Opinion
No. 55300 Judgment affirmed.
November 18, 1971.
APPEAL from the Circuit Court of Cook County; the Hon. DANIEL J. RYAN, Judge, presiding.
Gerald W. Getty, Public Defender, of Chicago, (Nunzio Dan Tisci, Shelvin Singer and James Doherty, Assistant Public Defenders, of counsel,) for appellant.
Edward V. Hanrahan, State's Attorney, of Chicago, (Robert A. Novelle and Thomas R. Mulroy, Jr., Assistant State's Attorneys, of counsel,) for the People.
This is an appeal from a verdict of guilty returned by a jury in a trial for the offense of aggravated battery. Defendant was sentenced by the trial judge to from five to ten years in the Illinois State Penitentiary, this sentence to run consecutively with defendant's nine to twelve year sentence for the offense of arson entered earlier by a different judge in a separate case. Defendant argues on appeal that he was prejudiced and denied a fair trial when the State elicited detailed testimony concerning the wounds and permanent injury of complainant over the objection of his counsel, and further that the consecutive sentence imposed by the court was excessive.
We affirm.
The facts of this case can be seen through the testimony of key witnesses presented at trial.
Harron Strickland, the complainant, testified as follows: He was the owner of a tavern located at 5701 South State Street in the City of Chicago. In the early morning of May 31, 1968, he was shot by a person standing outside his front window. With him at the time were his wife Mildred, a neighbor, Ceaser Hubbard, and his porter, Homer Barron. He saw the person who shot him; it was the defendant. He saw the defendant walk past the window a few moments before the shot was fired and raise a rifle (which looked like a "stick" at the time). He knew defendant well and was familiar with his features. He was shot in the left shoulder, and consequently was operated on twice, the doctors removing part of the bone during the second operation. Part of the bullet is still in his left lung, and as a result the lung will never be normal again.
Mildred Strickland, complainant's wife, testified as follows: She was with her husband in his tavern early in the morning (4:00 A.M.) of May 31, 1968. She had known defendant for three or four years, and had seen him earlier that night on three occasions. The fourth time she saw him he was holding what appeared to be a cane which she thought defendant was going to use to break the tavern windows. A shot rang out and her husband was hit. "He was bleeding like a fountain. Blood was shooting out of him * * * from his chest * * *. It looked like it was coming out of his heart * * *. Blood was shooting up about six inches above him." She ran outside and saw a police patrol wagon with an officer standing beside it with his gun drawn. She told the officer that defendant just killed her husband. When the officer gave chase, she returned to her husband. Later, when police officers brought defendant to St. Bernard Hospital where her husband was being treated for the gunshot wound, she identified defendant as the man who had done the shooting.
Charles Turner, a police officer, testified as follows: He was cruising in a patrol wagon when he heard a shot. He turned in the direction of the noise and saw a man, whom he identified as defendant, standing outside the Strickland tavern window with a shotgun or rifle in his hand. He fired a warning shot and ordered defendant to halt. Both he and his partner gave chase, but the defendant evaded them. He then returned to the tavern and found the complainant lying "* * * on his back and a lot of blood * * * Oh, a lot of blood. He was real bloody * * * most of the blood seemed to be coming out of his back." He then placed the complainant Strickland on a stretcher and removed him to St. Bernard Hospital for emergency treatment. He accompanied complainant into the emergency room of the hospital where he viewed the location of the exit wound which he indicated to the jury was, "The shoulder blade, which would be about this spot, under the shoulder blade to the left there was a hole of the size of about a fifty cent piece." When other officers brought the defendant to the hospital he identified defendant as the man he saw standing in front of the Strickland tavern holding a rifle just after the shots were fired.
Officer Wallace testified as follows: He apprehended defendant two blocks from the tavern, but he was not carrying a weapon. He and his partner brought defendant to the hospital where he was identified by Mildred Strickland as the man who had shot her husband. After leaving the hospital, he returned to the vicinity of the shooting and found the weapon in a vacant lot. The weapon was identified as a 30.30 rifle.
Defendant testified in his own behalf as follows: He was arrested by the police while on his way home from the Club 6000 where he had been all night. He was then brought to St. Bernard Hospital where Mildred Strickland asked him why Wallace Flowers shot her husband. She then denied to the police that he (defendant) was the person who shot her husband but claimed that defendant knew who that person was. He did not shoot Strickland.
Mildred Strickland testified on rebuttal that she positively identified defendant at the hospital as the man who shot her husband.
Joseph Bamberger, a homicide detective, called as a rebuttal witness, testified that he was present when defendant was confronted by Mildred Strickland at St. Bernard Hospital. He testified that the name Wally Flowers was never mentioned. However, he also testified at great length as to the nature and extent of the complainant's injuries.
Defendant's first argument before this court concerns the detailed testimony regarding Mr. Strickland's injuries as testified to by Mr. Strickland himself, Mildred Strickland, Officer Turner, and the rebuttal witness, Joseph Bamberger. Defendant urges that this testimony was of little probative value, inflamed the passions of the jury, and thereby prejudiced his trial. Defendant's argument stems from the statutory definition of aggravated battery which reads, in part:
"(a) A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery and shall be imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to 10 years.
(b) A person who, in committing a battery, either:
(1) Uses a deadly weapon; * * *
(7) * * * commits aggravated battery and shall be imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to 5 years."
Ill. Rev. Stat. 1967, ch. 38, par. 12-4.
The defendant argues that subsection (b) (1) defines aggravated battery simply as a battery committed by a person using a deadly weapon. He, therefore, would have us adopt the reasoning of People v. Nickolopoulos (1962), 25 Ill.2d 451, 185 N.E.2d 209 and apply it to this case. In Nickolopoulos a defendant was charged with attempted murder. The Supreme Court reversed his conviction because of extensive testimony of the victim's injuries which was introduced at trial. The Court in Nickolopoulos concluded that:
"A gun is a deadly weapon per se and one who deliberately fires a gun at or towards another person, either with malice aforethought or with a total disregard of human life, may be convicted of assault with intent to kill the person so attacked, irrespective of the extent of the injuries inflicted." ( 25 Ill.2d at 454.)
It is important to note that the defendant in the case at bar was not charged with attempted murder but rather with aggravated battery. To establish aggravated battery under either of the two definitions we set out, supra, there must be at least a battery. The definition of battery relevant to our discussion reads as follows:
"(a) A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual * * *." Ill. Rev. Stat. 1967, ch. 38, par. 12-3; emphasis added.
From this it follows that, at the very least, there has to be some showing of physical harm to the complainant if a battery such as alleged in the case before us is to be proven, whereas this element is unnecessary in proving attempted murder. This would explain why the State would elicit testimony on the issue of complainant's injuries.
Furthermore, an examination of paragraph 12-4(a)(b), which we set out above, discloses that there is a maximum allowable sentence of 10 years in the penitentiary for a person convicted of aggravated battery when that offense is defined as causing great bodily harm or permanent disability or disfigurement, whereas there is a maximum allowable sentence of five years in the penitentiary for a person convicted of aggravated battery when that offense is defined as committing a battery by use of a deadly weapon.
If we were to accept the defendant's argument that once a deadly weapon is shown to have been used in battery, the only issue remaining is one of the identification of the batterer, we would then be faced with the illogical situation wherein it would behoove the criminal to use a deadly weapon in committing a battery because, regardless of the extent of injury, his maximum sentence, if caught, would be only five years in the penitentiary. On the other hand, if he used only his hands to do grave bodily harm to another, he could be sentenced to a term of 10 years in the penitentiary.
Such a result was obviously not the intention of the legislature, and we hold that testimony of the complainant's injury was of probative value insofar as it tended to prove that defendant caused complainant grave bodily harm or permanent disfigurement or disability.
• 1, 2 The complainant's testimony concerning the injury he sustained was sufficient to accomplish this purpose. The testimony of Mildred Strickland, Charles Turner, and Joseph Bamberger added little probative value to that issue as compared to the tendency it had to inflame the jury and cloud the correct resolution of remaining issue of fact, the identification of the party who committed the battery. This redundant testimony of injury and blood should have been stricken, and the court erred in admitting it at trial.
• 3 However, the task of this court is to view the entire record so that it can be determined whether competent evidence was sufficient to support a finding of guilt beyond a reasonable doubt notwithstanding the admission of the inflammatory testimony. People v. Novak (1967), 84 Ill. App.2d 276, 228 N.E.2d 139.
• 4 We find the error complained of harmless. The crucial issue of fact confronting the jury was one of the identification of the person who shot complainant. Defendant admits as much in the brief he filed with this court. The testimony of the complainant, his wife, and Officer Turner fix with definiteness the fact that defendant committed the offense charged. Against this unequivocal testimony presented on the issue of identification we view the error of admitting redundant testimony of complainant's injury as harmless and not so prejudicial as to deprive defendant of a fair trial.
• 5 Defendant's second argument before this court is that the sentence imposed by the trial court, to run consecutive to another sentence imposed by a different trial court in a different case, is excessive.
Consecutive sentences are authorized in Illinois by the following statute:
"Consecutive and Concurrent Sentences.
When a person shall have been convicted of 2 or more offenses which did not result from the same conduct, either before or after sentence has been pronounced upon him for either, the court in its discretion may order that the term of imprisonment upon any one of the convictions may commence at the expiration of the term of imprisonment upon any other of the offenses." Ill. Rev. Stat. 1967, ch. 38, par. 1-7(m).
It can be noted from the statute that when convictions for two or more offenses are before the trial court, consecutive sentencing is discretionary. The trial court in this case had before it the fact that defendant had been convicted for the offense of arson and sentenced to a term of from nine to 12 years in the penitentiary. The victims of the arson were the Stricklands, for it was their building which was burned by defendant. Also before the trial court was the fact that defendant had been convicted of theft in 1962, aggravated assault in 1964, and battery in 1965.
Defendant was not a first offender even prior to his arson conviction. The arson conviction arose out of an offense committed while defendant was on bond after being arrested for the aggravated battery which defendant here appeals. These facts make the instant case distinguishable from People v. Lillie (1967), 79 Ill. App.2d 174, 223 N.E.2d 716 wherein a defendant was sentenced to from 12 to 18 years after violating probation by committing misdemeanors. So too is People v. Jones (1968), 92 Ill. App.2d 124, 235 N.E.2d 379 distinguishable. In Jones a 20 year old defendant with no prior convictions was sentenced to from six to 10 years for involuntary manslaughter.
We find that the trial court did not abuse its discretion in imposing the consecutive sentence. Therefore, the sentence of defendant must stand.
Judgment affirmed.
McNAMARA, P.J., and DEMPSEY, J., concur.