APPEAL from the Circuit Court of Cook County; the Hon. AUBREY
F. KAPLAN, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After a jury trial, Johnny Billups (defendant) was found guilty on one count of attempt murder and two counts of aggravated battery. He was acquitted on two other counts of aggravated battery. He was sentenced to 3 1/3 to 33 years and he appeals.
In this court, defendant contends he was not proven guilty beyond a reasonable doubt of attempt murder or aggravated battery and the trial court erred in refusing one of defendant's jury instructions.
Yvonne Stone testified that on June 23, 1977, at 7:40 p.m., she was driving her automobile on Ogden Avenue. Her husband, Charles Stone, was sitting in the front passenger seat. Her brother, Lonzo Hicks, was sitting in the back seat on the passenger side. Mrs. Stone pulled the car over and double-parked on the 3200 block of West Ogden. There she saw the defendant, whom she had known for about two years, sitting on a fireplug.
Mr. Stone left the car and went into a tavern to purchase some liquor. She and Hicks remained in the car. A few minutes later, Mr. Stone returned to the car and rolled a marijuana cigarette. A man named Lonnie approached the car and spoke to Mr. Stone. As Mr. Stone and Lonnie were talking, Mrs. Stone and Hicks had a drink from the bottle of liquor purchased by Mr. Stone.
Mrs. Stone then saw the defendant in the rearview mirror about two car lengths behind her. Defendant walked to his Cadillac automobile and entered through the passenger door. He left the car carrying a "machine gun." Defendant approached the passenger side of Mrs. Stone's car where her husband was seated. Defendant called out, "Stone." As the Stones and Hicks turned to look, defendant fired many shots at Mrs. Stone and the others in the car. Mrs. Stone began to drive eastbound on Ogden. She was hit by a shot and her legs went numb. Her foot became stuck on the gas pedal. As her car pulled away, the defendant ran out into the street and continued shooting. He shot out the back window of the car. The shots also tore up the rear door on the passenger side of the car.
Mrs. Stone lost control over the car. The car struck a lightpole, crossed the median, went into the oncoming traffic lanes and crashed into a fence. The car came to a stop about two blocks from where defendant had been shooting. Mrs. Stone was still in the passenger side but Hicks had fallen out of the car while it was moving. Police officers arrived in a few moments. Mrs. Stone was taken by ambulance to the hospital. Surgery was necessary to remove bullet fragments. She remained in the hospital for two weeks. Since then she has limped when walking. Mrs. Stone further testified no one in her car had a weapon.
Lonzo Hicks fully corroborated Mrs. Stone's testimony. He added he and Mr. Stone attempted to use the steering wheel. Defendant had run into the street and continued to shoot at the car. At the hospital, Hicks saw defendant with two police officers and identified him as the man who shot Mrs. Stone.
Charles Stone testified his wife double-parked the car. He had wanted to get some marijuana at this location. He sat in the passenger seat and talked to a friend of his named Lonnie who stood outside the car. He rolled three marijuana cigarettes and gave one to Lonnie. Mr. Stone stated he did not leave the car to go into the liquor store.
After Lonnie left, Mr. Stone noticed the defendant standing on the sidewalk pointing a gun at him. Mr. Stone told his wife to pull away. Defendant had "a funny smile on his face" and yelled, "Stone." Defendant started shooting. As Mrs. Stone pulled the car away, defendant ran out into the street and kept shooting. Defendant fired about 10 shots. Mr. Stone corroborated the testimony of Lonzo Hicks as to what happened after the car pulled away from defendant. He also stated neither he, Mrs. Stone or Hicks had a weapon with them. He identified the defendant's gun in court.
Officer Jude Evans of the Chicago police department testified he and his partner were in an unmarked vehicle at the scene on the night in question. They noted a Cadillac eastbound on Ogden go through a red light, cross a "median section," hit a pole, and "crash" into a vacant lot. The officers approached the car. Its back window had been broken out and it had a number of bullet holes. Mr. Stone pulled Mrs. Stone out of the car. She was bleeding from her back. Lonzo Hicks was already out of the car. The three people told Officer Evans they had been shot at and he called for an ambulance.
The officers searched Mr. Stone and Hicks. No weapon was found on either of them. The car and the area around it was searched and nothing was found. Mrs. Stone was searched at the hospital, without result. Defendant was brought to the hospital later in the evening and was identified by Mrs. Stone. He was placed under arrest. Defendant told Evans the Stones had robbed him two weeks earlier of $200 on the front porch of his home. Charles Stone used a handgun during this robbery. Defendant never reported this robbery to the police. Defendant told Evans he was responsible for the shooting that day.
Officer William Brown testified he received a radio call directing him and his partner to a designated address to acquire information. Officer Brown met defendant at that address. Defendant admitted responsibility for the shooting that day. Defendant told Brown he had an altercation with some people over some money and "he had to shoot in self-defense." He gave Officer Brown the semiautomatic rifle he used in the shooting.
Officer Ollie Brumfield, an evidence technician, arrived at the scene of the car wreck on the evening of the shooting. He photographed the damage done to the automobile by the gunfire. He ...