APPEAL from the Circuit Court of Cook County; the Hon. FRANK
B. MACHALA, Judge, presiding.
MR. PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
The defendant, Eddie L. Thomas, was convicted of two counts of attempt murder (Ill. Rev. Stat. 1975, ch. 38, par. 8-4) in a bench trial in the circuit court of Cook County. On October 4, 1976, he was sentenced to imprisonment for 4 to 6 years. Defendant appeals from his conviction and sentence.
The issues presented for review are (1) whether defendant was proved guilty beyond a reasonable doubt of the attempt murder of Larry Brown; (2) whether defendant was denied a fair trial due to the introduction of certain rebuttal testimony; and (3) whether the 4-year minimum sentence imposed by the trial court was improper under the circumstances.
The facts, stated briefly, are as follows. Goodman Greer testified that on the night of March 29, 1976, he went to Mr. George's Lounge, located at 1735 East 71st Street, to have a birthday drink with his friend, Larry Brown. At 1:30 a.m., Brown, who was employed as a security guard at the lounge, asked Greer to hold his gun for him while he cleared the bar. From his booth, Greer observed the defendant, a patron in the lounge, retrieve a paper bag from the bar. He noticed him back up and reach for something on his left side. Fearing that defendant was planning to attack Brown, Greer drew Brown's pistol and demanded that defendant hand over to him whatever was in the bag. Thomas handed Greer a gun, and Greer then gave both guns to Brown. Following a discussion between Thomas, Brown, and the lounge's owner, George Brown, the defendant retrieved his gun and left. Larry Brown and Goodman Greer left the lounge shortly thereafter. When they were outside, defendant emerged from the alcove of a nearby restaurant, announced that he was a police officer, and shot Greer above the heart.
Larry Brown testified that he ran after being disarmed, but stopped after a shot was fired in his direction and defendant ordered him to halt. Defendant then returned to the injured Greer and began to search him. When asked where Greer's revolver was, Brown responded that Greer was unarmed and had drawn his (Brown's) weapon earlier in the lounge. Defendant replied that he had shot an unarmed man, and "Now, I'm going to have to shoot you." At that moment, a police squad car turned the corner, and defendant fled.
Marlon Riley testified that at the time of the shooting he was standing in the doorway of a restaurant located approximately 15 to 20 feet from the doorway of Mr. George's Lounge. The defendant was standing 1 foot away from Riley; he was loading a gun. Riley then walked to the corner and stood by some mailboxes where he observed the defendant waiting in the restaurant doorway for approximately 20 minutes. When Greer and Larry Brown exited from the lounge, Thomas stepped from the restaurant doorway and said, "Halt, police." The two men put their hands up while Thomas removed Brown's gun. He did not search them at that time but then stepped back and shot Greer. Riley then observed Brown run. The defendant chased him and fired a second shot in Brown's direction. Brown stopped and the defendant brought him back by the collar to Greer. Riley heard Thomas say that he was glad he shot Greer, and that he hoped he was dead. He stated that neither Greer nor Brown had made an aggressive move toward the defendant.
Defendant was apprehended by two police officers who heard shots and drove their squad car to the scene. One of the arresting officers, Neil Crotty, stated that when they arrived at 71st Street and Ridgeland Avenue, they observed a man lying on the sidewalk, another man standing above him, a third man standing nearby, and a fourth man running eastbound. The officers apprehended the fleeing man who was the defendant. He dropped two revolvers, a .32-caliber which was loaded with four live rounds of ammunition and two spent casings, and a .38-caliber which was loaded with six live rounds. Later that evening, defendant told the arresting officers at the 3d district police station that when he was released he would finish what he had started. Defendant stated that he hoped Greer was dead, and that he had intended to kill Greer.
George Brown testified that when defendant, a friend of his for 18 years, had entered his lounge earlier that evening, he had handed the owner a brown paper bag. Brown did not know the contents of the bag but estimated that the parcel weighed 3 ounces or less. At approximately 1:30 a.m., Brown noticed Greer holding a gun on the defendant. He did not notice the defendant with a gun.
The defendant testified that he entered the lounge at approximately 10 p.m., and sat at the bar with two ladies. He went next door and purchased five packs of cigarettes. When he returned, he gave one pack to each of the ladies, took one for himself, and left the remaining packs in the bag. He gave the bag to George Brown for safekeeping. As the lounge was closing, Larry Brown asked defendant to remove his drinks from the bar. Defendant complied, but when he returned to the bar for his cigarettes, he turned to observe Greer pointing two guns at him. While Greer, Larry Brown, and George Brown talked, defendant retrieved his package and left. Defendant was waiting for a cab outside when he was approached by Greer and Larry Brown. An argument and struggle ensued, and Greer was shot. He then disarmed Brown who was reaching for his gun. As defendant proceeded east with the two guns, he was stopped by the police, whereupon he dropped both guns and raised his hands. According to Thomas, he made no statements to officers at the police station.
Herbert Goodloe testified in rebuttal for the prosecution that the .32-caliber revolver dropped by the defendant and found near a trash can was his. He testified that it had been stolen from his apartment during the day of March 29, 1976. The defendant objected to Goodloe's testimony on the ground that it implicated defendant in a robbery and rebutted none of defendant's testimony. The prosecution replied that the testimony rebutted defendant's testimony that he did not have a gun on the night of the incident. It had been stipulated earlier in the trial that in April 1964, defendant was convicted of burglary. The trial court denied defendant's motion to strike Goodloe's testimony. Defendant was convicted of the attempt murders of both Larry Brown and Goodman Greer. He was sentenced to 4 to 6 years imprisonment, the judge stating:
"A word of explanation. It's my intention that the defendant serve a four-year minimum sentence. After reading the statute, I feel it was the intent of the legislature that attempt murder be treated as a Class One Felony."
Defendant first contends that the State failed to prove him guilty of the attempt murder of Larry Brown. The law provides as follows:
"A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense." (Ill. Rev. Stat. 1975, ch. 38, par. 8-4.)
According to the defendant, the circumstances indicate that when he fired a shot at the fleeing Larry Brown he had not yet formed the specific intent to kill Brown, which intent is requisite to his conviction. Defendant argues that it was only after Larry Brown had been seized and informed him that he had shot an unarmed man (Greer) did defendant form the intent to kill Brown, too. However, no act was done in furtherance of the murder of Brown because the police arrived. Defendant contends that he had only fired a warning shot in the air while chasing Brown to get the frightened man to stop running. He insists that the fact that he did not kill Brown when he had the opportunity to do so, ...