People v. Diaz

428 N.E.2d 953, 101 Ill. App. 3d 903, 57 Ill. Dec. 273, 1981 Ill. App. LEXIS 3606
CourtAppellate Court of Illinois
DecidedNovember 5, 1981
Docket79-1544
StatusPublished
Cited by20 cases

This text of 428 N.E.2d 953 (People v. Diaz) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Diaz, 428 N.E.2d 953, 101 Ill. App. 3d 903, 57 Ill. Dec. 273, 1981 Ill. App. LEXIS 3606 (Ill. Ct. App. 1981).

Opinion

Mr. JUSTICE LINN

delivered the opinion of the court:

At the conclusion of a jury trial in the circuit court of Cook County, defendants, Israel Diaz and Domingo Delgado, were convicted of the aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4) of Jerry Johnson. Defendant Diaz was sentenced to 30 months’ probation and defendant Delgado was sentenced to a two- to five-year prison term. The original indictment charged defendants with three counts of aggravated battery upon each of three victims, Jerry Johnson, Paul Hermanson and John Doyle. Prior to trial, the State entered nolle prosequis on the original indictment and reindicted defendants with one count of aggravated battery while armed with a deadly weapon (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4(b)(1)) and one count of aggravated battery causing great bodily harm (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4(a)) upon each of the three victims.

On appeal defendants contend: (1) they were not proven guilty beyond a reasonable doubt; (2) the trial court improperly refused to instruct the jury on justifiable use of force; (3) defendants were arrested without probable cause and, therefore, the trial court improperly failed to suppress their statements and the identification testimony; (4) the trial court erred in allowing the victims’ identification testimony at trial since the pretrial confrontations were unduly suggestive; (5) the trial court improperly allowed impeachment of a defense witness with an old prior conviction.

We affirm.

For the State

Terry McCormick testified that on June 2, 1978, he and his friends, Jerry Johnson, John Doyle, and Paul Hermanson attended a Cubs baseball game. McCormick had not had anything to drink. While they were returning to Doyle’s car, McCormick walked about 100 feet behind his three friends. As they proceeded on Addison Street, McCormick saw a pipe being thrown from a porch. The pipe landed behind his friends. Looking towards the porch, McCormick saw what he described as “a couple of Latino males.” He identified one as the defendant Diaz. He did not see defendant Delgado on the porch. Neither McCormick nor his friends said anything; the incident of the pipe being thrown was unprovoked according to McCormick. He noticed that one of the persons on the porch walked through a gangway and was then out of eye-sight.

As McCormick and his friends walked along and turned the corner, McCormick said he saw a group of six to eight Latino males and possibly one white male. The men were carrying bats and metal pipes. Suddenly, and for no apparent reason, these men attacked McCormick’s three friends. He described the height of the attacking men as varying between five feet six inches and six feet. McCormick estimated he was between 50 and 75 feet away when he first saw the defendants. Delgado came west through an alley as Doyle and Johnson ran east through the same alley. Diaz and some of the other men chased Doyle and Johnson. Hermanson ducked under a car.

McCormick then left the area, found the police, and returned to the scene. McCormick had not seen any of his friends being struck. When he returned to the scene, he did not see any of the Latino males but he did see bats and pipes on the ground.

McCormick further testified that he went to the emergency room of the hospital where his friends had been taken and while he was there, he identified the defendants as two of the assailants. McCormick also stated that after the incident, he accompanied police while they searched the neighborhood for the other men. McCormick had given the police a brief description of the assailants. However, at the trial he could not recall the exact description he had given to the police. He did remember describing the sleeveless “tee shirts” which some of the assailants were wearing. He did not think that defendant Delgado had a beard at the time of the incident.

Paul Hermanson also testified that nothing was said to the assailants prior to the time the pipe was thrown at his group on their return from the baseball game. Hermanson did not know who threw the pipe but he did see defendant Diaz at the scene. Hermanson denied that he had told police the pipe was a mop handle. Hermanson also asserted that no one, at that point, swung the pipe at him although he acknowledged that he had told Officer Epplen that defendant Delgado came towards him with a pipe.

Hermanson further related that about one or two minutes after the pipe was thrown, he saw a “gang” of males, none of whom he knew, coming towards him. They were carrying bats and pipes. He observed defendant Delgado from a distance of one or two feet. Hermanson identified two bats at trial as being similar to the bats with which he was struck.

Hermanson further testified that when he told the group of assailants that he was just trying to get into his car, one of them smashed the windshield of the car. When Hermanson’s friends ran away, three of the attackers, including defendants, remained and hit him with pipes and bats. Although he crawled under an automobile, the men continued to beat him about his ankles and legs as they yelled at him. He then crawled out from under the car. He denied hitting anyone although he defended himself against the attack. Defendant Delgado struck the back of his head. Hermanson first stated he did not see the defendants hit anyone but himself, but he then asserted that they struck his friends. He saw his friends being chased through an alley by a group of males, and the defendants were in that group. Hermanson then ran for help. The police took him to a hospital where he received medical treatment. He later, while at the hospital, identified the defendants. Hermanson described Delgado as having been beardless on the day of the incident.

Hermanson denied that he or his friends threw a bike at defendant Diaz or hit defendant Delgado. He recalled that he might have given police a description of defendants, but he did not think he did. At trial, Hermanson identified the blood-stained tee shirt which had been torn off him during the attack. Hermanson described himself as six feet tall and asserted that on the day of the incident, he weighed 175 pounds. Hermanson also noted that Doyle was about the same size, while McCormick and Johnson were heavier and taller.

John Doyle also testified that nothing was said by members of his group prior to the assault. He had noticed defendant Diaz on a porch, but he did not see anyone with him. A pole was thrown towards him and then a group of people, carrying bats and pipes, came from “out of nowhere, from all different directions.” Defendant Diaz and another man struck Doyle with a baseball bat. Doyle attempted to defend himself. He was not armed. None of his friends were armed. Doyle was struck on his forearm and head with a bat or pipe held by Diaz and another man. Doyle and Johnson then ran through an alley. They stopped to wait for their friends, but then Diaz, Delgado and another man chased them. Delgado hit Johnson over the head with a lead pipe. After Johnson fell, Delgado struck him across the face with a pipe. Doyle aided Johnson and then saw defendants flee. The whole incident lasted between three and five minutes.

Doyle further asserted that he saw defendants in the lobby of the hospital where the police had taken him.

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Bluebook (online)
428 N.E.2d 953, 101 Ill. App. 3d 903, 57 Ill. Dec. 273, 1981 Ill. App. LEXIS 3606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-diaz-illappct-1981.