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People v. Prevo

February 04, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KARL PREVO, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Clark County No. 97CF7

The opinion of the court was delivered by: Justice Garman

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Honorable Tracy W. Resch, Judge Presiding.

Defendant Karl Prevo was convicted on July 9, 1997, of two counts of aggravated battery (720 ILCS 5/12-4 (West 1996)), after a jury trial in the circuit court of Clark County. He was sentenced on October 29, 1997, to 30 months' probation. He raises numerous issues on appeal: (1) violation of his right to a speedy trial, (2) improper limitation of his cross-examination of the State's witnesses, (3) the denial of his motion for a directed verdict, (4) improper exclusion of a defense witness, (5) improper closing argument by the prosecutor, (6) failure to give a jury instruction requested by Prevo, (7) ineffective assistance of counsel, and (8) the sufficiency of the evidence. In his final argument, he asserts that the cumulative effect of these alleged errors was to deny him a fair trial, in violation of his right to due process under the constitutions of the United States and the State of Illinois (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, §8). We affirm.

I. BACKGROUND

On March 9, 1996, Prevo and another motorist, Edward Stroud, narrowly avoided a collision. A fight ensued. Stroud was arrested and charged with driving under the influence (DUI) (625 ILCS 5/11-501 (West 1996)). Prevo testified for the State at his trial (No. 96-DT-19). At the time he testified, a misdemeanor battery (720 ILCS 5/12-3 (West 1996)) stemming from the same incident was pending against Prevo. The jury found Stroud guilty, and he was sentenced to one year's probation.

On February 5, 1997, 11 months after the incident and 6 months after he testified at Stroud's trial, Prevo was charged by information with aggravated battery, a Class 3 felony (720 ILCS 5/12-4(a), (e) (West 1996)).

The day of trial, the State filed two motions in limine. The first sought to forbid the defense from mentioning that Stroud was convicted of DUI following Prevo's testimony at his trial. The second sought to prohibit testimony that, at the time of the traffic altercation, Stroud's driver's license was revoked and he subsequently pleaded guilty to driving while his license was revoked. The State argued that, under the proposed order, Prevo would be able to put on evidence of Stroud's intoxication by means of testimony of the officers who were at the scene, but that would be "irrelevant and unduly prejudicial, because it's not a felony or crime of deceit."

Prevo argued that Stroud's trial and conviction were relevant to his bias and hostility toward Prevo and that a major portion of his cross-examination of Stroud would involve demonstrating the basis for that bias and hostility.

The trial court ruled: "The outcome of that trial is not relevant. *** [Y]ou certainly have ample opportunity to elicit and question Mr. Stroud about matters of interest and bias. There was an altercation. There were injuries. There was a trial, and Mr. Stroud and Mr. Prevo were at opposite ends in the course of that trial. The jury, through your questioning, certainly can be fully apprised of any hostility or bias that might exist as a result of the trial, but the outcome of the trial is not relevant to this case, nor is *** any sentence that was imposed."

The trial court also granted the second motion in limine.

At trial, the State's witnesses were Stroud, who was still on probation at the time, Shannon Stroud (his wife), David Meeker, Scott Rhodes, and Martin E. Keim.

Stroud testified that he first encountered Prevo at an intersection a few blocks from his home. He was in the right-hand lane. When the light turned green, he went straight ahead. The car that had been stopped in the left-hand lane cut in front of him. Stroud said, "Then I proceeded home and got up to my driveway and got ready to turn in, and my front brakes went out and I hit a tree." He was not injured when he struck the tree. He opened his garage door, pulled the car inside, and closed the door. He then began to pick up some tree limbs from his yard. A green car pulled in the driveway and Prevo got out. When Stroud asked, "May I help you?", Prevo answered "You." He seemed angry. Stroud asked, "What's your problem?" Prevo grabbed Stroud's thumb, twisted his arm, and put him down on the ground. He hit Stroud in the face several times--more than two times, possibly as many as six. Stroud did not hit or threaten to hit Prevo. Stroud's wife, Shannon, came out of the house and began to yell at Prevo. She got a broom from the garage and tried to use it to get Prevo away from Stroud. Prevo grabbed the broom and slapped Shannon. Stroud grabbed Prevo's legs but did not strike him during the entire incident. Stroud further testified that he is 5 feet 10 inches tall and weighs 145 pounds. He sustained multiple facial and sinus fractures and a concussion. He required surgery and missed three weeks of work as a result of his injuries.

On cross-examination, Stroud admitted that he consumed three or four beers before driving that afternoon. He denied being intoxicated but admitted that he was charged with DUI. He rejected suggestions that he, not Prevo, had been the one in the left-hand lane, he had nearly run Prevo off the road, and he tailgated Prevo as they drove away. He also denied that he yelled and pointed his finger at Prevo and ordered Prevo to get off his property. He admitted that Prevo testified against him at his trial on the DUI charges but stated that he had no hostile feelings toward Prevo as a result.

Shannon testified that she was indoors when her husband came home that afternoon. She went outside after she saw him talking to another man. Prevo began yelling at her husband and she told him to leave. When he did not leave, she threatened to call the police. Then, he "took Ed and threw him on the ground and jumped on top of him and just started pounding him in the face." Her husband was caught completely off guard. He did not threaten or strike Prevo. He was not holding anything that he could use as a weapon. She told Prevo that she was going to get a gun. The Strouds did not own a gun, but she thought that the threat of a gun might make him leave. She went into the garage and found a big broom, which she used to hit Prevo on the back, trying to get him off her husband. When this did not work, she hit his car with the broom. This had the desired effect of getting him away from Stroud, but then he came at her. She said, "[H]e came over and knocked me flat on my back, took the broom away from me. I had cuts inside my mouth from where he hit me." Shannon testified that she weighed between 85 and 95 pounds. The altercation ended with the arrival of the Stroud's neighbor, David Meeker. Shannon identified photographs of Stroud that she had taken the next day. These were admitted into evidence and circulated to the jury.

Meeker testified that he was a Marshall, Illinois, police officer and was off duty and at his home on the afternoon of March 9, 1996. His yard is separated from the Strouds' by an alley. He heard voices and saw Prevo approaching Stroud. When Stroud fell to the ground, Meeker went inside to get his police radio. When he came back outside, he saw Shannon with a broomstick. She was trying to hit Prevo, who deflected the blow with his arm. Stroud was on the ground, hanging onto one of Prevo's legs. The men separated as Meeker approached. Stroud's face was bloody; Prevo had no visible injuries.

On cross-examination, Meeker agreed that Stroud appeared to be intoxicated. He did not see what caused Stroud to fall down. He did not observe any injury to Shannon and did not recall her saying anything about being hurt. Prevo was relaxed.

Rhodes, a Marshall, Illinois, police officer, testified that when he arrived, Prevo approached him and told him that Stroud had "performed a traffic infraction" and that Prevo had then followed Stroud. Stroud struck a tree and Prevo turned around and went back to check on him. Prevo told Rhodes that Stroud was confrontational, they had words, Stroud advanced on him, and he hit Stroud. Stroud had a cut under his left eye. Stroud was placed under arrest for DUI and Prevo for battery.

On cross-examination, Rhodes testified that Stroud had the odor of alcohol on his breath, had difficulty standing, and staggered when he walked. He appeared agitated. Prevo was "excited." Rhodes examined the tree and confirmed that the accident did take place.

During cross-examination of this witness, the State objected to defense counsel's questions about his observations of Shannon's demeanor. Defense counsel explained that this information was relevant to the issue of who was the ...


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