APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
R. WENDT, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendants, James Davies and Howard Ballard, were charged by indictment with the offenses of attempt armed robbery, attempt murder and aggravated battery in connection with the holdup of the Key Club Lounge and the shooting of its proprietor, Frank Luckett, and a patron, Roger Hicks. (Ill. Rev. Stat. 1973, ch. 38, pars. 8-4, 9-1, 12-4, 18-2.) Upon a jury trial, defendants were found to be guilty of the attempted armed robbery, attempted murder and aggravated battery of Frank Luckett. Judgment was entered on the verdicts with respect to the offenses of attempt murder and attempt armed robbery. Defendants were sentenced to serve concurrent terms of confinement in the Illinois State Penitentiary of 6-18 years for each offense.
From entry of the judgment of conviction defendants appeal contending (1) that the trial court committed prejudicial error in its instructions to the jury; (2) that certain conduct of the prosecution in presenting its case to the jury was improper and served to deny defendants a fair trial; and (3) that the sentences as imposed were improper.
A review of the evidence adduced at trial reveals that at midnight on October 1, 1973, Frank Luckett was tending bar in the Key Club Lounge located at 3543 West Cermak Avenue in Chicago, Illinois. Among those patrons frequenting the lounge on this occasion were Keith Godbold and Roger Hicks. The establishment was illuminated by several electric lights of varying intensities and Luckett characterized the lighting conditions as "good."
Shortly after midnight, an individual identified as James Davies, entered the lounge, approached the bar, purchased a bag of popcorn from Luckett and left the lounge. Luckett indicated that Davies was in the lounge for a period of approximately two minutes on this occasion and that Luckett enjoyed a "good" opportunity to observe Davies' features from close proximity.
According to Luckett, approximately 15 minutes later, Davies returned in the company of two individuals, subsequently identified as defendant Howard Ballard and one Earl Hunter. Davies positioned himself near the entrance to the lounge, 10-12 feet from Luckett. Ballard and Hunter slowly walked to the rear of the lounge and stopped approximately 4 feet from the bar.
Luckett testified that Davies drew a weapon and announced, "This is a hold-up." Luckett, who had previously armed himself in anticipation of a potential robbery, fired toward Davies. Davies and Ballard returned fire. Luckett was wounded in the wrist, leg, neck and back. Hunter and a patron, Roger Hicks, were also struck by gunfire.
Responding to a radio call regarding a shooting at 3543 West Cermak Avenue, Chicago Police Department Officers Timothy Goc and Steven Scholl arrived at the scene and interviewed Keith Godbold. According to Officer Scholl, Godbold described one of the assailants as a male Negro, approximately five feet eight inches in height, weighing approximately 165 pounds and wearing a black hat, brown coat and black trousers. Godbold also provided Scholl with general descriptions of the other assailants, indicating that they approximated 5 feet 10 inches in height and weighed approximately 150 pounds. No clothing description was provided as to the latter individuals.
The officers, in civilian dress, toured the area in an unmarked police vehicle and, approximately two blocks from the lounge and within five minutes of their arrival at the scene, observed a male Negro who appeared to be approximately five feet eight inches in height, weighing approximately 165 pounds and wearing a black hat, brown coat and black pants. Scholl identified this individual as Howard Ballard. Ballard was observed standing near a telephone booth eating a piece of chicken. Entering the telephone booth was an individual matching the general description provided by Godbold and subsequently identified as James Davies. Scholl indicated that he did not observe either of the subjects in possession of a package.
Defendants were transported by the officers to the Key Club Lounge. Officer Scholl indicated that upon their arrival Keith Godbold observed defendants as they were seated in the police vehicle and identified them as the perpetrators of the abortive armed robbery.
Defendants were subsequently transported to hospital facilities where Luckett was receiving emergency medical attention. Scholl described Luckett as being awake, alert and attentive. Luckett identified defendants as two of the assailants.
Luckett further testified that during the summer or fall of 1974 following his release from the hospital, Ballard returned to the Key Club Lounge and said, "I'm clean. I don't have anything. I didn't shoot you." Ballard then proposed, "I'll tell you what I'll do if you don't go to court. I'll give you two thousand dollars." Luckett ordered Ballard to leave and not return. Ballard complied.
The State also presented the testimony of Keith Godbold who indicated that on the occasion in question he observed Ballard and an unidentified female enter the lounge and walk toward the rear of the bar. Approximately 20 seconds later, Godbold observed another male, identified as James Davies, enter the lounge. According to Godbold, Davies spoke "incoherently" and fired a weapon. Additional shots were fired and Godbold sought cover. He subsequently observed both Davies and Ballard flee the lounge. Godbold indicated that he informed investigating officers of these observations.
Roger Hicks testified that on the occasion in question he was wounded by gunfire. Hicks indicated that his left eye had been removed prior to the incident and that he wore a corrective lens to aid his remaining eyesight which was characterized as "not too good." Hicks testified that he did not observe Ballard or Davies in the lounge during the shooting.
At the close of the State's case-in-chief the trial court granted defense motions for directed verdicts of not guilty relative to the charges that defendants attempted to rob Hicks at gunpoint. Similar motions with respect to the remaining charges were denied.
Defendant Davies testified in his own behalf and denied his alleged participation in the robbery of the lounge and the shootings which occurred therein. Davies testified that he left his home in the company of Howard Ballard at approximately 12:30 a.m. on the date in question for the purpose of purchasing a quantity of barbecued chicken for himself, his mother and Ballard. Davies indicated that they walked to a restaurant approximately five blocks from his home; that he and Ballard remained in the restaurant 10 or 15 minutes; that they effected their purchase and began to walk home. Davies further indicated that at this time Ballard was carrying a package of chicken but denied that he had been stopped by police officers in the vicinity of a telephone booth. Davies stated that upon being transported to the lounge by the arresting officers, he did not observe Keith Godbold.
Defendant Ballard also testified in his own behalf and denied his alleged complicity in the offenses charged against him. He, too, indicated that he left the Davies' home at approximately 12:30 a.m. on the date in question in order to purchase some chicken. He testified that he was stopped by uniformed policemen driving a marked police vehicle but denied that he was approached in the vicinity of a telephone booth. Ballard indicated that at the time of his arrest he was wearing a black velvet cap, a maroon shirt, a beige and brown jacket, black trousers and red, green and brown suede shoes.
Ballard admitted that he spoke to Luckett subsequent to the incident in question but denied that he attempted to bribe Luckett to refrain from testifying.
Defendants also adduced the testimony of Mary Davies. She testified that her son, James, left her home at 12:30 a.m. on October 1, 1973, in the company of Howard ...