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January 6, 1994


Appeal from the Circuit Court of Du Page County. No. 91-CF-1735. Honorable Thomas E. Callum, Judge Presiding.

Released for Publication February 8, 1994. Petition for Leave to Appeal Denied April 6, 1994.

Quetsch, McLAREN, Doyle

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

Following a jury trial in the circuit court of Du Page County, the defendant, Ermino Clamuextle, was found guilty of aggravated battery (Ill. Rev. Stat. 1991, ch. 38, par. 12-4 (now codified, as amended, at 720 ILCS 5/12-4 (West 1992)) against Angelica Lopez and sentenced to three years' imprisonment. On appeal, the defendant contends that: (1) he was deprived of the effective assistance of counsel when his attorney failed to seek a continuance during trial in order to secure the presence of an alibi witness; and (2) the trial court erred in preventing him from cross-examining Lopez about whether she was an illegal alien. We reverse and remand for a new trial.

The facts of this case are as follows. Angelica Lopez testified that at 10:30 p.m. on August 1, 1991, she exited her second-floor apartment and began walking down the stairs. When Lopez reached the bottom of the stairs, she saw the defendant, who was wearing a black T-shirt and blue pants. Lopez recognized the defendant as a person who used to live in her building. He said hello and then moved very close to her. Lopez screamed and the defendant stabbed her in the stomach. Lopez attempted to hit the defendant with a jug of water she was carrying, and he pushed her against a door and stabbed her in the left shoulder. The defendant then ran up the stairs and out the back door of the apartment building.

One of Lopez's roommates, Misael Gorostieta, came out of their apartment and saw her at the bottom of the stairs. Misael helped Lopez back to their apartment, where she lay down until the police arrived. Misael testified that Lopez told him that "Ermino" was the person who had hurt her. Lopez testified that she told one of the officers that "Ermino" had stabbed her. Lopez was subsequently taken to the Loyola Hospital. The following day police officers came to the hospital and showed her photographs of six different persons, including the defendant. Lopez identified the defendant as the person who had attacked her.

Officer James Sherry testified that he was dispatched to Lopez's apartment shortly after 10:30 p.m. on August 1. He observed Lopez lying on the couch, and she "appeared to be bleeding." He was able to speak to Lopez through a friend of hers who acted as an interpreter. Sherry was informed that the stabbing occurred in the building's parking lot and that the attacker was a Caucasian male.

Officer Benjamin Defilippis was also dispatched to Lopez's apartment on August 1. Defilippis testified that he already had the name of the defendant as a possible suspect when he arrived at the scene. However, when Defilippis talked to Lopez's four roommates, none of them could identify the attacker. Defilippis directed the officers at the apartment to search the area, including the parking lot, for possible weapons. No weapon was recovered. Defilippis testified that although he was informed that the stabbing occurred at the bottom of the stairs leading to the outside door, he had ordered a search of the parking lot because Lopez had not been sure where the assailant had fled. Defilippis also testified that there was no blood either on the steps or on the landing at the bottom of the steps. There was blood on Lopez's apartment doorknob.

Police officers transported the defendant to the police station at approximately 11 p.m. on August 1. Defilippis met with the defendant at the police station some time between 11 p.m. and midnight. The defendant was wearing a white T-shirt and black pants. Defilippis noticed bloodstains on the defendant's pants "in the crotch area." He asked the defendant to give him the pants and they were sent to the crime lab for analysis. Four of the bloodstains were tested. Three of the stains were consistent with the defendant's blood type but inconsistent with the blood type of the victim, Lopez. No results were obtained from the fourth bloodstain.

Defilippis testified that the defendant consented to a search of his automobile and apartment. However, the searches turned up no evidence that he was involved in the stabbing. The defendant agreed to let the police take his photograph, and he was then allowed to leave the police station. On August 2, Defilippis and another officer visited Lopez in the hospital and showed her a photographic lineup which included the picture of the defendant. Lopez identified the defendant's photograph as being that of her assailant, and the defendant was subsequently arrested.

Doctor Richard Gamelli testified that Lopez had suffered two stab wounds, one in her lower right abdomen which penetrated into the abdominal cavity and one in the left side of her back. As a result of the abdominal wound, Lopez suffered some internal bleeding. Doctor Gamelli testified that there was probably at least a small amount of external bleeding as well, although that may not have occurred immediately upon being stabbed.

Marcella Hernandez testified for the defense as an alibi witness. Hernandez and her husband, Maximino Gorostieta, shared an apartment with the defendant. Since her husband did not have a driver's license, Hernandez relied on the defendant for transportation to and from her job at a Red Lobster restaurant in Downers Grove. On August 1, she was scheduled to finish work at 10:30 p.m. At 10:35 p.m. on that date, she saw the defendant, who was wearing a white T-shirt and black pants, come into the restaurant and walk over toward some telephones. While still at the restaurant, Hernandez spoke to her husband on the telephone. He told Hernandez that the police were at their apartment and they were looking for the defendant. Hernandez told this to the defendant, who said that he did not have a problem with the police. Hernandez punched out at 11:01 p.m. and she and the defendant went directly to their apartment.

On cross-examination, Hernandez admitted that she did not get along with Lopez. Hernandez testified that her husband had supposedly fathered a child by Lopez while Hernandez was living in Mexico. Hernandez stated that the affair between Lopez ...

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