APPEAL from the Circuit Court of Cook County; the Hon. GARLAND
W. WATT, Judge, presiding.
MR. PRESIDING JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Defendant, Lawrence Smith, after a bench trial was found guilty of attempt murder and attempt armed robbery. The trial court sentenced defendant to concurrent terms of 8 to 15 years for attempt murder and 4 to 12 years for attempt armed robbery. Defendant appeals, presenting the following issues for review: (1) Whether defendant was proved guilty of attempt murder and attempt armed robbery beyond a reasonable doubt; (2) whether defendant was deprived of effective assistance of counsel; and (3) whether defendant's sentence should be modified.
On December 2, 1974, a Cook County grand jury indicted defendant on two counts of aggravated battery, one count of attempt murder and one count of attempt armed robbery. The indictments charged that defendant committed the offense of aggravated battery in that he committed a battery on George Martis, a peace officer engaged in the execution of his official duties, in violation of section 12-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 12-4(b)(6)); that defendant committed the offense of aggravated battery in that he used a deadly weapon in committing a battery on George Martis, in violation of section 12-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 12-4(b)(1)); that defendant committed the offense of attempt murder in that he attempted to kill George Martis by shooting at him with a gun, in violation of section 8-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 8-4); and that defendant committed the offense of attempt armed robbery in that he attempted to take property from Arthur Bell by threatening Bell with a dangerous weapon, in violation of section 8-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 8-4).
The following testimony was adduced at trial:
On January 27, 1974, at approximately 5:45 p.m. Officer Richard Pooler and his partner, Officer George Martis, were patrolling in their marked police car near the intersection of 95th and LaSalle Streets in Chicago. Both officers were in uniform. As the police car, driven by Officer Martis, proceeded west on 95th Street toward the intersection of 95th and LaSalle Streets, Officer Pooler noticed a truck parked on LaSalle Street, approximately 30 feet north of the northeast corner of the intersection, in front of a liquor store. Pooler also noted that the truck driver, later identified as Arthur Bell, was standing partially outside the cab of the truck, and that defendant was holding a gun to Bell's head. Another man stood approximately five feet to the east of defendant and Bell.
Pooler instructed Martis to turn right (north) onto Wentworth Avenue (one block west of LaSalle Street) and then turn right (east) into an alley north of 95th Street. The police car exited the alley on LaSalle Street behind the truck and was parked on the west side of the truck so that it could not be seen by defendant. Martis proceeded around the back of the truck and Pooler proceeded around the front of the truck.
Pooler apprehended and searched the third person, a Kenneth Wesley. Pooler then heard Martis shout, "police officers, drop your gun." Pooler then heard two gunshots. As Pooler proceeded around the front of the truck, holding Wesley by the arm, he saw Martis crouching along the wall of the building and saw defendant, with his back to Pooler, shooting at Martis. Pooler testified that he believed defendant had fired at Martis two times. Martis then fell to the ground and shouted, "get him, Ritchie." Pooler fired at defendant who then turned around and aimed his gun at Pooler. Pooler fired again. Defendant again aimed his gun at Pooler, and Pooler fired two more shots. Defendant spun around and again aimed his gun at Pooler. Pooler fired two more shots. Defendant then fell to the ground and attempted to crawl away, holding the gun "stuck straight out." Martis got up and wrested the gun, a Sterling .25 automatic pistol, from defendant.
Officer Martis testified that after he parked the police car behind the truck, he proceeded around the rear of the truck and saw defendant holding a gun to the head of Bell. Martis told defendant to drop his gun, whereupon defendant turned, said "[expletive deleted]" and fired at Martis. Martis was struck by a bullet which his jacket deflected. *fn1 As Martis fell to the ground, he fired only one shot. Martis further testified that defendant "fired some more shots at me as I fell to the ground." On cross-examination Martis reiterated: "* * * I saw him fire a few more shots at me. I saw the flashes." Martis also testified that defendant had kicked him in the right side.
The police inventory slip indicated that defendant's gun's magazine contained five unspent bullets. Three bullets were recovered from defendant's pocket. Although both Officers Pooler and Martis were acquainted with the .25-caliber automatic pistol, neither knew, nor could they determine from examining the gun, the bullet capacity of the weapon. Both officers identified the gun as that used by defendant.
Ella Springer testified that on January 27, 1974, she had parked her automobile on the west side of LaSalle Street near the intersection of 95th and LaSalle Streets. She saw a large truck parked on the east side of LaSalle Street. As she crossed LaSalle Street, she heard a man's voice say, "I don't have any money." A moment later she heard another voice say, "police, drop your gun." She then "heard the shot." Ms. Springer "looked around" and saw three men standing near a truck and a police officer fall down. She then ran from the scene. Approximately 10 minutes later she returned and observed a man lying on the sidewalk, bleeding. Ms. Springer was unable to identify this man as defendant.
Defendant testified that on January 27, 1974, he had been drinking and talking with four friends near the entrance of a liquor store at 95th and LaSalle Streets. One of the men, a Buddy Marshall, exhibited a gun which he wanted to sell for $20. Defendant examined the gun for three or four minutes but then said, "Man, I don't have any money." Defendant further testified that, in examining the gun, he had removed the magazine from the gun and had removed the bullets from the magazine. Defendant was reloading the magazine when he heard, "police officers, drop your gun." *fn2 Defendant threw the gun down and began to run. Two of his companions also ran. *fn3
Defendant heard five shots before he was hit in the leg and fell. After he fell, Officer Martis jumped on him and deliberately shot him in the buttocks. Defendant demonstrated to the court how the first bullet had entered the back of the thigh approximately one inch above the knee and how the second bullet entered the buttocks (from the rear) approximately four to six inches below the waist. *fn4 The State did not contradict nor rebut this testimony.
Defendant admitted that on March 10, 1975, he had been convicted in Federal court for unlawful distribution of a controlled substance. He also acknowledged that he knew it was "illegal to purchase a gun from someone on a street corner."
The trial court found defendant guilty of attempt murder and attempt armed robbery. The trial court, in accordance with section 8-2-4(b) of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1008-2-4(b)), explained to defendant the penalties under both the sentencing law in effect at the time of the offense and the current sentencing law. Defendant chose to be sentenced under the sentencing law in effect at the time of the offense.
At the hearing in aggravation and mitigation the State introduced the testimony of one Dane Pugh who alleged that defendant had robbed him on January 29, 1975. Defendant objected to Pugh's testimony because it related only to a crime for which defendant had been indicted but not yet tried and convicted.
Pugh testified that on January 29, 1975, at 6:30 a.m., while on his way to work, he was walking north on Lafayette Street near the intersection of 96th and Lafayette Streets. Defendant, who was walking south on Lafayette Street, approached Pugh and inquired if Pugh could light defendant's cigarette. Pugh replied in the negative and continued walking. Defendant told Pugh that if he didn't stop walking he "could get shot." At that time another man whom Pugh described as being shorter than defendant came around the corner from a nearby house. This man carried a pistol and told Pugh, "give me all of your money." Pugh gave the man $50 in paper currency. Defendant then searched Pugh and took some coins from him. Pugh was told to walk away and not to look back. Pugh did as instructed. Pugh testified that the entire incident occurred in approximately five minutes.
As Pugh was walking he saw a "paddy wagon" at 95th and State Streets and reported the robbery to the officers. The officers in the "paddy wagon" called for a patrol car. Pugh then "cruised" the neighborhood with the police officers in the patrol car, looking for the offenders. Pugh observed the offenders at the intersection of 95th and Normal Streets, approximately 10 minutes after the robbery. The ...