APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
A. WEXLER, Judge, presiding.
MR. JUSTICE PUSATERI DELIVERED THE OPINION OF THE COURT:
The defendant, Nedeljko Todorovic was charged by indictment with the offenses of attempt murder in violation of section 8-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 8-4), aggravated battery causing great bodily harm in violation of section 12-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 12-4), and aggravated battery using a deadly weapon in violation of section 12-4(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 12-4(b)(1)). Upon a jury trial, the defendant was found not guilty of attempt murder and guilty of both counts of aggravated battery, and judgments were entered on the verdicts. He was sentenced to serve three years felony probation, the first year to be served in the Work Release Program, with one weekend off each month.
From the entry of judgments of conviction, defendant appeals, contending (1) that the prosecutor's opening statement and closing argument were so prejudicial as to deprive him of his constitutional right to a fair and impartial trial; (2) that his acquittal of the attempt murder offense was an acquittal of the lesser included offenses of aggravated battery; (3) that he was not proven guilty beyond a reasonable doubt; and (4) that his sentence is excessive.
A review of the evidence adduced at the trial reveals that on January 13, 1974, at approximately 5 a.m., the defendant, his wife Maria, and their friend, Nada Cabitanini, were parked in his car in a southerly direction on Ridgeway Avenue immediately north of its intersection with 26th Street, in the City of Chicago. They had just left a restaurant in the vicinity, after having celebrated the Serbian New Year, and were waiting for defendant's car to warm up.
Complainant, Michael Ceja, his wife Alice, and their daughter were in an automobile that was stopped behind defendant's car. Ceja and his wife testified that defendant's car was in the middle of the street, and thus blocking their path of travel. Defendant and his wife testified that he was parked next to the curb, while their friend, Ms. Cabitanini, testified on cross-examination that defendant's car could not possibly be right next to the sidewalk, as a snow pile was in the way.
Ceja sounded his horn several times, got out of his car, and approached the driver's door of defendant's car. Ceja testified that he knocked on the door window, and defendant opened the door to arm's length. He asked defendant whether he had a problem with his car and requested its removal. Defendant voiced an obscenity and slammed the door shut.
Ceja testified that he then turned, went a step or two towards his car, heard his wife say "watch out, Mike," turned around, heard a door open, saw a gun pointed at him, saw defendant pull the chamber back and fire at him. He was shot and hit the ground, and he saw the defendant drive rapidly from the scene.
Officer Guerrero arrived promptly at the scene. He saw a hole and bloodstains a few inches below Ceja's belt on the left side of his body. He gave a flash message over the radio, and had Ceja removed to Mt. Sinai Hospital.
Officer Curtin and his partner responded to the flash message. Officer Curtin testified that he noticed a suspect vehicle at Sacramento and Roosevelt, got behind this vehicle, and activated his Mars light. The vehicle picked up speed, and Officer Curtin turned on his siren. He curbed the vehicle after a four block pursuit.
The defendant exited from the automobile, and was told to remove his hands from his coat pockets, and did so upon a second command. Officer Curtin informed defendant that he was stopped because his car fit the description of one wanted in a shooting. Defendant replied that he had fired two shots "over there," and nodded his head in a westerly direction. He told Officer Curtin the gun was in his car. Officer Curtin then arrested defendant, handcuffed him, advised him of his rights, and placed him in the squadrol. He recovered a .25 caliber semi-automatic handgun and its clip with five live rounds from the front seat area of defendant's car.
On cross-examination, Officer Curtin testified that defendant later told him at the police station that he thought he had fired into the ground and was afraid he was going to be robbed. Officer Curtin also stated that an average automatic will hold seven rounds in the clip.
Detective Michael Murphy of the Chicago Police Department testified that defendant told him at the police station that a car approached his car while he was in the center of the street, sounded its horn, its driver approached defendant, a conversation ensued, he became fearful and fired one or two shots at that individual. Detective Murphy also stated that Alice Ceja identified the defendant in a lineup. On cross-examination, Detective Murphy stated that defendant told him he fired toward the ground to scare the man away.
Dr. George Greenfield, Chief of the Radiology Department at Mt. Sinai Hospital, testified the X rays showed that the bullet lodged in the soft tissues of Ceja's hip.
The defendant testified that a man opened his door, yelled at him to "Come on. Get, move." He asked the man where he should move to, and the man pulled him by the left shoulder, saying "Get out." Defendant looked over to his wife and Ms. Cabitanini and said in Serbian "What I going to do?" and they screamed "Don't go out." He stated the man then loudly said "Come on. Get out. Don't talk with the f____ broads," and grabbed him by the neck with his other hand and tried to pull him out of his car. Defendant reached for his loaded gun, cocked it, and fired two shots towards the ground. He stated that he did not aim the gun at the man.
The defendant further testified that he stopped for the police soon after seeing blue lights; he alighted, and did not have his hands in his pockets. He told the police he fired two shots but didn't shoot a man, and that he shot into the ground. He testified that he tried to scare the man away by shooting; that he never pointed the gun directly at the man, nor did he intend to shoot him. He stated that he was scared, afraid of being injured, and thought he was going to be robbed. On cross-examination, the defendant acknowledged that he did not see a gun or other weapon in the man's hands, and that the victim never said he was going to harm him or anyone in his car.
Defendant initially contends that the opening statement of the prosecution was so prejudicial that it prevented defendant from receiving a fair and impartial trial. Specifically, he asserts that the prosecutor had no right to repeat the indictment, and that the prosecutor misled the jury by having the jury believe the defendant had in fact committed the offense of attempt murder, whereas he should have told the jury that defendant was charged with the offense of attempt murder.
At the trial, after first stating to the jury that "anything I say or anything counsel may say is really not evidence," the assistant State's Attorney continued his opening statement as follows:
"You recall when we first started picking you yesterday the Judge read the indictment to you and I want to go back over that. The Judge told you in May, 1974, the Grand Jury returned an indictment charging Mr. Todorovic with the offense of aggravated battery, in that he intentionally and knowingly without legal justification caused a battery upon Michael Ceja which caused great bodily harm to the said Michael Ceja in violation of Chapter 38, Section 34 of the Amended Illinois Revised Statutes. The Grand Jury returned an indictment which alleged he committed aggravated battery on Michael Ceja with a deadly weapon, in violation of Chapter 38, Section 12-4, Sub-Section (b)(1).
Finally, on January 13, 1974, Mr. Todorovic committed the offense of attempt, in that he, with the intent to commit the offense of murder, intentionally and knowingly attempted to kill Michael Ceja by shooting him with a gun without lawful justification. All of these are contrary to the statutes and against the peace and dignity of the same People of the State of Illinois."
The defendant contends that the assistant State's Attorney "misconstrued" the indictment by having the jury believe that the defendant had committed the offense of attempt murder rather than that the defendant was charged with the offense of attempt murder. We do not find this to be the case. Before reading the two counts of aggravated battery to the jury, the assistant State's Attorney informed them, "* * * the Grand Jury returned an indictment charging * * *" and "* * * the Grand Jury returned an indictment which alleged * * *" (emphasis added). He continued by reading the count charging the defendant with attempt murder. (See Cooke v. People (1907), 231 Ill. 9, 82 N.E. 863, where the court held it was not error to read the bill of particulars to the jury.) It had already been made clear to the jury that the offenses named in the indictment were the offenses with which the defendant was charged. In the unlikely event that the jury was misled by the assistant State's Attorney's failure to repeat the word "charged" or "alleged" when reading the attempt murder count of the indictment, that misapprehension was cured when the jury was instructed as to the law. Illinois Pattern Jury Instructions, Criminal No. 2.02 (1968) (hereinafter referred to as IPI Criminal), charged the jurors as follows:
"The indictment in this case is the formal method of accusing the defendant of a crime and placing him on trial. It is not any evidence against the defendant and does not create any inference of guilt."
Also included in the instructions given to the jury was IPI Criminal No. 1.03 which charges:
"* * * Neither opening statements nor closing arguments are evidence, and any statement or argument made by the attorneys which is not based on the evidence should be disregarded."
In addition, IPI Criminal No. 1.03 has been held to cure prejudice resulting from an improper argument. People v. Arnold (1st Dist. 1973), 12 Ill. App.3d 826, 831-32, 299 N.E.2d 446.
• 1 At no time during the entire opening statement did defense counsel object to any of the assistant State's Attorney's comments. Any assignment of error is waived by his failure to object. (People v. Smith (1962), 25 Ill.2d 219, 225, 184 N.E.2d 841.) It is well settled in Illinois that the failure of a defendant to raise an issue in his written motion for a new trial constitutes a waiver of that issue and it cannot be urged as a ground for reversal upon review. (People v. Pickett (1973), 54 Ill.2d 280, 282, 296 N.E.2d 856.) Although the waiver rule may be relaxed when the ...