People v. Marron

• Decision Date: 23 July 1986
• Docket Number: No. 2-85-0415,2-85-0415
• Citation: 99 Ill.Dec. 722,145 Ill.App.3d 975,496 N.E.2d 297
• Parties: , 99 Ill.Dec. 722 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jose Felipe MARRON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 297

496 N.E.2d 297

145 Ill.App.3d 975, 99 Ill.Dec. 722

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jose Felipe MARRON, Defendant-Appellant.

No. 2-85-0415.

Appellate Court of Illinois Second District.

July 23, 1986.

Daniel D. Yuhas, Arden J. Lang, Deputy Defenders, Office of State Appellate Defender, Springfield, for defendant-appellant.

Kenneth R. Boyle, Director, State's Attys. Appellate Service Com'n, Springfield, William L. Browers, Marshall Stevens, Deputy Directors, State's Attys. Appellate Service Com'n, Elgin, for plaintiff-appellee.

Justice SCHNAKE delivered the opinion of the court:

Defendant, Jose Marron, was charged with battery. When he rejected the State's offer for a plea agreement, the prosecutor charged him by information with aggravated battery (battery on a public way). Following a jury trial, defendant was convicted of the lesser included offense of battery. (Ill.Rev.Stat.1985, ch. 38, par. 12-3(a)(2).) He was sentenced to periodic imprisonment (work release) for a term of 364 days and ordered to pay restitution in the amount of $95. Defendant appeals, contending (1) that he was not proved guilty beyond a reasonable doubt, (2) that his right to due process of law was violated because the prosecutor, without prior notice that he would do so, charged defendant with aggravated battery to punish him for exercising his constitutional right to trial, and that, as a sanction for that violation, his conviction should be reversed without a new trial, and (3) that the trial court erroneously denied his motion in limine which sought to preclude the State from introducing his prior conviction of aggravated battery to impeach his credibility in the event he testified in his own defense.

Before addressing these contentions, we must consider the effect of defendant's failure to make a motion for a new trial. Generally, the failure to make such a motion results in waiver of the issues sought to be raised on appeal. (People v. Pugh (1982), 106 Ill.App.3d 901, 62 Ill.Dec. 711, 436 N.E.2d 737; People v. Hammond (1977), 48 Ill.App.3d 707, 6 Ill.Dec. 441, 362 N.E.2d 1361.) In People v. Friesland (1985), 109 Ill.2d 369, 374-75, 94 Ill.Dec. 435, 488 N.E.2d 261, our supreme court stated:

"Exceptions to this rule have been made with regard to the failure to prove a material allegation of an indictment, or in those instances in which the allegation of error would not normally be expected to be included in the post-trial motion (such as an allegation of ineffective assistance of counsel), or if a reviewing court elects to take notice of plain errors affecting substantial rights pursuant to our Rule 615(a) (87 Ill.2d R. 615(a))." [Citations omitted.]

The first exception stated in Friesland applies to defendant's argument that he was not proved guilty beyond a reasonable doubt, and, accordingly, we will review that issue. (But see People v. Thiel (1981), 102 Ill.App.3d 28, 57 Ill.Dec. 667, 429 N.E.2d 565.) The only exception arguably applicable to the other issues raised by defendant is the plain error exception of Rule 615(a), and we will discuss those issues in that context.

We first consider defendant's argument that he was not proved guilty beyond a reasonable doubt. At the jury trial four witnesses testified for the State: James Huffstatler, the complaining witness; Carol Huffstatler, his wife; Dr. Lloyd Koritz, an emergency room physician who treated the complaining witness on the date in question; and Wayne Watson, a sergeant with the Rochelle police department.

James Huffstatler was 43 years old at the time of trial. He testified that on the evening of Friday, August 31, 1984, he and his wife were at the Silver Dollar bar in Rochelle. He had two or three beers while he was there. They left the bar at about 9:30 p.m., and James started walking his wife home. James and his wife were separated at the time, and she lived at the Delos Hotel, one block east of the bar. When they were passing in front of the house next door to the hotel, defendant, who was drinking beer on the front porch of the house with George Herrera, called out to James and told him not to go onto the hotel property.

James testified that he knew defendant because both of them had at one time worked together at the hotel. James stated that at the time of the incident he no longer worked at the hotel, but defendant did. James said he had previously been instructed by the owner of the hotel, Larry Eikamp, not to enter the building.

After defendant called out to him, James replied that he was not going onto the property. He said he was just walking his wife home and then would return to town. Defendant told him he could not go, and defendant grabbed his right arm. At this time James was standing on the sidewalk in front of the house next door to the hotel. James testified he tried to "talk defendant out of it" and make him let go of his arm, but defendant would not. James then punched defendant in the face, and defendant fell backwards to the ground.

James testified that there was a pickup truck parked between the house and the sidewalk. The front of the truck was facing west and toward the house. The scuffle occurred in front of the truck, and when James punched defendant, the latter fell between the pickup truck and the house.

James testified that after defendant fell down, he reached into his pocket. James was worried that defendant was going to pull a knife, so he told his wife to go home, and he walked away. James walked one block west and then one block north. While walking north, he crossed some railroad tracks.

When James was in front of Frankie's Tap, he glanced back and saw defendant approaching him. Defendant had in his hand a dark-colored pocket knife with about a four-inch blade. James started backing up the sidewalk, and defendant lunged at him with the knife and cut him on the left cheek. James kept backing up, and an unidentified person approached from across the street and said to him, "I think you'd better leave, he's already cut you once." James then left. He went north about one-half block, cut east through an alley, and went back to the Delos Hotel where he got a handkerchief from his wife. James then went to the police station where he reported the incident to one of the officers.

On cross-examination James testified that defendant had gotten him and his wife fired from their jobs at the hotel. James said he was fired because he was not "doing the work right" for Eikamp. James was still unemployed at the time of trial, and he did not like defendant. James denied telling Eikamp that he saw other Hispanics in the area on the night in question, and that he was not sure that defendant cut him.

James acknowledged that the pickup truck parked near the hotel had a lot of sharp edges on it, but he said he did not cut himself on the truck.

James said he did not see the knife during the confrontation at the house next door to the hotel, and he denied telling the police that during that confrontation defendant pulled out a knife and swung it at him twice.

Finally, James testified that when defendant approached him with the knife outside of Frankie's Tap, he (James) saw no one else in the area. He acknowledged that there was a bar across the street from Frankie's Tap, and that sometimes on Friday nights that area was "pretty active."

Carol Huffstatler testified that James was not drunk on the night in question. She corroborated her husband's account of the confrontation next door to the Delos Hotel, including his testimony that defendant reached into his pocket after he was knocked down. She said that when he did so, she ran to the hotel and got Bill Schabacker. She and Bill returned to the scene, but no one was there. Carol testified that she looked west and saw defendant at the end of the block "fixing to turn the corner." Bill ran up toward him, but defendant rounded the corner, and Bill returned to the hotel. Carol also related how James returned to the hotel bleeding from his cheek, and how she gave him a handkerchief.

Dr. Koritz testified that the complaining witness came to the hospital a little after 10 p.m. He had a slightly curved laceration from the edge of his jaw up towards his mouth. It was about three-sixteenths of an inch deep at the bottom and thinned out at the top. Dr. Koritz cleaned the wound, and closed it with eight stitches. He testified that he thought it was a knife wound, but could not say that the complaining witness did not cut himself on the truck.

Officer Watson described how the complaining witness came to the police station holding a handkerchief to his bleeding jaw. Watson gave him some first aid, and James was later transported to the hospital. Watson said that Frankie's Tap was on Washington Street in Rochelle which was a public street. The Rochelle police department had the responsibility to patrol that street, and the adjacent sidewalks which were open to the public.

On cross-examination Watson said that at the police station, the complaining witness told him that during the incident next door to the hotel, defendant swung at him twice and missed before he hit defendant. The complaining witness also said that defendant pulled out a knife during that incident. Watson testified that he did not know whether the railroad company owned property in the area of Washington Street. Finally, he testified that defendant was about 40 years old. Watson said that defendant was arrested about 10 minutes after the complaining witness arrived at the police station. Watson instructed the arresting officers to search defendant and the area where he was arrested for a knife, but they did not find one.

The defense presented two witnesses: Joseph Abigana, a resident of the Delos Hotel; and Larry Eikamp, its owner. Abigana testified only that defendant was arrested in front of the house next door to the hotel.

Eikamp testified that, in addition to being the owner of the...