{ "id": 3274414, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY WICKENHAUSER, Defendant-Appellant", "name_abbreviation": "People v. Wickenhauser", "decision_date": "1979-08-07", "docket_number": "No. 78-218", "first_page": "145", "last_page": "151", "citations": [ { "type": "official", "cite": "75 Ill. App. 3d 145" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "373 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "4" } ], "opinion_index": 0 }, { "cite": "69 Ill. 2d 588", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5455362 ], "pin_cites": [ { "page": "595-96" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/69/0588-01" ] }, { "cite": "389 N.E.2d 670", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "71 Ill. App. 3d 267", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5581330 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0267-01" ] }, { "cite": "297 N.E.2d 604", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "12 Ill. App. 3d 332", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2856337 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0332-01" ] }, { "cite": "356 N.E.2d 947", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 978", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2642593 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0978-01" ] }, { "cite": "317 N.E.2d 545", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "58 Ill. 2d 211", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2952797 ], "opinion_index": 0, "case_paths": [ "/ill-2d/58/0211-01" ] }, { "cite": "401 U.S. 222", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11712077 ], "weight": 6, "pin_cites": [ { "page": "226" }, { "page": "5" }, { "page": "646" } ], "opinion_index": 0, "case_paths": [ "/us/401/0222-01" ] }, { "cite": "297 N.E.2d 671", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "11 Ill. App. 3d 959", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2936212 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0959-01" ] }, { "cite": "334 N.E.2d 249", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "31 Ill. App. 3d 51", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2713277 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0051-01" ] }, { "cite": "362 N.E.2d 9", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "47 Ill. App. 3d 406", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3366877 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/0406-01" ] } ], "analysis": { "cardinality": 709, "char_count": 14227, "ocr_confidence": 0.897, "pagerank": { "raw": 1.128709581207253e-07, "percentile": 0.5752787131604971 }, "sha256": "58114817e7950675ee11b20e3ce8c470b73e77c2c00890d7958c5b83ec33ec82", "simhash": "1:a726d58d2e054df7", "word_count": 2380 }, "last_updated": "2023-07-14T14:33:33.109776+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. TIMOTHY WICKENHAUSER, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE KASSERMAN\ndelivered the opinion of the court:\nThis is an appeal by the defendant, Timothy Wickenhauser, from a judgment of conviction of aggravated battery entered February 28,1978, after a jury trial in the Circuit Court of Madison County. Defendant raises the following issues: (1) whether the evidence was sufficient to support the verdict of guilty; (2) whether the trial court erred in allowing the State to use, for impeachment purposes, a statement obtained from the defendant by police shortly after his arrest; (3) whether Rule 415(a) of the Illinois Supreme Court Rules was violated by the State in that one of the State\u2019s witnesses was advised by the police not to talk to anyone before trial; (4) whether the trial court erred in granting the State\u2019s motion in limine preventing defense counsel from questioning a State\u2019s witness regarding a statement made by the defendant shortly after the shooting incident; and (5) whether the trial court erred in denying the defendant probation. We conclude that the judgment of the trial court should be affirmed.\nThe facts of the case are as follows: Upon leaving Roe\u2019s Tavern at approximately 11 p.m. on August 11,1977, the defendant discovered that his friend, Steve Williams, was engaged in an altercation with the victim, Jack Leamon, outside the tavern. The defendant attempted to intercede, but was told by Leamon that the quarrel was \u201cnone of his business.\u201d The defendant then obtained a revolver from his car, pointed it at Leamon, and again requested that Leamon leave Williams alone. Leamon then turned his attention from Williams to the defendant and began shoving the defendant backwards. The defendant testified that he then told Leamon that the gun was only a \u201cbluff.\u201d However, Leamon continued to push the defendant backward and struck the defendant in the face. The defendant then shot Leamon, wounding him severely.\nThe defendant argued at trial that the gun went off by accident when he was struck by Leamon, or, in the alternative, that the shooting was justifiable. The four occurrence witnesses disagreed as to whether the defendant was falling back from Leamon\u2019s blow when the gun went off or whether the defendant regained his balance, aimed and fired. There was some evidence that the defendant suffered a broken nose from Leamon\u2019s blow.\nWe recognize that the use of a weapon may be a justifiable response to a physical attack. People v. Reeves (1977), 47 Ill. App. 3d 406, 362 N.E.2d 9; People v. Baker (1975), 31 Ill. App. 3d 51, 334 N.E.2d 249; People v. Schwartz (1973), 11 Ill. App. 3d 959, 297 N.E.2d 671, cited by defendant, each construe the provisions of section 7 \u2014 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 7 \u2014 1) governing the use of force in defense of oneself or another; and in each of these cases, the force used was held to be justifiable. These cases are clearly distinguishable from the case at bar in that the victim in each was the aggressor and the force used against the defendant was substantially greater than that to which the defendant was subjected in the instant case. In Baker, the defendant was attacked by two assailants, both of whom were far superior in physical strength to the defendant. In Schwartz, the defendant suffered fractured teeth, multiple scratches and contusions, and was severely injured before retaliating against the victim aggressor with a weapon. Similarly, in Reeves, the defendant was attacked and repeatedly struck by her husband, who had beaten her severely on several prior occasions, before responding with deadly force.\nThus, the defendant\u2019s reliance on these cases is misplaced. Here, the. defendant was the aggressor since he accosted Leamon with the revolver before the use of armed force was necessary to prevent imminent death or great bodily harm to Williams. In addition, the evidence adduced by the defendant that he had \u201cwithdrawn from the fracus,\u201d so as to lose the status of the first aggressor, was rejected by the jury. In any event, it is impossible to conclude as a matter of law that the defendant\u2019s use of a .45-caliber revolver was a justifiable response to the degree of physical force used by Leamon against Williams or defendant.\nThe defendant also contends that the State should not have been permitted to impeach his testimony with a statement obtained by the police while he was in custody shortly after the arrest. We conclude that this use of the statement was proper under Harris v. New York (1971), 401 U.S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643.\nUpon arrest, the defendant was provided with Miranda warnings, and he then requested to consult with an attorney. The attorney arrived at police headquarters at approximately 12:30 a.m., advised the defendant to remain silent and then left the station house. At approximately 1:40 a.m. an officer, unaware that defendant had invoked his Miranda rights to counsel and had chosen to cease interrogation, began to question the defendant. The defendant responded to one of the officer\u2019s questions and then refused to answer any others. The statement taken by the officer was suppressed in the State\u2019s case in chief since the defendant did not waive his Miranda rights.\nIn Harris, the court held that a statement inadmissible against the accused in the prosecution\u2019s case in chief by reason of Miranda may be used for the limited purpose of impeachment. It is not a significant distinction from Harris that in the instant case the defendant\u2019s statement came after he invoked his right to counsel and his right to remain silent as opposed to his Miranda right to be given warnings. In Harris the court stated there is hardly justification for letting a defendant affirmatively resort to perjurious testimony in reliance on the prosecution\u2019s disability to challenge his credibility because of the exclusionary rule. The court went on to say:\n\u201d The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.\u201d (401 U.S. 222, 226, 28 L. Ed. 2d 1, 5, 91 S. Ct. 643, 646.)\nTherefore, the trial court did not err in allowing the State to impeach the defendant with the statement in question. See People v. Sturgis (1974), 58 Ill. 2d 211, 317 N.E.2d 545.\nThe defendant also argues that the prosecution violated Supreme Court Rule 415(a) (Ill. Rev. Stat. 1977, ch. 110A, par. 415(a)) because one of the State\u2019s witnesses was advised by the police not to talk with anyone concerning the case prior to trial. Rule 415(a) prevents counsel or their \u201cpersonnel\u201d from advising witnesses to refrain from discussing the case with opposing counsel. The defendant\u2019s argument assumes that the police, who were acting of their own accord in this case, are \u201cpersonnel\u201d of the prosecutor. However, it is unnecessary to pass on this question since the defendant failed to request the application of one of the available sanctions for this alleged violation in the trial court.\nRule 415(g) of the Illinois Supreme Court Rules (Ill. Rev. Stat. 1977, ch. 110A, par. 415(g)) enumerates the sanctions which may be imposed for violations of the discovery process. Among the possible alternatives is an order for compliance, the grant of a continuance, or the exclusion of such evidence. It is evident that the application of any of these sanctions in the instant case would have obviated any harm to the defense that may have flowed from the inability to interview tire witness before trial. By failing to give the court an opportunity to redress the alleged prejudice at the trial level, the defendant cannot now be heard to complain of a violation of Rule 415(a). People v. Green (1976), 42 Ill. App. 3d 978, 356 N.E.2d 947; People v. Embry (1973), 12 Ill. App. 3d 332, 297 N.E.2d 604.\nThe defendant\u2019s next argument is that the trial court erred in granting the State\u2019s motion in limine to prevent defense counsel from eliciting from a State\u2019s witness a statement made by the defendant shortly after his arrest. The statement, \u201che hit me first,\u201d was made by the defendant to a police officer while the latter was frisking the defendant at the scene of the crime. The defendant argues that the statement falls under the spontaneous utterance or the state-of-mind exception to the hearsay rule, and therefore should have been admissible.\nIt is unnecessary to determine whether the statement was admissible pursuant to an exception to the hearsay rule for the reason that defendant was prevented from eliciting the statement only on cross-examination, the court having indicated that defendant would be permitted to recall the officer as part of defendant\u2019s case in chief. Defendant declined to recall the officer. Therefore, he waived any objection to the court\u2019s order granting the motion in limine.\nThe defendant\u2019s final contention is that his sentencing was inappropriate. He argues that the trial court abused its discretion in denying probation and that the court failed to comply with the requirement of assigning its reasons for imposing the sentence of two years imprisonment.\nIt should be noted at the outset that the court\u2019s sentence of the defendant to imprisonment was for the minimum term specified by statute for the offense of aggravated battery. (Ill. Rev. Stat. 1977 Supp., ch. 38, par. 1005\u20148\u20141(a)(6).) Further, there is a rebuttable presumption that the trial court\u2019s sentence is proper. (Ill. Rev. Stat. 1977 Supp., par. 1005\u20145\u20144.1.) This court has made an extensive review of this legislation in People v. Choate (1979), 71 Ill. App. 3d 267, 389 N.E.2d 670, in which it was held that once an affirmative showing has been made that the sentence of the trial court is erroneous, then the appellate court is authorized to reduce it.\nIn the instant case, since the imprisonment imposed was the minimum sentence to imprisonment possible for the offense of which defendant was found guilty, the only reduction this court may make to defendant\u2019s sentence is to direct a sentence to probation or conditional discharge. The Unified Code of Corrections, section 5\u20146\u20141, enumerates those factors which are to guide the trial court in the determination of whether to grant probation or conditional discharge:\n\u201c(a) Except where specifically prohibited by other provisions of this Code, the court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstance of the offense, and to the history, character and condition of the offender, the court is of the opinion that: (1) his imprisonment or periodic imprisonment is necessary for the protection of the public; or (2) probation or conditional discharge would deprecate the seriousness of the offender\u2019s conduct and would be inconsistent with the ends of justice.\u201d Ill. Rev. Stat. 1977 Supp., ch. 38, par. 1005 \u2014 6\u20141(a).\nThere is ample support in the record for the trial judge\u2019s decision that probation or conditional discharge in the instant case would deprecate the seriousness of the offense and be inconsistent with the ends of justice. The crime was one of violence, perpetrated with a large caliber revolver, and the victim was severely and probably permanently injured. The trial judge also referred to the need for deterring such violence in the future.\nWe are aware of the fact that the defendant is a first offender and that several respectable members of the community testified in his behalf at the sentencing hearing; however, as stated in People v. Waud (1977), 69 Ill. 2d 588, 595-96, 373 N.E.2d 1, 4, \u201c[t]he facts that a defendant has led a good life prior to his or her shortcomings and is not likely to repeat his or her failures again are factors to be considered by the trial court, but they are not conclusive factors.\u201d\nFinally the trial judge complied with the requirement of section 5\u20144\u20141(c) of the Unified Code of Corrections that he \u201cspecify on the record the particular evidence, information, factors or other reasons that led to his sentencing determination.\u201d (Ill. Rev. Stat. 1977 Supp., ch. 38, par. 1005 \u2014 4\u20141(c).) The trial court stated that its decision was based upon the serious implications of the crime and the need to deter such conduct in the future. The trial judge also made it clear that the decision was based in part upon the presentence report which recommended that probation be denied because the seriousness of the offense would be deprecated by a sentence of probation and because of the severity of the injury suffered by the victim. Thus, the record of the sentencing hearing reflects adequate compliance with the mandate of section' 5 \u2014 4\u20141(c).\nThe State contends that this court should increase to five years the sentence imposed by the trial court because the defendant was convicted of shooting the victim \u201cthrough and through\u201d at close range with a large caliber revolver and because the victim will probably never fully recover. This court is authorized to modify a sentence given by the trial judge by entering any sentence that the trial judge could have entered, including increasing or decreasing the sentence. (Ill. Rev. Stat. 1977 Supp., ch. 38, par. 1005\u20145\u20144.1.) However, it necessarily follows that the prosecution should be held to the same proof required of the defendant in Choate.\nIt is our opinion that both defendant and the State have failed to show that the sentence imposed by the trial court is erroneous in this cause as required by Choate; therefore, they have failed to rebut the presumption established by section 5\u20145\u20144.1 of the Unified Code of Corrections, and the sentence must be affirmed.\nFor the foregoing reasons, the judgment of the Circuit Court, of Madison County is hereby affirmed.\nAffirmed.\nJONES and KUNCE, JJ, concur.", "type": "majority", "author": "Mr. JUSTICE KASSERMAN" } ], "attorneys": [ "Irving M. Wiseman, of Wiseman, Shaikewitz, McGivern and Wahl, of Alton, for appellant.", "Nicholas G. Byron, State\u2019s Attorney, of Edwardsville (Raymond F. Buckley, Jr., and Curtis L. Blood, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY WICKENHAUSER, Defendant-Appellant.\nFifth District\nNo. 78-218\nOpinion filed August 7, 1979.\nRehearing denied September 12, 1979.\nIrving M. Wiseman, of Wiseman, Shaikewitz, McGivern and Wahl, of Alton, for appellant.\nNicholas G. Byron, State\u2019s Attorney, of Edwardsville (Raymond F. Buckley, Jr., and Curtis L. Blood, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0145-01", "first_page_order": 167, "last_page_order": 173 }