{ "id": 5622568, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VIDAL RIVERA, Defendant-Appellant", "name_abbreviation": "People v. Rivera", "decision_date": "1978-07-07", "docket_number": "No. 77-1026", "first_page": "401", "last_page": "408", "citations": [ { "type": "official", "cite": "62 Ill. App. 3d 401" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "346 N.E.2d 11", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 464", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2717106 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0464-01" ] }, { "cite": "324 N.E.2d 82", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 753", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2703811 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0753-01" ] }, { "cite": "339 N.E.2d 293", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "299" } ], "opinion_index": 0 }, { "cite": "34 Ill. App. 3d 79", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2962299 ], "pin_cites": [ { "page": "85-86" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/34/0079-01" ] }, { "cite": "240 N.E.2d 769", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "771" } ], "opinion_index": 0 }, { "cite": "99 Ill. App. 2d 391", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5322195 ], "pin_cites": [ { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/99/0391-01" ] }, { "cite": "296 N.E.2d 856", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. 2d 280", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2933485 ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0280-01" ] } ], "analysis": { "cardinality": 700, "char_count": 14756, "ocr_confidence": 0.876, "pagerank": { "raw": 6.547308570522397e-08, "percentile": 0.4014556447113326 }, "sha256": "26635faaa8c607421dc35b529d5d4085b5fe8a54ce55d631002ee3aa9e7822f8", "simhash": "1:ba21b0cad36a490b", "word_count": 2502 }, "last_updated": "2023-07-14T21:56:30.695364+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VIDAL RIVERA, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE LORENZ\ndelivered the opinion of the court:\nFollowing a jury trial, defendant was found guilty of aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12 \u2014 4) and sentenced to a term of three to nine years. On appeal he contends that he was denied a fair trial where the prosecutor implied in closing argument that defendant\u2019s prior conviction was evidence of guilt in the present case.\nAt trial the following pertinent facts were adduced.\nFor the State\nEugenio Berrones\nAt approximately 5 p.m. on April 22, 1976, he drove to the Kentucky Fried Chicken restaurant at 2335 W. Fullerton Avenue, Chicago, Illinois, accompanied by his 11-year-old daughter, Julia, and his common-law wife, Gladys Adams. He entered the restaurant\u2019s parking lot from Fullerton Avenue via the only entrance and parked. Julia went into the restaurant to buy chicken, and when she returned they were ready to leave. After backing his car out of his parking space, he noticed that another car \u201cthat was coming in stayed in the blocking position at the entrance.\u201d Although he \u201chonked\u201d to signal the car to move, the driver ignored the signal and instead went into the restaurant. He then went into the restaurant to ask the driver to move the car. The driver did not answer his first request. After the third request to move the car, the driver answered, \u201cSon of a bitch, don\u2019t worry me. I am going out to move the car.\u201d The driver then left the restaurant and walked toward the car. Berrones followed him four or five feet behind. He observed the driver putting his right hand in his pocket. Thinking the driver was reaching for a key, he continued to walk until he was next to him. At that point the driver \u201cturned around and he cut me\u201d in the face. Berrones hit him in the face and a struggle ensued in which the driver \u201cwas able to cut me about an inch and a half in my stomach.\u201d The police arrived about a minute later, halted the fight and took Berrones to St. Elizabeth\u2019s Hospital where he was admitted with wounds to the face, stomach and right arm. He did not strike his assailant prior to being cut in the face and was not carrying a weapon. He identified the driver as the defendant, Vidal Rivera.\nOn cross-examination Berrones admitted that he continued to punch and kick Rivera after being cut and that the police had to pull him away from the fight. Although he stated he entered the restaurant about a minute after defendant, he did recall testifying at a preliminary hearing that he waited \u201cfive or ten minutes\u201d before following defendant. He denied losing his temper and pushing defendant prior to being cut. The police did not question him or his wife concerning the occurrence.\nGladys Adams\nShe is the common-law wife of Eugenio Berrones. She substantially corroborated the testimony of Eugenio Berrones. As her husband started to pull out of the parking lot to return home, another car \u201cpulled up and blocked him.\u201d The other car was pulling into the parking lot and was \u201ca little off the street.\u201d Berrones honked the horn for the other car to move, but the driver \u201cjust got out of the car and went in the restaurant.\u201d Her husband also left his car and went into the restaurant. She identified the defendant as the driver of the other car. She observed the defendant exit the restaurant followed by Berrones. The defendant put his hand into his pocket, turned around, and cut Berrones in the face. She did not, however, see a knife. Berrones then hit the defendant and held his hand. She was in the front seat of the Berrones\u2019 automobile during this occurrence.\nOn cross-examination she admitted that a police officer had to pull Berrones off the defendant. Although there was \u201cblood all over everything,\u201d she did not see any on the defendant\u2019s face.\nWilliam Ryan, Chicago Police Officer\nOn April 22, 1976, he was driving on patrol on Fullerton Avenue at approximately Western Avenue and was accompanied by Officer Christopher Pilafas. When at the intersection of Fullerton Avenue and Western Avenue he observed two men fighting in the parking lot of a Kentucky Fried Chicken restaurant. Approaching the parking lot, he observed two automobiles blocking the entrance. He and Pilafas exited the patrol car and separated the men who were fighting. He identified the defendant as the man he pulled away from Berrones. Defendant placed the knife which he was holding on the trunk of Berrones\u2019 car and was taken into custody. He observed that defendant had a \u201cslight bruise on the left cheek just below the eye.\u201d\nAt the police station defendant admitted that he drew a knife during a fight over a parking space and also said that Berrones claimed, \u201cI have got one, too.\u201d Defendant then stated that \u201cI slapped him across the face and I should have killed him and I would do it again.\u201d Defendant identified a knife which was on the table in the review room at the police station as his and demonstrated how he would slash with the knife \u201ccupped in his hand, between the fingers.\u201d However, on cross-examination Officer Ryan admitted that he did not record this demonstration when he made out his police report. Nor did he record defendant\u2019s statement that Berrones struck the first blow.\nChristopher Pilafas, Chicago Police Officer\nHe substantially corroborated the testimony of Officer Ryan adding that at the police station defendant admitted to the fight by stating, \u201cI stabbed him with the knife because he is bigger than I am. I fight to win. I didn\u2019t want to lose.\u201d Defendant also said, \u201cI should have killed him.\u201d On cross-examination Pilafas stated that he did not remember seeing any blood coming from defendant\u2019s nose or mouth. He admitted that he did not examine as to whether defendant was bleeding inside the mouth or nose.\nDoctor Heralenne\nHe is a medical doctor employed primarily in the emergency rooms of St. Elizabeth\u2019s Hospital and St. Anne\u2019s Hospital. He examined Eugenio Berrones at approximately 5:15 p.m. on April 22,1976, in the emergency room of St. Elizabeth\u2019s Hospital. He discovered wounds on the face and left wrist and just below the left rib cage. Berrones was admitted for surgery.\nFor the Defendant\nJoe Jewell\nHe was the manager of the Kentucky Fried Chicken restaurant at 2335 W. Fullerton. At approximately 5 p.m. on April 22, 1976, while he was working behind the counter, he observed two men arguing in the restaurant. Although the men were loud enough for him to notice, he could not hear what they were saying. The two men left the restaurant and proceeded into the parking lot where they engaged each other in a fist fight, striking each other several times. In the middle of the fight he observed \u201cone guy bleeding like all of a sudden.\u201d The fight had lasted about \u201ctwo to four minutes\u201d when the police arrived and halted it. He identified the defendant Rivera as one of the men engaged in the fight and stated that after the fight Rivera \u201clooked okay to me.\u201d On cross-examination he admitted that he did not see the beginning of the fight.\nDefendant Vidal Rivera on his own behalf\nOn April 22,1976, he was driving east on Fullerton Avenue and turned south into the parking lot of a chicken restaurant. As he attempted to drive into the lot, \u201canother man came up and blocked me off.\u201d His car was blocking the sidewalk and was a few inches into the street. He waited a minute and honked his horn several times. The other car did not move so he left his car and went into the restaurant. The man from the other car entered the restaurant and began arguing with him. He suggested to the other man that \u201cwe talk outside.\u201d The man followed him out of the restaurant and pushed him \u201ca couple of times.\u201d He intended to phone the police from a nearby gas station, but when he reached his car the other man pushed him against the car and hit him \u201cthree, four, five times. I don\u2019t really know how many times.\u201d When he next pulled out a small knife, the other man stated, \u201cI got one, too\u201d and started kicking him and trying to punch him again. He then swung his right hand at the other man and \u201ckicked back.\u201d The police arrived and pushed the other man \u201coff the top of me.\u201d He then held the knife out in his opened hand and said, \u201chere.\u201d The police officer \u201cgot so excited\u201d and said \u201cdrop it.\u201d He then placed the knife on top of the car. The police then handcuffed him and took him to the police station. He stated that at the police station he \u201cwas bleeding to my mouth, through my nose\u201d and that \u201cboth my eyes hurt.\u201d He further stated that he \u201chad some scratch behind my ears.\u201d He was \u201cupset\u201d at the station.\nOn direct examination the following exchange occurred:\n\u201cDEFENDANT\u2019S COUNSEL: Mr. Rivera, I want to direct your attention back to November 15, 1973. Were you \u2014 was there a conviction on you back in \u201973 in case No. 73-1099? Was there a conviction, sir.\nDEFENDANT: Yes, sir.\nDEFENDANT\u2019S COUNSEL: Mr. Rivera, that was an aggravated battery and did you have a trial in that case?\nDEFENDANT: No, sir.\nDEFENDANT\u2019S COUNSEL: You pleaded guilty?\nDEFENDANT: Yes.\u201d\nHe pleaded guilty because \u201cthey offered me a year and a day,\u201d and he had \u201crun out of money to pay a lawyer.\u201d\nOn cross-examination he denied that he showed the police how he held or used the knife and further denied ever telling the police he cut Serrones.\nThe following exchange also occurred on cross-examination:\n\u201cSTATE\u2019S ATTORNEY: November 15, 1973, you pleaded guilty to a charge of aggravated battery; is that correct?\nDEFENDANT: Yes.\n# #\nSTATE\u2019S ATTORNEY: You didn\u2019t plead guilty because you committed that crime?\nDEFENDANT\u2019S COUNSEL: I will object. He is not on trial for anything else except this case.\nTHE COURT: Objection overruled.\nDEFENDANT: I never said that I don\u2019t do it.\u201d\nThe jury found the defendant guilty on three counts of aggravated battery and not guilty on one count of attempt murder.\nOpinion\nDefendant contends he was denied a fair trial where the prosecutor implied in closing argument that defendant\u2019s prior conviction for aggravated battery was evidence of guilt in the present case.\nThe State initially argues that defendant waived this contention by faffing to include it in his written motion for a new trial. Although the failure to raise an issue in a written motion for a new trial generally constitutes a waiver of the issue (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856), we do not believe the defendant waived the issue here. In his motion for a new trial defendant alleged that the State\u2019s Attorney\u2019s \u201cprejudicial inflamatory and erroneous statements in closing argument\u201d denied him a fair trial. We believe the defendant\u2019s motion for a new trial contains \u201csufficient particularity to afford the trial court identity of the error relied upon.\u201d Osborne v. Leonard (1968), 99 Ill. App. 2d 391, 396, 240 N.E.2d 769, 771.\nOn direct examination defendant admitted that he had previously been convicted of aggravated battery. During the State\u2019s closing argument the following exchange occurred:\n\u201cSTATE\u2019S ATTORNEY: Look at the issues, Ladies and Gentlemen, of attempt murder, and look at the stories that the defendant came up with at the police station.\nNow, the first story \u2014 and put yourselves in his position. The man has been around. He has been to prison before for aggravated battery.\nDEFENDANT\u2019S COUNSEL: I object to that comment.\nSTATE\u2019S ATTORNEY: He was under arrest.\nDEFENDANT\u2019S COUNSEL: Judge, I ask it be stricken and the Jury to disregard it.\nSTATE\u2019S ATTORNEY: Your Honor.\nTHE COURT: You may continue with the facts.\u201d\nDefendant argues that the prosecutor implied by these comments that defendant was guilty of the present charge by reason of his previous sentence for aggravated battery. However, evidence concerning the prior conviction was introduced by the defendant himself on direct examination. Defendant\u2019s counsel deliberately questioned defendant about the prior conviction. It is clear that \u201c[t]he State may comment on the fact that the accused had been indicted or convicted of crimes other than that for which he is on trial [citations], where evidence supporting the particular reference is properly before the jury.\u201d (People v. Ford (1975), 34 Ill. App. 3d 79, 85-86, 339 N.E.2d 293, 299.) Where, as here, the defendant himself refers to his former conviction during direct examination, reference by the State to that former conviction during closing argument is not improper. (People v. Kelly (1975), 25 Ill. App. 3d 753, 324 N.E.2d 82.) The jury, moreover, was instructed by the trial court that evidence of defendant\u2019s prior conviction could be considered only as reflecting upon defendant\u2019s credibility as a witness, rather than as evidence of his guilt in the present case.\nFurthermore, even if we believed that defendant\u2019s contention had merit, we would still affirm his conviction since the error, if any, was harmless beyond a reasonable doubt insofar as the jury\u2019s determination of guilt is concerned. (People v. Henenberg (1976), 37 Ill. App. 3d 464, 346 N.E.2d 11.) Here, the record indicates overwhelming evidence of the defendant\u2019s guilt. Berrones and his wife testified that defendant acted without provocation in striking Berrones. Defendant testified that he acted in self-defense. The jury was instructed on self-defense, but chose not to accept the defense. Even if the prosecutor\u2019s comments had been improper, which they were not, they did not affect the outcome of this case. We believe the verdict would have been the same even if the prosecutor had not commented upon defendant\u2019s previous conviction.\nFollowing the filing of briefs in this matter, the defendant moved for a substitution of attorneys by sending to the court an unsolicited petition in letter form. Although the defendant stated therein that he had additional issues to raise on appeal, he did not set forth any of those issues. We requested the State Appellate Defender, counsel for the defendant, to respond to defendant\u2019s motion for a substitution of attorneys. Following the State Appellate Defender\u2019s response and our independent review of the entire record, we are satisfied that there were no other meritorious issues to be considered in the review of defendant\u2019s conviction. Therefore, defendant\u2019s motion for substitution of attorneys is denied.\nFor the foregoing reasons the judgment of the circuit court is affirmed.\nMotion denied; judgment affirmed.\nSULLIVAN, P. J., and MEJDA, J., concur.", "type": "majority", "author": "Mr. JUSTICE LORENZ" } ], "attorneys": [ "Ralph Ruebner and Andrew Berman, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger and Joan S. Cherry, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VIDAL RIVERA, Defendant-Appellant.\nFirst District (5th Division)\nNo. 77-1026\nOpinion filed July 7, 1978.\nRalph Ruebner and Andrew Berman, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger and Joan S. Cherry, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0401-01", "first_page_order": 423, "last_page_order": 430 }