Appeal from the Circuit Court of Cook County; the Hon. Arthur
J. Cieslik, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendants, John Castiglione and his brother, Michael Castiglione, were found guilty of murder and were sentenced to terms of 35 years and 30 years, respectively. On appeal, defendants contend that the trial court erred in refusing to consider the defense of justifiable use of force and the lesser included offense of voluntary manslaughter, that the court improperly restricted their cross-examination of prosecution witnesses, and that they were not proved guilty beyond a reasonable doubt.
David Hense testified that sometime between 3:30 and 4 a.m. on November 13, 1983, he was having a beer with his friend Thomas Gardner at a tavern located near 63rd Street and California Avenue when Michael Castiglione punched Gardner once in the face without warning or provocation. Michael admitted the punch but explained that Gardner, a former neighbor, had called him an "asshole." Michael's brother, John Castiglione, was also in the tavern at the time of the incident. The witnesses disagreed as to whether John's friend, Ricky Blake, was present. A brawl erupted which ended when Gardner, Hense, and the Castigliones were ejected from the bar. Hense denied that Gardner fought with either Castiglione outside of the tavern. Michael, however, stated that Gardner was fighting with John as they were leaving. The fight broke up when Hense came out of the bar followed by Ricky Blake and his friends.
Hense testified further that he and Gardner followed the Castigliones to a gas station located at the northwest corner of 63rd Street and California Avenue where they engaged in a brief fistfight. Michael stated that both he and his brother were knocked down by Gardner and that Hense broke a board across his back. Michael said he gave up and that Gardner then called him a "sissy." Afterward, Hense and Gardner walked to the apartment which Gardner shared with his girlfriend, Judy Volkman, at 2917 West 62nd Street. John Castiglione went to stay with an older brother at 63rd and Washtenaw, two blocks away, and Michael returned to his father's home at 5922 South Washtenaw. Michael admitted that he did not call the police to complain of what had happened to him either at the bar or at the gas station.
David Hense, Thomas Gardner, and Gardner's girlfriend, Judy Volkman, left the apartment between 4:30 and 5 a.m. and drove to Volkman's mother's home at 5821 South Rockwell to return her car. Hense, Gardner, and Volkman then started to walk back to the apartment. They proceeded south on Rockwell to 59th Street, west on 59th Street to Washtenaw and, with Gardner in the lead, south on Washtenaw. Gardner knew where the Castigliones lived on Washtenaw but Hense and Volkman did not. They could have taken another route which would not have taken them past the Castiglione residence.
Both Hense and Volkman stated that as they walked south on Washtenaw they saw three persons walking north toward them on the same side of the street. They did not recognize any of them until they were quite close. The two groups confronted each other on the sidewalk in front of the home located at 6018 South Washtenaw. Hense and Volkman both recognized John and Michael Castiglione, but neither witness knew the third man, later identified as Ricky Blake, or had ever seen him before. Hense and Volkman described him as 5 feet 9 inches to 5 feet 10 inches tall, weighing 160 to 180 pounds, with long brown or blond hair, and a beard. He was wearing a green army jacket and blue jeans and had a red bandanna on his head. John Castiglione was wearing a long-sleeve, red, white, and blue plaid flannel shirt, a black jacket, and blue jeans. Michael Castiglione also was wearing blue jeans.
Hense and Volkman testified that Gardner asked Michael Castiglione why he had punched him in the face earlier at the bar. An argument then ensued between Michael and Gardner during which Ricky Blake called Volkman a "bitch." Gardner turned to Blake and said, "Leave her out of this, she has nothing to do with this." Blake and Gardner then began to fight. Hense and Volkman did not know who started the fight, but Michael Castiglione testified that Blake initially placed both of his hands on Gardner's chest and pushed him backward. Gardner took off his blue nylon windbreaker and fought back. Neither Hense nor Volkman saw a knife in Blake's possession, and Hense denied that he had said otherwise to the police. Officer Bartosik, however, testified that Hense told him that Ricky Blake had a knife when he was fighting with Gardner. Gardner, Hense, and Volkman were unarmed. Gardner threw Blake down, then fought with him on the ground. Gardner was 6 feet 2 inches tall and weighed approximately 190 pounds; Blake, as has been noted previously, was 5 feet 10 inches tall and weighed between 160 and 180 pounds.
Hense and Volkman testified further that when Hense attempted to intervene in the fight between Gardner and Blake, Michael Castiglione pulled out a knife with a 3- to 4-inch blade, held it to his chest and said, "Just stay out of it or you will get what is coming to you." Hense stated that John Castiglione, who had been watching the fight closely and was holding a similar knife in his right hand, stepped forward and, without provocation, repeatedly stabbed Gardner in the lower left back, the left side of the chest, and the left arm underneath the arm pit when it became apparent that Blake was losing the fistfight with Gardner. Hense yelled, "Tom, they've got knives!" and ran for help by pounding on the doors of nearby homes, but no one answered. John stopped stabbing Gardner, and Michael began to punch him. John then attacked Gardner with his knife and pushed Volkman away when she tried to protect her boyfriend. Volkman again attempted to intervene, but Ricky Blake threw her to the ground saying, "No you don't, bitch," and began beating her.
Both Hense, who had returned to the scene, and Volkman saw John and Michael Castiglione stabbing Gardner. Two police officers who interviewed Volkman at 6:30 and 9 a.m. on November 13, 1983, however, testified that she never indicated that she had seen either John or Michael Castiglione stab Thomas Gardner. According to these officers, Volkman, who was hysterical, stated only that she had been knocked down and that she did not know that Gardner had been stabbed until after the Castigliones and Ricky Blake had left. Hense ran to a telephone booth at 59th Street and Talman Avenue and called the police. Finally, the Castigliones ceased their assault on Gardner, who stood up and walked a few feet toward Volkman. He told her that he had been stabbed and that she should call an ambulance. He then collapsed.
Volkman ran to the same telephone booth Hense had used and also called the police. When she came back, she asked John Castiglione, who was leaving the scene, why he had stabbed Gardner, and he merely extended his arms as if to push her away. Volkman ran to Gardner's side, but she saw that he already was dead. There was blood all over him, including his legs. At that time he was wearing brown corduroy pants and black shoes, but he was naked from the waist up. He was not wearing the blue windbreaker or yellow shirt Volkman had seen on him earlier.
Testifying in his own behalf, Michael Castiglione denied that either he or his brother had stabbed Thomas Gardner. Michael said he assisted Ricky Blake only after he saw that Gardner had overpowered him and was kicking him in the face. Michael said he hit Gardner because he was kicking Blake in the face. Gardner then started to run south on Washtenaw. Ricky chased and when he caught him, they fought again. After some blows Gardner ran from the fight, and when he met John in the middle of the street, they exchanged blows. When Gardner reached the other side of the street, "he just laid down." Ricky then began kicking Gardner, and after noticing that Gardner was covered with blood, Michael saw Ricky closing a knife. Michael, however, failed to mention the knife when he was interviewed by an assistant State's Attorney later that morning. Michael testified further that he saw Blake kicking Gardner after he (Gardner) had been stabbed. Although Michael knew that Gardner had been seriously injured, he did not notify the police. John, according to Michael, was highly intoxicated.
Officer Richard Shore, responding to a report of a disturbance, observed John Castiglione walking north on Washtenaw immediately north of 60th Street. He had blood on his face, hands, and chest. Shore drove south to the intersection of Washtenaw and 60th street, where he saw a woman leaning over a body, crying and screaming. The victim, Thomas Gardner, was partially bare-cheated, and there was blood on his chest and hands. Shore turned around and drove north on Washtenaw until he again saw Castiglione and ordered him to halt. Castiglione looked at Shore and attempted to run. He was staggering and appeared to be highly intoxicated. Castiglione tried to hide in some bushes, but Shore pulled him out and demanded to know what had happened. He denied any knowledge of the stabbing. Shore arrested him and took him back to the scene of the crime.
Upon their arrival Judy Volkman pointed at John Castiglione and shouted, "Here he is. He's one of them. He's one of them." When Shore asked her what had happened, Volkman responded, "[H]e was one of them who attacked him [Gardner] with a knife." She added, "He has a brother who was also involved in it." Shore asked Volkman where the brother lived, but she could not give him an exact address because she was excited and incoherent. She just pointed north. John Castiglione told Shore where he lived. Hense also identified John Castiglione and told Shore that his brother (Michael) was involved. On cross-examination, Shore stated that after Gardner's body was removed, Volkman stated that John Castiglione possibly had a knife on him. No weapons were found at the scene, which was not searched until after daybreak.
A blue jacket was found in front of 6024 South Washtenaw; a yellow pullover shirt and a red and white bandanna were discovered in the area of 6028 South Washtenaw. Blood on the shirt could have been a mixture of defendants' blood, but it did not match Gardner's blood. Drops of blood were found on both sides of the 6000 block on South Washtenaw and in the street. Samples of blood taken from 6014 and 6023 South Washtenaw ...