People v. Costello

• Decision Date: 21 April 1981
• Docket Number: No. 80-589,80-589
• Citation: 51 Ill.Dec. 178,95 Ill.App.3d 680,420 N.E.2d 592
• Parties: , 51 Ill.Dec. 178 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Raymond COSTELLO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 592

420 N.E.2d 592

95 Ill.App.3d 680, 51 Ill.Dec. 178

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Raymond COSTELLO, Defendant-Appellant.

No. 80-589.

Appellate Court of Illinois, First District, Second Division.

April 21, 1981.

James J. Doherty, Public Defender of Cook County, Chicago (Donald S. Honchell, Asst. Public Defender, Chicago, of counsel), for defendant-appellant.

Bernard Carey, State's Atty. of Cook County, Chicago (Marcia B. Orr, Joan S. Cherry and Alexander Vroustouris, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

PERLIN, Justice:

Defendant, Raymond Costello, was charged by indictment with one count of attempt armed robbery, two counts of aggravated battery and one count of armed violence. Upon motion by defendant the charge of armed violence was dismissed. Following a bench trial defendant was found guilty of one count of aggravated battery and of attempt armed robbery. Defendant was sentenced to the Illinois Department of Corrections for concurrent terms of six years for attempt armed robbery and five years for aggravated battery. Defendant appeals contending that (1) he was not proved guilty of aggravated battery beyond a reasonable doubt because the State failed to prove that great bodily harm was inflicted upon the victim; (2) that he was denied a fair trial "when the judge assumed the role of prosecutor by interrogating the witnesses"; (3) that his "sentences are improper as a penalty for refusing to admit guilt"; and (4) that he was entitled to be sentenced to the Juvenile Division of the Department of Corrections.

For reasons hereinafter set forth, we affirm the judgment of the circuit court of Cook County.

On March 2, 1979 at approximately 10:30 p. m. officer Timothy Goc and his partner, officer Zolig, both in plain clothes, were on patrol in an unmarked vehicle. As they proceeded south on Hoyne Avenue and approached Cermak Road, a well lit area, officer Goc observed three individuals running into a parking lot which was also well lit. At that time the victim, Audelio Arteaga, returning to his automobile which was parked in a food store parking lot at the corner of Hoyne Avenue and Cermak Road, observed three individuals walking toward him. As Arteaga was entering his automobile, the three men "prevented (him) from closing the door" and "started to beat (him)." As the officers entered the parking lot, Goc observed the "three youths trying to get, drag or pull a guy out of a vehicle."

The three men demanded Arteaga's money and although Arteaga told them he would give them his money, they continued to beat him. One of the three men, lighter complected than the others, wore a blue jean jacket and blue jeans, and had a blackjack, which he used to strike Arteaga "in the nose and on the face." Arteaga had an opportunity to see this man's face and subsequently identified him as the defendant. The other two were also hitting him "in the head." Arteaga could not protect himself because "they held (his) hands" and "would not let (him) move" his head. Approximately 30 seconds after the three began beating him, the police arrived.

As the officers proceeded closer to the parked automobile, Goc observed "the three individuals beating the individual that was in the vehicle with their fists and one individual had a black object in his hand." The officers exited their car and announced their office. Two of the three men ran away, and officer Goc began chasing them. The other one was apprehended at the car. An officer asked Arteaga what had happened, and Arteaga told the officer that he had been hit and asked for money. The officer asked Arteaga for a description, but he was unable to respond because he "was extremely nervous." However, he did tell the officer that one of the offenders was lighter complected.

Officer Steven Scholl and his partner, officer Eason, both in plain clothes, received a radio call at approximately 10:30 p. m. requesting assistance at Hoyne Avenue and Cermak Road. Upon their arrival, officer Zolig informed them that officer Goc was "chasing a youth down the street." As officer Goc followed the two men through the parking lot to Hoyne Avenue, the two took different paths. Officer Goc followed the man wearing the blue jean jacket and blue jeans who was subsequently identified by him as the defendant. Defendant ran south on Hoyne Avenue. When defendant reached 22nd Place, he turned the corner. Officer Goc was approximately 15 feet behind defendant and briefly lost sight of him. As officer Goc turned onto 22nd Place, he saw defendant "stopped by a house and a gangway" and looking toward him. Defendant walked down the concrete stairs leading to the gangway. When officer Goc reached the stairs, he observed defendant go through the gangway and into the backyard, and then lost sight of defendant. Officer Goc waited for assistance before further pursuing defendant.

When officer Scholl arrived, officer Goc informed Scholl that he was looking for a 17 year old light complected Latin male wearing blue jeans and a blue jean jacket who was "somewhere in the backyard, in the gangway." Officer Scholl proceeded through the gangway while officer Goc proceeded through the gangway to the left. Officer Scholl, using a flashlight, noticed a snow pile and observed an individual, subsequently identified as defendant, wearing blue jeans and a blue jean jacket "curled up in a ball laying on the ground." Officer Scholl identified himself and told defendant to stand up. When officer Goc reached the backyard, he heard officer Scholl yell, "I got him." Officer Goc stated, "yes, that's the one I was looking for." As officer Scholl was handcuffing defendant, he noticed a blackjack on the ground approximately three feet from where defendant had been lying. Officer Scholl informed officer Goc that he had found the blackjack, which Goc recognized.

Officers Goc and Scholl took defendant back to the parking lot, where Arteaga recognized defendant as the man who had beaten him with the blackjack. Arteaga also recognized the blackjack. Later that evening Arteaga identified defendant in a lineup at the police station. The following day Arteaga sought treatment at a clinic. He testified that the beating "broke my nose, and they hit me on the head also, and I lost a tooth, it came loose." Arteaga further testified, "I still bleed now and then from the nose."

Defendant testified that he was arrested on March 2, 1979 by a police officer in an alley near 22nd Place while he was walking from a bus stop to his home at 2016 Coulter, approximately two blocks from Hoyne Avenue and Cermak Road. Defendant explained that he had been with a friend, Alex Aguilar, and had walked Aguilar to a bus stop at the corner of Bell Avenue and Cermak Road. After Aguilar boarded the bus, defendant started for home and took a short cut through the alley. The officer who arrested him told him to stop and when he did so, the officer grabbed him, yelling "I got him." Defendant denied seeing Arteaga that night and denied beating Arteaga with a blackjack or asking him for money.

I.

Defendant contends that he was not proved guilty of aggravated battery beyond a reasonable doubt because the State failed to prove that great bodily harm was inflicted upon the victim. The defendant was charged with and convicted of aggravated battery which is defined by section 12-4 of the Criminal Code (Ill.Rev.Stat.1977, ch. 38, par. 12-4) as follows:

"(a) A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery." ¹

The term "great bodily injury" referred to as an essential element of the offense of aggravated battery is not susceptible of a precise legal definition but it is an injury of a graver and more serious character than an ordinary battery. (People v. Carmack (3rd Dist. 1977), 50 Ill.App.3d 983, 986, 8 Ill.Dec. 941, 366 N.E.2d 103.) It has been repeatedly held that whether a particular injury constitutes great bodily harm is a question of fact. (People v. Rickman (3rd Dist. 1979), 73 Ill.App.3d 755, 29 Ill.Dec. 431, 391 N.E.2d 1114; People v. Carmack; People v. Hunter (1st Dist. 1973), 14 Ill.App.3d 879, 303 N.E.2d 482; People v. Meeks (1st Dist. 1973), 11 Ill.App.3d 973, 297 N.E.2d 705.) The question is not what the victim did or did not do to treat the injury inflicted but what injuries he did in fact receive. (People v. Carmack, 50 Ill.App.3d at 985, 8 Ill.Dec. 941, 366 N.E.2d 103.) Moreover, the law in Illinois recognizes that a physical beating may qualify as such conduct that could cause great bodily harm. People v. Baker (2nd Dist. 1975), 31 Ill.App.3d 51, 58, 334 N.E.2d 249.

At oral argument defendant conceded that the injuries which Arteaga testified he sustained, if actually sustained, are sufficient to constitute great bodily harm. ² However, defendant contends that the State failed to prove beyond a reasonable doubt that Arteaga actually sustained these injuries. In a bench trial in a criminal case, it is for the trial court to hear the testimony and determine the credibility of the witnesses. Where the truth lies is a matter peculiarly for the trier of fact, and it is not for a reviewing court to substitute its opinion therefor. (People v. McNair (1st Dist. 1979), 71 Ill.App.3d 782, 788, 28 Ill.Dec. 160, 390 N.E.2d 142.) A reviewing court will not disturb a guilty finding unless the proof is so unsatisfactory or implausible as to justify a reasonable doubt as to the defendant's guilt (People v. Charleston (1970), 47 Ill.2d 19, 22, 264 N.E.2d 199), or where the evidence of the prosecution is improbable, unconvincing or contrary to human experience. People v. Poltrock (1st Dist. 1974), 18 Ill.App.3d 847, 850, 310 N.E.2d 770.

In support of his contention that the State failed to prove that Arteaga sustained a broken nose and lost a tooth, defendant relies upon People v....