The opinion of the court was delivered by: Justice Gallagher
Appeal from the Circuit Court of Cook County Honorable DENNIS J. PORTER Judge Presiding.
Defendant, Romie Dunlap, was charged with two counts of armed violence and three counts of aggravated battery. Following a jury trial, defendant was convicted of armed violence. After a hearing in aggravation and mitigation, defendant was sentenced to 25 years in the Illinois Department of Corrections. He now appeals his conviction and sentence. For the reasons that follow, we affirm defendant's conviction and sentence.
The following facts were adduced at trial. On September 5, 1996, at approximately 10 p.m., Serena Williams (the victim) was at home painting. She decided to leave her apartment, which was in a Chicago Housing Authority building, to go to the store before it closed. Outside her apartment was a common hallway with a stairwell at each end and an elevator in the middle. As she headed toward the elevator, the victim saw defendant banging on the window of the apartment two doors down where her neighbor, Tonya Battie, who was also defendant's girlfriend, lived with her six children. As defendant banged on the door and window of Ms. Battie's apartment, he threatened to come in and kill her and her six children if she did not let him in. Because Tonya and her sister, Doritha Hampton, who were inside the apartment, were scared by defendant and his threats, the two women retrieved weapons - a baseball bat and a 4 x 4 stick - from Tonya's pantry. The door upon which defendant was pounding was the only exit out of the apartment and there was no telephone in the apartment on which to call the police.
As the victim was walking to the elevator, she asked defendant why he was doing what he was doing and told defendant that she was going to call the police if he did not stop. In response, defendant told the victim in an angry tone of voice to "shut the fuck up," to "mind her damned business," and that she "ain't [sic] got shit to do with it." The victim then headed toward the elevator to call the police. At that point, defendant came up behind the victim and slapped her in the face with the palm of his hand. The force of defendant's slap was so very strong that she fell to the ground and Doritha, still inside the apartment, heard the slap.
As the victim was getting up, Tonya and Doritha came out of the apartment. Defendant apologized to Tonya for what he had done to the victim. After the victim got up, she started walking toward her apartment. As she tried to go into her apartment, she could not because defendant was coming toward her. Tonya and Doritha started chasing defendant, who was running in the victim's direction, down the hallway, toward the direction that the victim was going into her apartment. Because defendant was getting too close to the victim, Tonya threw the baseball bat at defendant. The baseball bat landed on the ground and rolled toward defendant's foot. At that point, Tonya and Doritha were 8 to10 feet away from defendant; Tonya was now unarmed, and Doritha had the stick. The two women then stood there and watched as defendant picked up the bat and resumed running toward the victim.
When the victim saw that defendant had a bat in his hand coming toward her, she started running down to the other end of the hallway toward the stairs. She slipped and fell at the end of the hall, landing in the corner in front of the stairwell. As she fell to the floor, she balled up, put her left leg up and her hands over her head. At that point, while the victim was cowering unarmed on the ground, and the other two women were standing approximately 10 feet away, defendant began striking the victim with the baseball bat.
The victim was blocking her face, trying to prevent the defendant from hitting her in the face. Defendant continued to repeatedly hit the victim with the bat with a very strong force, hitting her arm and her leg. As he repeatedly struck her with the bat, she was balled up, screaming for help and crying. During this attack, defendant struck the victim's body approximately 15 to 20 times. Defendant had both hands together holding the bat over his head and was striking the victim with an up and down motion from his head downward. At that point, Tonya and Doritha were trying to get help and the victim heard them screaming for someone to please call the police because defendant was beating her with a bat. During this whole time, the victim had nothing in her hand.
Defendant stopped beating the victim for a brief moment. At that point, Tonya and Doritha started walking toward the defendant. Defendant, with the bat still in his hand, ran away from them toward the stairwell.
Then, defendant reappeared in the hallway, with the bat still in his hand. At that point, there was nothing blocking defendant's way of going down the stairwell and the victim had not moved since defendant had stopped beating her. Nonetheless, defendant began beating the victim a second time. During this second round of beating, defendant struck the victim with the bat approximately 5 to 10 more times, during which time the victim was balled up in the corner with both her hands protecting her head. Defendant stopped when the victim's cousin came out of her apartment and walked toward them. Defendant then ran down the stairwell taking the bat with him.
After defendant left the scene, Tonya and Doritha helped the victim to her apartment, laid her on a couch and called the police. When the victim awoke, the police had arrived. The victim had redness and bruises on her arm, several bruises on her leg and her bone was sticking out of her arm. The ambulance arrived and took the victim to Mercy Hospital. At the hospital, the victim was X-rayed and ultimately had surgery on her left arm, which had been broken in several places. She stayed in the hospital for approximately three days, and she had a cast on her arm for approximately six months. During the trial, the witness displayed to the jury the scar that remains on her arm as a result of the beating.
After the victim was taken to the hospital, Tonya and her children spent the night at Doritha's home. The next morning, defendant came to the front door of Doritha's apartment. She called the police and defendant was arrested.
Defendant now raises four issues in this appeal, two are related to his conviction and two are related to his sentence. Defendant, first pleonastically, but unpersuasively, contends that he suffered from prejudicial error and was denied a fair trial as a result of the trial court's ruling which allowed the State to introduce evidence of Tonya's pregnancy. All of defendant's arguments on the issue are based upon his erroneous presupposition that the evidence of Tonya's pregnancy was irrelevant. As we shall explain, and as the trial court correctly determined, the evidence was relevant to defendant's claim of self-defense.
Under Illinois law, evidence is admissible if it is relevant to an issue in dispute and its probative value is not substantially outweighed by its prejudicial effect. People v. Gonzalez, 142 Ill. 2d 481, 568 N.E.2d 864 (1991). Relevant evidence is that which has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence. People v. Eyler, 133 Ill. 2d 173, 549 N.E.2d 268 (1989). Trial courts are given broad discretion in ruling on issues of relevancy and materiality, and, absent an abuse of discretion, the trial court's decision will not be overturned. People v. Williams, 196 Ill. App. 3d 851, 554 N.E.2d 1040 (1990).
The trial court here did not abuse its discretion in determining that the evidence of pregnancy was relevant and material to rebut defendant's claim of self-defense. Defendant contends, however, that since his "self-defense instruction was refused *** no theory -- let alone evidence -- was ever presented to the jury." As we shall discuss later, the reason that jury instructions on self-defense were not given was because there was no evidence of self-defense. Nonetheless, contrary to defendant's assertions, the theory of self-defense was presented to the jury.
In defendant's opening statement, defendant's trial attorney stated as follows:
"Three women charge after [defendant] with a baseball bat, and a stick or pipe, and the third one is still running after him. [Defendant] hears clanging on the concrete, the baseball bat is thrown at him and it clangs *** as it hits the concrete. [Defendant] turns around, picks up the bat and goes like this, get away from me, I'm out of here, leave me alone. And they're still coming at him, they're charging him and he's swinging this bat like this, get away from me."
Thus, defendant placed the claim of self-defense before the jury and opened the door for the State's rebuttal evidence of the physical condition and the very late pregnant state of one of these "charging" women. Therefore, it is irrelevant to this issue that there was subsequently no evidence presented nor jury instructions given on self-defense.
In a case analogous to the instant one, the Illinois Supreme Court, discussing character evidence, explained that the rule that the prosecution may put on reputation evidence to prove the victim's peaceful character only if defendant has first attacked the victim's character for peacefulness must apply to statements made in defendant's opening statement. People v. Whiters, 146 Ill. 2d 437, 442-43, 588 N.E.2d 1172, 1174-75 (1992). As the court observed:
" To hold otherwise would enable the defendant to get away with using her opening statement to vilify the victim's character and thus poison the water without offering any supporting evidence. An evidentiary response from the State is appropriate under the circumstances. To hold otherwise would invite repetition of an improper practice and would defeat ...