Appeal from the Circuit Court of Cook County. Honorable Vincent Gaughan, Judge Presiding.
As Modified on Denial of Rehearing March 23, 1994, Rehearing Denied March 23, 1994. Petition for Leave to Appeal Denied December 6, 1995.
Hartman, DiVITO, McCORMICK
The opinion of the court was delivered by: Hartman
MODIFIED UPON DENIAL OF REHEARING
JUSTICE HARTMAN delivered the opinion of the court:
Defendant, Louie Rodriguez, appeals his convictions of attempted first degree murder and aggravated battery, asking this court to review whether (1) the State proved him guilty of those offenses beyond a reasonable doubt; (2) his conviction of attempted first degree murder should be reduced to attempted second degree murder or aggravated battery; and (3) this court should remand for resentencing if it reduces his conviction of attempted first degree murder. For reasons which follow, we affirm.
At 7 p.m. on Saturday evening, April 13, 1991, James Shortall and Craig Niedermaier, college baseball players in Chicago, went to a local bar and grill on West Taylor Street in Chicago to watch a televised hockey game. Other baseball players and Shortall's girl friend were there. Shortall drank two beers and four sodas; Niedermaier did not drink.
At 1:30 a.m., Shortall's girl friend went up to the bar for last call and was harassed by three Hispanic men. Shortall approached his girl friend to pull her away, and one of the three men told him to "mind [his] own business and take a hike." Shortall told them to mind their own business and leave him alone, at which point he returned to his table.
As the three men left the bar, one of them intentionally bumped Shortall and asked him if he had a problem. Shortall said he had not thought so; they asked him to step outside. Shortall left the bar a few minutes later, at closing time. He told police he left with the intention of discussing the matter outside. Once outside, one of the three men pushed Shortall. Shortall hit him four or five times. They wrestled for a couple of minutes until the other two men broke up the fight.
About 30 people were standing outside the bar. Shortall was just standing there when a girl from the crowd threw a beer bottle at him, striking his right ear. Someone then "sucker-punched" Shortall in the mouth and ran away. Shortall, one of his friends, and "a bunch of other people from the neighborhood" chased this individual. At this point, 200 people had gathered outside the bar and several fights broke out between 4 or 5 university students and about 20 people from the neighborhood.
A tall, unidentified man, accompanied by defendant, stopped Shortall and asked him if he wanted to fight someone else one-on-one. Defendant stood three feet away from Shortall but did not makeany threatening physical or verbal gestures. When Shortall declined the fight, the tall man shoved Shortall with one hand and was, in turn, attacked by some men whom Shortall did not know. Shortall resumed the chase of the man who sucker-punched him, hit him a few times, and knocked him to the ground.
When Shortall finished fighting and stood up, he was struck with a knife on the right side of his neck and received a ten- to twelve-inch cut lengthwise. Shortall was stabbed four times from behind and, after he turned to face his attacker, whom he identified as defendant, he was stabbed twice more. Shortall suffered the ten- to twelve-inch cut on his neck, a ten-inch cut on the back, a two-inch cut on the arm, a four- to five-inch cut on the elbow, a three-inch cut on the stomach, and a three-inch cut on the chest. Shortall pushed defendant to the ground and walked away when he realized he was covered with blood. He saw defendant running away and, for the first time, observed a knife with a three- or four-inch blade in defendant's right hand. Defendant was waving the knife in the air shouting, "This is my equalizer." Shortall and his friends had no contact with defendant before Shortall was stabbed.
Aaron Carpenter, a university student who did not know Shortall and his companions, had 10 to 15 drinks at the bar. At closing time, he witnessed a girl throw a beer bottle at Shortall and another individual sucker-punch him in the face. He joined Shortall in the chase of Shortall's attacker when three neighborhood men, including defendant, kicked and punched him. Daniel Baroncelli, who is 6'2" tall and weighs 190 pounds, ran over and grabbed Carpenter, an acquaintance. Baroncelli threw a punch at one of Carpenter's attackers and turned to run away. As he turned, defendant cut him from his ear to his mouth on the left side of his face.
Defendant testified that on April 13, 1991, he met friends for drinks at the bar and grill and had three or four glasses of wine. At closing time, he observed college students beating Ernesto Hidalgo. Defendant, who is 5'5" tall and weighs 140 pounds, attempted to break up the fight when Shortall and Baroncelli hit him over the head with a bottle. He ran away and eight to ten people carrying broken beer bottles chased him. The crowd was saying, "Get him, get him." When they caught defendant, he "whipped" out a "little pocketknife" and "started swinging because [he] was scared." He was trying to defend himself. He was swinging the knife in front of him but did not recall stabbing anyone. Eventually, he ran away through an alley. He threw the pocketknife down because he became ...