People v. Graves

• Decision Date: 18 June 1982
• Docket Number: No. 80-1230,80-1230
• Parties: , 63 Ill.Dec. 217 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lester GRAVES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 866

437 N.E.2d 866

107 Ill.App.3d 449, 63 Ill.Dec. 217

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lester GRAVES, Defendant-Appellant.

No. 80-1230.

Appellate Court of Illinois,

First District, Fifth Division.

June 18, 1982.

[63 Ill.Dec. 218] Ralph Ruebner, Deputy State Appellate Defender, First Judicial Dist., Chicago, for defendant-appellant; Eva Field, Chicago, of counsel

Richard M. Daley, State's Atty., Cook County, Chicago, for plaintiff-appellee; Michael E. Shabat, Casimir J. Bartnik, Richard T. Sikes, Asst. State's Attys., Chicago, of counsel.

LORENZ, Justice:

Defendant was charged by a three count information with attempt murder, aggravated battery based on great bodily harm and aggravated battery based on the use of a deadly weapon.

Following a jury trial, he was acquitted of the first two counts and convicted of count III, aggravated battery (Ill.Rev.Stat.1979, ch. 38, par. 12-4(b)(1)) and was sentenced to a term of four years imprisonment.

On appeal, he contends that: (1) he was not proven guilty beyond a reasonable doubt; (2) the information upon which he The following pertinent evidence was adduced at trial.

[63 Ill.Dec. 219] was convicted is fatally defective because it fails to sufficiently set forth the nature and elements of the offense of aggravated battery; (3) legally inconsistent verdicts were improperly rendered; and (4) his sentence was excessive.

On August 11, 1977, defendant was one of the employees working the midnight shift at a gauze mill plant in Bedford Park, Illinois, under the supervision of complainant Michael Lopez. At approximately 6:00 a. m. a meeting was held concerning defendant's recurrent tardiness to work, following which Lopez suspended him for three days. Defendant did not exhibit any anger towards Lopez at this time.

Toni Suchovsky, a gauze pad operator, testified for the State that at about 6:40 a. m. she was waiting for a mechanic to fix her machine when she happened to look up and see defendant and Michael Lopez standing face-to-face about 25 yards away. Although she heard no conversation between them, within a matter of seconds she saw defendant strike Lopez on the head, who then fell onto the floor, bleeding and shaking.

Jo Ann Brake operated machines numbered 45 and 46 about 22 yards from Toni Suchovsky's location. Although she ordinarily faced her in her normal working position, she had turned in the opposite direction to work at her packing table and saw Lopez stop to speak to another employee, Frank Zankl, before he approached defendant. They were approximately 12 feet from her location, but due to the machinery noise she could not hear their conversation until defendant began talking loudly and telling Lopez, "to get away from [me], I told you to stay away from me, leave me alone," or words to that effect.

Neither man was touching each other and neither man was holding a weapon when she turned her back to them. About one minute later she heard a thud behind her and turned around in time to see Lopez fall and raise his hands to his head, which had begun to bleed. She saw that defendant was holding a metal bar in his hand (later identified as People's Exhibit 1) which he tossed into the wastebasket behind her machine before looking at her and walking away.

She further testified that People's Exhibit 1 was a metal bar which, to her knowledge, was always positioned within brackets on the back of her machine, number 45. Since she was not facing it while working in her normal position, she did not see if defendant had removed it from the brackets.

Anna Marie Baraban, also a gauze pad operator, worked about 15 feet diagonally from Jo Ann Brake. She was talking to another employee, Frank Zankl, when she looked up and saw defendant strike Lopez with a rod which he held in both of his hands. He then turned around and put the rod in a wastebasket behind Jo Ann Brake's desk.

She further testified that People's Exhibit 1 was the rod with which defendant struck Lopez, describing it as a "rod for holding cotton on the back of the machine."

Frank Zankl, a material handler, was conversing with Anna Marie Baraban when Lopez, his supervisor, approached him to tell him about an upcoming meeting and then asked where defendant was. Lopez walked about 25 feet away to where the defendant was loading cotton into a bin, and began talking to him. Zankl testified that he could not hear their conversation until defendant said in a loud voice, "Get the f--- away," and Lopez, who had nothing in his hands, began to turn and walk away.

Zankl further stated that defendant then reached over to a machine which was located "a ways away" and grabbed a metal bar, or an object identical to People's Exhibit 1, from its location on the number 45 machine and struck Lopez on the forehead above the left eye. He fell down and was "bleeding real bad and kicking * * * nervous kicking, moving his arms all over."

Frank Zankl further testified that defendant had previously complained to Zankl about Lopez placing his hands on him and All of these witnesses testified to the effect that defendant was a pleasant person to work with, that neither defendant nor Lopez had ever struck each other in the past, and that Lopez had never struck any employee.

[63 Ill.Dec. 220] had also called for a meeting with the union steward regarding this same complaint.

The victim, Michael Lopez, testified that sometime after the 6:00 a. m. meeting where he had suspended defendant for tardiness, he went out onto the floor to tell Frank Zankl and defendant about an upcoming meeting, and as he approached, defendant was picking up waste but had nothing else in his hands. When Lopez told him that the meeting was for operators only, defendant responded with profane language. After a short conversation Lopez could recall nothing further until he regained consciousness in the hospital five days later. He testified that his memory was somewhat faulty due to his injury.

Dr. George Bryar, a neurological surgeon, testified for the State that x-rays taken of Lopez's head revealed a depressed skull fracture with in-driven bone fragments, requiring two operations and the insertion of an acrylic plate to correct the skull damage. He stated that a severe head injury is sometimes accompanied by a memory loss called retrograde amnesia whereby a patient cannot recall events prior to the time of an injury.

Lopez was later moved to Colorado for therapy and returned to work five months after the incident. He was still receiving out-patient therapy and had problems with speech at the time of trial.

Defendant testified on his own behalf that he had known Lopez for four months prior to the incident, and for most of that time Lopez would approach him daily from behind to startle him, touch him in an insulting manner and pat him on the buttocks "as if he were a woman." When asked to stop these actions, Lopez would not respond verbally but would simply stand and smile.

At one point, defendant requested a meeting with the union steward and Lopez to complain about these actions; however, this behavior continued after this meeting and despite repeated objections to Lopez.

Defendant stated that he was not angry with Lopez for suspending him, and although he had attempted to leave the premises following his suspension to conform with company policy, Lopez ordered him to complete his shift. Shortly thereafter, when Lopez threatened to terminate him, pounding a 12 inch pipe in his hands, defendant asked him to keep his distance and walked away.

A short while later, defendant testified that he was picking up some gauze and a bar from machine 45, from off of the floor, when Lopez approached him for the third time from the rear, and grabbed his arm. He testified that he lost control and struck him, being in a "sort of dazed" condition at the time. He subsequently telephoned the company nurse and Christ Hospital, and became aware of the extent of the injuries sustained by Lopez. Upon learning of a warrant out for his arrest, he surrendered himself to the police.

Following defendant's conviction, the trial court heard and denied defense motions in arrest of judgment and for a new trial. The motion in arrest of judgment was based upon the insufficiency of the information upon which defendant was convicted.

OPINION

Defendant first contends that he was not proven guilty beyond a reasonable doubt.

Defendant argues that the State failed to establish the statutory elements of intent and lack of legal justification in the proof of the offense of battery presented at trial.

It is well settled that the requisite intent with which an act is done may be inferred from the act itself, as well as by the surrounding circumstances which legitimately permit such an inference. (People v. Jackson (1976), 42 Ill.App.3d 322, 355 N.E.2d 653.) Although defendant testified that he was "sort of dazed" when he struck Lopez, the trial court, as trier of fact, was not required to accept his testimony. People v. Fender (1980), 91 Ill.App.3d 844, 47 Ill.Dec. 297, 415 N.E.2d 22.

Since a person is presumed to intend the natural and probable consequences of his deliberate acts (People v. Hartzol (1976), 43 Ill.App.3d 924, 2 Ill.Dec. 562, 357 N.E.2d 729), the jury in the present case was warranted in finding that defendant intended to hit Lopez with a metal bar, based on the evidence presented.

Defendant's next contention that the State must establish a lack of legal justification is equally without merit. Although the defendant argued that he struck Lopez because he continuously touched him, he did not articulate a theory of self-defense in either his own testimony or in counsel's arguments to the court or jury.

Since a defense of legal justification, such as self-defense is an affirmative defense (Ill.Rev.Stat.1979, ch. 38, par. 7-14) an unfocused general reference to legal justification in the instructions would only serve to confuse the...