APPEAL from the Circuit Court of Vermilion County; the Hon.
JAMES K. ROBINSON, Judge, presiding.
MR. JUSTICE CLYDESDALE DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 8, 1974.
Henry King was indicted for the attempted murder and aggravated battery of Roy McGrown; the unlawful use of a weapon; and reckless conduct toward and aggravated battery of Toni McGrown. A Vermilion County jury subsequently found defendant guilty of the aggravated battery of Roy McGrown, guilty of the unlawful use of a weapon, and guilty of reckless conduct toward Toni McGrown, but not guilty of the other offenses. The trial judge entered judgment on the jury verdicts and sentenced the defendant to the penitentiary for a period of not less than 2 years nor more than 5 years for the offense of aggravated battery only. Defendant here appeals from the aggravated battery conviction.
The defendant urges upon appeal that he was not proved guilty beyond a reasonable doubt and that the trial court erred in permitting the State to use out-of-court statements of the defendant in an attempt to impeach him without first holding a hearing to determine the voluntariness of the statements.
In the view we take of the case, it is unnecessary to set out the evidence in complete detail. The alleged crimes took place in the early morning hours of July 3, 1971, in a Danville, Illinois, tavern known as the After Hours Club. The defendant, with some friends, was seated in one booth of the tavern while the victims, Roy McGrown and his sister, Toni McGrown, with some friends, were seated in another booth. Due to a parking lot incident earlier in the evening, bad blood had developed between the defendant and Roy McGrown.
After an encounter in the tavern, shooting broke out between the defendant and Roy McGrown. As a result thereof, Roy McGrown, Toni McGrown and the defendant suffered gunshot wounds requiring the hospitalization of all three.
As is customary in a scenario of this type, there were many conflicting stories told by the witnesses. The jury, however, chose to believe the testimony of the McGrowns and the evidence adduced from various other prosecution witnesses to the shoot-out. Basically this proof was to the effect that the defendant was the aggressor and that he fired the first shot. Defendant testified that it was McGrown who shot first. The defendant's version was substantiated by an employee of the tavern who was admittedly a close friend of the defendant but was not substantiated by anyone who was in the booth with him.
• 1, 2 Upon this state of the record, we conclude that the evidence was sufficient to prove the defendant's guilt beyond a reasonable doubt. Since it is for the trier of fact, having the opportunity to observe the witnesses to determine their credibility and resolve conflicts in the testimony, this court will not substitute its judgment for that of the trier of fact. People v. Davis, 71 Ill. App.2d 300, 218 N.E.2d 850; People v. Everett, 14 Ill. App.3d 421, 302 N.E.2d 723.
The defendant next urges that the trial court erred in permitting the State to use his out-of-court statements in an attempt to impeach him without first holding a hearing to determine the voluntariness of the statements.
The State first laid the foundation for the impeachment of the defendant during cross-examination of the defendant. The defendant stated that he was interviewed by the police at the hospital on July 8 while he was doped up, had tubes in his nose and while he was dazed and sleepy.
Defendant admitted stating to the police officer, "I don't know who shot me," and "I don't recall [who was in the booth where he was standing]." Defense counsel objected to the questioning on the ground that the defendant was under sedation at the time the statements were given. The trial court overruled the objection and defendant was then confronted with prior statements such as, "I never saw anyone with a gun"; "No, I didn't [have a gun]"; "No, I don't [know if Roy McGrown had a gun]," and "I don't know [Roy McGrown by name]," etc. Defendant also stated that he signed the statement only so he could get some sleep, and that he was tired, hurting and sleepy.
The State later produced one Larry Vaugh, the officer who interviewed the defendant at the hospital, in rebuttal. Vaugh testified that he and Officer Oliver advised defendant of his rights, read the defendant the requisite custodial form, and defendant signed it. He further stated that the defendant was coherent, was sitting in his bed, was smoking a cigarette at the time of the interview, and responded to normal conversation. Upon conclusion of the interview, the defendant signed each page of the statement. The State then attempted to introduce the impeaching statement into evidence. Defense counsel objected on the basis that the Miranda warnings had not been complied with because it was not expressed to the defendant that he had a right to stop answering questions any time he wished. A further objection went to the voluntariness of the statement because of defendant's questionable physical and mental condition at the time of making the statement.
The court overruled the objections stating the evidence of prior inconsistent statements are admissible for impeachment purposes. The court further stated that this was not a confession but simply a tender of proof of prior inconsistent statements for which the foundation was sufficiently established. Therefore, the court held that any objections regarding voluntariness or the Miranda warnings were not well taken.
Defense counsel then asked if the court was ruling as a matter of law that the defendant made the statement voluntarily and in full possession of his faculties. The court replied that he was not passing upon that question, and the objection would be overruled merely because the statement had sufficient probative value on the impeachment question and should be admitted. Three questions taken from ...