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People v. Marron

OPINION FILED JULY 23, 1986.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JOSE FELIPE MARRON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Ogle County; the Hon. Alan W. Cargerman, Judge, presiding.

JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:

Defendant, Jose Marron, was charged with battery. When he rejected the State's offer for a plea agreement, the prosecutor charged him by information with aggravated battery (battery on a public way). Following a jury trial, defendant was convicted of the lesser included offense of battery. (Ill. Rev. Stat. 1985, ch. 38, par. 12-3(a)(2).) He was sentenced to periodic imprisonment (work release) for a term of 364 days and ordered to pay restitution in the amount of $95. Defendant appeals, contending (1) that he was not proved guilty beyond a reasonable doubt, (2) that his right to due process of law was violated because the prosecutor, without prior notice that he would do so, charged defendant with aggravated battery to punish him for exercising his constitutional right to trial, and that, as a sanction for that violation, his conviction should be reversed without a new trial, and (3) that the trial court erroneously denied his motion in limine which sought to preclude the State from introducing his prior conviction of aggravated battery to impeach his credibility in the event he testified in his own defense.

• 1 Before addressing these contentions, we must consider the effect of defendant's failure to make a motion for a new trial. Generally, the failure to make such a motion results in waiver of the issues sought to be raised on appeal. (People v. Pugh (1982), 106 Ill. App.3d 901, 436 N.E.2d 737; People v. Hammond (1977), 48 Ill. App.3d 707, 362 N.E.2d 1361.) In People v. Friesland (1985), 109 Ill.2d 369, 374-75, 488 N.E.2d 261, our supreme court stated:

"Exceptions to this rule have been made with regard to the failure to prove a material allegation of an indictment [citation], or in those instances in which the allegation of error would not normally be expected to be included in the post-trial motion (such as an allegation of ineffective assistance of counsel) [citation], or if a reviewing court elects to take notice of plain errors affecting substantial rights pursuant to our Rule 615(a) (87 Ill.2d R. 615(a)). [Citation.]"

The first exception stated in Friesland applies to defendant's argument that he was not proved guilty beyond a reasonable doubt, and, accordingly, we will review that issue. (But see People v. Thiel (1981), 102 Ill. App.3d 28, 429 N.E.2d 565.) The only exception arguably applicable to the other issues raised by defendant is the plain-error exception of Rule 615(a), and we will discuss those issues in that context.

We first consider defendant's argument that he was not proved guilty beyond a reasonable doubt. At the jury trial four witnesses testified for the State: James Huffstatler, the complaining witness; Carol Huffstatler, his wife; Dr. Lloyd Koritz, an emergency-room physician who treated the complaining witness on the date in question; and Wayne Watson, a sergeant with the Rochelle police department.

James Huffstatler was 43 years old at the time of trial. He testified that on the evening of Friday, August 31, 1984, he and his wife were at the Silver Dollar bar in Rochelle. He had two or three beers while he was there. They left the bar at about 9:30 p.m., and James started walking his wife home. James and his wife were separated at the time, and she lived at the Delos Hotel, one block east of the bar. When they were passing in front of the house next door to the hotel, defendant, who was drinking beer on the front porch of the house with George Herrera, called out to James and told him not to go onto the hotel property.

James testified that he knew defendant because both of them had at one time worked together at the hotel. James stated that at the time of the incident he no longer worked at the hotel, but defendant did. James said he had previously been instructed by the owner of the hotel, Larry Eikamp, not to enter the building.

After defendant called out to him, James replied that he was not going onto the property. He said he was just walking his wife home and then would return to town. Defendant told him he could not go, and defendant grabbed his right arm. At this time James was standing on the sidewalk in front of the house next door to the hotel. James testified he tried to "talk defendant out of it" and make him let go of his arm, but defendant would not. James then punched defendant in the face, and defendant fell backwards to the ground.

James testified that there was a pickup truck parked between the house and the sidewalk. The front of the truck was facing west and toward the house. The scuffle occurred in front of the truck, and when James punched defendant, the latter fell between the pickup truck and the house.

James testified that after defendant fell down, he reached into his pocket. James was worried that defendant was going to pull a knife, so he told his wife to go home, and he walked away. James walked one block west and then one block north. While walking north, he crossed some railroad tracks.

When James was in front of Frankie's Tap, he glanced back and saw defendant approaching him. Defendant had in his hand a dark-colored pocket knife with about about a 4-inch blade. James started backing up the sidewalk, and defendant lunged at him with the knife and cut him on the left cheek. James kept backing up, and an unidentified person approached from across the street and said to him, "I think you'd better leave, he's already cut you once." James then left. He went north about one-half block, cut east through an alley, and went back to the Delos Hotel where he got a handkerchief from his wife. James then went to the police station where he reported the incident to one of the officers.

On cross-examination James testified that defendant had gotten him and his wife fired from their jobs at the hotel. James said he was fired because he was not "doing the work right" for Eikamp. James was still unemployed at the time of trial, and he did not like defendant. James denied telling Eikamp that he saw other Hispanics in the area on the night in question, and that he was not sure that defendant cut him.

James acknowledged that the pickup truck parked near the hotel had a lot of sharp edges on it, but he said he did ...


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