APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Following a jury trial, both defendants were found guilty of two counts of aggravated battery (Ill. Rev. Stat. 1973, ch. 38, par. 12-4), two counts of attempt murder (Ill. Rev. Stat. 1973, ch. 38, pars. 8-4 and 9-1), and two counts of aggravated kidnapping (Ill. Rev. Stat. 1973, ch. 38, par. 10-2). Guider was sentenced to a term of 5 to 15 years for the attempt murder and 5 to 15 years for aggravated battery, the sentences to run concurrently. Daniels was sentenced to a term of 10 to 30 years for the attempt murder and 10 to 30 years for the aggravated battery, the sentences to run concurrently. Although judgment was entered on the aggravated kidnapping verdicts, neither defendant was sentenced for that offense.
On appeal defendants contend: (1) they were not proved guilty beyond a reasonable doubt; (2) they were improperly sentenced for both aggravated battery and attempt murder; and (3) they were convicted of a crime for which they were not indicted contrary to article I, section 7 of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 7). In addition, Daniels contends that the trial court erred in allowing the State to nolle prosequi several counts of aggravated battery after a prospective jury had been sworn. Finally, the State asks that the case be remanded for sentencing on the aggravated kidnapping verdict.
We affirm in part, reverse in part, and remand. The pertinent facts are as follows.
Prior to trial, the trial court read 11 indictments to a venire of prospective jurors. Among these charges were seven counts of aggravated battery, two counts of attempt murder and two counts of aggravated kidnapping. The Assistant State's Attorney and the court then had a brief discussion off the record. The trial court explained that these indictments were merely the formal means of charging a person with a crime and were not to be considered as evidence of guilt by any of the veniremen should they be selected as jurors. The venire was further admonished about their role as jurors and then 12 were selected as jurors. The jury was then excused for lunch. Out of the presence of the jury, the State motioned to nolle prosequi six counts of aggravated battery relating to two counts each of deadly weapon, permanent disfigurement, and permanent disability. Defendant Daniels then motioned for a new venire panel, claiming the jury would be confused by the original reading of 11 counts. This motion was denied as was defendant's motion for a mistrial.
At trial, one of the complaining witnesses, Chuck Wallace, testified that on February 23, 1975, at about 11:30 p.m. he entered McGee's Tavern, located at 2756 West Harrison Street in Chicago. He used the restroom, remaining about three or four minutes, and then left with Clara McClinton. They exited through the front door and began to walk to Wallace's car, which was parked a short distance away. After taking a few steps outside, two men ran up behind him and placed a gun on both sides of his body. Wallace stated that he saw only the guns and could not see his assailants. He was ordered to turn around and walk to a parking lot about 100 feet away. Clara McClinton walked next to him. They approached a parked car, where the assailants opened the trunk and ordered both of them to get in. After the two got in the trunk, the lid was closed and the car drove off. After a short time, the car stopped. The occupants left the car and returned after a long time. They backed the car and then opened the trunk and ordered Wallace and Miss McClinton to get out. Wallace could not see who had opened the trunk. He and Miss McClinton were pushed against a wall in an alley or railroad yard. As they faced the wall, Wallace heard a shot and fell to the ground.
When he woke up, he could see Clara McClinton in front of him and he asked her if she was alright. She asked if their assailants had left. When Wallace saw that the car had left, they both got up and walked to the street. They stopped a bus which took them to Franklin Boulevard Hospital. A doctor later informed him that he had been shot in the head, the back, and the stomach. Wallace again stated that he never saw who ordered him into the car, removed him from the trunk, or shot him.
The other complaining witness, Clara McClinton, testified that on February 23, 1975, she arrived at McGee's Lounge with Chuck Wallace at about 9 p.m. Wallace left after about 30 minutes, but she remained for about two hours. Wallace returned at about 11:30 p.m., went to the rest room, and then left with her. After they had taken a few steps outside the tavern, she heard someone running up behind her. She turned and saw defendant, Roosevelt Daniels, holding a pistol. She had known Daniels' name and who he was for about two months, although she did not know him personally. Daniels ran up and put the gun to Wallace's head and turned him around. At this time Miss McClinton could see Daniels' face. Daniels started walking with Wallace and told someone else, "Get the bitch." At this point another person, whom Miss McClinton could not see, put a gun in her back and said, "Let's go." They walked past the tavern to an alley just beyond the tavern. As they walked, Miss McClinton could see Roosevelt Daniels' face because of a street light in front of the tavern. When they reached the alley, a green and black car pulled up. Miss McClinton could see a woman and two men inside the car. The two men got out and came to the trunk of the car. The witness could identify one of these men as defendant Tyrone Guider. Earlier that evening she had seen Guider and Daniels standing outside the tavern through a large picture window. Guider opened the trunk and the victims were ordered to get in. The trunk lid was closed. The car was driven for about two minutes and then stopped. Miss McClinton could hear the doors slam. The car was then driven for about half an hour longer and again stopped. Miss McClinton could hear someone get out and about one minute later someone got in the car. She heard nothing else for 4 1/2 to five hours. Then someone got in the car and the car began moving again. After about 20 to 25 minutes, the car stopped. She could hear two voices outside the car. The trunk was opened and they were ordered to face the wall. She could not see the individuals who let her out of the trunk. As she and Wallace faced the wall, they were shot. They awoke later and went to the hospital as Mr. Wallace had testified. Miss McClinton had been shot in the head and back.
The next day, February 24, 1975, she told police officers that Roosevelt Daniels was involved in the incident. That evening, she was shown six photos including ones of Roosevelt Daniels and Tyrone Guider. She identified Roosevelt Daniels as one of her assailants and stated that the photograph of Tyrone Guider "looks like the guy with him."
She further testified that on April 30, 1975, while in court for a preliminary hearing on this matter, she saw Roosevelt Daniels and two other persons, one of them Tyrone Guider, enter the courtroom. She turned to Officer Cronin and pointed to the rear of the courtroom and said, "There is one of the guys with him," indicating Tyrone Guider. Guider turned and left the courtroom. Miss McClinton was shown the six photographs she was shown on February 24, 1975, and she again picked the photos she had earlier identified.
Investigator Steven Barnas testified that he was a Chicago police officer investigating the shooting. He went to Franklin Boulevard Hospital and spoke to Miss McClinton on February 24, 1975. She told him that Roosevelt Daniels was involved. Officer Barnas showed her six photos, from which she picked Daniels and Guider, although she couldn't be positive about Guider. She also told Officer Barnas that about four males forced her into the car.
Officer Michael Cronin testified that on April 30, 1975, he was at a preliminary hearing with Miss McClinton, when Roosevelt Daniels and Tyrone Guider entered the courtroom. After Miss McClinton spoke with Cronin for a moment, he saw Daniels and Guider leave the courtroom. Cronin followed but could not find them. Guider was later arrested on May 2, 1975.
The medical testimony of Dr. Tarnoff was introduced to prove the nature of the injuries suffered by Wallace and Miss McClinton.
Following the State's presentation of evidence, the defense moved for a directed verdict. ...