People v. Giovanetti

• Court: Appellate Court of Illinois
• Writing for the Court: HARTMAN; STAMOS, P. J., and DOWNING
• Citation: People v. Giovanetti, 387 N.E.2d 1071, 70 Ill.App.3d 275, 26 Ill.Dec. 241 (Ill. App. 1979)
• Decision Date: 27 March 1979
• Docket Number: No. 78-354,78-354
• Parties: , 26 Ill.Dec. 241 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Guy GIOVANETTI, Defendant-Appellant.

Page 1071

387 N.E.2d 1071

70 Ill.App.3d 275, 26 Ill.Dec. 241

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Guy GIOVANETTI, Defendant-Appellant.

No. 78-354.

Appellate Court of Illinois, First District, Second Division.

March 27, 1979.

Ralph Ruebner, Deputy Defender, Chicago (Daniel A. Cummings, Rothschild, Barry & Myers, Chicago, of counsel), for defendant-appellant.

Bernard Carey, State's Atty. of Cook County, Chicago (Lee T. Hettinger, Francis X. Speh, Jr., Armand L. Andry, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

HARTMAN, Justice:

Defendant appeals from his jury conviction of voluntary manslaughter arising out of events occurring during an early morning imbroglio on June 21, 1975, at the intersection of Ogden Avenue and Rose Street in the Village of Lyons. He was sentenced to a prison term of from three to twelve years.

Defendant raises eight issues in this appeal: whether police improperly placed him in lineup without the presence of his counsel after he had been formally charged; whether it was error to tender to the jury a non-I.P.I. instruction which did not correctly state the law; whether defendant could have caused the victim's death in the light of testimony indicating that death resulted from a skull fracture with no evidence that defendant hit the victim in the head; whether the State proved beyond a reasonable doubt that defendant attacked the victim; whether the State proved beyond a reasonable doubt that defendant's use of force in self-defense was unreasonable; whether it was error to exclude certain relevant defense evidence; whether it was error to sustain an objection to a defense question because the court and opposing counsel did not understand the medical terminology; and whether the State's failure to comply with a discovery order constituted reversible error. For the reasons set forth below, we affirm.

From the record it appears that a street brawl developed at the intersection between a discotheque, the Red Anchor Inn (hereinafter "Inn"), and the Chalet Motel (hereinafter "Motel"). Thirty or more people were milling about in this area and were engaged in the battle directly or were onlookers. Among those involved in the altercation were William Hornick, who had been a patron at the Inn, and who died several hours after the fight from injuries he sustained, and defendant Guy Giovannetti, ¹ an employee of the Inn, variously described as a "doorman" and "bouncer". Police were called and conducted an investigation, thereafter filing a complaint charging Giovannetti with Hornick's murder. Defendant was arrested that same day.

On June 22, 1975 a lineup was held consisting of seven white males, including defendant, five with mustaches, all of defendant's approximate age and build. Giovannetti himself was 6'3 tall, weighed 310 pounds and wore a mustache at the time of his arrest. One participant had "sandy" colored hair; defendant has red hair.

Giovannetti arrived at the police station for the lineup in handcuffs, but was not seen by the witnesses prior to the lineup. Three eyewitnesses attended: Jerry Meeks and George Talley, who had been patrons of the Inn along with the decedent during the events leading to his death, and Leonard Barido, a night clerk at the Motel, who had observed the battle. The three eyewitnesses were placed in a room together with no police officers present and defendant was kept in a separate room away from where he could be seen by the witnesses.

Talley was the first witness to view the lineup; he identified defendant as having attacked the deceased. Meeks was the second witness; he identified defendant as the assailant. Barido indicated that he could not positively identify the assailant by face but that defendant fit his impression of the physical build of the assailant. The investigating police officer, Sergeant Frank Krall, testified that no photographs of defendant were shown to any of the witnesses before the lineup, that they were not told to identify the defendant, nor were they told in which position defendant would be. The lineup identifications were corroborated by photographic identification provided by a fourth witness, Earl Boswell, a week after the lineup took place. Color photographs were taken of the individuals who participated in the lineup.

On March 10, 1977 a hearing on defendant's motion to suppress the identification resulting from the lineup was held. Sergeant Krall testified to the above-described events, corroborated by the testimony of Officer John Pankow, who aided in the conduct of the lineup, as well as by the testimony of Talley, Meeks, Barido and Boswell. Each eyewitness testified that defendant was not identified as the suspect prior to the lineup and that they were not asked to select defendant as the assailant. Defendant's motion alleged, Inter alia, that Giovannetti had been denied his right to counsel during the lineup and that other persons participating in the lineup did not have an appearance similar to his own. Following argument, the trial court, denied the motion to suppress, holding that notwithstanding the absence of an attorney there was no showing that the police did anything in any way to suggest to the witnesses the identity of anyone or who they wanted. The court also held that the photographic identification by Boswell complied with constitutional strictures and denied the motion to suppress his identification as well.

The case went to trial on March 16, 1977. The record is replete with extensive and often contradictory testimony. The events shown by the testimony revealed that Hornick, the deceased, drove to the Inn together with a friend, Timothy Filips, at about 1 a. m. on June 21, 1975 after they had been previously drinking together for several hours. They met Meeks, Talley and Boswell at the Inn. Because the bar was crowded they were unable to find seats and stood near the bar. An argument ensued between the group and defendant over the group's obstruction of the waitresses' service area at the end of the bar. This argument developed into a personal confrontation between defendant and decedent. At about 4 a. m., Filips was involved in an argument over closing time with someone else and he was knocked down and removed bodily from the Inn to the outdoors where he was kicked and beaten by one of the bouncers other than defendant.

Meeks, Talley, Boswell and Hornick joined Filips outside and the group walked away from the Inn toward the Motel. As the group reached the parking lot of the Motel they were attacked by a second group of men who followed them there. Pieces of 2 X 4 wood were used as clubs in the fight. Defendant's actions were described by various witnesses as follows. Meeks saw Hornick lying in the street on his back, immobile and holding no weapon. He saw defendant run up to Hornick, jump in the air and land with both knees on Hornick's chest and stomach. Meeks and Talley approached defendant and told him to get off the decedent, whereupon defendant responded, "go to hell, you are lucky it's not you." Talley saw Hornick either being picked up and dropped, or else thrown to the ground by someone. Thereafter he saw defendant jump up in the air and come down with both knees on Hornick's midsection and thereafter sat on Hornick. Boswell saw Hornick lying face up on the ground after the fighting had stopped, observed defendant jump in the air twice and come down on Hornick's stomach with his knees on each occasion. Boswell admitted to being kind of "hazy or dizzy" at the time from a beating administered to him but stated that he "knew enough" and had "seen enough" to support his testimony. Barido testified that the area was excellently illuminated. From the Motel window he saw a man, slightly built, lying motionless on the ground without a weapon. He then saw defendant jump twice upon the midsection of this man, the decedent. An off-duty Chicago police officer, Robert Thomas, came upon the well-lighted scene while driving his auto at approximately 3:55 a. m. After encountering a disorderly crowd of thirty to fifty people in the street he saw defendant throw a man onto the ground, kick him, jump onto his midsection and, as he did so, let out a loud yell. No one was helping defendant; neither defendant nor decedent had any weapons. Thomas thereafter saw defendant drag decedent on the ground across the street by his belt. Filips testified that he was beaten inside the Inn and was thrown out bodily when he engaged in a dispute with someone over closing time. He walked with the group outside toward the intersection and was struck on the head and rendered unconscious. When he revived, Talley told him to run, which he did, lost consciousness again, and awoke one block away after daybreak.

Hornick was put into a green automobile when a police car arrived driven by Sergeant Krall. Krall testified that a man and woman inside the green auto told him that they were taking the injured man to the hospital. Krall examined Hornick briefly and found him battered about the face, moaning and moving his arms and legs about. He was unable to answer questions intelligibly, but did not look that badly injured to Krall. Rather than remove him, Krall ordered the driver of the green station wagon to take him to the hospital. Hornick apparently died some time before 8 a. m. at the LaGrange Community Hospital.

Dr. Joseph Claparols performed the autopsy on the body of the decedent that day. External examination revealed a blackened right eye, a small laceration of the right eyebrow, abrasions on the right forehead area going into the scalp region approximately three or four inches long and one inch wide, abrasions of the right cheek and on the left side of the face and on the neck. There was an abrasion on the left side of the chest and bruises on the back and in the pelvic area. Internal examination disclosed hemorrhages in the chest area, extensive hemorrhaging of the...