APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
E. WILSON, Judge, presiding.
MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT:
This is an appeal by the defendant, Steven Smith, from a conviction and sentence for aggravated battery. The prosecution was by a joint indictment in which defendant, Lonnie King and Charlie "Stone" Smith were charged with attempted murder and aggravated battery on two persons, Ronald Vandergrift and Gregory Sanders. In a jury trial, defendant and King were acquitted of all charges except aggravated battery on Ronald Vandergrift.
After ruling on post-trial motions, the trial court sentenced defendant to serve not less than 7 nor more than 10 years. Thereafter, claiming the existence of substantial constitutional questions, defendant appealed directly to the Supreme Court; however, the court decided, sua sponte, that defendant's appeal should be transferred to us for disposition.
King was sentenced to serve not less than 2 nor more than 5 years; and in a separate appeal, his case came to this court for our review. In an accompanying opinion, we have affirmed his conviction. See People v. King, 14 Ill. App.3d 995.
The record shows that on May 7, 1969, between 1:30 and 2:00 A.M., Ronald Vandergrift, Gregory Sanders and Felix Murry, members of a street gang known as the "Supreme Gangsters," were in the Shrimp Shop, 817 West 69th Street in Chicago. When Vandergrift walked out, he met Lonnie King, Charlie "Stone" Smith and defendant. Vandergrift knew King, having seen him many times prior to May 7. He had seen defendant once before. He knew that defendant and his companions were members of the "Double Six Kings," a street gang that was partly affiliated with the Blackstone Rangers.
As King and Vandergrift walked from the Shrimp Shop, east on West 69th Street, they engaged in a conversation. King told Vandergrift that he did not belong in that "hood," meaning that neighborhood; that the "Stones" (meaning the Blackstone Rangers) ran that area and that Vandergrift and his friends did not belong there. The conversation continued until they reached the southwest corner of West 69th Street and Halsted Avenue. There, defendant, with Charlie "Stone" Smith nearby, joined King and Vandergrift, entered the conversation and told the latter that the "Stones" ran that area, "* * * that [Vandergrift and his companions] had better not come over in that neighborhood." As soon as defendant said this, according to Vandergrift and Sanders, he pulled out a .38 or .32 caliber pistol and fired twice, wounding Vandergrift in the groin, the bullet lodging in the outer part of his left thigh where it was at the time of defendant's trial.
After defendant's first shots, Vandergrift, Sanders and Murry fled across the street. Vandergrift reached the other side but fell between two cars. He called for help and Murry returned, picked him up and took him to the house of Larry Hoover, 68th and Green Street. According to Sanders, defendant, King and Charlie Smith were on the other side of the street; and after the first shots, they ran after him and Vandergrift. More shots were fired. A short time later, defendant, Charlie Smith and King returned and fled, going west. The police were called; Vandergrift and Sanders were taken to a hospital where Sanders learned that he had been grazed by a bullet.
Vandergrift was hospitalized three or four days, and after his release, he attended a "reconciliation" meeting at the Blackstone Rangers' headquarters attended by defendant, King Charlie Smith and the main leaders of the Rangers. In a conversation with King, Charlie Smith and the Rangers' chief, in the presence of defendant, Vandergrift was told that the shooting of May 7 was an accident "* * * because they didn't know that we were with the Stones at the time." A few days later, Vandergrift again saw defendant, King and Charlie Smith. They were seated in the rear of a police car parked outside a poolroom. The officers asked Vandergrift if the three in the car were the persons who shot him. Vandergrift said they were but he told the policemen that "I did not want to prosecute because they said it was an accident, and also because we were in the same organization at the time."
A short time later, Vandergrift's street gang split from the Blackstone Rangers. He decided to prosecute defendant, King and Charlie Smith for the May 7 shooting. A month or so after the shooting incident, Vandergrift himself was taken into custody on two charges of aggravated battery, a marijuana charge and a charge involving bail jumping. He entered into discussions with prosecution authorities concerning his getting leniency if he would testify against the persons who had shot him. When Vandergrift testified, he told the jury that, although he expected to be punished for the crimes he had committed, "I expect to get help on my charges by testifying."
After Vandergrift and Sanders had testified, the State called Charles Hoover who lived in the house to which Vandergrift had been carried after he was shot on May 7. Hoover told the jury that on May 9, 1969, at about 4:00 P.M., he saw Lonnie King at 68th and Halsted. King said to him, "Tell Ronald Vandergrift that we were sorry that we shot him. We didn't know you was Stones [sic]." Hoover said he assured King that he was going to deliver the message. Hoover then recounted that the next time he saw King was on May 11, at the "reconciliation" meeting concerning which Vandergrift had testified. According to Hoover, among those present were defendant, King and Charlie Smith. Hoover's testimony closed the State's proof.
After a conference to settle instructions, the parties argued their case to the jury. In the opening argument for the State, one assistant State's Attorney said, "At any rate, the witness' testimony is uncontested. There are no contradictions to show that they are making up a story, so to speak. As a matter of fact, everything follows along very logically. And it is all very well connected. So what it amounts to is a question of whether you believe them. And since it is uncontested, you must under the law, find the defendant guilty." Defendant objected; the court sustained the objection. Thereafter, the other assistant State's Attorney in the closing argument, on six occasions, referred to the fact that the testimony of the State's witnesses was uncontradicted.
From these facts, defendant presents two issues. (1.) Whether in his joint trial with King, introduction into evidence of the statement attributed to King by Charles Hoover deprived defendant of the right of confrontation guaranteed by the sixth amendment to the Constitution of the United States. (2.) Whether the arguments to the jury in which two assistant State's Attorneys repeatedly called attention to the fact that the State's witnesses were uncontradicted prejudiced the defendant and deprived him of his right to a fair trial.
We notice that when the jury was instructed, it was told that it should "give separate consideration to each defendant. Each is entitled to have his case decided on the evidence and the law which is applicable to him. Any evidence which was limited to one defendant should not be considered by you as to any other defendant." However, the jury was not given an instruction which required it to limit any particular evidence to one defendant, and, as to the other, not consider the evidence so limited. For example, the jury was not told to limit its consideration to King's statement only in determining King's guilt or innocence.
King did not testify. Therefore, defendant did not have the opportunity to cross-examine him concerning the statement attributed to him by Charles Hoover. For this reason, defendant contends that proof of King's statement violated the rule that in a joint trial, the admission in evidence of a non-testifying defendant's inculpatory admission or confession inculpating a co-defendant infringes on that co-defendant's sixth amendment right to confront witnesses against him. Bruton v. United States (1968), 391 U.S. ...