APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
GARIPPO, Judge, Presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Defendant, Theodore Parish, was charged with the attempt murder and aggravated battery of Garfield Johnson. After a trial without a jury, defendant was found guilty of attempt murder and received a sentence of 25 years. The trial court found his co-defendants, David Latimer and Ricky Bell (neither of whom is involved in this appeal), not guilty of attempt murder but guilty of aggravated battery. Latimer and Bell received sentences of four and five years, respectively. Another co-defendant, Orville Miller, was tried separately and is not involved in this appeal.
Defendant contends on appeal that he was not proved guilty beyond a reasonable doubt; that the introduction of evidence of unrelated crimes deprived him of a fair trial; that the trial court's failure to explain the difference between two applicable codes of sentencing deprived him of the right to make an intelligent election between the sentencing law at the time of the offense and the law in effect at the time of sentencing; and that, in light of co-defendants' sentences, defendant's sentence was excessive.
On November 8, 1975, at approximately 8:30 p.m., Garfield Johnson was shot and seriously wounded. As a result, he was totally paralyzed from the waist down. It was stipulated that he was shot eight times, four times in the front part of his body and four times in the back. At trial, he stated that defendant and Miller were the men who shot him.
When the State offered the testimony of Opal Johnson, Garfield's sister, defendant objected that her testimony would bring out evidence of unrelated crimes against defendant. Defendant also made a motion to strike her testimony. The State made an offer of proof that the crimes committed against the sister would explain the initial confrontation between defendant and Johnson. The trial court ruled that Opal's testimony would be received conditionally, subject to defendant's motion to strike the testimony.
Opal Johnson testified that on the evening in question, at about 6 p.m., she encountered defendant in a park. She knew defendant as Teddy. They walked a short way until defendant displayed a flat, dark gun and took $30 from her. Defendant then forced her into the foyer of a nearby building and made sexual advances. She rebuffed him, and he eventually allowed her to leave. Opal arrived home at about 6:30 or 7 p.m. and told her brother that defendant had taken money from her at gunpoint. She did not tell him about the sexual advances defendant had made. After defense counsel cross-examined Opal, he informed the court he was withdrawing his motion to strike her testimony.
Garfield Johnson testified that after his sister told him about the robbery, he said he would try to get the money back. He then went out, but was not looking for defendant and was not carrying a weapon. He found his girlfriend at his friend's home and, at about 8:20 p.m., he and the friend walked to a nearby liquor store. Johnson saw defendant standing outside the store, while Latimer sat in a nearby parked automobile. Johnson asked defendant to return the $30 he had taken from Opal. When defendant made no reply, Johnson searched him without finding the money or the gun.
Johnson walked across the street and made a purchase in a candy store. When he emerged from the candy store, defendant, Latimer, Bell and Miller were standing there. Johnson was acquainted with defendant, whom he knew as Teddy, for several months. The four men followed Johnson for a short distance. Miller then came up from behind and shot Johnson in the left shoulder. Latimer and Bell grabbed Johnson and forced him, face down, across the hood of a parked automobile. At that moment, defendant and Miller began shooting him. Latimer and Bell did not fire shots. Johnson at first testified that he did not actually see defendant firing shots since he was face down. He subsequently testified that after being shot several times, he slid off the vehicle and turned toward the four men. He then saw defendant firing the gun; defendant fired more than once. Johnson also testified that after being shot several times he grew weak and did not remember things as well. The four men left in Miller's automobile.
Investigator James Doyle of the Chicago police department testified for the State that, along with another officer, he came upon the scene a few minutes later. The officers took Johnson to the hospital. En route, Johnson was asked who had shot him, and he replied, "Bimbo [Miller] and Latimer." Johnson started to say something else but lapsed into unconsciousness.
Officer Peter Dignan of the Chicago police department testified for the State that he subsequently had a conversation with Johnson at the hospital. Johnson told the officer that he had been shot by Bimbo, Teddy, Bell and Latimer. The officer was asked on cross-examination whether, when asked the same question at preliminary hearing, he had answered in part, "a male Negro known as Teddy Wright." Dignan stated that he remembered the question but that the answer must be in error since the name "Wright" never entered the investigation.
We initially consider defendant's contention that the introduction into evidence of other crimes committed by him deprived him of a fair trial. In making this argument, defendant refers to Opal Johnson's testimony concerning the armed robbery and attempt rape committed by defendant earlier on the same evening the crime with which he was charged occurred.
As we have noted, defendant originally objected to admission of and moved to strike the testimony of Opal Johnson. After the State made an offer of proof as to the purpose of the testimony, the trial court ruled that the testimony would be admitted conditionally, subject to the motion to strike. When the prosecutor completed direct examination of Opal, defense counsel cross-examined her in detail concerning her encounter with defendant. At the conclusion of the cross-examination, defense counsel expressly withdrew his motion to strike Opal's testimony.
1 We believe that defense counsel, in explicitly withdrawing the motion to strike Opal's testimony, assented to the admission of her testimony and waived any claim of error. (See People v. Arnold (1963), 27 Ill.2d 294, 189 N.E.2d 241; People v. Haywood (1978), 60 Ill. App.3d 236, 376 N.E.2d 328, cert. denied (1979), 440 U.S. 948, 59 L.Ed.2d 292, 99 S.Ct. 2852.) This is particularly true here since the court in this bench trial had ruled that her testimony would be received conditionally, subject to defendant's motion to strike the testimony. After Opal testified, there was not only a failure by defendant to renew the motion, but the motion was withdrawn. Defendant cannot now complain.
Defendant also contends that because of contradictions in Johnson's testimony and statements defendant was not proved guilty beyond a reasonable doubt. In making this argument, defendant stresses several points: that en route to the hospital, Johnson told the police officers Miller and Latimer shot him; that Johnson subsequently told another officer four men shot him; that at trial Johnson testified defendant and Miller were the men who fired the shots; and that at first he testified he did not see ...