APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
In a bench trial, defendant was convicted on charges of robbery and aggravated battery. He was sentenced to 5 to 10 years' imprisonment on the robbery count, the court ruling that both offenses arose from one incident.
The indictment contained two counts one alleging that defendant took a purse from the person of the victim, a 60-year-old woman; another that he threw the victim on the sidewalk and struck her on the head causing great bodily harm. Defendant was represented by the public defender.
The victim testified that she was struck on the head and knocked to the sidewalk by a black man who wrenched her pocketbook from her arm and then went around a house. She yelled, and State's witness, Shirley Burts, gave chase. She caught up with the accused and without confronting or accusing him, he repeated that he did not do it. She testified that defendant then walked back to his car and got inside, that a man who had stopped his truck to block defendant's car told defendant to get out of his car, that the police arrived, that she heard defendant repeat that he didn't have any money but stated that she saw $80. The victim testified that she was carrying $83.01 cash in her purse. On cross-examination, however, witness Shirley Burts stated that though she had never lost sight of him from the time she commenced her chase, she did not get a good look at the accused until he was seated in his car.
One other witness for the State, a truck driver, testified that he saw a black man shove one of two ladies, then run down a street, make a turn and start north on another street. He testified that the man had a black patent-leather purse on his arm. He testified that he gave chase by backing his truck so he could keep the man in sight, eventually pulling his truck directly behind the car which defendant entered. He testified that people had gathered around the car and that defendant was accused by witness Shirley Burts of taking the purse. He testified that when the police arrived, he went with them, finding the purse in an alley and recovering some of the contents. He identified the defendant as the man he had chased with his truck.
Following arraignment, and on defendant's petition, the court ordered a psychiatric examination of defendant. The examining psychiatrist concluded that defendant knew the nature and quality of the charges against him and was fully able to cooperate in his defense. Approximately 3 months later the court held a competency hearing. Defendant's counsel, with defendant present, waived jury trial on the issue of competency. Both defense counsel and the prosecutor then stood on the psychiatrist's report. The court found defendant fit to stand trial. Defendant waived a jury trial.
Five issues are presented for review:
Did the circuit court err in accepting a jury waiver by defendant's counsel at a pre-trial competency hearing?
Does the testimony of occurrence witnesses support defendant's conviction?
Was defendant denied his right to confront witnesses against him when the court refused to allow him to treat an occurrence witness as a hostile witness?
Should defendant's conviction for aggravated battery be reversed?
Should defendant's minimum sentence be reduced in accord with the Unified Code of Corrections? Ill. Rev. Stat. 1973, ch. 38, par. 1001-1-1et seq.
• 1 Defendant contends that the trial court erred in accepting his counsel's statement that he waived a jury at his pretrial competency hearing. We do not find the trial court in error on this issue. Relying on People v. Smith, 10 Ill. App.3d 61, 293 N.E.2d 465, appellant maintains that he has a right to jury determination of his competency unless knowingly and intelligently waived. But Smith was decided under a statute (Ill. Rev. Stat. 1971, ch. 38, par. 104-2(a)), since repealed, which stated in part that "If a jury is waived by the defendant, the court shall conduct a hearing to determine the defendant's competency." (Emphasis added.) The hearing in the instant case occurred after January 1, 1973, the effective date of the repealing statute. The applicable language now reads "(d) When the question of the defendant's fitness to stand trial is raised prior to the commencement of trial, the question shall be determined by the court, or by a jury. The defendant or the State may request a jury or the judge may on his own motion order a jury. When the question is raised after commencement of the trial, the question shall be determined by the court." (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 38, par. 1005-2-1(d).) In the instant case a jury was not requested, and a statement by defendant's attorney that the jury was waived was unnecessary. Its only effect would be to apprise the judge that defendant did not intend to exercise his right to request a jury. Furthermore, the right to jury determination of competency is not a constitutional right. (People v. Shadowens, 44 Ill.2d 70, 254 N.E.2d 484; People v. White, 131 Ill. App.2d 652, 264 N.E.2d 228.) Defendant cannot complain on appeal that his counsel waived jury trial on the issue of fitness to stand trial.
• 2 Defendant argues that the testimony of the State's witnesses was insufficient to support his conviction. We do not agree. The rule is well established that the reviewing court will not disturb a guilty verdict on grounds of insufficient evidence unless such evidence is so unreasonable or improbable as to create in the minds of the reviewing court a reasonable doubt of the defendant's guilt. Further, it is well established that it is the province of the trier of fact to determine the credibility of witnesses and the weight to be given their testimony. While in the instant case there is some conflict in the testimony, the evidence identifying and connecting defendant with the crime is strong in spite of the fact that defendant denied his involvement. Two witnesses for the State identified defendant as the person they chased moments after the incident. Mrs. Burts pursued a man whom she identified at the trial as the defendant. She testified that she didn't lose sight of him during the chase, that when she caught up with him he kept telling her "I didn't do it," even though all she said to him was "Stop!" and that she did get a good view of him after he was detained in the parked car. The truck driver testified that he saw defendant carrying a purse resembling the one taken from the victim. The police and witness then recovered the ...