APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN MACKOFF, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendant, Willie Washington, was indicted for the offenses of attempt murder, aggravated battery and armed robbery. He was tried in the circuit court of Cook County by a jury, which returned verdicts of guilty on all counts. He was sentenced to imprisonment for from 10 to 30 years for attempt murder, from 10 to 30 years for armed robbery, and from 1 to 10 years for aggravated battery.
On appeal, he contends that (1) the jury instructions erroneously permitted a verdict of guilty on the charge of attempt murder without a finding that defendant possessed the requisite intent to kill; (2) his motion to suppress the identification testimony was improperly denied, where the identification was obtained as a direct result of an unlawful arrest; and (3) the court erred in entering judgment and sentences on both the aggravated battery and attempt murder convictions, where the offenses arose from a single act.
The facts can be briefly stated. At about 2:15 a.m. on August 11, 1974, two armed men robbed the patrons and employees of a gasoline service station located at 43rd Street and Cottage Grove Avenue, Chicago. Steven Lias, an employee of the station, was talking on the telephone when a man with a handgun forced him into the service bay area of the station, where another man armed with a sawed-off shotgun was covering three other employees and three customers. The man with Lias took Lias's wallet, then the robbers forced everyone to lie face down on the floor. The two men searched everyone, taking money, jewelry and other valuables. The man with the handgun threatened to shoot off the finger of victim Johnny Van because he could not remove a ring from it. Customer Terry McCambry had $21 taken from his person and his wife, Yvonne McCambry, had $11 and her purse taken from her. Thomas Tate, a station employee who had just been paid that night, was robbed of $145 of personal money and $300 of station money on his person. In searching him a third time, the man with the shotgun discovered a pistol in Tate's belt, which belonged to the station and which Tate had been carrying for security purposes. The man with the handgun told his accomplice, "He had a gun, he was going to shoot you, so you might as well shoot him." Tate was shot in the back by the man with the shotgun. Having collected all the valuables, the robbers forced the victims into a back room, where they were directed to remove their pants. The robbers then fled, the police were called and Tate was taken to the hospital, where he was confined for two months recuperating from the shotgun wound in his back. He displayed to the jury the deep scar that remained in his back despite skin graft surgery.
At trial, Lias, Tate, Terry McCambry, Yvonne McCambry, Johnny Van and Bennie Whitehead, another victim, pointed out defendant Washington as the man who carried the handgun and who had ordered the shooting of Tate. There were bright fluorescent lights in the station and the robbery lasted for about half an hour.
Defendant testified that he did not commit the offenses. He offered as an alibi that he was, on the night of the crime, helping his brother with a party at a tavern until 2 a.m., when he went to another tavern at 47th and Cottage Grove Avenue until 3:30 a.m. At that time he took the woman he was with all evening, Althea Dixon, home and went home himself. Althea Dixon died four weeks before trial. He had not seen his brother since he was arrested.
1 At the threshold of our consideration of the jury instruction issue is the State's claim that defendant has waived it for failure to object at the conference on instructions or to specifically raise the issue in defendant's post-trial motion for a new trial. But because the court and not the defendant bears the burden of seeing that the jury is instructed on the elements of the crime charged (People v. Parks (1976), 65 Ill.2d 132, 137, 357 N.E.2d 487, 489), the waiver rule is relaxed when "the interests of justice require." (Supreme Court Rule 451(c) (58 Ill.2d R. 451(c)); People v. Jenkins (1977), 69 Ill.2d 61, 66, 370 N.E.2d 532, 534; People v. Harris (1978), 72 Ill.2d 16, 377 N.E.2d 28.) We therefore consider the issue on its merits.
The instructions at issue were:
"A person commits the crime of attempt who, with intent to commit the crime of murder, does any act which constitutes a substantial step toward the commission of the crime of murder.
The crime attempted need not have been committed." IPI Criminal No. 6.05.
"A person commits the crime of murder who kills an individual if, in performing the acts which cause the death,
he intends to kill or do great bodily harm to that individual; or he knows that such acts will cause death to that individual; or
he knows that such acts create a strong probability of death or great bodily harm to that ...