APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
J. MALONEY, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 28, 1980.
After a bench trial, Larry Cosey and Ernest Van Johnson convicted of attempt murder, aggravated battery causing great bodily harm, aggravated battery with use of a deadly weapon, and armed robbery. Each defendant was sentenced to concurrent terms of imprisonment of 20 years for attempt murder, wherein the aggravated battery counts were merged, and 10 years for armed robbery.
On appeal, defendants contend that (1) they were denied their right to confront witnesses when the trial court specifically considered matters not in evidence; (2) they were denied competent and effective assistance of counsel; and (3) they were not proved guilty beyond a reasonable doubt.
On November 6, 1977, Michael Lightfoot was shot six times. Larry Cosey and Ernest Van Johnson were arrested in connection with the shooting and were charged by indictment with attempt murder, aggravated battery causing great bodily harm, aggravated battery with use of a deadly weapon, and armed robbery.
At trial, the complainant Michael Lightfoot testified that in the early morning on November 6, 1977, Larry Cosey arrived at his apartment with a package of heroin. They then proceeded to Cosey's house to bag the heroin into small packages and count money. Lightfoot was carrying a .38-caliber revolver containing four bullets and $3,000 in cash.
Ernest Van Johnson was present at Cosey's house when they arrived. Cosey gave Lightfoot some money that they had received from their narcotics business. Lightfoot placed his pistol and the $3,000 he had brought with him on the table and began counting the money. Johnson approached Lightfoot from behind, picked up the pistol, and shot Lightfoot in the back of the head. A scuffle ensued in this room, the adjacent hallway, and the bathroom and Lightfoot was shot several more times.
Lightfoot crawled from the bathroom to the living room behind a bar where he found a bottle. Johnson approached Lightfoot with the gun and Lightfoot hit Johnson in the face with the bottle. He then ran toward Cosey and scratched Cosey's face before being thrown to the ground by Johnson. Johnson and Cosey began hitting Lightfoot with hammers and thereafter put Lightfoot in the trunk of a red Nova.
Lightfoot was shown four photographs. He testified that People's exhibit No. 1 depicted the living room of Cosey's home where he had counted the money. People's exhibit No. 2 depicted the hallway in which he and Johnson had scuffled. People's exhibits 3 and 4 portrayed the bathroom. Each picture was a true and accurate portrayal of the rooms that day.
On cross-examination, Lightfoot testified that when the police officers questioned him at the hospital on November 6, 1977, he did not tell them the truth regarding the events; he wanted to be left alone so that the doctors could operate. He also stated that he did not initially want to "press charges." He told Officer Sharif that he was robbed of $3,000 plus the money that he had been counting and denied having told police that he was robbed of $7,000. Lightfoot also admitted that he had "snorted" heroin periodically for the past 3 or 4 years.
Donald Fowlkes, a Chicago police investigator, testified that he spoke to Lightfoot on the morning of November 6, 1977. Lightfoot told Fowlkes that he had been robbed in the hallway of a building located at 71st and Jeffrey and had $600 taken from him. On November 14, 1977, Lightfoot told Fowlkes that Cosey and Johnson had shot and beaten him at Cosey's house and had put him in the trunk of a car. Lightfoot also stated that he had lied earlier because he did not want to "get Cosey in trouble." Investigator Fowlkes also testified that Cosey's apartment was photographed after he was arrested. He was shown these pictures (People's exhibits Nos. 1 through 4) and stated that they truly and accurately portrayed the scene of the apartment on November 16, 1977. Each photo was also identified.
Both defendants testified on their own behalf. Larry Cosey denied shooting Lightfoot. He testified that he borrowed Lightfoot's red Nova and went to a movie. He then drove around town and returned to Lightfoot's apartment. When Cosey rang the door bell, Lightfoot came down and drove Cosey home. Lightfoot also asked Cosey to call Linda Wells, Lightfoot's girl friend, and tell her that he was going to get cocaine from a friend. Cosey also testified that he had known Lightfoot for 1 1/2 to 2 years and that he saw Lightfoot once or twice each week.
Ernest Van Johnson also denied shooting Lightfoot. He testified that he had known Lightfoot for about 6 months and had seen him only once prior to his arrest. On November 6, 1977, he was home watching television with his girl friend. Johnson further stated that he was arrested while walking ...