APPEAL from the Circuit Court of Cook County; the Hon.
THEODORE M. SWAIN, Judge, presiding.
MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 23, 1980.
Defendant was found guilty by jury verdict on charges of attempt murder, two counts of armed robbery, and one count of aggravated battery and was sentenced to one term of 15 to 45 years for attempt murder, two terms of 10 to 30 years for armed battery, and three terms of 2 to 6 years for aggravated battery, all six terms to be served concurrently. One of the key issues is whether the offenses were committed during the early morning hours of December 31, 1976, or the early morning hours of the next day, January 1, 1977. Defendant contends on appeal that defense counsel presented an alibi defense for the wrong day and thereby denied defendant of effective assistance of counsel; the trial court erred when it instructed the jury that intent to commit great bodily harm supports an attempt murder verdict; he was improperly convicted of both aggravated battery and attempt murder; and the trial court improperly sentenced him for attempt murder on the mistaken belief that the minimum sentence was 4 years. For the following reasons, we reverse in part and affirm in part.
The indictments, returned on February 16, 1977, charged that on December 31, 1976, defendant committed the offense of attempt murder of Sammie Lynn Johnson (Ill. Rev. Stat. 1975, ch. 38, par. 8-4), committed two offenses of armed robbery, one of Sammie Lynn Johnson and one of Antoinetta Adams (Ill. Rev. Stat. 1975, ch. 38, par. 18-2), and committed three offenses of aggravated battery on Sammie Lynn Johnson (Ill. Rev. Stat. 1975, ch. 38, par. 12-4). Initially represented by the public defender at his February 24 arraignment, on March 10, 1977, the trial court appointed Chicago Bar Association counsel Lance Haddix and Robert Hodge to represent defendant.
On April 28, 1977, in response to defendant's discovery motion, the State again claimed that the offenses charged occurred "on or about" December 31, 1976, adding that the alleged offenses occurred at "approximately 3:00-5:00 a.m." Defendant's August 2, 1977, answer to the State's discovery motion indicated that the defense planned to call three alibi witnesses, including a Mr. Trimble, to establish that "at the time of the alleged offenses to wit: 3:00 or 5:00 a.m. January 1, 1977 defendant was either at a lounge called Caesar's Palace * * * or on his way to another party." After jury selection but before opening arguments, defendant filed a supplemental discovery answer in which he listed a fourth defense witness who would testify as to defendant's activities from 4 p.m. on December 31, 1976, until 5 a.m. on January 1, 1977.
The prosecutor's opening statement at the trial asserted the evidence would show that on the morning of December 31, 1976, between 3 a.m. and 4 a.m., defendant robbed two women and shot one of them. In his opening statement, defense counsel did not deny that the crimes had been committed, but asserted that defendant did not commit them; the question was one of identification and defendant would show that he had an alibi. The following testimony was then elicited at the trial.
The State's first witness, John Battistella, testified that he was a Chicago police robbery investigator on the morning of December 31, 1976, at 3 or 4 a.m. and was on duty. He received an assignment to interview a robbery and shooting victim at Michael Reese Hospital. At the hospital he spoke with Adams and Johnson who gave a description of their assailant. Johnson remained in the hospital and Adams accompanied him to the police station. There she viewed photographs and, although unable to make any positive identification, selected five to seven photographs of men whose faces appeared similar to that of her assailant. Four days later, while at the police station, Battistella saw a man matching the description and held him pending further investigation, later identifying him in court as defendant.
Dr. Rodrigo Cordero testified for the State that during the early hours of December 31, 1976, he examined Johnson and treated her for gunshot wounds in the right side of her back and to the mastoid artery located behind her right ear.
Richard Thoron, a Chicago police officer, testified that he was on duty on December 31, 1976, when at approximately 4 a.m. he was radioed to proceed to a point near the Southerland Hotel, where a woman had been shot. Several minutes later at the hotel he observed a young woman bleeding, who identified herself as Sammie Lynn Johnson. She described her assailant as a male Negro, 21 years of age, 5'7" tall, 165 pounds, with brown eyes, black hair, and a dark complexion. An ambulance thereafter took her to Michael Reese Hospital. Thoron followed the ambulance to the hospital and met Officer Battistella there. He related the description which he had been given to Battistella.
Sammie Lynn Johnson, the State's next witness, was asked by the prosecutor whether she recalled what she did on the night of December 31, 1976. She responded that she and a friend, Antoinetta Adams, went to a boyfriend's house, where they stayed until 3:30 or 4 a.m. and then started home. Deciding to walk, a man approached them from behind and said "stickup." They turned immediately and saw that he was armed with a gun. She identified this man in court as defendant. He demanded all their money, which they denied having, and he then demanded their coats and purses, to which they acceded. Defendant told Adams to run. He then forced Johnson into an alley, where he pushed her against the wall of a building and shot her twice. She fell forwards and blacked out. When she regained consciousness a few seconds later, she rose to her feet and saw defendant running eastward, so she ran in the opposite direction. When she looked back, defendant was looking at her. He said, "you bitch," then shot her again. Although wounded, she was able to reach the Southerland Hotel, a nearby building where several persons gave her first aid and called the police to whom she gave a description of her assailant.
The State's last witness, James Jones, an investigator for the Cook County sheriff's department, testified he had attempted to secure the presence of Antoinetta Adams at trial, but after an extensive search was unable to find her.
The only defense witness to testify was Hubert Trimble. After preliminary questions, defense counsel asked Trimble where he was on December 31, 1976, at 2 a.m. and Trimble responded that he was at a bar called Caesar's Palace where he saw defendant. Trimble stayed there until about 4:30 a.m. and did not remember defendant leaving before him. The following questions were asked and answers given. Defense counsel: "And this is New Year's Eve we're talking about?" Witness: "Right. Q. Do you remember what day of the week it was? A. That was a Friday." (In 1976, December 31 was a Friday.) Thereafter the trial judge asked the witness, "* * * you say New Year's Eve, your testimony is you * * * were there at 2:00 a.m. on December 31 and that would be the early morning hours of the day which was yet to become New Year's Eve?", to which Trimble responded, "that would be the first", thus apparently referring to the early morning of January 1.
On cross-examination, Trimble first stated that he saw defendant at Caesar's Palace in the morning of December 31. He later said that he may have the days mixed up, then said that the morning he had seen defendant was the morning of Saturday, January 1. The prosecutor moved to strike Trimble's testimony, arguing that it did not relate to the relevant date, but the motion was denied.
In rebuttal, the State called Investigator Battistella who testified that he received his instructions to investigate the ...