APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY
J. SCOTILLO, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Defendant, Deathrice Jimerson, was charged in a multicount indictment with armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-2), attempt murder (Ill. Rev. Stat. 1975, ch. 38, pars. 8-4, 9-1) and aggravated battery (Ill. Rev. Stat. 1975, ch. 38, par. 12-4). At the conclusion of a jury trial in the circuit court of Cook County, defendant was found guilty of aggravated battery and sentenced to three years probation, the first year to be served on a work release program. On appeal, defendant contends: (1) his aggravated battery conviction is legally and logically inconsistent with his acquittal of armed robbery and attempt murder; and (2) the State's failure to call a particular witness to the alleged occurrence deprived him of a fair trial.
We affirm the trial court.
Prior to the selection of the jury, the State presented a motion in limine to prevent defendant from utilizing as substantive evidence at trial, the fact that Erskine Green, the alleged victim of the attempt murder count, had a criminal record and was being held in Cook County jail on an armed robbery charge. After hearing arguments of counsel, the trial court granted the State's motion, holding that the above evidence could only be used by the defendant at trial to impeach Green's credibility, if and when Green took the stand.
At trial, Derrick Brooks testified that on June 26, 1975, at approximately 3 a.m., he was eating a sandwich in his second floor apartment. As Brooks glanced out his apartment's front window, he saw Erskine Green, a tenant from the floor below, walking his dog. Brooks also observed a man, later identified as the defendant, sitting with two women in a maroon and black automobile parked down the street.
Upon finishing his sandwich, Brooks walked downstairs and engaged in a conversation with Green near the front door of the apartment building. Approximately 10 minutes elapsed, when the defendant approached Green and Brooks and told them he had just been robbed. The defendant requested their help in looking for some papers he lost in the course of the robbery.
Brooks testified that following a brief search of the area, he and Green found some cards and a piece of paper in a gangway next to Brooks' apartment building. After Brooks and Green handed this material to the defendant, the three men walked toward defendant's automobile which was parked nearby.
When they reached the automobile, defendant told Brooks and Green that he had had trouble starting the engine. Brooks testified that he and Green volunteered their services in attempting to get the car started. Green began working on the battery while Brooks tried to insert a fuse in the trunk wiring system. After the three men had worked on the car unsuccessfully for about an hour, the defendant asked to use a telephone.
The three men walked to Green's apartment and entered the kitchen where Green's wife and two children were playing. Brooks testified that after defendant mistakenly dialed the wrong number, defendant handed the telephone to Green and asked Green to dial. As defendant called out the numbers, Green's wife wrote them down on a piece of toilet tissue.
Brooks testified that defendant talked to a woman named "Bell" for approximately 10 minutes. Brooks also stated that during the course of the conversation he heard defendant tell "Bell" to "bring the heavy stuff." When the phone call ended, the three men left the apartment and walked back to defendant's automobile. Brooks and Green resumed working on the engine in a further attempt to get the car started.
Brooks asserted that approximately 15 minutes had elapsed, when a blue GTO turned the corner and pulled up alongside defendant's automobile. Brooks, Green and the defendant were all standing on the passenger side of the GTO when it stopped. Brooks stated that when defendant walked over to the driver's side of the GTO, a woman passenger handed the male driver a gun. The driver of the GTO in turn handed the gun to defendant, who then pointed it at Brooks and Green, ordering them to place their hands on top of the car. Green and Brooks complied.
As defendant began searching Green's pants pockets, Brooks' mother screamed out the second floor apartment window. When defendant turned and shot at the window, Brooks yelled that he was shooting at his mother. Brooks testified further:
"A. Then [the defendant] tried to turn around and shot me.
Q. Where did he shoot you?
Q. And where did it exit?
The court noted that Brooks had a scar approximately an inch below his earlobe and another scar on the back of his neck. Brooks testified that after he shot, defendant jumped "in his car" and drove off.
When the police arrived on the scene shortly thereafter, Green's wife handed an officer the phone number she had written down on the piece of tissue. Brooks was rushed to Mount Sinai Hospital. Brooks identified the defendant from a lineup the police conducted 10 or 11 days ...