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07/24/96 PEOPLE STATE ILLINOIS v. ROBERT D.

July 24, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ROBERT D. SWAGGIRT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 91--CF--974. Honorable Melvin E. Dunn, Judge, Presiding.

Released for Publication August 26, 1996.

The Honorable Justice Bowman delivered the opinion of the court: Inglis and Thomas, JJ., concur.

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Defendant, Robert Swaggirt, was convicted of aggravated battery (Ill. Rev. Stat. 1991, ch. 38, par. 12-4(a)) and armed violence (Ill. Rev. Stat. 1991, ch. 38, par. 33A-2). The trial court sentenced defendant to six years' imprisonment. We reverse defendant's conviction and remand for a new trial.

The following summary of the facts is taken from the record. Defendant was charged by indictment with two counts of aggravated battery (Ill. Rev. Stat. 1991, ch. 38, par. 12-4(b)(1); Ill. Rev. Stat. 1991, ch. 38, par. 12-4(a)) and one count of armed violence (Ill. Rev. Stat. 1991, ch. 38, par. 33A-2). The indictment alleged that on June 28, 1991, defendant caused great bodily harm to David Sorensen by cutting him on the ear and neck with a machete.

Following various pretrial motions and hearings, the case proceeded to a bench trial on January 7, 1993. At trial, David Sorensen testified that on June 28, 1991, he was celebrating his birthday in a park adjacent to Route 31 near the Fox River in Kane County, Illinois (park). He arrived at 11 a.m. and spent the day drinking. During the day and night he was joined by his sister, Brenda Sorensen, his brother, John Sorensen, and John's girlfriend, Elizabeth Mattson. At 11:15 p.m., Brenda told him that John was fighting nearby. David ran to help John and Mattson. By the time he reached them, the situation had become so wild it was "every man for himself." Between 30 and 40 people were fighting.

According to David, after the fight had ended and everyone was walking to their cars, he saw an individual he knew as "Bob," whom he identified in court as defendant, approach him with his hands behind his back. Defendant then hit David with a sharp object. David could see defendant because of a nearby bonfire, and he knew defendant because he drank with him several times by the Fox River.

David testified that he was able to get away from defendant and, with Brenda's help, enter the front passenger seat of his car. As Brenda walked to the driver's seat, she became involved in another fight. Because he feared he was losing too much blood, David slid over to the driver's seat and started to drive himself to St. Joseph's Hospital (hospital). He soon became weak, however, and pulled into a gas station. The police arrived and he was taken by ambulance to the hospital. When he was at the hospital, he told Detective Linder of the Elgin police department that he had been cut by a man named "Bob," whom he described as having a mustache and beard. At 9:30 p.m. on June 29, 1991, he selected defendant's photograph from a photographic lineup. According to David, he never hit a woman by the name of Michelle Moore on June 28, 1991.

On cross-examination, David stated that defendant was not involved in the fight when he went to help John and Mattson. He admitted that he was intoxicated at the time of the fight. He further admitted that he told Detective Linder at the hospital that he did not know what had happened at the park and that he only learned what had happened after he underwent surgery and he was told about it. On redirect examination, however, David testified that his testimony in court, as well as his statements to Detective Linder, were based on his own recollections.

Brenda Sorensen testified that she arrived at the park at 9 p.m. on June 28, 1991. At 11:15 p.m., John became involved in a fight. David ran to help John, and she followed. During the ensuing melee, she noticed David standing face-to-face with defendant, although they were not hitting each other. About five minutes later David approached her and told her they had to leave. His face was cut and he was bleeding profusely. When they reached the car, she was attacked by Michelle Moore. David then drove off in the car. Brenda further testified that she never saw David fight or strike Michelle Moore that night. She also admitted that she never saw defendant strike David.

Elizabeth Mattson testified that at 11:15 p.m. on June 28, 1991, a fight started at the park when Michelle Moore slapped her. Michelle Moore's boyfriend then kicked Mattson in the mouth. John then started to fight with Moore's boyfriend while Moore and Mattson continued to fight. During the ensuing fight, Mattson noticed David backing away from defendant. Defendant had his hands behind his back. Defendant then brought out a long knife from behind his back and hit David across his face with it. David then fell to the ground and defendant walked away.

On cross-examination, Mattson admitted that when she first spoke to Detective Linder in the early morning hours of June 29, 1991, she told him that she did not know what had happened to David. However, in court she claimed that she did know what had happened, but that she did not tell Detective Linder at first because she was afraid she would be arrested for fighting. On redirect, Mattson testified that she never saw David fight with Michelle Moore.

John Sorensen testified that he arrived at the park at 9 p.m. At approximately 11:15 p.m., a woman slapped Mattson, and the woman's boyfriend then kicked Mattson in the mouth. John testified that he then started to fight with the woman's boyfriend. The fight escalated to include everyone nearby. During the fight, he noticed David standing "nose-to-nose" with defendant, although he did not see defendant strike David.

Detective William Linder of the Elgin police department testified that he interviewed David at the hospital in the early morning hours of June 29, 1991. David told him that he was struck by a bearded white male, whose first name he believed was "Bob." Detective Linder testified that he also interviewed Mattson later that day. She told him that David was struck by a man named "Bob."

Dr. Herbert D. Stith, an oral and maxillofacial surgeon, testified that in the early morning hours of June 29, 1991, he examined David at the hospital. David had a laceration which extended from his chin to behind his left ear. He was conscious, "somewhat alert," and seemed to be affected by alcohol. Blood tests indicated that his blood alcohol level was .189. On cross-examination, Dr. Stith admitted that the amount of blood David lost could have impaired his thinking processes.

At the conclusion of the foregoing testimony, the parties stipulated that the paramedics who transported David to the hospital would testify that David was conscious and oriented when he was placed in the ambulance. The parties also stipulated that Dr. David Lewis would testify that he was on duty in the emergency room at the hospital on June 28, 1991, and that David was alert and conscious when he arrived there at 11:54 p.m. The State then rested.

For his defense, defendant presented the testimony of the following individuals. Dorothy Nolan testified that on June 28, 1991, she was at the park with defendant and several others. Late in the evening a fight which included David Sorensen began. Defendant, who was standing next to her, did not become involved in the fight. She did not see a machete in defendant's hands that evening, and she did not see defendant strike David Sorensen with a machete. However, David Moore, Michelle Moore's father, was involved in the fight, and she did see a machete in his hands during the fight.

On cross-examination, Nolan admitted that when she spoke with Detective Linder in the early morning hours of June 29, 1991, she did not tell him that she saw David Moore with a machete. She also admitted that she did not tell this fact to Assistant State's Attorney Stuart Peterson when she spoke to him on August 8, 1991, even though she knew that defendant had been arrested a month earlier for attacking David Sorensen. Nolan also stated that she saw David Sorensen ...


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