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03/31/89 the People of the State of v. Edward Stokes

March 31, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

EDWARD STOKES, DEFENDANT-APPELLANT

DEFENDANT EDWARD STOKES APPEALS FROM HIS 1986 BENCH TRIAL CONVICTION AND SENTENCE FOR AGGRAVATED BATTERY. HE WAS SENTENCED TO TWO YEARS' PROBATION. ILL. RE

v.

STAT. 1983, CH. 38, PAR. 12-4(B)(1).



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

541 N.E.2d 1129, 185 Ill. App. 3d 643, 133 Ill. Dec. 691 1989.IL.452

Appeal from the Circuit Court of Cook County; the Hon. Themis N. Karnezis, Judge, presiding.

APPELLATE Judges:

JUSTICE COCCIA delivered the opinion of the court. LORENZ, J., concurs. JUSTICE PINCHAM, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE COCCIA

Defendant, a Chicago fire fighter, was indicted for attempted murder, armed violence, aggravated battery causing great bodily harm, aggravated battery causing permanent disfigurement, and aggravated battery while armed with a deadly weapon, following an August 1984 incident in a Chicago fire station. Following an earlier trial by jury, defendant was found guilty of the charges of armed violence, aggravated battery causing great bodily harm, and aggravated battery while armed with a deadly weapon. Defendant then filed motions for a new trial based in part on grounds that the State had failed to make available to him a prior written statement of the complainant, fire fighter Kenneth Straman, in which Straman related his version of the incident to his Chicago fire department superiors one month after it had occurred. The trial court granted his motions for a new trial, and the matter was assigned to a different Judge.

The defendant waived his right to a jury at the second trial, at the Conclusion of which he was found guilty of aggravated battery while armed with a deadly weapon. After a motion for a new trial was denied, defendant brought this appeal.

Defendant now seeks a reversal of his conviction, contending that the State failed to prove beyond a reasonable doubt that he did not act in self-defense with the degree of force justified under the circumstances. He raises several issues which pertain to the sufficiency of the evidence to sustain his guilt.

The incident giving rise to the charges against the defendant occurred on the morning of August 15, 1984, in a Chicago fire department firehouse at 2827 North Pulaski. Both the complainant and the defendant were fire fighters assigned to the firehouse on that day. In addition to their testimony, the court also heard the testimony of a number of eyewitnesses.

Fire fighter Kenneth Straman, the complaining witness, testified at trial that after the 8 a.m. roll call, he entered the firehouse kitchen and saw the defendant opening a package of steak. According to Straman, the steak was one that he had bought on August 6, 1984, when he had been the designated cook for the day. He further stated that on August 6, the defendant had been sent to another firehouse on a "change of quarters," and therefore had not contributed to the fund used for purchasing food on that day. Straman told the defendant that the steak was his (Straman's), but that the defendant could have it if he paid him what it was worth. Defendant agreed to this, and Straman left the room for a short time to get a pen and paper. He returned to the kitchen and began to collect money from the fire fighters so that he could purchase food, as he was the designated cook for August 15. At this time, Ted Eck, Leonard Urbanski, Fakhri Isa, Russell Harper and the defendant were also in the kitchen.

An argument ensued between Straman and the defendant after the latter gave Straman $7, each man's share toward the food fund for the day. Straman told him that he also wanted $3 for the steak which defendant was preparing. Straman told defendant that part of the steak he was preparing belonged to someone else. When defendant proceeded to put the steak in the microwave oven, Straman took it out, threw it on the floor, and then put it into a garbage can.

The argument escalated. Defendant asked Straman to return his $7, saying that he did not want to be in "the club" that day. Straman put $4 on the counter, keeping back the other $3 for the steak. Defendant insisted that Straman return the rest of his money. Straman told defendant that as soon as he had finished collecting money from the others, he would give defendant his money. At this point, Straman had observed defendant holding a coffee cup in his right hand. Suddenly, Straman felt a blow to the left side of his head. When he looked up, defendant had nothing in his hand. Straman then picked up a plastic garbage can and threw it at defendant, who knocked it down with his hands. The two men then went "at each other," fighting as they fell to the kitchen floor. As Straman began hitting defendant "all over," Ted Eck grabbed him and held him in a "full nelson" as co-workers attempted to break up the fight. Then, as Straman was repeatedly telling Eck to let him go, he felt a sharp pain to the back of his head and then saw a silver object come across his shoulder and "get" him across the chest and stomach.

Straman further testified that as Ted Eck let him go, he turned and saw defendant standing with a knife in his hand and saying, "Come on. Come on." Straman then picked up a toaster and held it in front of his chest and stomach to defend himself as he walked toward a door leading out of the kitchen and away from the defendant. He was screaming hysterically, "Why were you holding me?" On his way out of the kitchen, he placed the toaster on a table. He then wandered out onto the apparatus floor and sat in a chair. Paramedics arrived shortly thereafter and took Straman to Northwest Hospital, where he was treated for lacerations and remained hospitalized for approximately three days.

On cross-examination, Straman testified that when Ted Eck held him in the full nelson by the refrigerator, he was about three or four feet away from where the defendant was standing. As he was being held, he felt several blows to his side and stomach area, near his ribs, but could not recall seeing anyone on either side of Eck. He described himself as being 5 feet 11 inches tall and described Ted Eck as being about the same height.

Straman's courtroom testimony was consistent with his signed written report of September 15, 1984, to his superiors. The statement relates Straman's version of the August 15 incident in further detail. It described the argument over the steak, his throwing the steak away, and his feeling a "hard blow to [his] left ear where [he] had been struck by a coffee cup thrown at [his] head by Stokes." The report also states that he threw a plastic trash can in front of the defendant and wrestled him to the floor. The statement in evidence further described that as his co-workers were breaking up the fight, one of them grabbed him in a "full nelson" while the defendant was hitting him "furiously in the stomach and back." The other fire fighters told him to "cool down," but Straman was telling him to let him go as he wanted to get away from the defendant. Then, seconds apart, he first felt a blow to the back of his head from a knife and then saw a knife coming down which slashed him in the chest "while [he] was still being held in a full nelson."

Fire fighter Ted Eck, testifying for the State, recalled that about 13 men were working in the firehouse on the day of the incident, including three officers. After roll call, he went to the kitchen, sat down and read a newspaper. Fire fighters Isa, Urbanski, Straman, and the defendant were also in the kitchen. He saw Straman collecting money. He heard an argument between Straman and the defendant about a steak, but did not hear any details of the argument. After about five minutes, he left the kitchen to avoid the argument, then returned about three to five minutes later. After giving Straman some money, he went into the eating area of the kitchen with his newspaper. He looked up when he heard something breaking on the floor, and saw Straman pick up a two-foot tall garbage can and throw it at the defendant, who warded it off. He could not recall whether the can actually hit the defendant. Then Straman and the defendant met on the inside of the kitchen counter and fell to the floor, out of Eck's view. Eck testified he then walked over to the area where Straman and the defendant were, and observed Straman punching and kneeing the defendant about the torso as the defendant was trying to get Straman off him. At this time, fire fighter Leonard Urbanski was also in the cooking area of the kitchen along with the two men who were fighting. Urbanski asked for help in separating Straman and the defendant. Eck assisted him by pulling Straman off the defendant and taking him over to the refrigerator area, where he held him in a "full nelson." All the while Straman was resisting Eck and telling him to let him go. Then Eck saw an arm, holding a knife of about eight inches in length, come over his shoulder. When he saw the blade being slashed at Straman's chest, he let him go. As Straman backed away, Eck saw blood on Straman's face. Eck then turned around and saw the defendant standing in the middle of the kitchen area with a kitchen knife in his right hand. When defendant had his back turned, Eck put a hug around his shoulders and told him to drop the knife, which defendant did. At that time other fire fighters came into the kitchen. Eck left the kitchen and went out onto the apparatus floor, where he observed Straman sitting in a chair and observed blood on the left side of his face.

On cross-examination, Eck stated that while defendant lay with his back to the floor with Straman over him, defendant's midsection, chest and stomach were struck "many times" by Straman. He (Eck) did not kick or punch the defendant and he did not see anyone else do so. He described the knife attack, stating that the defendant reached over him once with the knife, but slashed at Straman several times. Once the defendant reached over him with the knife, he began letting Straman go, but he had not yet fully released him at the time he was slashed. He described both Straman and himself as about six feet tall, and both of them as taller than the defendant.

Eck's brief written report to his superiors, dated August 15, 1984, was also admitted into evidence. His report states that during the argument about the steak, defendant asked Straman to return the money he had paid to the club and that Straman did so. It identifies Isa, Urbanski and himself as those who broke up the fight. It makes no reference to defendant punching or otherwise striking Straman initially, or throwing a coffee cup at him. It does not specifically mention a nelson hold being used to restrain Straman, but it does include the statement, "I pulled firefighter Straman off to the side and then firefighter Stokes came after firefighter Straman with a knife."

Fire fighter Leonard Urbanski testified that during the argument, defendant had a coffee cup in his hand and that he threw it at Straman. The cup hit Straman's left ear. As the two men were fighting on the floor, Straman punched defendant in his side and face. After the two had been separated, and while Eck was holding Straman in a nelson, Urbanski was holding defendant in a bear hug, with his arms around defendant's arms and chest. While being held in this manner, the defendant reached for the knife drawer. Although Urbanski tried to hold both defendant and the knife drawer at the same time, defendant managed to get into the drawer. At this point, he released the defendant, who ran at Straman with the knife, hit him once in the back of the head, and then, reaching over Eck's shoulder, cut Straman in the chest and stomach area. Eck then released Straman, who then went for the counter and picked up the toaster, which he held in front of his abdomen. When Straman put the toaster down, Urbanski noticed that he had been cut in the stomach and chest area and was bleeding from the ear. He also recalled that Eck reached around defendant from behind and told him to drop the knife, which he did. He further stated he was 5 feet 10 inches tall and that defendant was "a little taller." He described defendant as being bigger than he was in both height and weight.

On cross-examination, Urbanski testified that from where he was standing about eight feet away, Straman had "a pretty good swing" as he fought with the defendant on the kitchen floor. Straman, while straddling the defendant, struck him in the side of the head and in the face. Urbanski summoned Eck and Isa to help in breaking up the fight. Eck grabbed Straman from behind, placed him in a full nelson, and pulled him over by the refrigerator. The defendant got up, and Urbanski immediately grabbed him and held him by the sink, but he managed to get his arm free and into the knife drawer. Urbanski "just backed off" while defendant ran over toward Straman and Eck. He did not have enough time to warn them.

Urbanski's one-paragraph report, written for his fire department superiors on the date of the incident, comports with his testimony at trial as to the matters it relates. In the written report Urbanski states that he saw the defendant strike Straman in the face at the time of the argument. The report was silent as to a coffee cup. After he and one or more persons, not specifically named, had succeeded in breaking up the fight, the defendant opened a drawer and then started striking Straman with a knife.

Fire fighter Fakhri Isa's testimony substantially corroborated that of the State's other witnesses. He testified that he saw defendant punch Straman with his right arm after Straman threw some money on the counter, but from where he was standing, he did not see defendant's hand connect with Straman and did not observe whether defendant had anything in that hand. During the fight on the floor, Straman kneed defendant in the head and punched him in the side and upper body. Defendant tried to fend off the punches, but did not punch Straman. Then Urbanski grabbed defendant's hand to try to help him up, while at the same time calling to Isa for help in breaking up the fight. Isa went over and helped Eck pull Straman off the defendant, then assisted Urbanski with the defendant. Eck, meanwhile, grabbed Straman and held him in a nelson. Straman was moving all the while Eck held him in that position. When defendant obtained a knife from the drawer, Urbanski released him. The defendant then reached over the shoulder of Eck and the right shoulder of Straman once, and made two up and down stabbing motions.

Isa's written report to his superiors regarding the incident was written on the date of the incident and stated the facts in summary fashion. It was also introduced into evidence. While lacking in detail, Isa's written statement is not inconsistent with his testimony at trial. It states that after a 10-minute argument over a steak, the defendant punched Straman and the two began fighting on the kitchen floor. The report specifically states that after the two had been separated, the defendant reached into the knife drawer, pulled out a knife, and began "hacking away" at Straman.

Dr. Albert Mitsos, a licensed general surgeon, testified that he examined Straman in the emergency room of Northwest Hospital on the morning of the incident. Straman had a wound in his right chest and a wound to his left ear. He operated on Straman's chest immediately after his examination and called in a plastic surgeon to perform surgery on the ear. Dr. Mitsos described Straman's left ear as having two distinct wounds. On the front or exterior part of the external ear was a satellite wound. In Dr. Mitsos' opinion, this wound was caused by a blunt instrument, such as a fist or club or anything that would cause an impact. This wound was not a cut. The other wound was in the back of the same ear, directly behind the first wound, at about the place where the ear joins the head. Dr. Mitsos characterized this wound as a laceration or cut, a linear wound approximately two inches long. In his opinion, the instrument which caused the wound to the front of the ear did not cause the wound to the back of the ear. The wound to the back of the ear was caused by a cutting instrument, consistent with a knife. He further testified that the damage to the ear from both front and back wounds combined to create a through-and-through injury, or hole, in the ear.

Dr. Mitsos described the injury to Straman's chest and abdomen as a "superficial" linear slash wound, approximately 10 inches long, extending from the right chest about two inches below the nipple down to the upper abdomen about two inches below the breast bone. This wound was approximately one-quarter inch deep, extending through the skin tissue to the outer coating of the muscle. It was similar to the wound on the back of Straman's ear, with the same consistencies.

The defendant testified on his own behalf and stated that he had been a Chicago fire fighter for 6 1/2 years at the time of the incident. Straman and the other witnesses had been fire fighters for approximately the same length of time, but he was senior to all of them. He had also served in the United States Marine Corps for four years, including 13 months of combat duty in Vietnam. He testified that he was 5 feet 9 inches tall and weighed 185 pounds at the time of the incident. Prior to the incident, he had had disagreements with Straman on two occasions. The first occurred about two weeks earlier concerning bunk priorities in the firehouse. The argument was heated. Although Stokes, who had seniority, explained his rationale in selecting Straman's bed on that basis, nonetheless Straman threatened to physically attack Stokes. No physical altercation took place.

The second incident involving Straman occurred about one week prior to the knifing incident, when the men were at the scene of a fire. Straman grabbed defendant, swung him around, and cursing loudly, accused him of carrying a piece of fire equipment which Straman said was his, but which Stokes had previously selected to use that day.

In addition to problems with Straman, Lieutenant Donald Ellwood had not spoken to the defendant for 8 1/2 months prior to the August 15 incident. Stokes attributes this to what the defendant described as a "racial problem" that Ellwood had with him. Stokes also stated that he had had a problem with fire fighter Isa. Stokes had wanted to be transferred to a fire station where there were at least some other black fire fighters. He had put in two transfer requests to Chief Robert Poder prior to August 15 for this purpose although he had not stated his reason for making these requests.

Defendant's version of the August 15 incident differed in several significant respects from those of the other witnesses. He testified that the steak around which the argument centered was one that had been left over from August 12, the last day of Stokes' service as the cook. When Straman insisted that the steak was his and that he (Stokes) was not to eat it, the defendant told Straman that there were two other steaks in the refrigerator that he could have, but that if Straman wanted to argue about it, he would cut this steak in half. After taking the portion of the steak he had cut for himself out of the microwave oven, he placed it on a plate on the counter. Straman then walked around the counter from where he had been standing, picked up the steak from the plate, threw it on the floor, stomped on it and placed it in the garbage can.

Stokes then told Straman that he no longer wanted to be in the club and asked for his money back. Straman took $3 and threw it into the dishwater in the sink. Stokes reached into the sink with his left hand, picked the money up out of the dishwater, put his coffee cup down and reached with his right hand for the rest of his money. Straman refused to give him the rest of the money. After more words were exchanged, he told Straman that he was going to walk around to the other side of the counter and when he got there he wanted his $4. The men started walking toward each other. Then Straman picked up the garbage can and threw it at him. He threw up both hands trying to deflect it. At that moment, one of the fire fighters who was standing to the side of him, grabbed his arm and knocked it down. The corner of the garbage can hit Stokes in the left forehead. As the defendant started to go back toward the counter, Straman charged and both fell to the floor, with Stokes flat on his back and Straman on top of him.

As Straman was trying to punch him, he also felt himself being kicked in his side and in the back of his head. He knew that the kicks could not be coming from Straman. Then he grabbed Straman's tee shirt, twisted it, and slammed Straman's head against the counter. Because he was still being kicked badly from behind, he let Straman go. Straman stood up, and as he also started to get up, Straman reached over to the counter in back of them and grabbed a toaster. Straman raised the toaster over his head as if he were going to come down and hit Stokes with it. Seeing Straman hold the toaster this way, Stokes grabbed the butcher knife, still sitting on the counter, which he earlier had used to cut the steak. He held the knife directly out in front of his chest to keep Straman from coming at him with the toaster. Then Straman walked up on the knife, still holding the toaster and trying to hit him with it. He "pulled the knife down" as Straman walked up on him, and pushed Straman back, off him.

After Straman had been cut, Stokes stood there with the knife in his hand and said, "Now, all of you want to jump on me, come on and jump on me while I have the knife in my hand." No one said anything. Defendant then dropped the knife, walked out of the kitchen, went to a washroom to rinse his face, and then walked out onto the apparatus floor. There he saw Straman, Eck, Urbanski, Isa, Ellwood, and another fire fighter, Russell Harper. A side compartment of a fire truck was open and except for Straman, the other fire fighters were going into the compartments and taking out pipes, poles, crowbars and sledgehammers. Startled by what he saw, the defendant put his hand on the handle of his fire department ax, which was leaning near the wheel of a truck. He said he was not going to take a beating any more. Then engineer Ralph Gamberdella came up to him and told him that things had gotten out of hand and to go back into the kitchen, which he did. In the kitchen he bent down near the counter and picked up the rest of his money and told Isa, who was now standing in the kitchen, "You guys shouldn't have kicked me and punched me like that."

Defendant presented several photographs in evidence of the injuries which he said he received during the fight. He indicated a contusion on his forehead as a result of the heavy, full fiberglass garbage can striking him, a bruise under his left arm where he was kicked in the ribs while he was on the floor, and bruises to his left side and to the back of his head which he stated also resulted from the kicking. Stokes further testified that during the time he was in police custody, from approximately 8:45 a.m. to approximately 1:15 a.m. the next day, he never received any medical treatment for his injuries, although he requested treatment from police detectives Michael Brogan and Robert Doelker and also from Assistant State's Attorney John Hynes. After his release from police custody, he received medical treatment at a Humana clinic in Chicago and returned to this clinic about four times for treatment. He was also treated by the fire department physician about five times and did not return to work for about four weeks after the incident. The photographs of defendant's injuries and his clothing were taken eight hours after his release from police custody and nearly 24 hours after the incident at the firehouse, and it was so noted by the court. On cross-examination defendant also admitted that it was not until approximately 8 a.m., following his release from police custody, and only after he had first gone to the fire station to pick up his paycheck, that he sought medical treatment.

Defendant also presented the testimony of two fire department personnel as to his reputation for quietness and truthfulness. Chief Robert Poder stated that he had worked in the same fire station as the defendant prior to the incident in question and that defendant had a good reputation for being a peaceful and law-abiding citizen. He also had a good reputation for truthfulness. Lieutenant John Wesley Paramore, a fire fighter who had known the defendant since May 1980, and who had worked with him in another firehouse, testified that Stokes had a good reputation for peacefulness and that his reputation for truthfulness was "impeccable." However, on cross-examination, Poder also stated that had Stokes requested a transfer from his assigned station house, the transfer would have had to go through him in the normal chain of command. He did not recall either seeing or signing any transfer request from defendant prior to August 15, 1984.

Engineer Ralph Gamberdella, an eyewitness to events on the apparatus floor immediately following the knifing incident, testified for the State that defendant not only put his hand on his fire department ax while he was on the apparatus floor, but also picked up the ax and held it with the head of the ax at about shoulder level while he (Gamberdella) asked him several times to put the ax down. Stokes eventually lowered the ax, having completely released it only after Ted Eck walked over and grabbed the ax handle. At no time that morning did Gamberdella see any of the fire fighters with crowbars or sledgehammers in their hands.

The State also presented several rebuttal witnesses. Police officer Brogan, who was called to the firehouse immediately after the fight, testified that the only injury he noticed was a bruise over defendant's eye. Detective Robert Doelker, also called to the firehouse that morning, stated that defendant never told him that he required medical attention or showed him any injuries under his shirt. Police officer Robert Zielinski, on duty as lockup keeper from 6 a.m. until 2 p.m. on August 15, 1984, did not notice that defendant had any injuries and further stated that he never would have taken him into the lockup if he had injuries, because under a police department general order, an injured suspect must be taken to a hospital first.

John Hynes, an assistant Cook County State's Attorney and a felony review assistant at the time of these events, testified that when he interviewed defendant on the day of the incident, he noticed only a slight red mark on defendant's forehead. He did not recall the defendant requesting any medical attention. On cross-examination, he also recalled that defendant had told him about feeling kicks to his side and punches to his head as he lay on the kitchen floor and that someone other than Straman had kicked him. Stokes also told Hynes that he had reached up and grabbed "something" from the counter and swung once, but he did not tell Hynes that Straman advanced on him holding a toaster over his head.

Opinion

Defendant contends on appeal that he acted in self-defense. He reasons that he reached for the knife on the counter only after he had been attacked by more than one person and then saw Straman coming toward him with the toaster poised to strike. Once the affirmative defense of self-defense is raised by a defendant, the State has the burden of proving beyond a reasonable doubt, not only all the elements of the offense, but also that the defendant's act was not in self-defense. (People v. Ross (1981), 100 Ill. App. 3d 1033, 1038, 427 N.E.2d 955, 959; People v. Seiber (1979), 76 Ill. App. 3d 9, 13, 394 N.E.2d 1044, 1048.) The State will have carried its burden when any of the evidence produced at trial negates an element of the defense beyond a reasonable doubt. People v. Wilks (1988), 175 Ill. App. 3d 68, 72, 529 N.E.2d 690, 693; People v. Seiber (1979), 76 Ill. App. 3d 9, 13, 394 N.E.2d 1044, 1048.

The elements of self-defense are defined in section 7 -- 1 of the Criminal Code of 1961:

"A person is justified in the use of force against another when and to the extent he reasonably believes that such conduct is necessary to defend himself . . . against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself . . .." (Ill. Rev. Stat. 1985, ch. 38, par. 7-1.)

This court has more specifically delineated the elements justifying the use of force in defense of a person as follows: (1) that force is threatened against a person; (2) that the person threatened is not the aggressor; (3) that the danger of harm is imminent; (4) that the force threatened is unlawful; (5) that the person threatened must actually believe: (a) that a danger exists, (b) that the use of force is necessary to avert the danger, (c) that the kind and amount of force which he uses is necessary; and (6) that the above beliefs are reasonable. Furthermore, the use of deadly force is limited to those situations in which (a) the threatened force will cause death or great bodily harm or (b) the force threatened is a forcible felony. (People v. Williams (1965), 56 Ill. App. 2d 159, 165-66, 205 N.E.2d 749, 752.) A trial court's findings on the elements of self-defense raise a question of fact, which a reviewing court will not disturb unless the evidence supporting the finding is so unsatisfactory as to justify a reasonable doubt of guilt. People v. Wilks (1988), 175 Ill. App. 3d 68, 73, 529 N.E.2d 690, 693.

The facts of this case clearly establish, and the parties do not dispute, that defendant's use of a large kitchen knife under the circumstances was use of deadly force. There is also no question that defendant's testimony, that more than one man assaulted him and that Straman came toward him with a toaster, was sufficient to raise the issue of self-defense. We therefore proceed to consider each of the above elements of the defense as applied to defendant's actions.

First, the court heard uncontroverted testimony that a garbage can was thrown at defendant by the complainant just before the two men wrestled to the floor. It was also the testimony of the combatants, and every eyewitness, that Straman punched the defendant at least several times as he lay on the floor. As such conduct by Straman was at least tortious, if not criminal, it is evidence that unlawful force was threatened against the defendant. Defendant further maintained at trial that more than one person assaulted him as he lay on the floor, that he received kicks to his head and ribs, and that Straman then advanced on him with a toaster, threatening further force. However, the other eyewitnesses presented a different version of the fight. They testified that only Straman administered blows to the defendant and that three co-workers cooperated in separating the combatants. They further testified that Straman only briefly held the toaster in front of his abdomen to protect himself after Stokes had slashed him with a knife. The two versions of the incident are irreconcilably conflicting, and the trial court was not required to accept defendant's version. (People v. Wilks (1988), 175 Ill. App. 3d 68, 73, 529 N.E.2d 690, 693.) The court was also free to consider that defendant presented no corroborating testimony as to the type and extent of injuries he suffered during the incident and that the State presented rebuttal testimony by persons who saw and spoke to him shortly thereafter. Taking all of the evidence into consideration, the trier of fact could reasonably conclude that after the two combatants had been separated by several co-workers who were still on the scene and actively engaged in keeping them apart, the danger of further harm to the defendant was not imminent at the time he retrieved a knife and attacked complainant.

In addition to threatened unlawful force and imminence of harm, another element which must be present in order to justify the use of force in defense of person is that the person threatened is not the aggressor. The evidence relating to this element was also conflicting, with defendant testifying that he never punched or threw a coffee cup at Straman, and the State's eyewitnesses stating otherwise. Fire fighter Isa testified at trial and also indicated in his written report that before the garbage can was thrown, the defendant had punched Straman. Furthermore, Urbanski corroborated Straman's testimony that the defendant threw a coffee cup at him. Thus, there was sufficient evidence for the trier of fact to find that the defendant was the initial aggressor. There was also ample evidence to support a Conclusion that even if Stokes were not the initial aggressor, he became the aggressor by his act of reaching for a knife and advancing on Straman, after the fight had been broken up and Straman had been disabled by Eck's nelson hold. The use of deadly force generally cannot be justified as self-defense once the aggressor has been disabled or disarmed, nor does the right of self-defense justify an act of retaliation or revenge. People v. Chatman (1981), 102 Ill. App. 3d 692, 700, 430 N.E.2d 257, 263; People v. Woods (1980), 81 Ill. 2d 537, 543, 410 N.E.2d 866, 869.

To satisfy the fifth and sixth elements of the defense, it must be determined (1) that Stokes actually believed that a danger existed, and that the use of deadly force was necessary to avert the danger, and (2) that, if he did so believe, these beliefs were reasonable. A defendant is not required to be correct in his assessment of the danger presented by a set of circumstances, and a belief may be reasonable even if he is mistaken. (People v. Williams (1965), 56 Ill. App. 2d 159, 166, 205 N.E.2d 749, 753.) The question is whether the facts as they appeared to the defendant at the time and under the circumstances there present were such as to indicate to him, as a reasonable person, that he was in danger of losing his life or suffering great bodily injury. People v. Duncan (1924), 315 Ill. 106, 111, 145 N.E. 810, 812.

Applying these principles to the instant case, we hold that the totality of the evidence presented the trier of fact with a sufficient basis for concluding that defendant did not actually believe that his actions were necessary to avert his imminent death or great bodily harm; and also that if he did so believe, this belief was not reasonable under the circumstances.

Three eyewitnesses testified that the two combatants had been separated by co-workers. According to their accounts, only Straman had assaulted defendant during the fight, and no one was threatening the defendant when he made two attempts to retrieve a knife from a closed drawer. Furthermore, apparently no one else in the room was armed at this time, including the complainant. The incident took place in daylight hours among fire fighters of the same company, in their fire station, at a time when, according to fire fighter Eck, there were approximately 13 men in the station, including three officers. Also, based upon defendant's own testimony, he was a Marine combat veteran weighing about 185 pounds at the time and clearly able to handle himself in a fight with one other person. Taking all the evidence into consideration, the trial court could have reasonably determined that defendant's use of deadly force was not based upon a reasonable apprehension of death or great bodily harm in light of his assessment of the situation at the time he used such force against the complainant.

Therefore, we conclude that the evidence presented at trial was sufficient to negate any of the following four elements of self-defense beyond a reasonable doubt: (1) the defendant as nonaggressor; (2) the imminence of harm; (3) the defendant's actual belief in the danger of death or serious bodily harm and the necessity of using deadly force to avert it; and (4) the reasonableness of such belief under the circumstances.

Defendant also contends that the evidence presented by the State is insufficient in two respects. First, he maintains that it was highly improbable, if not impossible, for him to have cut Straman in the manner described by the State's witnesses, i.e., over the shoulders of two men taller than he, and while the victim was being held in a full nelson by the other man. Second, he asserts that each of the State's eyewitnesses changed his account of the altercation to comport with Straman's written statement to his superiors, compiled one month after the incident. He contends that the other fire fighters' written statements of August 15, 1984, in totally failing to mention that Straman was held in a full nelson and not including other details to which these same fire fighters testified at trial, thoroughly impeach these witnesses.

It is well established that where a jury is waived, it is a function of the trial court to determine the credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence, and where the evidence is irreconcilably conflicting, to ascertain the truth. (People v. Mays (1980), 81 Ill. App. 3d 1090, 1098-99, 401 N.E.2d 1159, 1165-66.) On appeal, all evidence is weighed in the light most favorable to the prosecution, and the relevant question for the reviewing court is whether any rational trier of fact could have found the elements of the crime to exist beyond a reasonable doubt. A reviewing court will not substitute its judgment for that of the trial court on questions of evidence or credibility of witnesses and cannot reverse a criminal conviction unless the evidence or the credibility of the witnesses is so improbable or unsatisfactory as to raise a reasonable doubt of guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277; People v. Mays (1980), 81 Ill. App. 3d 1090, 1099, 401 N.E.2d 1159, 1165-66.) However, it has been held that this rule is not inflexible, and when the record does not support the factual determinations, a court of review must reverse. People v. McCarthy (1981), 102 Ill. App. 3d 519, 522, 430 N.E.2d 135, 137.

After a careful review of the record in this case, including the written statements of complainant and the other fire fighters and their in-court testimony, we conclude that the fire fighters' brief summary reports concerning the incident are consistent with both the nature and sequence of events as are more fully related in their courtroom testimony and in complainant's written statement. They are consistent with the use of a nelson hold to restrain Straman and with the defendant's grabbing a knife in the manner testified to by these same eyewitnesses at trial. Furthermore, their weight and credibility as corroborative evidence is enhanced by the trial testimony of fire fighters Eck, Urbanski and Isa as to the circumstances under which the reports were written. They wrote the reports isolated from each other, in separate rooms, with no others present. Eck and Isa specifically testified that they had no opportunity to speak to the other fire fighters prior to writing their summaries. In short, none of the eyewitnesses to the incident were materially impeached by their prior written statements, which are merely abbreviated accounts of the same event, highlighting various observations from each man's unique perspective.

There remains the issue of whether the manner of defendant's knife attack, as described by the complainant and the State's eyewitnesses, was so improbable as to raise a question of defendant's guilt. It is clear from the testimony presented at trial that although Straman and Eck were admittedly taller than the defendant, they were not significantly taller in terms of defendant's physical ability to reach over and around the shoulder of one or both of them. This is especially so when it is considered based on the testimony of Eck and Isa, that Straman was struggling and trying to release himself from Eck's hold during the attack, and not necessarily standing upright and in any one position during this altercation. Perhaps the most significant testimony was that of Dr. Mitsos, a disinterested witness. His testimony is entirely consistent with the State's version of how Straman's injuries were inflicted; it is totally inconsistent with the defendant's version of using the knife only to ward off an attack with the toaster, as he faced Straman, and pulled the knife down and across the chest of Straman, as the complainant advanced upon him.

We therefore conclude that the evidence is not so improbable as to require a reversal of the trial court's factual Conclusions in this case.

We hold that the evidence in the record was sufficient to permit the trier of fact to conclude that the State met its two-fold burden: (1) that of proving beyond a reasonable doubt not only all the elements of the offense, but (2) also that the defendant's actions did not constitute self-defense as defined by the Criminal Code and ...


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