APPEAL from the Circuit Court of Vermilion County; the Hon.
RALPH S. PEARMAN, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 3, 1980.
Defendant appeals his convictions for aggravated battery and armed violence following a jury trial and the sentence of 10 years' imprisonment on the armed violence conviction. On appeal defendant contends that the trial court erred (1) in allowing a witness to testify to the statement of an unidentified person at the scene, (2) in allowing the State to present evidence of flight, (3) in allowing the defendant's prior conviction for burglary to be used for impeachment, (4) in convicting defendant of armed violence in violation of the double jeopardy clause of the fifth amendment, and (5) in convicting defendant of both aggravated battery and armed violence based upon the underlying felony of aggravated battery.
• 1 The State correctly concedes that here the defendant can not be properly convicted of both armed violence and aggravated battery. The armed violence statute provides enhanced penalties for a defendant who commits a felony while armed with a dangerous weapon. (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2.) The armed violence conviction was for the commission of an aggravated battery while in possession of a gun. Under these circumstances, the aggravated-battery charge is a lesser included offense of armed violence and must be vacated under the authority of People v. King (1977), 66 Ill.2d 551, 363 N.E.2d 838. The defendant was sentenced by the trial court only on the armed violence conviction and therefore a remandment for resentencing is unnecessary. With regard to the other four issues raised by the defendant, we affirm.
The testimony in this case is conflicting, as many different versions of the events were offered at trial. The basic facts follow. The defendant and numerous other persons including the complainant, Dennis King, were in a private club in Danville, Illinois, known as "Sheri's" or the "Blue Room" on the night of March 11 and the early morning hours of March 12, 1979. At about 1:30 a.m., in the back room of the bar, Dennis King asked Randy Stacker for a "hit of speed," Randy refused the request and Dennis then started a fist fight with Randy. The owner and two of the employees of Sheri's escorted the two men upstairs and outside (the bar was basement level), and the fight resumed. Accounts varied, but the fight was broken up by either the defendant, who was a friend of Randy Stacker, by one of King's brothers or by Stacker's brother. During the fight, defendant was involved in an argument with two female cousins of Dennis King. After the fighting ended, Randy Stacker went to the hospital and most of the rest of the persons present went back downstairs.
Two basic versions of the downstairs occurrence were testified to at trial: That of friends of the defendant and defendant himself; and a second by Dennis King and his friends and relatives. The defendant's version was that defendant went back downstairs into the bar after the fight upstairs before Dennis King. Defendant went over to a table and told a friend of his that he was going to leave because somebody wanted to hurt him and talked about shooting him. According to one of the defendant's friends, King then entered the club and said, "I am looking for you m____ f____ and I have got something for you." As this version of the event went, King appeared to have a weapon in his hand because of the manner in which he was holding a vest over his hand. At the time, King's two brothers were beside King, one of whom was holding a cane in the air. The three Kings approached the defendant and when Dennis King was five to six feet from defendant, the latter shot King, assertedly aiming for the hand in which King appeared to be holding a gun.
The King version of the event was that King came into the bar after the altercation outside prior to the defendant. Defendant then entered the bar and said, "Where's the m____f____ at?" The defendant then walked toward King and shot King when they were five to six feet apart. The bullet struck King in the genitals. After defendant shot King, he stayed in the bar for 15 to 20 seconds and then left. According to the King version, King's jacket was torn up during the fight upstairs and he never found his jacket after the fight. King denied having any weapon in his hand at the time he was shot. No weapon was ever actually seen in King's possession by any of the witnesses, and no weapon was found on his person on the evening he was shot.
Defendant's defense was self-defense and he claimed that he feared that King was going to do great bodily harm to him at the time he shot King. At trial, a bartender at Sheri's, Spencer Nunn, testified that just prior to the shooting incident he heard a female voice say, "Irving, don't do it." He did not see the person who made the statement, nor did he see the shooting, although he was in the bar at the time. The owner of the club, James Crockett, was working on the night of the shooting but, like Nunn, did not see the shooting. Crockett testified that immediately prior to the shot being fired he heard a female voice say, "Don't shoot."
Defendant contends that he was denied a fair trial by the admission of these statements which he contends were inadmissible hearsay testimony. The State contends that under the spontaneous declaration or excited utterance exception to the hearsay rule, admission of the testimony of the unidentified bystander was not error.
It is apparent that the fact that defendant shot King is not a contested issue here. It is noted that the utterance is not accusatory in quality, and defendant concedes that the statements could be interpreted to be corroborative of defendant's claim of self-defense.
The supreme court has consistently held that for testimony to qualify as a spontaneous declaration and be admissible regardless of declarant's presence at trial three elements must be present:
"`(1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence.' (People v. Poland (1961), 22 Ill.2d 175, 181.)"
(People v. Robinson (1978), 73 Ill.2d 192, 199, 383 N.E.2d 164, 168.)
Defendant argues whether the criteria for a spontaneous declaration can be met where the witness is not only ...