APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
J. MAHON, Judge, presiding.
MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
Following a jury trial the defendant, Ronald Seats, was found guilty of attempt murder and three counts of unlawful use of weapons. The defendant was sentenced to concurrent terms of from 20 to 50 years imprisonment for attempt murder and from 3 to 9 years imprisonment for the three counts of unlawful use of weapons.
On appeal the defendant, represented by the public defender, presents the following issues for review: (1) whether the admission of testimony regarding statements made by the defendant prior to the commission of any offense and testimony regarding ballistics tests was proper; (2) whether the jury instructions on the elements of the offense of attempt murder were proper; (3) whether the prosecutor's references in his opening statement and closing argument to a statement of the defendant implying a prior conviction were proper; and (4) whether the defendant was proven guilty beyond a reasonable doubt. The defendant also filed a supplemental pro se brief and further contends that the sentence of from 20 to 50 years for attempt murder is excessive.
We affirm. The following facts are pertinent to the disposition of this appeal.
At the trial the complaining witness, Officer John Campbell of the Chicago Police Department, testified that at approximately 6:30 p.m. on December 29, 1975, he was talking with his long-time friend, John Seward, in the outer office of Seward's gasoline station located at 4300 South Wentworth Avenue, Chicago, Illinois, when the defendant entered. Officer Campbell knew the defendant and greeted him in the outer office by saying, "Ronnie, I'm glad to see you back." The defendant replied, "I'm back and I don't intend to go back to the penitentiary." After a pause he again addressed the officer with the statement, "Ain't no mother-fucking policeman going to send me back to the penitentiary." At the trial the defendant objected to the testimony of Officer Campbell with regards to these statements made by the defendant prior to the commission of any offense. The defendant also voiced some objection at the trial to the prosecutor's references in his opening statement and closing argument to these statements made by the defendant to Officer Campbell.
John Seward, the gasoline station's proprietor, was present during this exchange between the officer and the defendant. He testified in court that after the exchange of words between the two men he called Officer Campbell into the back office of the station and informed him that he thought the defendant was carrying a gun under his coat. The officer went back into the outer office and asked the defendant if he had a gun. The defendant said, "You damn right I have got one on me." Officer Campbell drew his service revolver and then proceeded to pat the defendant down, feeling a gun. He ordered the defendant to stand against the wall. The defendant resisted the officer's attempt to arrest him by backing out of the outer office until he backed up against Officer Campbell's parked squad car. As the officer began to call for assistance on his car radio the defendant advanced towards him.
Officer Campbell related that he then fired a shot in the air and the defendant jumped back before advancing towards the officer again. Once again the officer fired a shot in the air, causing the defendant to temporarily retreat. When the defendant advanced on the officer for the third time Campbell shot him in the leg at a distance of from 4 to 5 feet. After grabbing his leg, the defendant proceeded to run in a northerly direction with Officer Campbell giving chase. John Seward witnessed the foregoing events and corroborated Officer Campbell's testimony in court.
Officer Campbell further testified that as he fled the defendant reached under the right side of his coat. At this point the officer fired two additional shots at the defendant. The defendant fell and Officer Campbell approached him. The officer stated that when he was approximately 10 feet away, the defendant jumped up, pointed a sawed-off shotgun at his face and pulled the trigger. Campbell heard the gun click but it failed to discharge. As he continued to run, with the officer in pursuit, the defendant turned and again pointed the shotgun at Officer Campbell this time at a distance of from 20 to 25 feet. Once again the officer heard the gun click but it failed to discharge.
Shortly thereafter the defendant was arrested at the home of his girl friend with whom he lived at 233 West 43rd Street, Chicago, Illinois. A loaded sawed-off shotgun was recovered by a police officer near the doorway to the room next to where the defendant was found. A shell with two indentations on its primer was recovered from the gun.
Police firearms examiner, Sergeant Vincent Lamoro, testified over the defendant's objection that he test fired the gun and determined that it was capable of being fired. He stated further that the indentation on the primer of the test fired shell was consistent in shape with those of the recovered shell. Both the shotgun and the recovered shell were admitted into evidence at the trial.
Mrs. Joan Benford, a daughter of the defendant's girl friend, testified that at 9 a.m. on the day of the arrest of the defendant, she saw the defendant at her mother's house. The defendant showed her the shotgun that was subsequently seized and stated that he "was going to kill someone." At 6 p.m. that same day, approximately 30 minutes before the defendant encountered Officer Campbell, the defendant again told Mrs. Benford that he "was going to kill somebody." Approximately 5 minutes later the defendant left the house after stopping briefly in the bedroom. Mrs. Benford then left her mother's house and began walking to her home when she heard shots coming from the direction of 43rd and Wentworth. She saw the defendant run into her mother's house with Officer Campbell in pursuit. Mrs. Benford saw what appeared to her to be the handle of the shotgun she had seen earlier sticking out of the defendant's pocket as he ran.
Based on the foregoing evidence, the jury found the defendant guilty of attempt murder and unlawful use of weapons. After a hearing in aggravation and mitigation, which disclosed eight prior convictions since 1971, the court sentenced the defendant to concurrent terms of from 20 to 50 years imprisonment for attempt murder and from 3 to 9 years for unlawful use of weapons. It is from this conviction that the defendant appeals.
1 The defendant initially contends that the trial court erred in admitting into evidence testimony regarding statements made by the defendant immediately before the commission of any offense which implied his prior convictions and testimony as to subsequently conducted ballistics tests because this evidence allegedly had not been disclosed to the defendant prior to trial. The defendant argues that the admission of this testimony without affording him with proper pretrial discovery surprised and prejudiced him and that on this basis the defendant should be granted a new trial. We disagree.
In response to the defendant's request for disclosure of any written or oral statements of the accused, the prosecution responded that none were known at the time, but that reference should be made to the preliminary hearing transcript. The prosecution also listed Officer Campbell as a potential prosecution witness in its response to the defendant's pretrial motion for discovery of persons that might be called as witnesses. Included in the preliminary hearing transcript was the testimony of Officer Campbell containing the defendant's statements: "Ain't no mother-fucking policeman going to send me back to the penitentiary." The defendant was given a copy of the preliminary hearing transcript in response to his discovery motion. Therefore, the defendant's statements were properly admitted to show his motive and intent. People v. Donald (1977), 56 ...