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May 17, 1994


Appeal from the Circuit Court of Cook County. Honorable Ronald J. P. Banks, Judge Presiding.

Released for Publication July 14, 1994.

DiVito, Hartman, Scariano

The opinion of the court was delivered by: Divito

Presiding Justice Divito delivered the opinion of the court:

Following a bench trial, defendant Jason M. Johnson was found guilty of aggravated battery (Ill. Rev. Stat. 1991, ch. 38, par. 12-4, now codified as 720 ILCS 5/12-4 (West 1992)), and sentenced to three years in the custody of the Department of Corrections. On appeal, defendant contends that (1) the circuit court erred in excluding two defense witnesses; (2) the evidence presented at trial was insufficient to prove his guilt beyond a reasonable doubt; (3) he was denied effective assistance of counsel; and (4) the circuit court improperly advised a potential defense witness of his fifth amendment right against self-incrimination causing him to refuse to testify.

At trial, the following evidence was presented. Keith Spence testified that he was currently in custody and awaiting trial in Du Page County on a felony charge and was on probation for possession of a stolen motor vehicle. On the evening of September 29, 1991, he was home at his parents' apartment at 6009 West 26th Street in Chicago because he was grounded for staying out late the previous evening. He was also prohibited from using the telephone. At 11:45 p.m., he left the apartment and went to the fruit market across the street in order to call his girl friend from the pay phone. While he was talking with his girl friend, he noticed two men on the telephone across the street looking at him. A short time later, the two men were joined by two others on a moped.

After the group of four men spoke among themselves for a few minutes, they started walking towards him. As they came closer, he hung up the phone and began to back away. The four men began swearing at him and said that they were going to "whip [his] ass." Defendant, one of the four, was carrying a baseball bat and was wearing white sweatpants and a white, long-sleeved shirt. The three other men were codefendant Ben Maciejewski, Darryl Haymes, and Randy Llewelyn. When they reached him, Maciejewski swung at him but he was able to duck away from the blow. Maciejewski then pulled his jacket over his head, threw him to the ground, and climbed on his back and began punching him. Spence was able to get the jacket away from his eyes, and he saw Haymes and Llewelyn kick and punch him. Defendant also hit him in the legs with the bat. He then heard both Maciejewski and Haymes tell defendant to hit him in the head, because "he deserved to die." Defendant swung the bat at his head, but Spence was able to block it with his arm. At that point, Spence's mother yelled out her window and a police officer who was at the gas station arrived at the scene.

Defendant, Haymes, and Llewelyn ran away through an alley, but Maciejewski continued hitting Spence until the officer "pulled him off." Spence stood up and told the officer that his arm was hurt and that three other men were involved. The officer called in a request to have the area checked, and approximately three to five minutes later, a police car pulled up with defendant and Haymes. Spence identified defendant as the person who struck him with the bat and Haymes as one of the individuals who kicked him while he was on the ground. At the same time that the police arrived, he saw a woman named Lisa Saucedo at the scene, but stated that he did not see her earlier and that she was not with the four men initially. He was taken to a hospital, where he was treated for a broken arm, cuts on his face, knots on his head, and an injured leg.

Officer Joann Palermo of the Clyde Park District police force testified that on September 29, 1991, she was patrolling the area of 26th Street and Austin Avenue when she pulled into a gas station at that intersection at approximately 11:45 p.m. Tom Kuratko, an off-duty Cicero police officer and acquaintance of Palermo's, pulled up behind her and the two began a conversation. As she refueled her squad car, Palermo noticed Spence standing alone by the telephone at the market across the street. Spence was holding nothing. She also noticed four young, white men standing by the pay phones at the gas station, but did not see anyone with a baseball bat. She then heard some yelling between Spence and the four men, but did not know what it was about. She and Kuratko then went inside to sign the charge receipt.

When they came back out, she heard a "commotion" and saw Spence lying on the ground, being punched and kicked by four men. She also saw one of the men swinging a bat, but could not remember who it was or what he was wearing. She called for backup, and the two officers drove their cars across the street. As they pulled up, three of the four men ran away. Codefendant Maciejewski, however, was still on the ground with Spence and was taken into custody at that time. Spence's arm began to swell and an ambulance was called. Two to three minutes later, an auxiliary unit pulled up with defendant and Haymes, and Spence identified them as two of the men who had attacked him. Besides Spence's mother, no other civilians were at that location. A baseball bat was recovered about twenty feet from where Spence was lying.

Cicero police officer Tom Kuratko testified that he was off-duty when he followed Palermo into a gas station at 26th and Austin in order to talk with her. As they were refueling Palermo's car, he noticed four or five individuals standing around the phone near the gas station. He also noticed one person standing near the phone across the street, but could not see if that person was holding anything. He and Palermo then went inside and continued their conversation while she signed the charge receipt.

When they exited the cashier's office, he saw four men beating Spence. One of the men was holding him down while the others kicked him. Another one of the men had a baseball bat and swung it at Spence at least two times. Spence was on the ground trying to cover himself. He and Palermo got into their cars and drove about 75 feet to the scene. As they pulled up, three of the men fled, but codefendant Maciejewski was still "wrestling" with Spence and had to be pulled away. Although Kuratko identified defendant as one of the men he saw fleeing the area, he could not state which one swung the bat. He also stated that no one else was in the area when he pulled Maciejewski off Spence.

Spence's mother, Barbara Woods, testified that on the night in question, he was grounded for staying out late the night before and could not go out or use the telephone. At about 11:15 p.m., she disconnected the phones and took them to her bedroom with her so that Spence could not use them. Both her husband and her younger son were already asleep, but Spence was in his room with the door closed and the light on. While she was in her bed, she heard a lot of "commotion" and "yelling" coming from outside. When she got up and looked out her window, she saw her son lying on the ground across the street and four men standing over him, kicking, beating, and yelling dirty names at him. She yelled to the men to stop and that she was going to call the police. Defendant, who was wearing a white outfit which could have been a sweatshirt and sweatpants, was hitting Spence in the legs and chest with a baseball bat. One of the other men then yelled to hit his head instead of his legs, and defendant swung the bat at Spence's head. Spence blocked the blow with his arm, however.

Although she was unsure of the distance, Woods insisted that she could see well enough to identify the men. She identified defendant as the one with the baseball bat, and codefendant Maciejewski as one of the men who punched and kicked Spence.

As she was about to call the police, she noticed that they had already arrived and went outside. When she got outside, the officers were pulling Maciejewski off Spence. The three other men already had run away. She also noticed that Spence was holding his arm. About two minutes later, a squad car pulled up with defendant and Haymes in the back, and she identified them as two of the men who beat up her son.

Codefendant Maciejewski testified in his own behalf that on the night of September 29, 1991, he and Llewelyn were riding his moped and stopped at the gas station at 26th and Austin to use the phone. When they stopped, they noticed three men, one of whom was Spence, standing at the payphones directly across the street. Although Spence was ...

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