APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
520 N.E.2d 984, 167 Ill. App. 3d 146, 117 Ill. Dec. 633 1988.IL.230
Appeal from the Circuit Court of Lake County; the Hon. John L. Hughes, Judge, presiding.
JUSTICE DUNN delivered the opinion of the court. NASH and REINHARD, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN
Defendant, Wayne Curry, was charged with aggravated battery. After a jury trial, at which he was represented by appointed counsel, defendant was found not guilty of aggravated battery but guilty of the lesser included offense of battery. On April 9, 1986, defendant was sentenced to one year of probation and 60 days in the Lake County jail and was ordered to undergo drug and alcohol evaluation and to pay costs and restitution. Defendant filed a notice of appeal the same day.
After sentencing, defendant retained private counsel to present a motion for a new trial. Defendant alleged in his motion that he was denied a fair trial because his appointed counsel had provided ineffective assistance and because the prosecutor had failed to tender exculpatory evidence during the course of discovery. Defendant's motion was denied, and a second notice of appeal was filed May 2, 1986. The appeals have been consolidated for review pursuant to defendant's motion. For the reasons set forth below, we reverse the conviction and remand this cause for a new trial.
On September 30, 1985, the date of the alleged battery, defendant was living with his wife, Patricia, and their six-month-old son, Wayne, Jr., in a house at 115 Baldwin in Waukegan. Other residents of the house on that date included the owner, Patricia's grandmother, as well as Patricia's mother, Beverly Quigley, Patricia's brother, and the victim, James Quigley, who is Beverly Quigley's boyfriend.
Beverly Quigley testified that at approximately 6:30 p.m. on the date in question, defendant and Patricia left the house to look for an apartment, leaving Wayne, Jr., in Beverly's care. James Quigley arrived home from work around 7:30 p.m. A little before 8 p.m., Beverly and her mother left the house for a short time, leaving James to watch Wayne, Jr. Beverly testified that when she left, the baby was dressed in his night clothes, and that he was starting to "get a little fussy" because he had not had supper. She also testified that when she left the house, there were no marks, cuts, or bruises on the baby.
When she arrived home about 20 minutes later, Beverly saw James sitting in the front yard with a red, swollen eye and blood on his face. Defendant was standing in front of him yelling. Defendant told Beverly that he had caught James hitting Wayne, Jr., but Beverly did not notice anything unusual about the baby. Defendant and Patricia left, again leaving the baby with Beverly. Beverly fed the baby, and then took James to a hospital where he remained for six days.
James Quigley testified that when Beverly left the house, he was lying on the bed in his bedroom watching television. Wayne, Jr., who was lying next to him, began to cry so James tried to give the baby a toy. The baby did not want the toy, however, so James took the toy and laid it on the opposite side of the baby. He was about to pick the baby up and turn him over when the defendant came in without warning and hit James in the face. James fell to the floor, and defendant hit James in the face again, shattering his glasses. Defendant then picked James up and pushed him outside and to the ground. Defendant stood there yelling at James for 5 to 10 minutes until Beverly returned home. After defendant left, Beverly took James to a hospital where surgery was performed. Medical testimony revealed that James suffered a broken nose, as well as a cheekbone that was fractured in two places. James was off work for two weeks due to his injuries.
Defendant testified in his own defense. He testified that when he came home that evening he saw James lying on the bed. He saw James' left arm move out and then the hand come back up with a clenched fist, and heard James say, "You goddamn kid." After the first movement, defendant heard Wayne, Jr., start to cry. Defendant ran to James and grabbed him by the shirt and asked him "[What] the hell he thought he was doing" and if James had hit Wayne, Jr. James replied no, and defendant hit him once in the face. Defendant then brought James outside to get him away from the baby and yelled at him until Beverly returned. As set forth above, despite his claims that he was defending his son, defendant was convicted of battery.
Defendant argues on appeal that he was deprived of a fair trial by both the State's failure to disclose certain evidence during discovery and his trial counsel's ineffective assistance. The State contends, though, that this court should not reach the merits of defendant's arguments because the matters on which defendant bases his arguments are not properly before this court. The State claims that defendant's arguments on appeal are based on matters put of record by defendant's retained counsel, Jed Stone, attendant to the filing and litigation of the motion for a new trial, and that the trial court did not have jurisdiction when Stone entered the case and took the actions on which defendant's claims are based.
Defendant was sentenced on April 9, 1986, and a notice of appeal was filed on his behalf on the same date. At that time he was represented by appointed counsel. He then retained Stone, however, and on April 23, 1986, Stone appeared seeking leave to file the motion for a new trial and asking that bond be set pending the outcome of the motion. Stone specifically stated that defendant did not wish to appeal at that time. The trial court refused to set bond then but continued the matter to April 25, 1986. On that date, one of Stone's associates appeared and filed the motion for a new trial, accompanied by reports of interviews with certain individuals ...