Appeal from the Circuit Court of Kane County; the Hon. Paul
Schnake, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Defendant was convicted of murder following a jury trial in the circuit court of Kane County in violation of section 9-1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1)). He was sentenced to 20 years' imprisonment. On appeal he contends that: (1) the State did not sustain its burden of disproving self-defense beyond a reasonable doubt; (2) the trial court abused its discretion in denying defendant's motion for a mistrial where the State failed to disclose a statement of defendant's; (3) the trial court abused its discretion in denying defendant's motion for a mistrial where the arresting officer alluded to defendant's involvement in other crimes of a similar nature; and, (4) the prosecutor's cross-examination of defendant and closing argument regarding defendant's post-arrest, post-warning silence violated defendant's right to due process. We reverse.
The instant offense arose from the stabbing death of Ralph DiBattista on November 10, 1981, outside a tavern in East Dundee, Illinois. The State in its case-in-chief presented the testimony of five witnesses who viewed some of the occurrences prior to, during and after the crime. None of these witnesses, however, observed the initiation of the struggle between defendant and DiBattista; nor did they observe the actual stabbing. In addition to these witnesses, the State presented the testimony of two investigating officers who arrived on the scene minutes after the stabbing. The only evidence regarding the initiation of the fight and the actual stabbing itself came from defendant's own testimony and that of Purifino Jimenez, a disinterested witness who was driving past the tavern at the time of the incident.
Scott Hartman, Ramiro Sanchez and Alexander Rascon were sitting together drinking beer at a table near the front window of the tavern. Scott Hartman observed defendant and DiBattista, the decedent, standing near each other at the bar. He saw DiBattista casually walk out of the bar. He could see DiBattista's hands as he walked out, but did not see anything in them; nor did he observe anything, including a knife, on his person. After DiBattista left, defendant finished his beer and left the bar "as if he was in a hurry." Approximately 10 seconds later, Hartman heard a thump against the west wall of the building. About 10 seconds later, defendant and the decedent appeared in front of the window and it looked as if they were wrestling. Hartman went out the door and observed defendant holding a bloody knife in his right hand and the decedent in the street holding his chest with both hands. Hartman did not see a knife on decedent's person, nor in his vicinity. Hartman returned inside the bar and 15 to 20 seconds later DiBattista re-entered the bar holding his chest. He went up to a man in a cowboy hat and told the man to take him to the hospital, that he had been stabbed. He then collapsed on the floor. Hartman could see the decedent at all times and did not see any weapons at any time; nor did he see DiBattista pass anything to anybody.
Although the three differed on minor points of testimony, Sanchez and Rascon substantially corroborated significant aspects of Hartman's testimony. After hearing the thump Sanchez looked out the window and saw defendant and decedent with their hands locked. He could see DiBattista's right hand, but not his left. Sanchez ignored the fight until he heard there was a knife. He then went to the window and saw defendant in the street holding a knife and DiBattista on the sidewalk. He could not see DiBattista's hands.
Rascon stated that several minutes after hearing the thump he got up and looked out the window and saw nothing. He turned around again a few seconds later and saw defendant walk nonchalantly, but at a quick pace, past the window in an easterly direction and disappear from view. He did not see a knife at that time, but believed defendant had a knife because he was wearing an open knife pouch and no knife was inside. He also saw blood on defendant's right hand and arm. About a minute later Rascon saw defendant run and disappear. He did not see DiBattista at any time until he re-entered the bar. He had a clear view of DiBattista at all times after he re-entered the bar and did not see a knife in his hands at any time; nor did he see anything pass between the decedent and the man in the cowboy hat. Earlier that evening, Rascon accidentally bumped into the defendant in the bar and defendant stated, "You will pay for it later." Rascon told Sanchez there was "a rowdy down at the end of the bar."
Robert Carlson, another patron of the bar, testified that defendant and the decedent confronted each other inside the bar, although he did not hear what was said. DiBattista had come up to defendant from another part of the bar. Carlson said defendant and DiBattista then left the bar together, with DiBattista in front. Defendant, walking behind, reached behind him and flipped open a knife pouch which was hooked on his belt. Carlson saw a knife in the pouch. They both left the bar and a few minutes later DiBattista re-entered and collapsed on the floor. Carlson never saw DiBattista with a weapon; nor did he see him give anything to anybody.
Timothy Klaras, another patron, heard there was a fight outside. He stepped outside and saw defendant and DiBattista both on the sidewalk, and defendant was holding a knife in his right hand.
Officer Peters arrived at the scene and observed DiBattista lying on the ground. The officer did not notice any weapons in the area around the body or outside the tavern.
Officer Pena arrived on the scene after DiBattista had been transported to the hospital. He and Officer Peters searched the area outside the bar. No weapon was ever recovered. Based upon the investigation, Officer Pena believed the fight began in the alleyway west of the tavern. It was his opinion that based upon the location of the blood stains, no one from within the bar could have seen the entire struggle.
After the incident, defendant fled to Atlanta, Georgia. He turned himself in to the police four months later on March 15, 1982.
A lab report on blood stains discovered in the defendant's vehicle revealed that the blood could have been defendant's and could not have been DiBattista's. The report also concluded, among other things, that several stains found on DiBattista's jacket, boot, and on certain paper towels in defendant's home could have been either DiBattista's or Eliason's blood.
For the defense, Sally Baerr, the bartender, testified she bought defendant a drink called a "watermelon." Defendant refused the drink and threw it over his shoulder. DiBattista then walked up to defendant and the two talked, but she could not hear what was said. According to her, Eliason threw up his hand and left the bar with DiBattista leaving sometime after. Shortly thereafter, she heard a thump against the wall.
Ms. Baerr's version of events was corroborated by the testimony of Ron Bailey, who came to the bar that night with defendant. Bailey also saw defendant and DiBattista exchanging words, Eliason throwing up his arm and then leaving the bar with DiBattista following. He stated it looked as though DiBattista had something in his hand because he was swinging his left arm and his right arm was next to his leg. Several minutes later, ...