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05/11/95 PEOPLE STATE ILLINOIS v. ROBERT W.

May 11, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ROBERT W. KIRKPATRICK, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Woodford County. No. 10293CM78. Honorable Richard M. Baner, Judge Presiding.

As Corrected May 22, 1995. As Corrected July 19, 1995.

Honorable Robert J. Steigmann, J., Honorable Robert W. Cook, J., Honorable Frederick S. Green, J. Cook and Green, JJ., concur.

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In September 1993, a jury convicted defendant, Robert W. Kirkpatrick, of battery (720 ILCS 5/12-3(a) (West 1992)), and the trial court later sentenced him to probation for 24 months, subject to various conditions. Defendant appeals, arguing that (1) the State violated his right to due process by failing to disclose exculpatory evidence in its possession; (2) the trial court improperly limited his testimony; (3) the prosecutor's improper closing argument deprived him of fair trial; (4) he received ineffective assistance of counsel; and (5) the trial court's restitution order was defective.

We disagree with each of these arguments and affirm.

I. BACKGROUND

Defendant's conviction arose out of an altercation between two groups of young men in May 1993. In brief, an argument between these two groups led to physical confrontations and ultimately to the claim by Gerald Rodriguez that defendant struck him with a knife, causing various minor cuts. According to Rodriguez, defendant escalated the argument into a fight by swinging his fists at Rodriguez. Rodriguez fought back, claiming that he did so only to protect himself. Rodriguez and the other State's witnesses claimed that Rodriguez had nothing in his hands during the fight.

Defendant's version of events, substantially corroborated by defense witnesses, was that Rodriguez was the aggressor and defendant acted in self-defense. Defendant admitted using a knife to do so, but he claimed that Rodriguez had something in his hand, as well. Defendant thought it was a hammer because, when Rodriguez hit him, the power of the blow was heavier than that of a fist, and defendant claimed it knocked him "about half senseless." No defense witness testified that Rodriguez possessed a hammer during his fight with defendant, but one defense witness believed that Rodriguez held a stick in his hand. Deputy sheriffs arrived shortly after the fight ended, and one deputy testified that defendant told him at the scene that no weapons were involved in the altercation.

II. ANALYSIS

A. Defendant's Claim That the State Violated Defendant's Right to Due Process by Failing To Disclose Exculpatory Evidence

Defendant asserts that whether Rodriguez was armed with a hammer during the fight constituted a crucial fact in view of defendant's claim that he justifiably used a knife to defend himself against Rodriguez. At trial, defendant claimed that Rodriguez struck him with a hammer, while Rodriguez asserted that he did not have anything in his hands. Further, the prosecutor in closing argument stated that a hammer was never found. Defendant claims, however, that the State in fact had possession of the hammer at issue, both before and during trial; accordingly, its failure to disclose the existence of this hammer to defendant deprived him of due process because the hammer constituted exculpatory evidence. In sum, defendant claims that the State violated the constitutional command of the United States Supreme Court in Brady v. Maryland (1963), 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218, 83 S. Ct. 1194, 1196-97, which held that the due process clause of the Federal constitution requires the State to turn exculpatory evidence over to defendant.

The first problem with defendant's argument arises from the insufficiency of the record defendant, as appellant, has provided of the trial court proceedings. The only references in this record appear in two places: (1) one paragraph (of defendant's two-paragraph) motion for new trial, which states the following: "that the Defendant has reason to believe that the *** Sheriff's Department may have evidence in its possession which is exculpatory to the Defendant, but that the same was not revealed to the Defendant or his attorney"; and (2) a "stipulated statement of facts," recently added as a supplement to the record, which states the following:

"5. The State, represented by [the State's Attorney], orally moved the court to deny the motion for new ...


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