APPEAL from the Circuit Court of Peoria County; the Hon.
RICHARD E. EAGLETON, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 20, 1977.
Defendant William Gary appeals from convictions in the Peoria County Circuit Court of armed robbery and armed violence, following a jury trial. He was sentenced to concurrent terms of 8 to 24 years imprisonment on the armed robbery conviction and 1 to 3 years imprisonment on the armed violence conviction.
On appeal in this court defendant argues that (1) he was deprived of a fair trial by ineffective assistance of his appointed counsel, and (2) he was improperly convicted and sentenced on both armed robbery and armed violence counts because both offenses arose out of the same incident.
Defendant Gary (together with John L. Turner) was indicted for armed robbery of Harry P. Foreman and for armed violence, predicated upon an aggravated assault on Foreman. Defendant's trial was severed from that of his alleged co-defendant, Turner. At defendant's trial, Foreman, the complaining witness, testified that at 7:15 p.m. on October 25, 1974, he was approached by defendant Gary and Turner. He knew the men with whom he had shot craps on many occasions. Foreman testified that defendant, who was holding a shotgun, told Foreman, "give me what you got," and then fired a shot into the ground about one foot away from Foreman's feet. Foreman thereupon laid $55 of his money on the ground and Turner picked it up. Foreman fled around the corner, and thereafter heard two more shots fired from the area where he had been but not within his view at that time. When he was asked, on cross-examination, whether he had shot craps with defendant on the date of the alleged robbery, Foreman stated that while he had shot craps with defendant on previous occasions, he did not shoot craps with defendant on that day, but that he was present at a crap game at which time he loaned $6 to one of the players in that game but did not have any interest in any winnings from that game. He stated he did not know if Gary was cheated out of $55 during the game and that, while $55 had been taken from him, Foreman, during the robbery, defendant left him with about $9.
A resident of a nearby apartment building, Mrs. Harness, testified that she saw three people from her kitchen window, and that one had a shotgun and that she also heard three shots. After the final shot had been fired, Mrs. Harness called the police who later recovered the spent shells.
Defendant did not testify and the only defense evidence presented was stipulated testimony of Officer Sauer concerning Foreman's statements to the police shortly after the alleged robbery. It was stipulated by the parties that Foreman told Sauer that he had been robbed of $82; that he was shot at three times by defendant; that defendant said to him, "I ought to kill you"; and that defendant fired a shot at him after Foreman started walking away. The police officer also stated that defendant had said to him, "Give me what you got, I ought to shoot you."
In his closing argument to the jury, defense counsel accused Foreman of lying and pointed out the discrepancies between his trial testimony and the previous statements made to Officer Sauer. Defense counsel then argued that Foreman had been untruthful in denying participation in the crap game on the date of the alleged robbery. Counsel also stated:
"* * * He [defendant] doesn't have the thought process that normally someone cheated me, what would I do? Well I would go to the police or I would file a lawsuit. Well maybe I am a little more advanced that Mr. Gary is. Maybe he overreacted, committed reckless conduct is what he did, committing aggravated assault. Yeah he did that. But did he commit the armed robbery, did he commit armed violence? I don't think so. I don't think he did that. I don't think it would be a fair verdict, either one of those in this case. Yes he committed an aggravated assault, yes he committed a reckless conduct a young foolish man did a young foolish thing. He didn't intend to hurt that Harry Foreman. * * * Mr. Foreman was involved in a crap game where this young man [defendant] was cheated, cheated out of about Fifty-Five Dollars. This young man [defendant] did a foolish thing then went home got his shotgun and foolishly came back and never intended to commit an armed robbery as such just said I want my money back give it to me and he took the Fifty-Five Dollars, but he left Mr. Foreman with Seventeen Dollars. He didn't take all the man's [Forman's] money. He just took what he had been cheated out of that is all. * * * You are going to have eight different verdicts ladies and gentlemen. You are going to have armed robbery, armed violence which are felonies. All the consequences that go with the defendant, I don't have to elaborate on those. You can for your own minds determine what that does to a young man. You are also going to be given what are called lesser included offenses and that is an offense that are [sic] lesser includible in a felony but they are not as disastrous * * *. Aggravated assault, reckless conduct and as I stand here and tell you and this young man has told me reckless conduct and aggravated assault he is guilty of. Yes, he did a foolish thing, but armed robbery, armed violence brands a fellow for the rest of his life in the words of Harry Foreman because of what happened there. Back in the old days when you went back and took something that belonged to you anyway you didn't find yourself in a felony * * * I don't want to go back to those days. All I am saying is [for] you to consider all the facts consider them in a human, very human and fair manner, come up with a fair decision, please. I think that fair decision is going to be yes, guilty of aggravated assault and guilty of reckless conduct. * * *"
The jury was then instructed on the offenses of armed robbery, armed violence, reckless conduct and aggravated assault. Following deliberations, the jury returned guilty verdicts on armed robbery, armed violence, reckless conduct and aggravated assault, and the trial court subsequently entered judgments of conviction on the armed robbery and armed violence charges.
During the sentencing hearing, defense counsel indicated that he had advised defendant not to testify at trial by the reason of defendant's prior convictions. It appears from the record that defendant had at least four prior convictions, two for robbery, one for reckless conduct and one for unlawful possession of firearms. At the sentencing hearing, defendant made a statement to the court, in which he elaborated upon his version of the incident, stating that Foreman and another man cheated him during an illegal dice game and that he (defendant) then retook his money. Defendant concluded:
"Well, I had the short end of the stick and I wanted my money back from him and that is how I went about how I felt the right way about going and getting it. I couldn't call the police and tell them we had been shooting dice on a street corner and that the man had beat me out of the money. I couldn't tell them I was actually robbed. So that is how I feel about it. I didn't feel that I had robbed him * * * or endangered his life."
The trial court then imposed concurrent sentences of 8 to 24 years imprisonment on the armed robbery offense and 1 to 3 years on the armed violence offense.
Defendant initially argues on the appeal that he was deprived of a fair trial due to ineffective assistance of his appointed counsel, as established by the failure of defense counsel to present a defense that defendant was merely retaking gambling losses, and was therefore not guilty of armed robbery, as contended in defense counsel's statements in closing argument. A case of some pertinence on the issue ...