APPEAL from the Circuit Court of Kane County; the Hon. JOHN A.
KRAUSE, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Following a jury trial the defendant, Richard T. Johnson, was convicted of armed robbery and sentenced to a term of not less than 21 years nor more than 63 years imprisonment. The defendant had been indicted on charges of attempt murder and aggravated battery as well as on the armed robbery charge. However, the State advised the court at the commencement of trial that it was "proceeding only" on the armed robbery charge. The defendant contends in his appeal that, nevertheless, the State was permitted to introduce evidence of the attempt murder and aggravated battery and that he was thereby deprived of a fair trial when prejudicial testimony and prejudicial argument as to a shooting following the robbery was elicited without objection by his allegedly incompetent defense counsel.
The direct evidence against the defendant is primarily found in the testimony of an accomplice, Carl Loberg. Loberg testified that on the date of the crime, December 27, 1977, during a party at the defendant's home, he and defendant had a private conversation concerning the commission of a robbery; that they borrowed the car of Fritzie McPeake, who was at the party, at about 10 p.m. to pick up a shotgun at Jim O'Neal's house. They told Mrs. O'Neal that they wanted the gun for skeet shooting. They then went to Don Christoffel's house, where only Loberg went in and picked up a pellet gun. They left there at about 10:45. He and defendant then drove to Weiland's Tavern and parked one-half to three-quarters of a block away. Before entering, Loberg, who was wearing a hooded coat, put on a knit cap to cover his face while defendant pulled a nylon stocking over his head. Loberg said that he had possession of the pellet pistol while defendant possessed the shotgun. He further related that defendant, holding the shotgun ready at his hip, yelled "freeze" while Loberg walked to the bar and took $300 which the bartender, Leon Wilkerson, handed to him from the register. He related that defendant was asking people to empty out their pockets but that he told defendant to "forget it" and ran out, the defendant behind him.
Loberg's further testimony, although without objection, reaches the area which defendant claims is error. Loberg said that as he was getting into the car he heard a shot, turned and saw defendant standing outside the closed tavern door, with his gun at his shoulder; and that when defendant got to the car he told Loberg that "he thought he'd shot somebody."
The witness further testified that they then went to Christoffel's home where they left the shotgun; that he and defendant divided the money and that they picked up the shotgun the next day and brought it to O'Neal's house. (O'Neal later testified that he examined the gun and noticed that it had been fired.)
Leon Wilkerson testified for the State and corroborated the circumstances in the tavern as related by Loberg. He placed the time when the robbers entered as between 10:45 and 11 o'clock. He further testified without objection that when the men left, the door was shut and that about two seconds later a shotgun blast came through the door, striking the bartender's cousin, Gilbert Cornell, Jr. The following questions and answers appear:
"Q What did your cousin do then after being stricken?
A He fell down onto the floor. He was sitting on the stool, bar stool.
Q Have you seen your cousin since this?
A He can't walk. He's paralyzed. And he's he's in Chicago now."
The prosecutor also exhibited a photo to the witness showing blood stains on the floor where the patron fell and questioned with regard to that. Also, the witness testified that the paralysis was from the waist down.
Another bartender, Lonnie Wilkerson testified, substantially corroborating Leon Wilkerson's testimony. He placed the time of the robbery at 10:45 or ...