Appeal from the Circuit Court of Lake County; the Hon.
Lawrence Inglis, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant, Delmar Kosyla, was charged by information in Lake County with two counts of aggravated battery, one for injuring Mark Beese by shooting him with a gun, and one for striking Glenn Beese, Jr., with a baseball bat. (Ill. Rev. Stat. 1983, ch. 38, par. 12-4(b)(1).) He was found guilty by a jury of the offense against Glenn Beese, Jr., but was acquitted of the shooting charge against Mark Beese. He was sentenced to 30 months' probation, with six months' incarceration in the Lake County jail.
The defendant contends (1) the court erred in proceeding on the second count of the information charging defendant with the aggravated battery of Glenn Beese because there was no evidence connecting him with that charge at the preliminary hearing and no finding of probable cause was made as to that count; (2) his guilt was not proved beyond a reasonable doubt; and (3) the court abused its sentencing discretion by including a jail term in his sentence of 30 months' probation.
The charges arose out of a neighborhood brawl during the early morning hours of July 7, 1983. It involved various members of the Kosyla, Potts, and Beese families, as well as several of their respective friends. The three families all lived on Marydale Drive in a Lake Zurich subdivision. There was evidence that the relationship between the Pottses and the Beeses on the one hand, and the Kosylas on the other hand, had been hostile at times during the preceding 2 1/2 years.
The State presented evidence that on July 6, Mark Beese, Tom Carpenter, and Brian Post were at Horsing Around, a bar in Wisconsin. Mark worked there as the doorman and bouncer. At about 9 p.m., Mark received a call from Maria Monino, the daughter of Mrs. Potts. Maria was then the fiancee of Tom Carpenter, and was his wife at the time of trial. She told Mark that she had been in an altercation with Mr. Kosyla, the defendant's father, and that he had hit her. She called for Mark because she did not want to upset her fiance. The three young men left Horsing Around about midnight after Mark got off work. They drove to the subdivision in Lake Zurich, and Mark parked his car at his house. The three of them then walked to Potts' house to see Maria. It was about 1 a.m. when they arrived.
They saw Maria in her bedroom, and discovered she had two black eyes as the result of being struck by the defendant's father. Mrs. Potts, Carpenter, Mark Beese, and Phillip Monino (Mrs. Potts' son) testified they then heard rocks hitting the outside of the Potts' house and/or the utility shed in the backyard. Tom Carpenter ran out of the house, followed by Mark Beese and Brian Post. In the street in front of the Potts' property, they found the defendant, a friend of the defendant's named Tim Anzalone, and the defendant's two younger brothers, Shane and Zachary. The defendant was holding a three-foot-long, rounded object, which Mark Beese described at trial as a metal baseball bat. Anzalone was holding a two-foot-long pipe. As the two groups confronted each other, Mark's older brother, Glenn Beese, Jr., ran toward the scene from the Beese house. The Beeses had been awakened by a phone call from Mrs. Potts during the rock-throwing incident.
Glenn Beese, Jr., observed Anzalone poised with the pipe raised, about to deliver a blow to Mark. He charged between them, and prevented Anzalone from landing the blow. As Glenn turned toward Mark to find out what was going on, he testified he was struck on the right shoulder and fell to the ground. Glenn testified he did not see who hit him but that, other than Anzalone, the defendant was the only one holding a long, shiny, metal-like object. After he was struck, Glenn testified he saw the defendant running toward the Kosyla house holding the same shiny object in his hand.
Glenn and the three others pursued the defendant's group to the Kosyla house, but Glenn fell down again before reaching the gate at the entrance to the Kosylas' driveway. Other evidence presented by the State concerned the shooting incident of which the defendant was acquitted, and for the most part it is not relevant to this appeal.
Although Lake County sheriff's detective Braze testified at the preliminary hearing that Mark Beese told him he saw the defendant hit Glenn with the baseball bat, Beese testified at trial he did not see who hit Glenn, denied he told Braze that he saw the defendant hit Glenn, and denied he recanted such a statement on the morning of the preliminary hearing. Detective Braze's testimony at trial was that Mark Beese told him he saw the defendant strike Glenn with a bat. After his recollection of his preliminary hearing testimony was refreshed with the transcript of that hearing, Detective Braze still did not recall Mark Beese changed his story about who hit Glenn. He recalled having a discussion with Mark the morning of the preliminary hearing, but did not recall Mark's saying it was not the defendant who struck Glenn. Detective Braze also testified to the search of the Kosyla residence, at which time a baseball bat was observed in the kitchen, leaning up against the refrigerator. The bat was not taken, but a .22-caliber pellet pistol was collected.
Another witness for the State who testified concerning the battery of Glenn Beese was Fredericka Potts, Maria Monino's mother. She testified she heard rocks being thrown on the roof of an aluminum shed in their backyard. She alerted the group downstairs in Maria's bedroom, and called the Beese residence. She looked out her front window to the street, and testified she heard the defendant yell: "Come on over here, [obscenity deleted]." She went out on the porch and saw the defendant and another in the street; the defendant was wearing a white T-shirt and possibly jeans. He was holding a three-foot-long, round object, the exact nature of which she could not discern. The person with him was wearing dark clothing, and held a similar, long, round object, which was shorter in length than the one held by the defendant. She testified the lighting of the area at that time consisted of a floodlight on her garage that "goes right out to the road," and porch and garage lights at the Mochockis' house next door, and at the Kosylas', which was next to the Mochockis'. She observed Glenn come running up the road and described what happened:
"A. [Fredericka Potts] I know one guy, Tim, I believe his name is Tim, I know him from the gas station, he came with the object raising it up like this towards Mark. First Glenn went up and kind of stood in front of him and prevented him from going after Mark. All I remember is Glenn Beese turning like this and Delmar Kosyla went from behind like this and struck him over the shoulder.
Q. [Prosecutor] Okay. And what did he strike him with?
A. With the round object I had seen.
Q. And how many times did he strike him, did you see?
A. To my knowledge, twice.
Q. And where in relationship to your body did he strike him?
A. This side (indicating); the right shoulder, on the back here."
During cross-examination, Mrs. Potts related her testimony concerning the above event twice more in approximately the same manner:
"A. [Fredericka Potts] I didn't see anybody else doing anything. Only thing I could see was Glenn Beese being struck as he turned to prevent see, Delmar was standing there and this friend of his, like I said to Mr. Ritacca [the prosecutor], came towards him with a round object and Glenn Beese went up and tried to prevent him from going up to Mark. He was coming after Mark
Q. [Defense counsel] And it was at that point
A. and as he turned, that's when Delmar took the baseball bat like this and struck him over the shoulder."
In the second instance, Mrs. Potts testified:
"A. [Fredericka Potts] I told you I saw Glenn running up the road then I saw him in front and I saw somebody come towards him with a round object. It wasn't Delmar. He tried it looked to me like he was going after Mark. I noticed Glenn Beese tried to prevent him from going he stood like this and as he turned, that's when Delmar picked up the had the baseball bat in his hand and he struck him.
Q. [Defense counsel] It was a baseball bat.
A. Well, no, it wasn't a baseball bat, I said a round object, you know, I never said what it was.
Q. Then you saw him strike him again, right? You saw Delmar strike him twice.
A. Yes, right. Right. It was right after it."
With regard to the two strikes by Delmar, Mrs. Potts testified the defendant struck Glenn once on the back of the shoulder and once again "more on the back." Glenn Beese recalled being struck only once. Doctor Michael Parker testified he examined both Mark and Glenn Beese after the incident. As to Glenn, the doctor observed he had some scrapes, and some swelling and tenderness over the right shoulder, "specifically over the joint called the AC joint." He also had some swelling and tenderness to the back of his right hand. Glenn received X rays, a prescription for pain and a sling. Cross-examination of the doctor dealt almost exclusively with his testimony concerning Mark's gunshot wound, and none of the doctor's testimony concerning Glenn's injuries was either impeached or elaborated upon.
The defense presented was that of defense of self, others and home. The defendant's mother, Joyce Kosyla, testified her family's relationship with the Pottses and Beeses was very uncomfortable between January and July of 1983, and that she and her family had been threatened many times by mail and on the phone.
At 1 a.m. on July 7, she was in the living room of her home. Sixteen-year-old Zachary, 11-year-old Elizabeth, and five-year-old Steven were sleeping. The defendant, his brother Shane, and defendant's friend, Tim Anzalone, were working on Mr. Kosyla's van in their detached garage. She was about to turn off the television, when she heard something banging against the closed farm-type gate which they had at the end of their gravel driveway. Looking out, she saw Mark Beese pushing at the gate with what appeared to be a club, possibly a baseball bat. He was with Glenn Beese and two others whose names she did not know. She called the police and watched the defendant proceed toward the Beese group, against her wishes, saying he had to help Tim. She heard firecrackers going off, and saw the defendant headed from the house back in the direction of the driveway. She identified pictures of the driveway gate at trial, ...