, so he, Scott Dellamano, and Richard Darge began asking the 15 remaining patrons to leave. A few left between 4 and 4:15, but defendant, whom he had never seen before, was asked approximately five times to finish his drink and leave and did not comply. The manager of the band was sitting next to defendant, and he (Perez) told them that they had to leave. He did not raise his voice when telling them this and was not upset. Finally, he took defendant's drink away from him, although there was a small amount left in the glass. Defendant then started to leave the lounge, but returned, and he (Perez) again told him that the bar was closed. Defendant said, "Come on," and took a swing at him but missed. At that time, defendant did not have anything in his hand, and he (Perez) was unarmed. He grabbed defendant, and they went out into a hallway where they scuffled for 40 to 50 seconds. He had defendant in a headlock when he (Perez) began falling to the ground, and he noticed that his pants were soaked with blood. Darge grabbed him, laid him on the floor, and told him to stay there. He was hospitalized for 2 1/2 weeks and had surgery to repair knife wounds to his diaphragm, liver, abdomen, lung, and kidney. As a result of the attack and subsequent surgery, he has numerous scars on his abdomen, chest, back, and thigh. He acknowledged that he may have been feeling his drinks, but denied that the amount he drank affected his memory of events that evening. Although he recalled telling officers that he was working that night, he did not remember telling hospital personnel that he had consumed nine to 12 cocktails while at the lounge. Darge and Dellamano also drank cocktails that night, but he (Perez) did not know whether they had beer mugs or cocktail glasses in their hands when they came into the hallway. He and defendant were alone during the altercation, and at no time did defendant fall to the floor. Defendant was behind him when he (Perez) fell to his knees, but he did not know whether defendant struck him again after the others arrived.
Officer Peterson testified that he called to the lounge at 4:15 a.m. and, when he entered, he saw defendant struggling with two or three other people who were trying to hold him. Perez was on the floor bleeding heavily from his back and leg, and there was a knife on the floor next to him. Defendant was placed under arrest, and a search revealed a leather knife sheath near his right lower back. Defendant had a bruise on his face and was examined and treated at a hospital but not admitted.
Richard Darge testified that he arrived at the lounge at approximately 3:45 a.m. on the night in question and ordered a beer. He recognized defendant, who had been in the lounge once or twice before, as well as Perez and his fiancee, the manager, and Dellamano. When he arrived, Perez was telling patrons it was time to leave. Defendant did eventually leave, but returned immediately and walked up to him and shook hands. When he and Perez again told defendant it was time to leave, he said to Perez, "Well, let's go outside," and started to walk out with Perez following him. There was no physical contact between them in the bar area, but when he (Darge) and Dellamano entered the hallway minutes later, Perez and defendant were fighting. They were both on their feet, and Perez had defendant in a headlock. Perez then began walking away from defendant but immediately fell to his knees. Defendant then put his arm around Perez' neck and stabbed him three or four times in the back. He (Darge) and Dellamano tried to subdue him, but they could not get the knife out of his hand. Darge acknowledged that he and Perez were good friends but denied that Perez was intoxicated when the altercation began. Perez told defendant to leave several times, loudly enough for everyone in the bar to hear. Neither he (Darge) nor Dellamano had a beer mug in their hands when they entered the hallway, and only separated the two men when they saw defendant stabbing Perez.
It was stipulated that, if called, Dr. Gill would testify that Perez suffered 17 stab wounds to his back and extremities. Surgery was required to repair lacerations of his diaphragm, liver, omentum and pneumopericardium.
Dellamano testified that he arrived at the lounge at approximately 1:15 a.m. and consumed five or six drinks between that hour and closing. There were 10 to 12 patrons, including defendant, in the lounge at closing time. Later, he saw defendant in the hallway where he was arguing with Perez, who was trying to get him to leave. Perez and defendant grabbed each other, and they moved into a hallway out of his (Dellamano's) sight. When he saw them again, Perez was facing defendant and holding onto him as if to keep from falling while defendant was stabbing him in the back. He (Dellamano) grabbed defendant, and Perez fell to the floor. He and Darge then wrestled defendant to the floor and disarmed him. Perez was unarmed. Dellamano admitted that Darge and Perez were his friends but denied ever seeing defendant before, arguing with him on a previous occasion, or threatening him with a beer mug. He did not have a beer mug or anything else in his hand when he entered the hallway and had not even been drinking beer that night. There were three men trying to take the knife away from defendant, and he (Dellamano) struck defendant in the face with his fist several times during the struggle. No one else hit or kicked defendant. He denied telling police that he had to pull Perez off defendant in order to break up the fight.
Defendant testified that he went to the lounge on the night in question at approximately 3:55 a.m. Before that, he was at a wedding reception from 10 p.m. until 2 a.m., at a bar at 67th and Kedzie from 2:30 to 3 a.m., and at another bar from 3 until 3:30 a.m. He consumed three or four beers at the reception and one drink at the first bar. Because that bar was a rough place, he took a knife from a tackle box in his trunk and placed it in his belt at the right side of his back before entering. He took the knife into the lounge in Crestwood because he forgot it was there until he was inside. Upon entering the lounge, he sat at the bar talking to the manager of the band. When Perez told them it was time to leave, the manager asked if he could stay until the band left, but Perez said, "I don't give a f____ who you are, you got to go." He (defendant) started to finish his drink but then put it down, stating "F____ this place, they water down their drinks anyway" and left. As he neared the door, he saw Darge and went back to greet him, and Perez then grabbed his arm and started pulling him, saying "how many times do I got to tell you, Buddy, it's time to go." He (defendant) pulled away and started to leave, but Perez followed him and grabbed him when they reached the hallway. When he tried to break free, Perez hit him, and in the struggle both of them fell to the floor. Perez, who was on top of him with his left forearm at his (defendant's) throat, began punching him in the face — striking him six or seven times. Two or three people rushed from the bar and began kicking him (defendant). He recognized one of them as Dellamano, with whom he had trouble two months previously over a pinball game. At that time, he overheard Dellamano say he would have hit him (defendant) in the head with a beer mug. When Dellamano entered the hallway on the night in question, he had a beer mug in his hand, and he (defendant) was afraid he would get his head bashed in with that mug. When the three or four people continued hitting and kicking him, he pulled out his knife and began stabbing Perez in the back but could not recall how many times he did so. During all of this time, he (defendant) was on his back and Perez was on top of him with his forearm against his throat. As a result of the beating, he had a bruised nose, two black eyes, a bloody lip, and bruises on his head, chest, back, legs, and ankles. He received treatment at the hospital for these injuries but was not admitted. Defendant acknowledged that Perez told him twice to leave and did not raise his voice in doing so. He (defendant) heard other announcements of closing time but did not recall who made them. Although he was upset that he had to leave, he was not angry. He denied stabbing Perez in the back as he fell to the ground.
It was stipulated that a nurse at the hospital would testify if called; that Perez stated he had nine to 12 V.O. and water cocktails on the night in question; that another nurse would testify that defendant suffered a facial injury, scalp contusions and abrasions, a chestwall contusion, and abrasions on his ankles; and that a police officer would testify that Dellamano stated immediately after the incident that he tried to break up the fight by pulling Perez off defendant.
Defendant first contends that the State failed to prove beyond a reasonable doubt that he did not act in self-defense. He maintains that the trial court lightly disregarded his exculpatory testimony, which was corroborated in part, unimpeached, and not inherently improbable. Furthermore, he argues, the trial court failed to remember or integrate key facts and testimony into his analysis of what occurred.
Self-defense must be affirmatively raised by a defendant; however, once some evidence is presented on that issue, the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. (People v. White (1980), 90 Ill. App.3d 1067, 414 N.E.2d 196.) The defense is raised when evidence is presented that unlawful force was threatened against the defendant; that the danger of harm was imminent; that defendant was not the aggressor; that defendant actually believed that danger existed and that the kind and amount of force used was necessary to avert that danger; and that defendant's beliefs were reasonable. (People v. Kyles (1980), 91 Ill. App.3d 1019, 415 N.E.2d 499.) Should the trier of fact determine that the State has negated any one of these elements beyond a reasonable doubt, then the State has carried its burden of proof. (People v. Seiber (1979), 76 Ill. App.3d 9, 394 N.E.2d 1044.) Moreover, deadly force may be used only where the threatened force will cause death or great bodily harm or is a forcible felony (People v. Seiber) and is not justified where the victim, even though initially the aggressor, has been disarmed or disabled (People v. Limas (1977), 45 Ill. App.3d 643, 359 N.E.2d 1194).
• 1 In the instant case, defendant acknowledges that the issue of self-defense is a question of fact to be resolved by the trial court, and normally, on review, we will not disturb its finding unless the evidence is so improbable or unsatisfactory as to raise a reasonable doubt of guilt. (People v. Chatman (1981), 102 Ill. App.3d 692, 430 N.E.2d 257.) However, defendant asserts that the trial court may not simply reject his testimony thereon as incredible where it is uncontradicted and corroborated in part (People v. Jordan (1954), 4 Ill.2d 155, 122 N.E.2d 209) and presents a reasonable hypothesis of justification (see People v. Cortez (1975), 26 Ill. App.3d 829, 326 N.E.2d 232). This argument assumes that defendant's testimony was wholly uncontradicted, for it is established that the trier of fact is not required to believe an accused's exculpatory testimony (People v. Adams (1979), 71 Ill. App.3d 70, 388 N.E.2d 1326); rather, it must consider the probability or improbability of that testimony, the circumstances surrounding the incident, and the testimony of other witnesses (People v. Perez (1981), 100 Ill. App.3d 901, 427 N.E.2d 229). Where the circumstances and testimony are contradictory, we will not substitute our judgment for that of the trier of fact on questions involving the weight of evidence and the credibility of witnesses (People v. Hall (1982), 104 Ill. App.3d 1064, 433 N.E.2d 1039), since conflicts in evidence are to be resolved by the fact finder (People v. Rodriquez (1981), 100 Ill. App.3d 244, 426 N.E.2d 586), and it is not our function to reweigh facts and redetermine from the record the credibility of the witnesses (People v. Zagnoni (1981), 96 Ill. App.3d 676, 421 N.E.2d 1005).
• 2 Defendant first argues that there is no support in the record for the trial court's conclusion that he was the aggressor and therefore not entitled to assert a claim of self-defense. We disagree. Perez testified that when defendant returned to the bar and was again told to leave, he took a swing at him (Perez). Furthermore, Darge testified that defendant said to Perez, "Well, let's go outside," which the trial court apparently interpreted as an invitation to fight. The trial court found these witnesses more credible and correctly concluded that an accused may not seek our a perilous situation, then assert that he acted in self-defense. (People v. Echoles (1976), 36 Ill. App.3d 845, 344 N.E.2d 620.) Defendant's further argument, that the trial court should have found that Perez was the aggressor because the amount of liquor he consumed on the night in question would naturally make him belligerent, is likewise frivolous. Both Perez and Darge testified that Perez was not intoxicated, and defendant himself testified that Perez never raised his voice in telling him to leave, which is corroborated by Perez' testimony that he was not angry or upset. Although defendant maintains that Perez' belligerence is shown by the fact that he was not ...