APPEAL from the Circuit Court of Cook County; the Hon. MARK
JONES, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was found guilty of attempt murder (Ill. Rev. Stat. 1973, ch. 38, pars. 8-4 and 9-1) and delivery of a controlled substance over 30 grams, to wit, cocaine. (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1401(a).) He was sentenced to a term of 7 to 21 years for each conviction, the sentences to run concurrently. His son, Dean Siebert, was also indicted for both offenses, while Dean's wife, Carol Siebert, was indicted only on the delivery count. Dean and Carol were found guilty by the court at a bench trial for the lesser-included offense of delivery of a controlled substance under 30 grams, to wit, cocaine. (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1401(b).) The instant appeal concerns only Lawrence Siebert's convictions.
On appeal defendant contends that: (1) he was not proven guilty of attempt murder beyond a reasonable doubt; (2) the instructions for attempt murder given to the jury were erroneous; (3) the evidence of his prior conviction for possession for sale of marijuana was improperly admitted to impeach his credibility; (4) the evidence of the prior conviction when coupled with the prosecutor's comments in his closing argument were improper and constituted reversible error; and (5) his sentence was excessive. We affirm in part, reverse in part, and remand. The following pertinent testimony was adduced at trial.
Steven Weber testified. On December 17, 1974, he was an agent with the Metropolitan Narcotics and Dangerous Drugs Enforcement Group (hereafter MEG). At about 6 p.m., he called Carol Siebert and arranged for a sale of cocaine to take place later that night. He and his partner, Margaret Pastore, arrived at the address Carol gave him at about 12:30 a.m. They were admitted to a fourth-floor apartment. Both Carol and Dean Siebert were present in the apartment. Carol Siebert asked Agent Weber to give her the money so she could get the cocaine. Weber refused to give the money before he saw the cocaine. Carol called her connection and she said he would be over in 20 minutes. After 35 minutes had passed she again made a phone call and returned to say that the connection was on the way. About an hour later there was a knock on the door. Carol Siebert opened the door and the defendant, Lawrence Siebert, entered. He went directly to the kitchen and was followed by the others. Defendant pulled out a small scale and plastic bags of white substance. He weighed the substance and told Weber that it was a little short in weight but was good stuff. Agent Weber sent Agent Pastore to get the money from the car. Defendant gave Agent Weber the plastic bags and they returned to the living room. On a closed-circuit television set Weber could see Agent Pastore enter the lobby of the building. She returned with the money and gave it to Lawrence Siebert. At that time Dean Siebert and Agent Weber observed two back-up agents enter the lobby on the closed-circuit television. Dean asked "Who's that?" and Lawrence yelled "Cops" and threw the money into the air. Weber drew his gun and announced he was a police officer and told them they were under arrest. Dean Siebert lunged at Weber and Weber threw him against the wall. Lawrence Siebert grabbed Agent Pastore by the neck and pushed her into Weber. Weber fell to the floor with Dean and Lawrence on top of him. Lawrence and Dean had their hands on Weber's gun and were turning it towards Weber's head, pointing it between his eyes. Lawrence Siebert had his finger on the trigger and Weber could feel pressure on his finger. Weber was pushing the gun away from his head when it discharged twice. The gun was about three inches from his head, and Weber felt intense heat on his forehead. Agent Pastore told the Sieberts to get off Weber but Lawrence told her to go ahead and shoot and said, "I'm going to kill this m____ f____." Agent Pastore then shot Lawrence in the leg. While Agent Pastore covered Lawrence and Dean, Weber searched for Carol Siebert who had escaped.
Margaret Pastore testified. She was the MEG agent who accompanied Agent Weber to the apartment. Her testimony was consistent with Agent Weber's account of the events. After the struggle had started she was able to free herself from the others. She heard Lawrence Siebert say "I'm going to kill you" to Weber. When Weber's gun discharged twice, Weber told Agent Pastore to shoot Lawrence Siebert and she shot him in the leg.
A chemist testified that he tested a sample of the white substance from the plastic bags and determined that it contained cocaine. The total weight of the substance was 55.89 grams.
Carol Siebert testified. She is Dean Siebert's wife and Lawrence Siebert's daughter-in-law. On December 17, 1974, she received a phone call from Agent Weber who wanted to purchase cocaine. She responded that she did not want to be involved but that Lawrence Siebert wanted to meet Weber later that evening. She did not know that Lawrence was bringing cocaine with him. Weber and Agent Pastore arrived at midnight. About two hours later, Lawrence Siebert arrived and went into the kitchen with a black bag. She and Dean remained in the living room while Lawrence removed a scale and began weighing a bag. She and Dean watched movies on the television set in the living room. Agent Pastore left the apartment but Carol did not know why. When Agent Pastore returned, Weber pulled his gun and said "Police, freeze" and fired his gun. Carol then ran from the apartment.
Lawrence Siebert testified. On December 17, 1974, he spoke with his son Dean at about noon. He told Dean that he might stop at his apartment that night. He did not talk to Dean or Carol again until he arrived at their apartment at about 1 a.m. Upon entering the apartment he saw Agents Weber and Pastore, but he did not know who they were. He admitted carrying a paper bag into the kitchen, but denied possessing any cocaine. Dean and Weber came into the kitchen, and Lawrence and Weber were introduced. They talked about several topics including Columbian marijuana. He stated that his purpose in visiting Dean was twofold; first, to spend the night with Dean and Carol and, second, to purchase some marijuana. He had brought along $1500 for this purpose. He denied possessing or weighing any cocaine, although he admitted he brought a scale to weigh the marijuana he hoped to purchase. He asked Weber if he had any marijuana to sell and Weber replied that he would send Pastore to get some. Pastore left and returned a short time later with a large draw bag. She walked over to Weber and opened the draw bag and pulled out "the biggest pile of money" Lawrence had ever seen. She gave the money to Weber to put it inside his coat and then pulled out a gun. Weber pointed the gun at Lawrence and screamed, "This is a rip-off" and then shot at Lawrence. Lawrence then grabbed Agent Pastore and used her as a shield. He grabbed Weber's arms and they fell on the couch. Weber then began to pull the gun towards Lawrence's head. Lawrence yelled, "Don't blow me away." He realized that he could not hold Weber's arm and Weber kicked him to the other side of a table. Weber then shot him in the stomach. He was able to get Weber in a head lock and point the gun into the air. He asked Weber, "Who in the hell are you?" and then told Dean, "Call the police." He looked at his son and saw that Pastore had a gun to his head. Agent Pastore told Lawrence to get off Weber. When he refused she said, "If you don't get off I am going to blow your son away." Lawrence told her he would not get off until she dropped her gun. She informed him that they were Federal agents and he started to get off Weber. Weber then yelled, "Now Peggy" and she shot Lawrence in the hip. Agent Weber stood up, put his gun in Lawrence's face and pulled the trigger. However, the gun was jammed and would not fire. Weber then kicked Lawrence 30 to 40 times. Although Lawrence had been shot twice, Weber did not call for medical help immediately.
Lawrence denied ever delivering cocaine on the night in question or attempting to murder Agent Weber.
Dr. Hagop Boghussian testified. He was a surgeon who operated on Lawrence Siebert on December 18, 1975. He found three puncture wounds on the defendant presumably caused by one bullet, but possibly by two bullets. Contrary to Lawrence's claim of a stomach wound, the doctor did not find any bullet wound in the stomach or back.
The State also introduced into evidence for impeachment purposes a certified copy of conviction from Los Angeles, California, dated March 3, 1975, showing that on that date Lawrence Siebert was found guilty of a felony, namely, possession of marijuana for purposes of sale. The defense objection to this use of the conviction was overruled. The State and defense then rested.
In their closing arguments the Assistant State's Attorneys made the following comments:
"Furthermore, this defendant, Lawrence Siebert in March of 1975 was convicted of a felony of possession of marijuana for purposes of sale. Now, is that the kind of person you're going to believe? Felony conviction. Is that the kind of person you can place your trust in.
He's been around. In weighing his credibility, take into account only two weeks after this incident happened, he was convicted in Los Angeles, ...