APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MR. PRESIDING JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
Defendant, Leon Robinson, was indicted for aggravated battery and attempt murder. A jury acquitted Robinson of attempt murder but found him guilty of aggravated battery. He was sentenced to not less than 3 nor more than 10 years.
The victim, Lester Brown, testified that he was leaving a tavern when the defendant, whom Brown knew as "Coco," beckoned to him. The defendant came up behind Brown and slit his throat with a razor. Brown ran from the bar to a nearby medical center where he informed Police Officers Majcen and Tash that "Coco" cut him. The officers took Brown to a hospital for treatment where Brown told Police Investigator Lawrence that Robinson cut him with a pink-handled, barbershop razor.
On direct examination, the State's Attorney asked Brown four times if he saw "Coco" in the courtroom. Brown responded "no" the first three times. After the third inquiry, the State's Attorney told Brown that he was looking in the jury box and instead he should be looking around the courtroom. After receiving that suggestion, Brown located the defendant in the courtroom and identified him as the person who slashed his throat.
Brown denied being alcoholic or drinking heavily, and stated that he last worked in 1969, 5 years prior to the incident. He denied being mentally retarded, but admitted he had been treated for mental retardation. Brown said he had been receiving public aid for the preceding 10 years.
Investigator Lawrence testified that on the day of the incident he and his partner went to the hospital emergency room. After Brown described the incident and accused "Coco," Lawrence and his partner went to Robinson's residence, where they found defendant holding a pearl-like, pink-handled, straight razor. Investigator Lawrence identified the razor at trial as the one he took when he arrested Robinson.
The hospital's surgical resident, Dr. Shah, testified that he treated Brown for a neck wound requiring about 30 sutures. Dr. Shah said that, based on Brown's pulse, heartbeat and walk, Brown was not intoxicated when he arrived at the hospital.
Defendant raises four issues: (i) Brown's testimony was inadmissible because he was an incompetent witness; (ii) the trial court improperly restricted defense counsel's cross-examination of Brown; (iii) the trial court allowed inadmissible hearsay; (iv) the sentence was excessive.
The State maintains that Robinson failed to preserve the first issue for review by omitting it from his motion for a new trial. (Ill. Rev. Stat. 1973, ch. 38, par. 116-1(c); People v. Nelson (1968), 41 Ill.2d 364, 243 N.E.2d 225; People v. Dixon (1973), 10 Ill. App.3d 1038, 295 N.E.2d 556.) Alternatively, the State maintains that Brown was competent to testify, and that his testimony demonstrated his ability to observe, recollect and communicate the incident to the jury.
• 1 Although the defendant failed to preserve the question of Brown's competence, this court has discretion to review the admissibility of his crucial and damaging testimony. Ill. Rev. Stat. 1973, ch. 110A, par. 615(a); see People v. Bridgeforth (1972), 51 Ill.2d 52, 281 N.E.2d 617; People v. Gorsuch (1974), 19 Ill. App.3d 60, 310 N.E.2d 695.
Brown showed signs of confusion in making a courtroom identification of the defendant, but he eventually located and positively identified the defendant in the courtroom. Brown's account of the attack upon him was corroborated by Investigator Lawrence's testimony describing the razor Robinson was holding when accosted by the police.
"* * * [O]ne mentally affected or ill is not incompetent if he understands the nature of an oath, and has sufficient mental power to give a correct account of what he has seen and heard." (22 Ill.2d 513, 515.)
The trial court was in the best position to ascertain Brown's competence from his appearance and conduct at trial. (People v. Gorsuch (1974), 19 Ill. App.3d 60, 310 N.E.2d 695.) The record does not indicate the ...