APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MR. PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
After a jury trial, the defendants were found guilty of attempt murder and aggravated assault, and not guilty of two counts of aggravated battery. They were sentenced to 1 year for aggravated assault and from 4 to 12 years for attempt murder with the sentences running concurrently. Defendants appeal and raise the following issues for review: (1) whether the defendants' convictions for attempt murder must be reversed since it is legally inconsistent with the verdict of not guilty of one count of aggravated battery; (2) whether the court committed prejudicial error by failing to give a jury instruction which included a statement that Willie C. Moore was the alleged victim of the attempt murder charge; (3) whether the defendants were denied a fair trial when the prosecutor engaged in a course of conduct seemingly intended to prejudice the jury against them; (3a) whether the defendants were denied a fair trial when the State's Attorney improperly attempted to make membership in the Disciples street gang a major issue in the case; (3b) whether Malone was denied a fair trial when the State's Attorney brought out the fact that the defendant had been arrested subsequent to his arrest in the case at bar; (3c) whether the defendants were denied a fair trial when the State's Attorney cross-examined both defendants about Ennis Chaney's (a friend) incarceration in the county jail; (3d) whether the defendants were denied a fair trial when the State's Attorney's closing argument concentrated on matters not in evidence which appealed to the guilts of the defendants and sympathies of the jury; (3e) whether the defendants were denied a fair trial when the State's Attorney misstated evidence in closing argument in an apparent attempt to corroborate a State witness' testimony; and (4) whether the defendants were proved guilty beyond a reasonable doubt of attempt murder and aggravated assault.
The State's first witness, Willie Moore, testified that on the afternoon of April 10, 1972, he was playing basketball with Dennis Kent, Steve Jones and some other friends when Louis Malone approached the group with his hands in his coat. As the defendant walked closer to the group, they dispersed and ran into a building but returned to the basketball court when Malone left the area. The group continued playing basketball until approximately 6:30 p.m. when Malone reappeared with Dyson and an unknown man. The defendants walked to the basketball court, shouted "D-Love," which is another way of referring to a street gang, and Dyson fired two shots at the group as they ran to the passageway, wounding Moore. The witness testified that he was shot in the right leg so Steve Jones and Dennis Kent picked him up and carried him to a paddy wagon a half block away. Moore was then taken to Henrotin Hospital and a bullet was removed from his leg.
The next two witnesses, Dennis Kent and Steve Jones, corroborated Moore's testimony. However, Jones testified that he went to the 1160 building and reported the shooting to Officer Kelly, after he placed Moore in the paddy wagon. Jones stated that Officer Kelly immediately proceeded to the building exit after receiving the report. When he arrived at the exit, the officer observed the defendants and ordered them to stop, but they refused to obey the order and Malone fired two shots at the officer. It was at this time that the officer took out his gun and returned the fire and attempted to apprehend the defendants. Officer Kelly chased them and the witness testified that he lost sight of the parties as they fled from the scene.
Officer Kelly corroborated Jones' testimony, stating that he conducted an investigation after being told that a man had been shot. While leaving the 1150 Sedgwick building, he was fired on by the defendants. The officer announced his office, fired two shots at the defendants and attempted to apprehend the assailants as they ran across a baseball field. Continuing the chase, he lost them when they entered a crowd that gathered outside the 1117 Cleveland building.
The State's final witness, Officer Roper, testified that he conducted a search for the defendants after talking with Dennis Kent and Ronald Alexander at Henrotin Hospital. Officer Roper toured the area that Dyson and Malone were known to frequent and spotted them in front of the 1017 Larrabee building at about 7:35 p.m. The defendants were searched, arrested, and placed in the squad car and taken to the 18th district police station.
The State rested its case and the defense called Officer Paul Roppell who testified that he was assigned to investigate the Moore shooting at 7 p.m. on April 10, 1972. The officer proceeded to Henrotin Hospital where he interviewed Moore, but the complainant was unable to tell the officer who shot him.
Thomasina Anderson, William Dyson's mother, was called as the next defense witness. She testified that her son, Patty Washington and Henrietta Bates were on their way to Jack's Community Market at 6:20 p.m. on the evening of April 10, 1972, and they were gone for about 20 minutes. Although Dyson never returned to the apartment, his companions, the two women, returned about 7 p.m.
Patty Washington, Dyson's sister, corroborated her mother's testimony and testified that after returning from the store with Henrietta and Dyson, she took the groceries to her mother and returned to her brother's car. The trio proceeded to Doradeen Cross' apartment and after arriving there Patty and Henrietta went up to the apartment and Dyson remained downstairs. While in the apartment, Patty testified that she witnessed a beating from the apartment window and after talking for about 30 minutes, she returned to her mother's house with her brother and Louis Malone. The next witness, Henrietta Bates, corroborated the testimony of Mrs. Anderson and Patty Washington.
William Dyson took the stand and testified that he went to the store with his sister and Henrietta Bates at about 6:10 p.m. on the evening of April 10, 1972. After shopping for about 20 minutes, he returned to his mother's house to drop off the groceries. Then he drove his car to Doradeen's apartment and, while Patty and Henrietta went upstairs, he remained downstairs because he was angry with Henrietta. After stopping in the hallway to shoot dice, he joined his sister and Henrietta at Doradeen's apartment and 10 minutes later Malone stopped by her apartment. Dyson then left Doradeen's apartment with Patty and Malone, dropped his sister off, and parked his car. Then he and Malone proceeded to look for Ennis Chaney, but before the defendants found him, they were arrested.
Dyson testified that Moore, Kent, and Jones had been witnesses against him because he was a State witness against a friend of theirs, Johnny Veal. Finally, the witness stated that he thought he was disliked because he refused to join the P Stone Nation at the suggestion of Jones and Kent.
Louis Malone, the last defense witness, testified that he took his daughter to his mother's house at about 6 p.m. on April 10, 1972, and proceeded to Doradeen's apartment. When he arrived at her building, he watched the police push a friend into a hallway; he went to Doradeen's apartment, stayed for 10 minutes and left with Patty and Dyson. After dropping Patty off, the witness stated that he and Dyson were arrested while en route to visit a friend.
The defendants' first contention is that their convictions for attempt murder should be reversed because they are legally inconsistent with the not guilty verdict on the aggravated battery count. They submit that the crimes of aggravated battery and attempt murder are composed of the same elements; therefore, the verdicts must be the same. People v. Hairston (1970), 46 Ill.2d 348, 263 N.E.2d 840, and People v. Dawson (1974), 19 Ill. App.3d 150, 310 N.E.2d 800, are relied on as authority.
The threshold question to be resolved is whether the verdicts were legally inconsistent. In Hairston, the court considered this question and, quoting from State v. Baird ...