APPEAL from the Circuit Court of Lake County; the Hon. FRED H.
GEIGER, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 6, 1979.
Gary Bradford, Dwight Violette and Larry Bradford were jointly charged, by information, with armed robbery and attempt murder. Amended individual informations were subsequently filed against Gary Bradford and Violette and they were each tried separately. Gary Bradford was charged with three counts of attempt murder and two counts of armed robbery. He was tried by a jury, found guilty of both counts of armed robbery and one count of attempt murder. Violette was also charged with three counts of armed robbery and two counts of attempt murder. Violette was also tried by a jury, found guilty of three counts of armed robbery and one count of attempt murder. In their respective trials both men were sentenced to concurrent terms of 60-100 years for attempt murder and 30-50 years for armed robbery. Both have appealed to this court.
Since the charges against these two defendants arose out of the same offenses, we have consolidated these cases for decision.
In the evening of March 27, 1977, the owner of Leno's Submarine Shop went to the shop about 9:30 p.m. to collect the proceeds of the day. He left about $90 in the cash register for change the next day. The shop closed at nine and the maintenance man, Paul Wallin, and his son, Michael, were in the shop. About 10:50 p.m. a man came to the front door saying that he had ordered a pizza. Wallin advised him that the shop was closed, the man then asked for a sandwich and Wallin again advised him that he was not able to prepare the same. Shortly thereafter the same man came to the back door, repeated his request and, after being refused again, forced Wallin to open the door at gun point and entered the store with a companion. Wallin and his son were forced to lie on the floor and were then kicked repeatedly, both suffering rather substantial injuries. One of the armed robbers took $15 and a wrist watch from Wallin. They also took $90 which had been left in the register by the owner.
Waukegan police officers Bridges and Sturgeon responded to a call reporting a possible robbery at the shop. Bridges stayed in front of the shop and Sturgeon went to the rear. Shortly thereafter the defendants Violette and Gary Bradford exited the front door. A gun battle then ensued during which Officer Bridges was shot in the chin and hand by Violette. Bradford also attempted to shoot at the officers several times but his gun jammed. He then threw his gun at Officer Bridges who was lying on the ground. Gary Bradford was shot in the chest and lower back. Violette was shot in the arm.
A short time later a car drove up in front of the Victory Memorial Hospital and defendant, Gary Bradford, was dumped in the gutter in front of the hospital, as testified to by the security guard who observed the incident. Bradford was taken into the hospital and in his pocket the name and address of defendant Violette was found. The police officers went to that address and found Violette lying unconscious on the floor of the living room with a gunshot wound in his left arm. At that time the officers recovered the money and watch belonging to the victim Wallin.
Three issues raised by the two defendants in their appeals are the same, namely (1) whether the jury instructions allowed the jury to convict the defendants of attempt murder without finding that defendants had the specific intent to kill, (2) whether the sentences for armed robbery should be vacated and defendants remanded for resentencing in the event that this court vacates the conviction for attempted murder, and (3) whether the sentences imposed are excessive.
Based upon People v. Harris (1978), 72 Ill.2d 16, 377 N.E.2d 28, the State in the first instance conceded that the convictions for attempt murder were improper. However, the State subsequently moved to withdraw its concession of error based on our supreme court's opinion in People v. Roberts (1979), 75 Ill.2d 1, 387 N.E.2d 331. We granted that motion and will now consider the issue involved. In Roberts the court considered the very same issue as presented here as to the two instructions, viz., attempt (IPI Criminal No. 6.05) and murder (IPI Criminal No. 7.01). It also interpreted the Harris case as well as People v. Muir (1977), 67 Ill.2d 86, 365 N.E.2d 332, and People v. Trinkle (1977), 68 Ill.2d 198, 369 N.E.2d 888. As in the case before us, neither Roberts or Grizzle objected to these instructions at the trial and did not preserve them by a post-trial motion. In Roberts the court recognized that defense counsel may "waive" the right to raise errors in later proceedings by failure to object to those errors at trial. In doing so it observed that the reason for this waiver rule is that:
"* * * timely objections to defective instructions permit the court to correct the defects before the instructions are given, and do not therefore permit a party failing to object to gain the advantage of obtaining a reversal based upon his own failure to act." (75 Ill.2d 1, 11.)
However, the court cautioned, in substance, that the waiver rule was to be applied sparingly and noted the comment in Henderson v. Kibbe (1977), 431 U.S. 145, 154, 52 L.Ed.2d 203, 212, 97 S.Ct. 1730, 1736, where Justice Stevens stated:
"It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court."
The court held that where there is a failure to object to an instruction, waiver is the rule and that Rule 451(c) (Ill. Rev. Stat. 1977, ch. 110A, par. 451(c)) constitutes only a limited exception. As the court stated in Roberts:
"* * * in the absence of such an objection the defects are waived unless they are `substantial' and the `interests of justice require' the court ...