APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendant Herman Carter was charged with aggravated battery. At the conclusion of the first trial, defendant's motion for a new trial was granted. On the second trial, defendant was found guilty of four counts of aggravated battery and sentenced to a term of two to six years, from which he appeals. Defendant's pro se post-conviction petition was dismissed and he also appeals from that dismissal. In his appeal from his conviction he contends (1) defense counsel's frivolous attitude and failure effectively to represent defendant denied defendant able assistance of counsel, and (2) the sentence imposed upon defendant was improper because it was a penalty for refusing to admit guilt. In his appeal from the dismissal of his pro se petition, he contends that the trial court improperly dismissed the petition before defendant's court-appointed counsel had an opportunity to read the trial transcript or prepare an amended petition.
Edward Askew testified that on August 19, 1975, he was in the vicinity of 110th Street in Chicago, Illinois, playing a game known as "Kings Corner" with four other people. During this game, defendant approached to within two or three feet of Askew and his companions. Defendant asked the group if they wanted to shoot dice. Askew replied, "No." On cross-examination, Askew testified that it was Ernest Coleman who asked the group if they wanted to shoot craps and defendant was carrying a pistol at this point. Defendant was with Sherman Carter, who put his finger in Lucius Burns' nose, asking defendant if "[Burns] was the one." Frank Carter approached with a pistol in his pants and said, "these not the ones." The Carters then left and went down an alley, out of the view of Askew and his companions. Askew then went and sat on the porch of the house located at 17 West 110th Street with Lucius Burns, Vanessa Lewis, Fred Jones and Shirley Smith. None of the group sitting on the porch with Askew had a weapon.
Between 9:30 p.m. and 10 p.m., Askew again saw defendant. Defendant was then standing in the street, cursing and "hollering `Black P. Stones'" and about being from the west side. Askew and his friends did not make any comment to defendant. Defendant was in the street for about five or 10 minutes. During that time, Sherman Carter threw a bottle. While defendant was in the street, Askew noticed between five and seven other people standing on the porch across the street from where Askew was sitting, and when defendant finished talking he and the other people went into Frank Carter's house. Askew then saw five or six people come out of the house across the street and noticed defendant holding something with his hand and arm along the side of his body. Askew watched defendant come down the porch stairs to stand in front of the bushes, while the others remained on the porch. Defendant squatted in front of the bushes and Askew next saw a flash of light and heard a loud blast. Askew and the others with him on the porch started running. All were running in the same direction and then Askew heard another shot, a shot which was softer than the first shot, also fired from the other side of the street. After about a block, Askew and his companions stopped running. Askew noticed Jones, Burns and Smith were bleeding and he had been shot in the chest. Askew and his companions then met a police car and were taken to the hospital.
On cross-examination, Askew admitted to signing a document charging Steven Sneed, a defendant at the previous trial, with the offense of aggravated battery by firing a shotgun at him. Askew testified that he did not know the names of defendant or his co-defendants when he signed the complaint. Askew had had no courses in criminal law and knew nothing about the law of accountability of other people for the acts of the people that actually carry out the crime. Askew further testified that the street lights were on near the porch where he was sitting and he could distinguish the faces of persons in the bushes from where he sat on the porch.
On redirect examination, Askew testified that he had identified defendant as the assailant at the police station on August 19, 1975. He also stated that he had viewed defendant from a distance of from two to three feet earlier in the evening, prior to the shooting.
Lucius Burns testified and substantially corroborated Askew as to the shooting. Burns also testified that after the conversation in which defendant asked Frank Carter if Burns was the one, defendant and the people with him got into a car. Burns later saw defendant and the other people in the car when he was standing on the porch of the house located at 17 West 110th Street. The car stopped near a man named Glen Greenleaf, who was on foot. Coleman alighted from the car and fired two shots at Greenleaf. Coleman then got back into the car and the car was driven to the back of Frank Carter's house. The people from the car, including defendant, came to the front of the house. Defendant went to the middle of the street and addressed Burns and those that were with Burns. Defendant said, "I'm from the west side and you should be afraid," "Come on in the streets and fight head up, M.F.," "I'm gonna get y'all for messing with my brother," "Let's go head up and fight," "We got ours. Why don't you get yours?" The people on the porch at 17 West 110th Street did not say anything to defendant, but just sat and listened.
Burns admitted to signing a complaint against Steven Sneed alleging that Sneed fired the shotgun at him, but that he knew nothing about the law of criminal conspiracy or accountability. Burns also indicated that in July 1976, while talking with the Assistant State's Attorney preparing the case, he did not know who had the shotgun and that he was relying on the testimony of Edward Askew and Fred Jones for certain information.
Burns' and Askew's testimony as to the shooting was substantially corroborated by Shirley Smith and Fred Jones.
Chicago police officer David Dalponte testified that on August 19, 1975, he was with Officers Cornfield and Fitzmorris serving a search warrant at 10935 South State Street. At about 9:30 p.m., he heard a sound resembling a shotgun blast while they were at the rear of the building at 10935 South State Street. They ran between buildings to the front of the building. When they were east of State Street a half block north of 110th Street, they saw five young men run from an alley west of State Street and get into a car parked on 109th Place. Officer Dalponte and the other officers stopped the car as it pulled away from the curb. There were two people in the front seat of the car and three people in the rear seat. The occupants left the car, with defendant leaving from the rear on the right side of the car. Officer Cornfield found a shotgun in the rear on the right side of the car and a .32 caliber revolver on the front seat. Officer Dalponte testified that he inspected the shotgun by opening it and noticed it had been fired, because the gun was still warm and smelled of gunpowder. He also inspected the revolver by opening the cylinder and noticed that there were one live and four spent cartridges inside. He noticed the revolver felt warm also. Both weapons were taken to the police station and inventoried and then sent to police headquarters for storage.
Chicago Police Officer James Fitzmorris' testimony was substantially the same as that of Officer Dalponte.
Defendant's age was stipulated to as being 21 years; 19 years at the time of the occurrence.
Frank Carter, defendant's brother, testified that on August 19, 1975, he lived at 22 West 110th Street in Chicago, Illinois, with his wife and two children. At 6:30 p.m., defendant, Sherman Carter, Steven Sneed, Ronald Davis, Michael Nelson and Ernest Coleman arrived at Frank Carter's house. They played cards and listened to records in the basement of the house. They finished dinner at 8:45 p.m. and Frank Carter, defendant and Ernest Coleman then left the house to go to the liquor store. When the three of them returned to Frank Carter's house and got out of the car, a youth standing across the street yelled, "that hunky Frank," "Kill that hunky," "There's Frank." Frank Carter then heard a shot ring out, seeming to come from 17 West 110th Street, across the street at an angle from where he lived, and he ducked. His guests, who were on his porch, ran and his wife threw him his .32-caliber gun. The people who ran went through a gangway to their car. Frank Carter shot into the air twice, but did not shoot at any people, and he did not fire a shotgun. Frank Carter testified that he did not hit anyone when he fired his gun and after doing so, he ran into his house. When his friends ran, they did not have a shotgun with them. Frank Carter did not see defendant fire a shotgun or crouch behind any bushes. Frank Carter said that earlier that evening at about 8 p.m. he heard a shotgun blast and, when he looked out of his window, he saw that a street light which had been on when his guests arrived at 6:30 p.m. was then out.
Frank Carter further testified that an individual named Clarence Blissett was across the street making threatening remarks to him during the time he heard the shot. Clarence Blissett said, "I'm gonna get you" to Frank Carter. Frank Carter knew Clarence Blissett to be a friend of Burns. Frank Carter had seen Glenn Greenleaf and Clarence Blissett at 2:30 p.m. on August 19, 1975, and both threatened him at that time. Frank Carter testified that he never approached Burns at the intersection nor did he see Sherman Carter at the intersection and neither of them had any conversations with Burns.
Sherman Carter's testimony was substantially the same as that of Frank Carter. Sherman Carter testified further that he was among the group that ran to the car parked at 109th Place. Upon arriving at the car, Sherman Carter got in first in the driver's seat. Coleman, Sneed, Davis and Nelson also got into the car. Defendant had been running behind the others in the group. Sherman Carter started the car before anyone got in and was holding the door open for defendant when plainclothes police officers came up from the rear and announced their office and told the people to stop. Officer Cornfield came out of the alley where the car had been parked with a shotgun in his hand, saying, "Look what I found." According to Sherman Carter, Officer Cornfield did not find the shotgun in the car. Sherman Carter knew there were no guns or shotguns in his car because he had checked it by asking if any of his riders had weapons before they entered and all had told him no. Defendant and the others were ordered out of the car and they were all taken into custody. Sherman Carter testified that no one he came with stopped in the street or talked to people across the street. He further testified that he did not hear defendant invite anyone to shoot dice, make any threatening remarks referring to gang membership in a gang, or see defendant crouch behind bushes and fire a weapon across the street. Sherman Carter further testified that neither he nor anyone with him had a gun on their person and that there were no weapons in his car when they all drove to Frank Carter's house.
Defendant Herman Carter testified that Sherman and Frank Carter were his brothers, Ernest Coleman was his cousin and Lillie Carter was his sister-in-law. On August 19, 1975, he received an invitation from his aunt to join his sister-in-law for dinner. He left his home in his brother Sherman's car with Sherman driving and with passengers Sneed and Nelson. On the way they stopped to pick up Coleman and Davis and arrived at 22 West 110th Street at about 6:30 or 6:35 p.m. They parked on 109th Place after finding no parking spaces on 110th Street. The group reached Frank Carter's house by walking through the alley. From the time of his arrival at his brother's house to the time he fled to Sherman Carter's car after the alleged shooting incident when he returned from the liquor store, defendant's testimony was identical to that of Frank and Sherman Carter. Defendant denied that the shotgun recovered by the police belonged to him and stated that he had not seen the shotgun in or out of the car. Defendant also testified that he was handcuffed at the police station and beaten by the officer. Defendant denied the charges in the indictment. On cross-examination, defendant testified that he went to a doctor upon his release from jail as a result of his beating. He did not have a weapon when he left Frank Carter's house to go to the liquor store, he did not know Jones, Askew, Smith, Lewis or Burns and he never addressed them from the middle of the street.
During redirect examination, defendant testified that Nelson, Sneed, Davis and Coleman were not available to testify at the second trial because he could not locate them in time to serve the subpoenas. On recross-examination it was brought out that defendant's attorney had never requested a ...