APPEAL from the Circuit Court of Cook County; the Hon. SAUL
EPTON, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 21, 1977.
At 3:30 a.m. on June 8, 1973, James Copeland was shot four times as he stood on a street corner talking to friends. Defendant, Ruben Millan, was indicted for this crime, being charged with attempt murder and two counts of aggravated battery. Co-defendant, James Riviera, was charged with attempt murder and plead guilty on February 21, 1975. Defendant's jury trial began May 12, 1975. He was found guilty of all three counts. The trial court vacated the convictions for aggravated battery and sentenced defendant to a term of eight to 25 years imprisonment.
For the reasons hereinafter set forth, we reverse the conviction for attempt murder.
At trial, Copeland and Riviera were the only witnesses who positively identified defendant as the assailant. Copeland testified that on June 8, 1973, at approximately 3 a.m. he was talking with two friends, Edward Ramos and Ephriam Perez, on the sidewalk at Fairfield and Augusta Streets. He noticed that defendant, whom he had seen on numerous occasions, was several feet behind him, leaning against a car. During the course of his conversation, Copeland glanced at defendant, who appeared to be staring at him.
Copeland turned around once again when he heard noises and saw defendant and Riviera arguing with each other. Copeland resumed his conversation, but soon turned around again. He saw Riviera pass a gun to defendant, who began walking towards him. Copeland turned away, but soon felt something against the back of his head. He heard a gunshot and fell to the ground.
Copeland looked up to see defendant standing over him, pointing a gun. He kicked at defendant, at which point defendant again fired, hitting Copeland in the shoulder. Copeland was getting to his feet when another shot struck him in the side, and a fourth hit him in the back as he started to run away. Two more shots were fired but did not hit him. Copeland was taken to the hospital, where he remained for seven weeks.
After being released from the hospital, Copeland accompanied police as they drove through the neighborhood seeking his assailant. This search proved fruitless. Copeland testified that, at a later date when he was driving alone, he had seen his attacker. The suspect fled when he stopped his car near him.
Copeland was returning from a trip when he had occasion to see defendant again. He called the police who had him lie down in the backseat area of the police car and took him back to the place where he had seen his assailant. After Copeland described his attacker to the police, they got out and arrested defendant. Defendant appeared startled when he saw Copeland.
Chicago Police Officer Joseph Price testified that he and his partner spoke to James Copeland on August 11, 1974, after which they drove to Fairfield and Augusta with Copeland concealed in the rear seat area of the police car. The officers left their vehicle and arrested defendant.
Over objection of defense counsel, James Riviera was called as a witness during the State's case in chief. The basis for the objection was that Riviera's name had not appeared on the State's list of witnesses. On Friday, May 9, 1975, shortly before trial was to commence, the State sought to add Riviera's name to its list of witnesses. Defense counsel requested a continuance because of his surprise at the addition of Riviera as a witness, and to give counsel time to obtain a transcript of the proceedings wherein Riviera plead guilty. At that point, the assistant state's attorney represented that "to expedite matters, we will simply withdraw his name and not use him in our case in chief."
On the following Monday, a transcript of the Riviera hearing was furnished to defense counsel. The assistant state's attorney reiterated that "[a]s we indicated on Friday, I stated categorically and emphatically we'll not be calling the co-defendant, James Rivera [sic] to testify in our case in chief." The State further indicated that it might call him on rebuttal, and that "our naming the witness last week was simply a slip-up on our part."
The next day, after trial had commenced, the State once again sought to add Riviera as a witness during its case in chief. Defense counsel's objection was overruled, and after defense counsel interviewed him, Riviera was allowed to testify. Riviera testified that he handed a gun to defendant shortly before defendant put the gun to Copeland's neck and started shooting. Riviera ...