People v. Kirkpatrick

650 N.E.2d 267, 272 Ill. App. 3d 67, 208 Ill. Dec. 810, 1995 Ill. App. LEXIS 334
CourtAppellate Court of Illinois
DecidedMay 11, 1995
DocketNo. 4—94—0032
StatusPublished
Cited by7 cases

This text of 650 N.E.2d 267 (People v. Kirkpatrick) 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. Kirkpatrick, 650 N.E.2d 267, 272 Ill. App. 3d 67, 208 Ill. Dec. 810, 1995 Ill. App. LEXIS 334 (Ill. Ct. App. 1995).

Opinion

JUSTICE STEIGMANN

delivered the opinion of the court:

In September 1993, a jury convicted defendant, Robert W. Kirkpatrick, of battery (720 ILCS 5/12 — 3(a) (West 1992)), and the trial court later sentenced him to probation for 24 months, subject to various conditions. Defendant appeals, arguing that (1) the State violated his right to due process by failing to disclose exculpatory evidence in its possession; (2) the trial court improperly limited his testimony; (3) the prosecutor’s improper closing argument deprived him of fair trial; (4) he received ineffective assistance of counsel; and (5) the trial court’s restitution order was defective.

We disagree with each of these arguments and affirm.

I. BACKGROUND

Defendant’s conviction arose out of an altercation between two groups of young men in May 1993. In brief, an argument between these two groups led to physical confrontations and ultimately to the claim by Gerald Rodriguez that defendant struck him with a knife, causing various minor cuts. According to Rodriguez, defendant escalated the argument into a fight by swinging his fists at Rodriguez. Rodriguez fought back, claiming that he did so only to protect himself. Rodriguez and the other State’s witnesses claimed that Rodriguez had nothing in his hands during the fight.

Defendant’s version of events, substantially corroborated by defense witnesses, was that Rodriguez was the aggressor and defendant acted in self-defense. Defendant admitted using a knife to do so, but he claimed that Rodriguez had something in his hand, as well. Defendant thought it was a hammer because, when Rodriguez hit him, the power of the blow was heavier than that of a fist, and defendant claimed it knocked him "about half senseless.” No defense witness testified that Rodriguez possessed a hammer during his fight with defendant, but one defense witness believed that Rodriguez held a stick in his hand. Deputy sheriffs arrived shortly after the fight ended, and one deputy testified that defendant told him at the scene that no weapons were involved in the altercation.

II. ANALYSIS

A. Defendant’s Claim That the State Violated Defendant’s Right to Due Process by Failing To Disclose Exculpatory Evidence

Defendant asserts that whether Rodriguez was armed with a hammer during the fight constituted a crucial fact in view of defendant’s claim that he justifiably used a knife to defend himself against Rodriguez. At trial, defendant claimed that Rodriguez struck him with a hammer, while Rodriguez asserted that he did not have anything in his hands. Further, the prosecutor in closing argument stated that a hammer was never found. Defendant claims, however, that the State in fact had possession of the hammer at issue, both before and during trial; accordingly, its failure to disclose the existence of this hammer to defendant deprived him of due process because the hammer constituted exculpatory evidence. In sum, defendant claims that the State violated the constitutional command of the United States Supreme Court in Brady v. Maryland (1963), 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218, 83 S. Ct. 1194, 1196-97, which held that the due process clause of the Federal constitution requires the State to turn exculpatory evidence over to defendant.

The first problem with defendant’s argument arises from the insufficiency of the record defendant, as appellant, has provided of the trial court proceedings. The only references in this record appear in two places: (1) one paragraph (of defendant’s two-paragraph) motion for new trial, which states the following: "[t]hat the Defendant has reason to believe that the *** Sheriff’s Department may have evidence in its possession which is exculpatory to the Defendant, but that the same was not revealed to the Defendant or his attorney”; and (2) a "stipulated statement of facts,” recently added as a supplement to the record, which states the following:

"5. The State, represented by [the State’s Attorney], orally moved the court to deny the motion for new trial on the grounds that:
(b) the defendant and his attorney knew or should have known about the exculpatory evidence, i.e., the hammer, because the defendant or his girlfriend, Vanessa Finney, gave the hammer to the *** Sheriffs Department two days after the defendant’s arrest; thus, the defendant was not subject to surprise.
6. The court denied the motion for new trial holding that the defendant knew or should have known about the exculpatory evidence.”

This record contains no information regarding any of the following: (1) to whom in the sheriff’s department did Finney give the hammer; (2) what explanation (if any) did she provide to that person regarding the hammer; (3) what, if anything, was that person’s response to Finney; (4) did that person know, or have any reason to believe, that the hammer possessed any significance regarding the charge against defendant; and (5) did that person ever speak to the State’s Attorney about the hammer or that person’s conversation with Finney?

On this same subject, we also note the following: (1) Finney testified at trial and made no mention whatsoever of the hammer; (2) defendant testified at trial that some children found a hammer the morning after the altercation and told Finney about it; and (3) until defendant testified that he believed Rodriguez held a hammer during their altercation, this record contains no indication that the prosecutor or any law enforcement officer knew of defendant’s claim that Rodriguez possessed the hammer. We note again that defendant’s only statement to the police was that no one had a weapon during the fight.

The law is clear that the appellant bears the burden of presenting a record demonstrating the error complained of. (Airtite v. DPR Limited Partnership (1994), 265 Ill. App. 3d 214, 218, 638 N.E.2d 241, 243-44; People v. Hood (1994), 265 Ill. App. 3d 232, 239, 638 N.E.2d 264, 270.) Further, any doubts arising from an incomplete record will be decided against the appellant. Ollivier v. Alden (1994), 262 Ill. App. 3d 190, 198, 634 N.E.2d 418, 424.

•1 In the present case, the scant record before us does not support defendant’s argument about the State’s possession of the hammer. For all we can tell from this record, Finney may have provided no explanation to the personnel from the sheriff’s department to whom she presented the hammer, and neither the prosecutor nor any law enforcement officer may have been aware of the significance defendant first claimed at trial that the hammer possessed. Indeed, this record suggests that the first time the State learned of the claimed significance of the hammer was when defendant so testified.

We agree with the court in United States v. Moore (7th Cir. 1994), 25 F.3d 563

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Cite This Page — Counsel Stack

Bluebook (online)
650 N.E.2d 267, 272 Ill. App. 3d 67, 208 Ill. Dec. 810, 1995 Ill. App. LEXIS 334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kirkpatrick-illappct-1995.