APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE LORETTA H. MORGAN, JUDGE PRESIDING.
Released for Publication October 14, 1994.
McCORMICK, Hartman, Scariano
The opinion of the court was delivered by: Mccormick
JUSTICE McCORMICK delivered the opinion of the court:
After a bench trial, the trial court found defendant guilty of three counts of aggravated battery and not guilty of armed violence. The trial court merged all counts of the aggravated battery into one finding and sentenced defendant to 30 months' probation. Defendant in this appeal raises one issue for this court's consideration: whether defendant was found guilty of aggravated battery beyond a reasonable doubt, where one of defendant's witnesses testified that he, rather than defendant, committed aggravated battery upon the victim. For the reasons stated below, we affirm the conviction and sentence.
The following facts were presented at trial. The victim, Garvey Walker, an off-duty police officer, testified that he arrived at the Essence Lounge, located at 71st Street and King Drive, between 2 and 2:30 a.m. on November 25, 1990. The victim was in plain clothes. During the time he was at the lounge, the victim drank two beers and a shot of alcohol. At about 3 a.m. the victim attempted to go to the bathroom, but the doorway was blocked by defendant and his two companions. The victim, defendant and his companions began to argue. The victim testified that defendant and his companions left the lounge at the owner's request.
The victim left the lounge 10 minutes later and walked across71st Street to his car. Defendant approached the victim and asked him if he was the guy in the lounge. The victim answered, "I don't know what you're talking about." According to the victim, defendant and his companions tried to strike up a conversation with him. The victim testified that while he was looking at one of the other men, defendant struck him with "some type of object in the face." Defendant then reached inside the victim's coat and grabbed his gun. They struggled over the gun. Defendant got away from the victim and ran westbound toward King Drive with the victim in pursuit. The victim tackled defendant as several uniformed police officers came to his assistance. The victim was taken to Jackson Park Hospital emergency room where it was determined that he had sustained a fracture to his eye socket. Later, the victim was transferred to Michael Reese Hospital for surgery.
Officer Vivian Lindsey testified that she had been a police officer with the Chicago police department for four years. On the date and time of the occurrence she and her partner, Katherine Ambrose, were patrolling the area of 71st Street and King Drive in their squad car. At that time, they witnessed an altercation between defendant and the victim. Officer Lindsey further testified that she saw defendant hit the victim in the face with a glass bottle, then lunge toward the victim and remove a handgun from the victim's waist. Defendant then proceeded to run westbound on 71st Street toward King Drive. When defendant noticed the police officers, he stopped and was tackled by the victim and the police officers. The officers wrestled the handgun away from defendant.
On cross-examination, Officer Lindsey testified that she was approximately 25 to 30 feet away from the scene, and that she was "positive" that defendant was the individual she saw hit the victim with the bottle. Officer Lindsey also testified that defendant was intoxicated at the time of his arrest.
Bruce Thurman, one of defendant's companions on the night of the incident, testified for the defense. On direct examination he testified that he, defendant and another man, Virgil Smith, entered the lounge at about 12 a.m. to eat some food they had purchased from a restaurant across the street. At about 1:30 a.m., defendant went to the back of the lounge to use the telephone. Thurman had ordered a bottle of beer from the bar. When Thurman came back from the bar, he saw defendant in an argument with the victim. He testified that he did not know, nor was he informed, that the victim was a police officer.
After leaving the lounge at the request of the owner, Thurman, Smith and defendant went back to the restaurant across the street. While they were standing outside the restaurant, the victim yelled at them from across the street, "I'll kick all y'all * * *." As the victim crossed the street, defendant went out to meet him. According to Thurman, the victim pulled out a gun and hit defendant two times in the face with it. After the victim hit defendant with the gun, Thurman ran up and hit the victim with the bottle of beer he had purchased at the lounge. Thurman testified that he never saw the victim's gun in defendant's hand, and that he had never seen the gun before the victim hit defendant with it. Thurman fled after he hit the victim with the bottle.
At the close of Thurman's direct examination, the trial court recessed the trial in order to procure a public defender to advise Thurman of his rights. After Discussion with the public defender, Thurman invoked his right against self-incrimination and the trial court struck his testimony from the record.
The trial resumed on December 9, 1991. Thurman, in the interim, had secured private counsel. Thurman informed the trial court that he wished to retake the stand and continue his testimony, waiving his right against self-incrimination under the fifth amendment.
Thurman's testimony resumed with cross-examination. On cross, Thurman repeated his earlier testimony, stating that after he saw the victim hit defendant with a gun, he ran up to the ...