APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Defendant, Julio Cantu, was charged by information with the offenses of attempt murder, armed violence, aggravated battery with a deadly weapon, aggravated battery causing great bodily harm, aggravated battery causing permanent disability and aggravated battery causing permanent disfigurement. After a bench trial, defendant was found guilty of aggravated battery with a deadly weapon, aggravated battery causing great bodily harm and aggravated battery causing permanent disfigurement, and sentenced to three years in the penitentiary. Defendant appeals.
On appeal defendant contends that (1) the trial court erred by allowing the main defense witness Angelita Ledesma to invoke the constitutional right against self-incrimination after the witness had waived that right by testifying to incriminating facts; (2) the trial court overstepped the bounds of neutrality by inducing the witness to invoke her right; (3) the trial court further erred when it denied the motion for a new trial by refusing to receive a written, sworn statement of Angelita Ledesma; (4) the trial court erred on denying the motion for a new trial by not hearing the testimony of Angelita Ledesma; and (5) the State failed to produce evidence of guilt beyond a reasonable doubt.
On February 7, 1977, Luis Hernandez received a gunshot wound to his left eye while patronizing the Rainbow Lounge. One of several shots fired from outside the lounge struck him in the left eye, causing him to lose that eye. A glass eye was inserted, but the bullet remains behind it.
The State's witness Juan Barriga testified that on the night of the shooting he went to the Rainbow Lounge with three friends. They left the tavern at approximately 1:55 a.m. At that time he saw defendant, Julio Cantu, leave the lounge with a woman, later identified as Angelita Ledesma. Barriga testified that he saw the woman and defendant walk to a car which was parked approximately 50 feet away. The woman entered the car, got a gun, and fired two shots outside the car into the air. He testified that the defendant entered the car on the driver's side at the time the shots were fired, took the gun from the woman, and fired the gun four times in the direction of the lounge. Upon questioning by the court, Barriga testified that he fell to the ground face down when the defendant pointed the gun and was therefore unable to see anything after the shots were fired.
The testimony of the next State's witness, Officer Rene Hidalgo, revealed that Officers Hidalgo and Jesse Camarena curbed a vehicle occupied by the defendant and Angelita Ledesma. The officers transported the occupants to different police stations. Ms. Ledesma exercised her right to remain silent while en route to the station, but later spoke to the officers regarding the events after being advised of her rights.
Ms. Ledesma directed Officers Hidalgo and Camarena to a vicinity near a bridge to search for the gun. After an unsuccessful search, Ms. Ledesma then directed the officers to 8252 South Buffalo. She led them inside a bedroom where Officer Hidalgo found a pistol and ammunition clip hidden under a mattress. Officer Hidalgo testified that he found three bullets inside the clip, and that the clip could contain six or seven live rounds. One bullet could also be placed in the chamber.
Officer Jesse Camarena testified to the same sequence of events as Officer Hidalgo. He also testified that a spent cartridge was found in one of Ms. Ledesma's pockets, but none was found on the defendant. Further testimony revealed that Angelita Ledesma spoke freely about the incidents which occurred that evening, and that, had the officers wanted to, they could have gotten a written statement from her.
The defense called Angelita Ledesma as its first witness. Ms. Ledesma stated that as she and the defendant left the Rainbow Lounge at 1:45 a.m. a group of men surrounded them and began speaking. She then testified that she went past the men, walked to the car, took a gun out of the glove compartment, and rolled down the window. At this time, the court warned the witness of the potentially incriminating nature of her testimony and inquired as to her ability to hire an attorney. The court thereafter appointed two assistant public defenders to consult with the witness.
Ms. Ledesma resumed the stand approximately one-half hour later at which time her appointed attorneys made a motion to withdraw the witness based on the right against self-incrimination. Defense counsel objected on the ground that the witness had waived her right to remain silent.
The following exchange then took place:
"THE COURT: Do you want to tell us, you have talked to your lawyers, you wish to continue to be examined as a witness by the defense?
ASSISTANT PUBLIC DEFENDER I: Well, your Honor, for the record then we would still strongly advise our client to remain silent.
ASSISTANT PUBLIC DEFENDER II: We would like the record to emphatically reflect any testimony she gives is contrary to our advice.
THE COURT: Ms. Witness, you just heard what your lawyer said, did you?
You can't just shake your head. You have to tell me.
THE COURT: You did. And you understand they are telling you, advising you not to say any more. Do you understand that?
THE COURT: And understanding that, what is your pleasure?
THE WITNESS: Well, I just take silence now. I just take silence for now.
THE COURT: You want to stay silent for now; is that what you are saying? You don't want to testify on behalf of the defendant. Is that what you are telling us? He ...