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12/29/89 the People of the State of v. Herbert Carl Mcgrath Et Al

December 29, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

HERBERT CARL MCGRATH ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

549 N.E.2d 843, 193 Ill. App. 3d 12, 140 Ill. Dec. 192 1989.IL.2062

Appeal from the Circuit Court of Cook County; the Hon. Cornelius J. Houtsma, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. MANNING, P.J., and BUCKLEY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

The defendants, Herbert McGrath and Keith McGrath, were jointly tried in a case initiated before a jury in the circuit court of Cook County. Following the presentation of the State's case, however, the defendants waived their right to a jury trial. Herbert McGrath had been charged with two counts of attempted murder, four counts of aggravated battery and two counts of armed violence. Keith McGrath had been charged with one count of attempted murder, four counts of aggravated battery and one count of armed violence. The charges brought against the defendants arose from an altercation which had occurred on March 15, 1986, when the defendants were attacked by six men. The circuit court found Herbert McGrath guilty of armed violence and one count of aggravated battery. The court sentenced him to six years' imprisonment on the armed violence count and three years' imprisonment on the aggravated battery count, to run concurrently with the six-year sentence. Keith McGrath was found guilty of one count of aggravated battery and was sentenced to four years' imprisonment. Defendants now appeal their convictions to this court.

THE TRIAL

At trial, the State presented the testimony of five of the six attackers. The first witness was Robert Piunti, who testified that on the night of March 15, 1986, he was at the Jubilation Lounge (Jubilation), a bar in Chicago Heights, Illinois. Piunti said that around 3 a.m., he was standing in a hallway at the Jubilation when the defendants walked up to him, called him a "homo," and began hitting him in the face. Piunti claimed that he had never seen the defendants before this incident. Piunti stated that the defendants continued hitting him until two bouncers broke up the fight. The bouncers then escorted Piunti outside the bar.

According to Piunti, after the bouncers took him outside the bar, he sat in the parking lot with his friend, David Nardi, until he saw the defendants leave the bar. Piunti decided to follow the defendants in his car, a Pontiac Trans Am, because he was angry with them. Nardi, Joe Ciarrocchi, George Friel and Elias Michalopoulous rode with Piunti, and John Ciarrocchi followed in his own car. Piunti said that the defendants each drove separate cars, so he followed only one of them. Piunti followed the car from Halsted Street to 174th Street and then to Wooded Path Drive in East Hazel Crest, Illinois. Piunti said that he lost the car when he turned onto Wooded Path Drive, so he drove a short distance down the street and then turned around and came back. When he turned around, he saw the defendants standing in the street, so he parked his car and began walking toward them. Piunti testified that when he was 10 to 12 feet away from Herbert McGrath, Herbert fired a gun and hit him above the ankle on his right leg. Piunti then ran toward a nearby apartment building and saw Herbert walk over to his Trans Am and shoot out the back window. At that point, Piunti said, the police arrived and took him to Ingalls Memorial Hospital, where his leg was X-rayed, cleaned and bandaged.

On cross-examination, Piunti admitted that he and his friends may have followed the defendants in order to seek revenge. Further, Piunti testified that the police were at the Jubilation after the fight broke out, but admitted that he did not complain to the police about what had happened in the bar. Piunti also admitted that it was possible that when he was following the car driven by one of the defendants, he may have pulled up alongside the car and exchanged words with the defendant, and admitted that someone in his car might have told the defendant, "You're dead meat." Piunti denied, however, that he "wedged" his car between the defendants' cars to separate them, and also denied that he knew when he drove down Wooded Path Drive that one defendant had driven into an apartment complex parking lot and, therefore, parked his car in front of the entrance so that the other defendant could not get into the lot. Piunti said he did not recall hearing the defendants telling him to go away because they did not want any trouble. Piunti also stated that he did not know what happened to his friends during the altercation.

In addition, Piunti admitted on cross-examination that he did not see Herbert aim his gun, and did not see where the shot that hit him came from. Piunti stated that there were no streetlights on Wooded Path Drive, and consequently, it was very dark. Piunti then testified that as he was walking toward the defendants, before Herbert shot him, he did not feel threatened and was still angry, and may have even called the defendants "mother-fuckers." Piunti also conceded that as he was following the defendants, he and his friends might have discussed what they would do to the defendants and might have discussed "kicking some butt." Finally, Piunti said that as he was approaching the defendants, he did not see anything in their hands because it was dark.

Joe Ciarrocchi testified as the State's next witness. Joe testified that on March 15, 1986, around 3:20 a.m., he was in Piunti's black Trans Am along with Piunti, Nardi, Friel and Michalopoulous. Joe said that they were following a car because the driver had attacked Piunti earlier, at the Jubilation. Joe stated that they followed the car from Halsted Street to 174th Street and then onto Wooded Path Drive. Joe testified that when they reached Wooded Path Drive, they drove a short distance and then turned around and parked the car. Joe said that Piunti got out of the car at this point, so he also got out of the car. Joe claimed that he and Piunti ran across the street because they saw the defendants standing there and, as they approached the defendants, Herbert McGrath pulled a gun and fired a few shots in their general direction. Joe heard someone say, "I got hit."

Joe then told the court that when he heard someone yell that he had been hit, he froze because he was frightened, and Keith McGrath then approached him with some kind of black stick or club. Joe testified that Keith then hit him in the back of the head and the knees with the club. Joe said he did not fall to the ground, but was dizzy and staggered back toward Piunti's car. When he reached the car, he saw that Keith was also walking toward the car, so he said to Keith, "You don't have to hit me again, we're leaving," and indicated that he was just waiting for the person with the car keys. Joe claimed that Keith did not respond and instead hit the window on the driver's side of the car with the club. Keith also hit Joe in the forehead with the club. Joe testified that he did not remember anything after that until he woke up in an ambulance. Joe said that he was taken to Ingalls Memorial Hospital and received nine stitches in his forehead, and had a total of seven lumps on the back of his head, five injuries to his face, and a bruise on the lower right side on his back.

On cross-examination, Joe testified that he had seen the defendants at Jubilation approximately two weeks before the March 15 incident, but said he did not know them personally and had never spoken with them. Joe conceded that he may have followed the defendants "to do Justice, to even the score" for the defendants' attack on Piunti. Joe also admitted that he got out of the car with Piunti and walked toward the defendants in order to get into a fight, but he denied that he called the defendants "mother-fuckers."

Joe further testified on cross-examination that he heard two shots fired that night, but claimed he never heard any warning shots. Joe denied that he heard someone say, "Please leave, we don't want any trouble" or "I've got a gun, go away, get out of here." Joe admitted that Keith may have had reason to hit him because he and his friends were following Keith, but said that Keith was justified in using his fists only, not a nightstick or club. Joe also said that he did not remember seeing George Friel kicking a girl named Dawn Brenner. Finally, Joe said that it was dark in the parking lot where the altercation took place, but that he would be able to distinguish whether someone was holding a gun.

David Nardi testified as the State's next witness. Nardi said that on March 15, 1986, at 3 a.m., he was at the Jubilation and heard that his friend, Piunti, had been hit. On that date, Nardi testified, he was six feet three inches tall and weighed 280 pounds. Nardi stated that he left the Jubilation with Piunti, Friel, Michalopoulous and Joe Ciarrocchi in Piunti's car and drove down Halsted Street to 174th Street and then to Wooded Path Drive. Nardi testified that they were following a car but lost it on Wooded Path Drive, so they turned their car around and stopped. Nardi said that when they were stopped on Wooded Path Drive, he heard one gunshot and got out of the car. When he was exiting the car, he was nicked in the knee by a bullet, so he got back into the car. Nardi then heard another shot and saw Keith McGrath walk up to the car and put a black club through the passenger's side window. Nardi said he then jumped into the driver's seat and drove off to find a police officer. Nardi found an officer and told him that there had been a shooting, so the officer followed him back to the scene. When they arrived back at the scene, Nardi said, he saw Joe Ciarrocchi lying on the ground in a pool of blood. Nardi also testified that he was later taken to Ingalls Memorial Hospital, where his knee was cleaned and bandaged.

On cross-examination, Nardi denied that there was any conversation about "kicking the butts" of the defendants for hitting Piunti. Nardi further claimed that Piunti never parked his car so that it was blocking the car behind him and said that he never got out of Piunti's car and tried to stop that car. Nardi did admit, however, that when he located a police officer, he never told the officer that he had been shot. Nardi also said that it was very dark in the apartment complex parking lot. Nardi testified that it was so dark, he would barely be able to distinguish whether someone was standing across the street and would not be able to tell what color clothing a person was wearing.

The State presented George Friel as its fourth witness. Friel said that on March 15, 1986, at 3:30 a.m., he was in the Jubilation parking lot and got into Piunti's car along with Piunti, Nardi and Michalopoulous. Friel stated that they followed the defendants from Halsted Street to 174th Street and then to Wooded Path Drive, where they turned their car around and parked it. Friel testified that when they parked on Wooded Path Drive, he heard a sound like a firecracker and heard someone say they had a gun. Friel said that everyone then got out of Piunti's car. Friel positioned himself by Piunti's car so that he would not get shot and saw Keith McGrath beating Joe Ciarrocchi with a black stick. Friel said he saw Joe fall to the ground and saw Keith continue to beat Joe with the stick and kick him. Friel said that Keith did not stop beating Joe until he saw blood coming from Joe's forehead. Friel testified that he then went over to Joe, who was shaking and unconscious and was bleeding from the head.

Next, according to Friel's testimony, when he was trying to help Joe, he saw two girls, Jeanne Garriby and Keith's girl friend, Dawn, fighting on the corner and went over to break up the fight. Friel said that as he tried to grab Jeanne off Dawn, Keith McGrath struck him in the back of the head with a stick. Friel stated that Herbert McGrath then came up to him, put a gun to his forehead and said, "You're going to die." Dawn's sister, Kelly, then ran over to Herbert and said "Don't do it. He is trying to ...


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