dissenting:
I dissent. A review of the trial record before us reveals the following: (1) despicable racism preceded and permeated the altercation between the complainant Kenneth Straman and the defendant Edward Stokes; (2) neither the complainant Straman, the defendant Stokes, nor the witnesses to the altercation were candid in their versions of what transpired; (3) it was practically a physical impossibility for the defendant Stokes to have inflicted the complainant Straman’s chest injury in the manner related by the witnesses; and for these reasons (4) the evidence fails to prove the guilt of the defendant beyond a reasonable doubt.
Tragically, the complainant Straman, the defendant Stokes and the witnesses, all fire fighters, public servants of the highest order, and upon whom society daily relies, and whose exceedingly dangerous duties, and frequently their very survival, demand fierce and dedicated loyalty to and support for one another, were unable to control, but indeed exasperated their racial animosities and hostilities against each other. Stokes vigorously argues that he, the defendant, was the only black involved and that all the other persons involved, the complainant Straman, all the other fire fighters, the police officers, the assistant State’s Attorney, who witnessed, investigated and testified about the altercation, were all white. Defendant Stokes’ attorney before this court, who was also his trial attorney, candidly admitted on oral argument that the trial evidence established that the case was putrid and festered with racism, but which was unconvincingly denied by the assistant State’s Attorney on oral argument. A review of the trial evidence, however, unfortunately substantiates the defense attorney and, regretfully, refutes the prosecutor. This is the first case in my 40 years in the legal profession in which racism is so prevalent and so glaringly apparent. Its grotesque presence should not be buried and concealed in the record, but rather, it should be exposed for the world to see, as a deterrent beacon against the future commission of similar deplorable behavior.
RACISM-THE ALTERCATION’S PRELUDE
Defendant Edward Stokes testified that he served four years in the United States Marines, was a Viet Nam combat veteran and that he was honorably discharged. He was a Chicago Transit Authority bus driver for 13 years, during which time he also worked a second job as a janitor for the Chicago Board of Education. He had been accepted as a Chicago policeman and was in the Chicago police department’s academy training program for a brief period before he became employed as a City of Chicago fire department fire fighter. At the time the altercation occurred in the case at bar, Stokes had been a fire fighter for seven years. Robert Poder testified that he was a battalion chief and had been a fire fighter of the Chicago fire department for 30 years. He related that he had known the defendant Stokes for four years prior to the date on which the altercation occurred and that Stokes had a good reputation for being a peaceful and law-abiding citizen and for being truthful.
John Wesley Paramore testified that he was a lieutenant in, and had been a fire fighter with, the Chicago fire department since 1977 (seven years), that he knew defendant Stokes and that Stokes had a good reputation for being peaceful and law abiding.
Complainant Kenneth Straman testified that he was 28 years of age and that he had been employed as a Chicago fire department fire fighter for 61k years. In August 1984, when the altercation occurred, he was assigned to truck 14 at the Diversey and Pulaski Chicago fire department fire station. Straman had worked at this fire station for about six months to a year prior to the August 15 altercation. Stokes was already assigned to that fire station when Straman arrived there. Straman also related that he and Stokes worked the same shift.
Defendant Stokes testified that about two weeks before the altercation on August 15, 1984, he had an argument with complainant Kenneth Straman about one of the fire station bunk beds. Under the seniority rule at the station, a fireman with more seniority than Stokes had taken Stokes’ bunk. Stokes, who had one month seniority over Straman, then took Straman’s bunk. Straman threw the bed linen on the floor, stepped on it and told Stokes he was going to kick his ass. Straman admitted that he had this argument with Stokes about the bunk, but denied that he threatened to kick Stokes’ ass.
Stokes testified that shortly after the bunk argument, at the scene of a fire to which they had been called to extinguish, Straman called him dirty names about a fire pole, a piece of fire equipment that Stokes had chosen to use. Straman also admitted that this argument occurred.
Stokes further related, without contradiction, that for eight months prior to the August 15 altercation, Chicago fire department Lieutenant Donald Ellwood never spoke to him. Stokes testified, “It was a racial problem. He [Lt. Ellwood] had a problem with that. I don’t know why.” Stokes had made two requests for a transfer to another fire station because of racial problems in the Pulaski and Diversey fire station.
THE FOOD PURCHASING AND COOKING CUSTOMS AND PRACTICES IN THE
FIRE STATION
Straman testified that there were three shifts working at the fire station, 13 men to each shift; that each shift had its own refrigerator and that there was a fourth refrigerator used by all the shifts. On each shift each day a cook is selected from, among the men, and on each shift the cook for the day collects a money pot from each man on the shift.
“Q. Mr. Straman, my question is, what were the rules concerning leftover, uncooked food from a shift? The general rule as to uncooked food that is purchased?
A. Usually if there is any uncooked food, usually it is not touched until the cook decides what he is cooking the next day. Until he decides what he is cooking for the meal. Other than that he doesn’t use it, somebody else will prepare it for themselves [sic].”
Straman further testified:
“Q. Could the people on the 9th [of August] have eaten the food left over from the 6th? Would that have been the generally acceptable practice?
A. General practice on certain occasions, yes. Certain occasions.”
Complainant Straman’s testimony and the uncontradicted testimony of the other State’s witnesses and defendant Stokes clearly established that on August 15, 1984, immediately preceding the altercation between them, Straman not only ignored but indeed affirmatively and deliberately violated the foregoing custom of the fire station regarding leftover food and maliciously instigated the affray with Stokes.
THE LEFTOVER STEAKS
Straman testified that on August 6, he was the cook on his shift, that he collected money from the men on his shift with which he purchased the food for that day. Included in the food he purchased were approximately 10 steaks, he did not know the exact number, but only one of the steaks belonged to him. Straman prepared one meal, the lunch meal, that day, but he did not prepare the steaks for lunch. The steaks were purchased for the evening meal. Straman did not recall who prepared the evening meal for August 6 because he was not in the station at that time. Some of the steaks were left over after the evening meal and put in the shift refrigerator. The steaks did not have any kind of label on them.
Straman testified that he was off the next two days, August 7 and 8, that he returned to work on August 9 but he could not remember whether he was the cook on that day. Nevertheless, Straman testified that when he returned to work on August 9, he saw the steaks he purchased on August 6 and at that time it appeared to him that there were three steaks left.
Straman did not work on August 10 or 11. He returned to work on August 12, but he was unable to remember if he was the cook on that day. When Straman came to work on August 15, nine days had passed since he purchased the steaks for the shift on August 6.
As previously noted, Straman also testified that it was the generally accepted practice for the firemen to prepare for themselves and eat food left over from previous days. Straman also testified that the uncooked food that he purchased on August 6 could possibly have been eaten by some of the firemen on his next workday shift on August 9. More importantly, State witness fire fighter Gamberdella testified that the steaks in the refrigerator on August 15 had been purchased on August 12 for the whole engine company, which included Stokes, who had contributed to their purchase.
STRAMAN CONFRONTS STOKES
Straman testified that when he reported for work on August 15, he agreed to be the shift cook for that day. He entered the kitchen and observed Stokes standing near the microwave opening a package of steaks which Straman claimed were a part of the steaks he purchased on August 6 when he was shift cook. Straman told Stokes, “That’s my steak,” and that Stokes could have it if Stokes gave him what the steak was worth and Stokes said okay. Straman left the kitchen and went to his locker for a pen and paper to make out the grocery list and to collect and keep tabs on who gave and the amount of money given.
When Straman returned to the kitchen, Stokes gave him $7. Straman said to Stokes, “How about three more dollars for the steak?” Stokes said, “I thought you were joking.” Straman told Stokes that he was not joking and said, “I told you the steak was mine.”
Leonard Urbanski, a State’s witness, 27 years of age, a Chicago fire fighter for 6V2 years and also assigned to the Pulaski and Diversey fire station, testified that in the 6V2 years that he had been a fire fighter he had never paid a fellow fireman any money for leftover, uncooked food and that no fireman had ever made any such demand upon him.
Straman likewise testified that during his entire 6V2 years as a fireman, he had never before demanded money from any fellow fireman for leftover food, prior to his demand of Stokes on August 15. Straman also testified that he did not know of any other fireman having made any such demand upon a fellow fireman.
Fakhri Isa, a State’s witness, a Chicago fire fighter for 6V2 years and also assigned to the Diversey and Pulaski fire station for five years, testified, on cross-examination:
“Q. If some steak was purchased on August 6th, 1984, and it was purchased with each man in the shift making contributions and let’s assume that steak, not all of it was consumed on the 6th, that some of it was left, on the morning of the 15th of August, 1984, when you arrived at work, if you wanted to prepare some of the steak that was in your shift refrigerator, would you have had to pay one of the firemen for it?
A. No.” (Emphasis added.)
Ted Eck, a State’s witness, a Chicago fire fighter for 61k years and assigned to the Diversey and Pulaski fire station, testified that on August 15 he did not know the rule in the firehouse relative to uncooked food, but that if a steak was found in the shift refrigerator on August 15 which was left from August 6, he simply would ask the cook on August 15 if he could have the steak before he cooked it.
Ralph Gamberdella, also a State’s witness, a Chicago fire fighter for 25 years and assigned to the Diversey and Pulaski fire station, testified that in the 25 years that he had been a Chicago fire fighter, he had never paid a fellow fireman for leftover food from a shift refrigerator, and he could not remember if any such demand had ever been made of him.
These foregoing testimonies for the State unequivocally established that the complainant Straman, in absolute contravention of the established fire station customs and practices, deliberately and hostilely confronted defendant Stokes about a steak, which did not belong to Straman. The following testimony of Stokes is further illustrative of Straman’s obnoxious behavior.
Stokes testified that he reported for work at the Diversey and Pulaski fire station on August 15 about 7:30 in the morning, went to roll call, thereafter gave the day’s cook, Kenneth Straman, $7, his share to purchase food for the shift for later in the day and that he then went into the kitchen to prepare his morning meal. Fire fighter Leonard Urbanski was also in the kitchen cooking toast. Stokes looked into the refrigerator and noticed some leftover steaks from August 12, the day Stokes last cooked. Stokes took one steak from the refrigerator and prepared to place it in the microwave. Straman entered the kitchen and said, “Stokes, that’s my steak.” Stokes told Straman that the steak was not his, that there were more steaks in the refrigerator and if he wanted a steak he could have one of those. Parenthetically, I note that Stokes’ testimony that there were other steaks in the refrigerator is uncontradicted and undenied, but indeed, as hereinafter disclosed, it is corroborated by Straman and other State witnesses.
Stokes further testified that Straman told him that he was not going to eat the steak and Straman began to argue with him about the steak. Stokes told Straman that if he wanted to argue about that steak, he could cut the steak in half. It was the practice at the firehouse to buy large sirloin steaks so that two men could share one steak. Stokes used a butcher knife to cut the steak in half, wrapped up one-half and put it back in the refrigerator. Stokes then put the other half he cut for himself in the microwave to defrost, during which Straman continued to argue about the steak and told Stokes that he was not going to eat it.
The following unrefuted events, related by the harmonious and corroborating testimonies of the complainant Straman, all the other State’s witnesses and the defendant Stokes, further reveal Straman’s reprehensible, insulting and provocative conduct.
Straman testified that Stokes proceeded to cook the steak and that when Stokes took the steak out of the microwave, he, Straman, took the steak, threw it on the floor, picked it up and threw it in the garbage. (Nevertheless, Stokes retained his poise.) Straman related that Stokes then went to the shift refrigerator, took out the other half of the steak he had cut and put it in the microwave. Again, I parenthetically note that from this testimony of Straman, Straman knew that there was at least another steak in the refrigerator for him, if he wanted it, when he threw the steak that Stokes was cooking on the floor and into the garbage.
State’s witness fire fighter Fakhri Isa also testified that when Stokes put a steak in the microwave, Straman went to the microwave and took the steak out, threw it on the floor and then threw it in the garbage, after which Stokes got another steak out of the refrigerator and put it in the microwave.
Stokes similarly related Straman’s abhorrent and offensive behavior. Stokes stated that when the microwave bell went off, he took the steak out and laid it on the counter; that Straman walked around the counter, took the steak, threw it on the floor, stomped it, picked it up and threw it in the garbage. Stokes added that Straman then got right up in his face and said to him, “You motherfucker, you ain’t gonna eat that fuckin’ steak and I mean that.”
Straman’s obnoxious conduct which immediately followed is not only uncontradicted, but it is admitted by Straman and corroborated by the other State witnesses, fire fighters and the defendant Stokes. After Straman threw the steak in the garbage and continued to argue with Stokes, Straman testified:
“Q. What did the defendant say while you were still arguing?
A. He said, ‘If you’re going to be a cry baby about this, I want out of the club. Give me back my seven dollars.’
Q. Did you give him back any money?
A. Yes, I did.
Q. What did you give him?
A. I gave him four dollars.
Q. Where did you put it?
A. On the counter in front of him.”
Straman related that Stokes, having given Straman $7 continued to demand the balance of $3 and that he refused to give it to him, and told Stokes that he would give him the money after he finished making up the list.
State’s witness fire fighter Leonard Urbanski stated that Stokes told Straman that he did not want to be in the club and wanted his money back. State’s witness fire fighter Fakhri Isa also related that after Straman took the steak out of the microwave and threw it on the floor and then in the garbage, Straman threw some money on the counter and Stokes said to Straman, “Don’t fuck with me. Give me my money. I will get out of the club.” Isa testified that Straman told Stokes that he would keep the rest of the money for the price of the steak.
According to this foregoing testimony of complainant Straman, and State’s witnesses, fire fighters Urbanski and Isa, defendant Stokes exercised remarkable restraint, forbearance and admirable tolerance and temperance.
Stokes testified that when Straman threw the steak on the floor and then in the garbage and told Stokes that he wasn’t going to eat the steak, and that he meant that, Stokes asked Straman if he was having a tantrum and what was wrong with him. Stokes stated that he asked Straman for his money back and told Straman that he did not want to. be in the club, that he would not eat that day because Straman was the cook. Stokes repeatedly asked Straman to return his money and told Straman that he would leave out of the kitchen area so that they would not have to see each other. Stokes related that Straman threw $3 in the dishwater in the sink. Stokes further testified:
“Q. What happened then?
A. [Straman] said, ‘I am not going to give you a fuckin’ thing. This is for the steak.’
Q. Then what happened?
A. I explained to him, I said, ‘Well, you’re the one who threw the steak on the floor and in the garbage can. Now why do I have to pay for the steak? Just give me my money, I don’t want any trouble, and I will leave the kitchen.’
Q. Then what happened?
A. I told him, I said I am coming around the other side of the counter and when I get around there I want my four dollars.
Q. What happened then?
A. He started walking towards me and I started walking towards him.”
It is at and following this point on this disdainful scenario that the testimonies of the complainant Straman and the other State witnesses are in dispute, contradictory and unconvincing. Likewise, a fair assessment of portions of Stokes’ testimonial version of the events which followed is that it is also unpersuasive.
THE STATE WITNESSES FIRE FIGHTERS’ REPORTS
Each of the State’s witnesses, Chicago fire fighters Ted Eck, Ralph Gamberdella, Leonard Urbanski and Fakhri Isa, prepared individual written reports to his superiors of what he observed of and his involvement in the incident, immediately after the incident had occurred. Complainant Straman, however, without explanation, did not prepare his written report of the incident to his superior until September 15, 1984, over a month after its occurrence on August 15, 1984. On September 15, when complainant Straman prepared his report, Straman was the only person who stated, and for the first time in his September 15 report, that he was cut by defendant Stokes as he, Straman, was being held in a full nelson hold by other fire fighters. Stokes vigorously argues that the fire fighter State’s witnesses altered and changed their versions of the incident as stated in their written reports to their different trial testimonial versions to coincide with, to aid, to protect and to corroborate Straman’s 30-day belated September 15 report and Straman’s concomitant trial version. Therefore, Stokes vehemently urges, the belated trial testimony of the State’s witness fire fighter was contrived. It is noteworthy that at the defendant Stokes’ first trial, Straman testified that he could not remember whether he had made a written report of the incident for his supervisors. At another point during Stokes’ first trial, Straman testified that he did not make such a report. It was after the defendant’s first trial that the defendant’s attorney first discovered that Straman had made his postponed September 15 report of the incident, which was the basis for the granting of Stokes’ motion for a new trial.
The majority is quite correct in stating that fire fighters Eck, Urbanski and Isa “wrote the reports isolated from each other, in separate rooms, with no others present,” and “that they had no opportunity to speak to the others prior to writing their summaries.” (185 Ill. App. 3d at 659.) The majority’s conclusion “that the fire fighters’ brief summary reports concerning the incident are consistent with both the nature and sequence of events as more fully related in their courtroom testimony” is grossly and glaringly erroneous. (185 Ill. App. 3d at 659.) Moreover, quite uniquely and ingenuously but just as fallaciously, the majority relies on the fire fighters’ isolation in preparing and in the brevity of their reports as justification for their reports’ omissions and contradictions. This justification is utterly ludicrous. As hereafter disclosed, the majority’s ill-founded and contradicted summations that “none of the eyewitnesses to the incident were materially impeached by their prior written statements, which are merely abbreviated accounts of the same event, highlighting various observations from each man’s unique perspective” are inaccurate and really nonsensical. (185 Ill. App. 3d at 659.) These witnesses were impeached by their own and each others’ reports and testimonial contradictions and omissions. Their numerous contrary versions of the altercation cannot be consistently, logically, factually, inferentially or reasonably reconciled.
THE FIGHT: ROUND I
Beginning with complainant Straman’s testimony that he put the $4 on the counter in front of defendant Stokes, after which Stokes told Straman to give him his money, the defendant had a coffee cup in his right hand. Straman testified that he then said to Stokes, “As soon as I am done writing this down I will give you your money.” Straman related that immediately thereafter he felt a sudden painful blow to the left side of his head. He looked up and Stokes was in front of him with nothing in his hand. Apparently this testimony was designed to inferentially establish that Stokes struck Straman with the coffee cup on his left ear, which was injured during the altercation. Straman related that he went on the other side of the counter, picked up a garbage can and threw it at Stokes, who knocked it down with his hands.
State’s witness fire fighter Ted Eck testified that he heard Straman and Stokes arguing in the kitchen over a steak, he left the kitchen and when he returned Straman and Stokes were on opposite sides of the counter still arguing. Eck further related that he began reading the paper and he heard something breaking, again, ostensibly, Stokes’ coffee cup. Eck testified that he looked up and saw Straman pick up the garbage can and throw it at Stokes, who, again, blocked it with his hand.
Eck admitted that he did not see Stokes strike Straman but that he did see Straman strike Stokes in his upper chest and stomach. More importantly, Eck was compelled to admit that he did not put in his report, prepared by him on the date of and shortly after the incident on August 15, that he heard a breaking noise before he saw Straman pick up the garbage can. This impeachment by omission is quite significant.
State’s witness fire fighter Leonard Urbanski’s testimony of this phase of the altercation is similarly impeached. Urbanski swore that he saw Stokes throw the coffee cup and strike Straman on the left ear. Urbanski did not know if Stokes picked up the coffee cup to throw it or whether it was already in his hand. According to Urbanski, Straman then picked up a garbage can and threw it at Stokes, who, again, blocked it with his hands.
Urbanski, like Eck, was also compelled to admit that in his written report of the incident to his supervisors, prepared by him promptly after the incident, he never stated that he saw Stokes strike Straman on the ear or in the face with a coffee cup. Moreover, Urbanski further confessed that he never stated in his report that Stokes blocked the garbage can when Straman threw it. This impeachment by omission is likewise material.
State’s witness fire fighter Fakhri Isa’s testimony of this facet of the incident flatly contradicted the testimony of State’s witnesses fire fighters Eck and Urbanski. Additionally, Isa’s trial testimony was similarly impeached by his August 15 report to his superiors. Isa testified that when Straman threw the money on the counter and told Stokes that he would keep the rest of the money for the price of the steak, Stokes said to Straman, “Give me my money. Don’t fuck with me.” Straman was on the outside and Stokes was on the inside of the counter, facing each other. Isa stated that Stokes then struck Straman with a right punch. Unlike Urbanski’s testimony, Isa did not testify that Stokes threw and/or hit Straman with the coffee cup. In fact, Isa testified on cross-examination that he did not see anything in Stokes’ hands when Stokes struck Straman in the face with his fist and that he never saw Stokes throw a coffee cup and strike Straman on the head.
Defendant Stokes testified that he did not strike Straman with a cup. Stokes related that when he told Straman that he was coming around to the other side of the counter and that when he got around the counter, he wanted Straman to give him his $4, he started walking towards Straman and Straman started walking towards him. At that point Straman picked up a. garbage can and threw it at Stokes. Stokes said that he threw up his hands to try to ward off the garbage can but the corner of the garbage can hit him on his forehead.
THE FIGHT: ROUND II
Straman, Eck and Urbanski testified that immediately after Straman threw the garbage can at Stokes, Straman and Stokes came together fighting and fell to the floor, with Stokes on his back on the bottom and with Straman on the top, and while in that position on the floor Straman repeatedly beat Stokes about his face, head and body, and that Stokes tried to get Straman off of him.
Stokes, however, testified that when Straman threw and hit him on the head with the garbage can, he, Stokes, turned to go back towards the counter, at which time Straman came over the counter and plunged on him, which caused them both to fall to the kitchen floor, with Stokes flat on his back and Straman on top of him. Stokes related that as they were in this position on the floor, Straman began beating him in the face and head. Stokes grabbed the collar of Straman’s T-shirt, twisted it and repeatedly slammed Straman’s head against the counter cabinet door, which Stokes insisted caused the injury to Straman’s ear.
THE FIGHT: ROUND III
It appears from the evidence that it was later during the altercation that Stokes cut Straman across his chest, in a manner as related by the State’s witnesses the defendant argues could not possibly have physically occurred. What is unclear and is not proven beyond a reasonable doubt, indeed, what is befuddled, contradicted and disputed by the impeached and contrary testimony of the State’s witnesses are the facts and circumstances of (1) Stokes’ acquisition of the knife; and (2) Stokes’ infliction of Straman’s injury with the knife.
State’s witness fire fighter Urbanski testified that as Stokes was on the floor, Straman was straddled on top of Stokes punching him and Stokes was attempting to get Straman off of him by pushing him away. Urbanski and Eck went over to break up the fight. Eck held Straman in a nelson position and pulled Straman off of Stokes while Urbanski held Stokes in a bear hug. According to Urbanski, Stokes then attempted to go into a counter drawer to get a knife but Urbanski knocked his arm away; nevertheless, Stokes somehow managed to get away from Urbanski, go into the drawer and get a knife. Urbanski further related that Stokes ran over to where Eck was holding Straman in a nelson hold. Stokes hit Straman twice, once in the back of the head, and then, according to Urbanski, Stokes reached over Eck and Straman (in a purported manner which was attempted to be described, as hereafter set forth herein), and cut Straman in the chest area.
Significantly, there was nothing in Urbanski’s report to his superiors about Stokes getting a knife out of a drawer, and Urbanski never stated in his report that Stokes cut Straman while Eck held him in a nelson. Not only that, but also it was not in Urbanski’s report that he saw Stokes strike Straman with a knife at all. Urbanski so acknowledged. Urbanski further admitted that he did not write in his report any of the material things to which he testified during the trial. These recondite omissions in Urbanski’s report on these highly material matters clearly impeached Urbanski’s trial testimony on these matters.
Urbanski related that after Stokes cut Straman, Eck released Straman, Straman picked up a toaster from the counter and held it in front of himself, and that after Straman put the toaster down, Urbanski could see that Straman was cut in the chest area.
State’s witness fire fighter Isa testified that after Straman threw the garbage can at Stokes, he, Isa, and Urbanski grabbed Straman in a full nelson and Urbanski held Stokes in a bear hug from behind. Isa related that Stokes then took a knife out of the drawer, ran over and “started hacking away at Straman over Eck’s right shoulder,” at which time Isa ran out of the kitchen and yelled, “Stokes is stabbing everybody.” Isa stated that he did not and no one else said anything by way of warning to Straman or Eck as Stokes attempted to go into the drawer to get the knife, or as Stokes ran over with the knife to Straman and Eck.
Isa was shown his statement, the report of the incident that he wrote shortly after it had occurred, on which he was cross-examined, and testified, as follows:
“Q. In the report that you made out on August 15th, 1984, did you say anything in that report about Mr. Eck grabbing Mr. Straman in a Nelson?
A. No.
Q. Did you say anything about Mr. Eck holding Mr. Straman?
A. No.
Q. Did you say anything in that report about the fact that Eck was holding Straman at the time Straman was cut?
A. No.
Q. Did you say anything in that report about Stokes reaching over Eck and Straman and cutting Straman in the chest and abdomen area?
A. No.
Q. Did you say anything in that report about Urbanski attempting to prevent Stokes from getting in a drawer?
A. No, I didn’t.”
Isa then penitently admitted that he did not see Stokes cut Straman.
State’s witness fire fighter Ted Eck testified that as Stokes was on the floor on the bottom and Straman was on top punching and kneeing him, Stokes tried to get Straman off of him. Eck stated that he and Urbanski tried to break up the fight, Eck pulled Straman off of Stokes and held him in a full nelson hold. Straman resisted. Eck said that he saw an arm come over his shoulder with a knife stabbing at Straman and he released his nelson hold on Straman and let Straman go. Straman fled out of the kitchen. Eck said nothing about Straman picking up a toaster off the counter upon being released. Eck turned around and saw Stokes standing in the middle of the floor with a kitchen knife in his hand. Eck grabbed Stokes by his shoulder and told him to drop the knife and Stokes did so.
Eck was shown his statement and report of the incident to his superiors which he too prepared shortly after the incident occurred and which was used to further impeach by omission Eok’s trial testimony. After stating on cross-examination that he did not know if Straman was cut when he was in the grip of Eck’s nelson hold, Eck acknowledged, contrary to his trial testimony, that he said nothing in his report about Stokes cutting Straman while Eck held him in a nelson hold. Eck further admitted that in his statement he likewise did not say that he saw Stokes cut Straman or that he saw any injuries to Straman.
Straman stated that after he threw the garbage can at Stokes, he and Stokes fell on the floor, Stokes was on the bottom and he was on top hitting Stokes as they lay on the floor. Some co-workers grabbed Straman and broke up the fight. Eck held him in a full nelson and Straman told Eck to let him go because “I wanted to get away.” Straman related that he then felt a sharp pain to the back of his head and saw a silver object come across his shoulder onto his chest. Eck let him go and when he turned around he saw Stokes standing there with a knife in his hand. Straman said that when he saw Stokes with the knife he picked up a toaster and held it in front of his chest and stomach. Straman walked out of the kitchen.
Straman acknowledged that he first prepared a written report of the August 15 incident a month later, on September 15. He admitted, however, on cross-examination that he was questioned by police officers about the incident shortly after it had occurred. He further testified on cross-examination:
“Q. Did you tell Officer Doelker that during this argument that was had between you and Stokes that he punched you and you two grabbed each other and fell to the floor?
A. I don’t recall.
Q. And did you also tell Officer Doelker that as you were being separated that Stokes picked up a knife and slashed you across the abdomen?
A. I don’t recall.” (Emphasis added.)
Stokes rigidly contends that not only does the foregoing impeached and contradictory trial testimony of the State’s witnesses fail to prove his guilt beyond a reasonable doubt, but also, and more importantly, Stokes insists that it was physically impossible for him to have inflicted the cut on Straman’s chest in the manner described by the witnesses in their belated trial testimony.
Straman displayed to the trial judge the scar across his chest, which was then described as running from the right nipple on a diagonal to the center of his chest. Doctor Albert Mitsos, a State’s witness and emergency room physician at Northwest Hospital who treated Straman at the hospital on August 15, described Straman’s chest wound as a superficially linear slash wound about 10 inches in length.
Ted Eck, who testified he held Straman in the full nelson, also testified that he was 6 feet tall and several inches taller than Stokes. Straman stated that he and Eck were about the same height and that Stokes was shorter than both of them.
The purported positions of Eck holding Straman in a full nelson when Stokes reached over Eck’s shoulder and inflicted the cut on Straman’s chest were demonstrated by the State’s witnesses to the trial judge and were also displayed on oral argument before this court. Stokes argues that from these displays, and considering also that he was several inches shorter than both Eck and Straman, it is apparent that he could not have approached Eck from behind, reached over his shoulder and then reached over Straman, while Eck held Straman in a full nelson position, and inflicted a diagonal, ten-inch superficial slash wound on Straman’s chest from his right nipple toward the center of Straman’s chest.
THE UNJUST DECISION. THE LOSER-STOKES
Although this contention of Stokes may have some validity, it is unnecessary and I do not decide the merit of Stokes appeal on this basis. It is clear to me and I conclude that the foregoing contradicted and impeached testimony of the State’s witnesses on the facts and the acrimonious circumstances in this case fail to prove the guilt of the defendant of the offense of aggravated battery beyond a reasonable doubt.
It is the function of the trial court to determine the credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence. (People v. Mays (1980), 81 Ill. App. 3d 1090, 1098-99, 401 N.E.2d 1159, 1165-66.) Moreover, a reviewing court will not substitute its judgment for that of the trial court on the credibility of witnesses or on the evidence, but a court of review must reverse a criminal conviction where the evidence and/or the credibility of the witnesses are so improbable or so unsatisfactory as to raise a reasonable doubt of guilt. People v. Mays (1980), 81 Ill. App. 3d 1090, 1099, 401 N.E.2d 1159, 1165-66; People v. McCarthy (1981), 102 Ill. App. 3d 519, 522, 430 N.E.2d 135, 137; People v. Comer (1979), 78 Ill. App. 3d 914, 397 N.E.2d 929.
The majority and I agree on the legal principles that are involved in and applicable to the instant case. Contrary to the majority’s conclusion that application of those legal principles justifies affirmance of the defendant’s conviction of the aggravated battery offense, I am of the firm opinion that those same legal principles when applied to the testimony of the State’s witnesses in the case at bar demand reversal.
Stokes’ testimony of the facts and circumstances of his infliction of Straman’s chest wound is just as unconvincing as the testimony of the State’s witnesses. Stokes, however, was not required to prove his innocence, beyond a reasonable doubt, or otherwise. The burden to prove Stokes’ guilt beyond a reasonable doubt was permanently on the State.
Stokes testified that while he was on the floor and Straman was on top of him beating him, he slammed Straman’s head against the counter cabinet door, during which time he, Stokes, was repeatedly kicked. Although Stokes never expressly so stated, it is clear, however, that he intended to infer that it was the other fire fighters, and not Straman, who kicked him. Stokes stated that because he was being kicked from the back, he let go of Straman. Straman got up, and he, Stokes, started to get up. As Stokes did so, Straman reached on the counter, grabbed the toaster, raised the toaster up over his head to come down and hit Stokes with it. Stokes stated that he then grabbed the butcher knife on the counter which he had used to cut the steak and held the knife out in front of him to keep Straman from coming up on him with the toaster. Stokes’ version of the immediate subsequent events appears to be somewhat implausible:
“Q. After you held the knife in that manner, what happened?
A. He walked right upon the knife with the toaster trying to hit me with it.
Q. What, if anything, did you do?
A. I pulled the knife down like that and I pushed him back off of me.
Q. You swung the knife?
A. No. Didn’t actually swing with it, but I had the knife like this, up, and I came down with the knife like that when he walked up on me.
Q. What happened then?
A. It was just like a complete still came over the kitchen.”
Straman had been cut and he left the kitchen. Stokes dropped the knife on the kitchen floor, walked out of the kitchen into the bunk room and rinsed his face.
State’s witness fire fighter Ralph Gamberdella testified that after the altercation between Straman and Stokes was over in the kitchen, he saw Stokes on the apparatus floor pick up an ax and hold it shoulder level. He asked Stokes to put the ax down and Stokes released the ax only after Ted Eck grabbed it. First, this testimony does not contribute to the proof of the alleged offense for which Stokes was on trial. Second, Stokes denied these acts attributed to him by Gamberdella. Third, Gamberdella’s testimony on this apparatus room-ax incident was impeached by Gamberdella’s admission that he, too, like the other State’s witnesses regarding other events, never mentioned this significant event in his report of the incident to his superiors.
Finally, I am constrained to point out that I vehemently disagree with the majority’s assessment that the testimony of Straman’s hospital emergency room physician, Dr. Mitsos, “is entirely consistent with the State’s version of how Straman’s injuries were inflicted” and “totally inconsistent with the defendant’s version of using the knife only to ward off the attacker with the toaster.” (185 Ill. App. 3d at 660.) My review and analysis of Dr. Mitsos’ testimony is just the opposite.
I am of the firm conviction that one of the supreme obeisant and most revered issues presentable to a court of review for determination is whether under the law the evidence establishes the guilt of a convicted defendant beyond a reasonable doubt. In the case at bar, under the law the evidence fails to establish Stokes’ guilt aggravated battery beyond a reasonable doubt and Stokes’ judgment of conviction should therefore be reversed. Accordingly, I dissent.