APPEAL from the Circuit Court of Champaign County; the Hon.
HAROLD L. JENSEN, Judge, presiding.
MR. PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Foust appeals his two convictions for armed violence.
The bottom line: We affirm one, reverse one.
Donald Murray, an Illinois State Trooper, testified at trial that at approximately 3:45 p.m. on December 3, 1978, he was using radar to check cars for speeding on Interstate 57, south of Pesotum, Illinois. He was in a squad car, facing south, when he clocked a 1975 brown Pontiac Grand Prix going north at 81 m.p.h. He crossed the median and pursued the car, which pulled over and stopped. Trooper Murray radioed the license plate number to the dispatcher and approached the car. He identified defendant as the driver of the car. A woman and child were in the back seat.
When defendant could not produce a driver's license, Murray took him back to the squad car. He then received information that the Grand Prix had been reported stolen in Mississippi. At this point, three other squad cars arrived at the scene. The woman in the car was asked for identification and gave the officers a driver's license in the name of Brenda Box.
The police decided to take the three back to headquarters in Pesotum. Defendant was taken in the squad car while the woman drove the Pontiac. At headquarters, the police were informed that the car had been stolen and that the man and woman had been involved in an armed robbery and kidnapping in Mississippi. They discovered that the woman's name was Karen Gainer, a/k/a Karen Gainer Foust.
The police told defendant and Karen Foust that they would be taken to the Champaign county jail. They were taken outside and defendant got in the squad car. Karen Foust said that she needed the baby's diaper bag from the car, so she and Corporal Lloyd Spencer went to get it. When they returned to the police car, defendant asked her if she had gotten his cigarettes. She said that she had not, and Corporal Spencer offered to retrieve them.
While Corporal Spencer was unlocking the Pontiac, Trooper Murray heard the woman tell him, Murray, not to move. He turned around and saw that she was pointing a gun at his head. Karen Foust told Trooper Murray to put the car in gear and drive away. Murray said he would not. She handed the gun to the defendant who was in the front seat. Murray testified that defendant aimed the gun at his midsection. He said defendant told him to put the car in gear and leave, but Murray steadfastly stated "that we wasn't leaving." He also testified that defendant tried to grab his gun, but Murray pushed his hand away and told him he wasn't getting it.
At this point, Trooper Murray noticed Corporal Spencer returning to the squad car. When defendant saw this, he put the gun between his legs and told Murray not to say anything. Murray saw that defendant was watching Corporal Spencer, so he opened the door and rolled out of the car yelling that they had a gun. Defendant exited the car with his hands on his head. He was put on the ground and handcuffed. He did not have the weapon. Corporal Spencer removed Karen Foust from the car and handcuffed her. He opened the back door of the car and saw the gun on the back seat.
On December 5, 1978, defendant and Karen Foust were charged by information with four counts of armed violence (a Class X felony), arising out of the incident which occurred on December 3, 1978. The armed violence charges were based on kidnapping, attempt kidnapping, unlawful restraint, and intimidation. The informations alleged that defendant committed the offenses "while armed with a dangerous weapon." On January 30, 1979, the State made a motion to amend the informations to show that the weapon used by defendant was a handgun. This was allowed.
Defendant filed a motion in limine on February 13, 1979, requesting that the court prevent the introduction of evidence pertaining to the alleged criminal acts of defendant in Mississippi on November 29, 1978. The charges pending in Mississippi alleged that defendant and Karen Foust had obtained a ride with Brenda Box. At some point they had taken control of the car at gunpoint, forced Brenda Box to ride with them for approximately 30 miles, and stole money from her purse. Furthermore, Brenda Box had allegedly been sexually assaulted.
At the hearing on this motion, the court found that evidence of the Mississippi charges of armed robbery, kidnapping, and theft were admissible to show defendant's motive. A stipulation was entered which excluded any mention of rape and sodomy charges against the defendant in Mississippi.
On February 14, 1979, the day of trial, defense counsel indicated that he had just received supplemental discovery containing statements made by defendant and Karen Foust, who pleaded guilty to unlawful restraint. The State's Attorney told the court that he had just received the report and that he would not use the statement in his case in chief. Defense counsel was allowed a short continuance in order to read the report.
Prior to trial, the court dismissed the count of armed violence based on kidnapping on the motion of the State.
Karen Foust testified for defendant that on December 3, 1978, she, defendant, and her child were traveling on I-57. The defendant woke her up and said that they were being stopped for speeding. She stated that the gun was her father's and that she had it in her possession for several months. When the policeman was in the car with defendant, she put the gun in the diaper bag. She admitted giving the officers a false name when she was questioned.
Karen Foust also said that when the officer went back to the car to get the cigarettes for the defendant she was frightened and scared. She stated that she pulled out the gun and told the officer to drive away. She also said that defendant did not know that the gun was in the diaper bag at the time. She and defendant had not planned that they were going to take the gun out. When Trooper Murray said that it wasn't going to work, she handed the gun to the defendant. Defendant did not ask her for the gun, and he was shocked when she handed it to him. She also said that when she handed the gun to defendant, he did not say anything to Trooper Murray except something like "please just forget about it and don't tell the other officer."
At the instruction conference, defense counsel requested instructions on the lesser included offenses of attempt unlawful restraint, attempt intimidation, aggravated assault, and reckless conduct. The court agreed to instruct on attempt unlawful restraint, but refused the other instructions. The court then allowed the State to add an instruction on armed violence based on attempt unlawful restraint. The defendant objected to this, arguing that armed violence could not be based on an ...