APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
GREEN, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Mr. JUSTICE MEJDA delivered the opinion of the court:
Defendants, Sharon K. Camacho and Bobby Cross, were charged by indictment with four counts of aggravated battery (Ill. Rev. Stat. 1973, ch. 38, par. 12-4) and one count each of attempt murder (Ill. Rev. Stat. 1973, ch. 38, par. 8-4) and armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18-2). A jury found both defendants guilty on all counts. Defendant Camacho was sentenced to concurrent terms of 4 to 12 years for attempt murder and armed robbery, and defendant Cross received concurrent sentences of 4 to 12 years for armed robbery and 6 to 18 years for attempt murder. The defendants were not sentenced separately for aggravated battery.
On appeal, defendants contend that: (1) they were denied their right to a speedy trial; (2) the trial court committed reversible error in not properly inquiring into an allegation that some of the jurors were prejudiced against defendants; (3) the court did not properly instruct the jury on the elements of attempt murder; (4) the jury was not properly instructed regarding the justifiable use of force; (5) it was error to exclude testimony of the judge who presided at a previous hearing regarding the victim's alleged failure to recognize defendant Cross; (6) it was prejudicial error to allow evidence of Cross' prior use of assumed names; and (7) the multiple convictions are improper because they arise from a single act and the indictment was amended during the trial. We affirm in part and vacate in part.
The charges against defendants arise from the beating and robbery of Jerome Lowe in an apartment building on the north side of Chicago, Illinois. Officer Eddy Spencer of the Chicago Police Department testified that at about 2 a.m. on April 14, 1975, he and his partner, Officer Frank Reeger, were stopped by one James Johnson while they were on regular patrol in the 4000 block of north Sheridan Road. After a conversation with Johnson, the three men drove in the police squad car to a nearby 4-story apartment building at 4119 North Kenmore. Jerome Lowe was standing in the doorway of the building, his head and face covered with blood. Spencer called for a squadrol to take Lowe to the hospital.
Spencer testified that he, Reeger and Johnson then went to the second floor of the building, where they were met by Johnson's wife and a friend of hers. The officers were directed to apartment 201. The door was opened by a woman named Peggy Hammond and behind her was a woman whom Spencer identified as defendant Camacho. Upon entering the apartment, Spencer saw a man, whom he identified as defendant Cross, peek out from the doorway to a back room. Spencer entered the room and found Cross in a corner. About 2 1/2 feet away from Cross were a 3-foot chain with a pipe attached and a 3-foot piece of pipe. Both had wet blood on them.
Both Camacho and Cross were arrested. Spencer testified further that Camacho, who had been drinking, had blood on her dress but complained of no injury. There was blood on a cast which was on Cross' right hand and Cross' shirt was also covered with blood, but Spencer noticed no wounds or injuries when the shirt was removed after Cross was taken into custody.
Spencer did not know the whereabouts of the Johnsons or Peggy Hammond, but stated that six attempts had been made in the last two months to locate them. None of them had appeared to be injured in the incident. On cross-examination Spencer testified that he had also seen blood in the hallway of the building, about 25 feet from Peggy Hammond's door. He also said that he had seen one other person in the lobby of the building. It was stipulated that Officer Reeger's testimony would be the same as Spencer's. Neither the Johnsons nor Peggy Hammond were called to testify.
Jerome Lowe testified that shortly after midnight on the morning of April 14, 1975, he left his home and walked to Sheridan `L' Liquors to buy some cigars. He sat down at the bar and a short time later two women came over and sat next to him. He identified defendant Camacho as one of the women and said that Cross, whom he also identified in court, was seated at a table in the bar with a woman. Lowe brought some drinks for Camacho, her friend and himself as the three conversed. Lowe was in the bar for about an hour and a half, during which time he received $150 from the bartender for what he characterized as a bet. The two women were still sitting with him as he put the money in his shirt pocket. An assignation was arranged with the women and Lowe went to the washroom once before leaving the bar. He did not recall seeing Cross in the bar when he came out of the washroom.
Lowe left the bar with the two women and went to an apartment building around the corner on Kenmore. As Lowe entered the apartment, Cross was standing behind the door, telling him to give him his money. Lowe testified that he was hit on the head, first from behind, then from the front, and that he saw the chain and pipe in the hands of both defendants. Cross, who had a short cast on his right hand, hit Lowe with a chain and Lowe fell to the floor. He staggered into the hall, where he fell again, all the while trying to use his hands to protect his face. As he was hit repeatedly, one of the women screamed, "Stop, you're killing the guy." Camacho reached into Lowe's pocket as he lay on the hallway floor and took his money, a watch and a ring. Camacho had a knife, Lowe continued, and said she was going to cut off Lowe's finger to get his ring. Lowe managed to get up and Cross hit him a few more times as they ran down the hallway. Lowe ran downstairs and passed out in the arms of one of the police officers.
Lowe also testified that he was in the hospital for two weeks, spending the first few days in intensive care. He had stitches on his head and casts on both hands. He returned to the hospital for an additional week because of an infection in his scalp wounds and has had three operations on his hands since they were injured.
On cross-examination Lowe testified that Camacho had entered the apartment first and that the area was illuminated by a light coming from the bathroom. Camacho had a pipe in her hand in the hallway and struck the first blow. She dropped the club in the hall and had a knife in her hand. Lowe also acknowledged that the hospital receipt for his personal property showed that he had one dollar, a wallet, keys and rings with him when he entered the hospital.
Defense counsel was not permitted to impeach Lowe's identification of the defendants with an alleged statement, not in the court record, that Lowe did not recognize Cross at an earlier court appearance, but an offer of proof to that effect was allowed.
Dr. Jeffrey L. Karasick, a neurosurgeon at Weiss Memorial Hospital, next testified that his examination of Lowe on April 14, 1975, disclosed that Lowe had skull lacerations that had been closed with 60 sutures. There was some swelling about his head and eyes and some bruising on his forehead. Lowe's hands were swollen and immobilized and X-rays showed no skull fracture, but both hands were broken. Dr. Karasick said that the injuries were caused by a hard, blunt object, and could have been frgm a chain or pipe. Lowe was admitted to the hospital on April 14, 1975, spent four days in intensive care and was discharged on April 24, at which time he had casts on both hands. He was readmitted on May 7 with infections in the head wounds and was discharged a week later. Dr. Karasick testified that there was permanent damage to Lowe's thumb which could be attributed to the nature of the fracture suffered, but that aging, infection or certain disease could have had the same effect.
The pipe and the pipe and chain were admitted into evidence, as were pictures of Lowe's head injuries, and the State then rested its case.
Sharon Kay Camacho testified on behalf of the defense that on the night in question she lived in apartment 311 at 4119 North Kenmore. She and a friend, Peggy Hammond, had gone to Sheridan `L' Liquors around 11:30 p.m. and sat next to each other at the back of the bar while they had a drink. Lowe came over and sat next to Peggy Hammond, struck up a conversation with her and bought her some drinks. Camacho, who said she was drinking wine, testified that she was buying her own drinks and that Lowe never offered to buy her one. She also stated that she knew no one else at the bar that night.
Camacho further stated that after about an hour, Lowe having offered Peggy Hammond $20, Peggy Hammond asked Camacho if she could borrow her apartment keys because she needed some money and wanted to take Lowe up there. Camacho refused to give up her keys but offered to go with the other two and let them in. Lowe then borrowed a $50 bill from the bartender John. Camacho, Lowe and Peggy Hammond left the bar around 1:30 a.m. and went around the corner to Camacho's apartment. Camacho let Lowe and Peggy Hammond in, told them she would return in 20 to 25 minutes, and closed and locked the door behind her. She then went downstairs to Peggy Hammond's apartment where her children were with a baby sitter.
When she returned to her own apartment and opened the door, Peggy Hammond ran out. Camacho went inside and Lowe, who was putting on his pants as he came out of the bedroom, said his money was gone and accused the two women of setting him up for the theft. Lowe swung at Camacho, who dodged and fell back against the television set. Noticing her dog chain on the television, she grabbed it, hit Lowe and ran out the door and down the back stairs toward the second floor hallway. Lowe followed, trying to hit her, and she kept hitting him with the chain. Hearing Cross in the building, Camacho called for help. Cross grabbed a pipe that was holding the door to the hallway open, hit Lowe once, and Lowe fled. The two defendants had gone to Peggy Hammond's apartment to find out what had happened between her and Lowe when the police arrived.
Camacho demonstrated that she had the chain wrapped around her left wrist as she hit Lowe, who was within arm's length. She stated that Lowe did not hit her, but she kept hitting him as he kept trying to come closer. She further testified that Lowe was running behind her, trying to hit her with his fist, that he blocked her way out of the building, and that he stopped his pursuit after Cross had struck him with the pipe. She also said that the Johnsons had witnessed what occurred on the second floor.
On cross-examination Camacho stated that she had merely closed her apartment door when she had left, as it was not necessary to lock it with the key. Lowe had grazed the side of her head when he first swung at her, she added, although she had no bruises or swelling. Approximately six or seven minutes passed between the time she first hit Lowe and Cross' arrival.
Bobby Cross next testified that on the evening of April 13, 1975, he was at the Beritz Lounge on the corner of Sheridan and Irving Park Roads from 9 p.m. until 1:30 a.m. At that time he left the tavern and went to the apartment building at 4119 North Kenmore to visit a friend on the second floor. He was singing as he entered the building, when he heard a scream and someone calling for him to help. He went toward the sound of the voice and saw Camacho and Lowe struggling with each other on the back stairs cubicle. Camacho's back was against the wall, Cross said, and Lowe had his head against her chest and his hands around her throat. Cross asked what was going on and Lowe turned and hit him on the jaw, knocking him down and backwards into the back stairs. Cross saw a pipe propping the door open and picked it up. He hit Lowe once with it and Lowe fled. The defendants did not follow but went instead to Peggy Hammond's apartment. Peggy Hammond answered the door when the police arrived. Cross was in the bathroom at the time and was at the doorway coming out of the bedroom when he was seized by the police.
On cross-examination Cross testified that Lowe was not bleeding when he saw him. He also stated that Camacho was not swinging the chain and he did not see her hit Lowe. Testimony regarding Cross' use of other names was admitted for impeachment purposes over defense objections.
The final defense witness, called over the State's objection, was John Lagios, the bartender on duty at Sheridan `L' Liquors on the night in question. He testified that Peggy Hammond and defendant Camacho were sitting at the back of the bar when Lowe came over, put his arms around both of the women and then talked to Peggy Hammond. The women were drinking cokes, Lagios said, and Cross was not in the bar at all. Lagios lent Lowe $50, but there was no bet payment involved. He served no more drinks to Lowe who then left the bar with the two women.
The hospital inventory of Lowe's property was admitted into evidence, as was a hearing transcript of May 25, 1976, although the latter was not submitted to the jury. The jury returned a verdict of guilty on all ...