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People v. Nolden





APPEAL from the Circuit Court of Cook County; the Hon. FRANK B. MACHALA, Judge, presiding. MR. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

___ N.E.2d ___ At the conclusion of a bench trial in the circuit court of Cook County, defendant, Leon Nolden, was found guilty of aggravated battery and attempt murder (Ill. Rev. Stat. 1975, ch. 38, pars. 12-4, 8-4, 9-1). On appeal, defendant contends: (1) the trial court abused its discretion and committed reversible error by admitting evidence of defendant's prior conviction for unauthorized use of weapons; (2) the State failed to prove defendant guilty beyond a reasonable doubt; (3) the trial court abused its discretion and committed reversible error by denying defendant's motion for a new trial on the basis of newly discovered evidence; (4) the trial court erred in entering judgment on the jury's verdict of guilt on both the aggravated battery and the attempt murder charge; and (5) the trial court erred in sentencing the defendant on both the aggravated battery conviction and the attempt murder conviction.

We affirm the judgment as to attempt murder and vacate the conviction for aggravated battery.

At trial, McKinley Johnson, the complaining witness, testified that on January 23, 1978, at approximately 5 p.m., he arrived at his rented garage, located in an alley between Yale and Wentworth Avenues, near his home. Johnson opened the garage door and, when he returned to his car he saw an old Chevrolet car being driven towards him. Johnson stated there were no lighted street lights in the area, but artificial lighting was not necessary for him to see since there was still daylight at that time. As Johnson drove his car into the garage, the Chevrolet car stopped in front of his garage. When Johnson got out of his car, the man driving the Chevrolet, later identified as defendant, also exited from his car.

Johnson further asserted that defendant then asked him if he had jumper cables. After Johnson responded that he did not, defendant told Johnson, "[g]ive me your wallet or I'll blow your brains out." Johnson "started towards him," calling him a name, and defendant produced a gun and shot Johnson four times. Johnson stated that he was wounded in both arms, his hand, and his chest.

Johnson also testified that, during the initial part of the confrontation, he and defendant were standing face to face, "close enough to touch each other." Johnson demonstrated to the jury the distance and noted that he backed away from defendant as defendant fired the gun at him. After shooting Johnson, defendant ran south through the alley. A friend drove Johnson to the hospital. Johnson asserted that during his hospitalization, he never lost consciousness.

In addition, during Johnson's direct examination testimony, he identified defendant as the man who had fired the gun at him. Johnson also stated that the police obtained a description of defendant from him. Johnson told the police that defendant was "dark-complected, tall, about six feet and approximately 210 pounds." He estimated that defendant was in his late twenties or early thirties. Johnson also informed the police that defendant was wearing a dark, three-quarter length leather coat and dark trousers.

On the day following the shooting, two uniformed police officers came to Johnson's hospital room in the intensive care unit and asked him if he felt well enough to view "a guy for identification." Johnson explained that at this time, he had "tubes in his nose," but he was not receiving blood or intravenous fluids. After Johnson indicated he felt "pretty good," four police officers and defendant entered the room. Johnson asserted that there were several lights turned on in his hospital room so that he could adequately see the defendant. Johnson looked at defendant's face and asked him to turn around and to speak. After defendant spoke two sentences, Johnson told the police that defendant was the man who had shot him. Johnson again identified defendant at trial.

Johnson further stated that he remained in the hospital for 31 days. After returning home, he searched through his garage and found an expended bullet near his car. Johnson testified that this bullet had been in his possession since he had found it. He brought the bullet to court and handed it to an assistant state's attorney. Johnson identified the expended bullet, and it was admitted into evidence over defendant's objection.

On cross-examination, Johnson acknowledged that there were no street lights in the alley where the hold-up and shooting incident occurred, and that neither his car headlights nor the other car headlights were turned on. Johnson also estimated that defendant had parked his car approximately four feet from Johnson's garage. Johnson admitted that, on the day of the incident, he saw defendant, for "only a few seconds" without the benefit of garage lights, street lights, or car headlights. He did indicate again, however, that there was sufficient daylight for him to see. Johnson further asserted that he "kept his eyes" on defendant throughout the incident. After defendant shot him and ran away, Johnson followed the defendant until the defendant turned the corner and Johnson lost sight of him. He then returned to where he lived. Johnson again stated that he never lost consciousness during the incident or his subsequent hospitalization. Johnson also indicated he could not remember how many of the police officers who entered his hospital room with defendant were dressed in uniform. He knew four of the men were police officers because they identified themselves as police officers.

The next witness for the State, Police Officer Earl McClean, testified that on January 23, 1978, at approximately 5 p.m., he was patrolling the area near 71st and Yale Avenue. He received a radio message that at the location of 7131 South Yale there was a robbery victim who possibly had been shot. When he arrived at that location, he found an old Chevrolet parked in the alley. The garage door was open, and a car was parked inside the garage. There was blood on the ground. McClean also stated that when he arrived at the scene, around 5 p.m., it was late afternoon, and there was sufficient daylight so that he could see the surroundings. McClean also related the description of the defendant which Johnson had given him. He stated that when he saw Johnson in the hospital, Johnson was conscious. On cross-examination, McClean acknowledged that he did not recover any money or a gun from the Chevrolet car.

Investigator Edward Kendzior testified that on January 23, 1978, he went to St. Bernard's Hospital to interview Johnson. Johnson appeared to be alert. Kendzior also repeated the description of defendant which Johnson had given him. On January 24, 1978, Kendzior arrested defendant at a liquor store located near 72nd and Vincennes Streets.

At the police station where defendant had been taken, Assistant State's Attorney Ernest DiBenedetto suggested defendant be taken to St. Bernard's Hospital to be viewed by Johnson. He explained that Johnson could not be moved from the hospital. DiBenedetto, Kendzior, and two uniformed police officers brought defendant to St. Bernard's Hospital. DiBenedetto and Kendzior first entered Johnson's room. After Johnson told Kenzior he felt fine, Kendzior asked him if he could view a possible suspect. Johnson said he could, and he requested Kendzior to turn on the lights in the room. Kendzior asserted he had no difficulty communicating with Johnson.

The two uniformed police officers brought defendant into Johnson's room, and they stood approximately five or six feet from Johnson, who was "half sitting." Defendant was not handcuffed. Johnson requested defendant to turn. Kendzior then asked Johnson if he wanted defendant to speak and Johnson said yes. Defendant gave his address and Johnson raised his right arm and told defendant and the two uniformed policemen to leave. As they left, Johnson told Kendzior "that's the man who shot me."

Ernest DiBenedetto, the assistant state's attorney, testified he advised Kendzior to bring defendant to St. Bernard's Hospital so that Johnson could view him. Over defense counsel's objection, DiBenedetto repeated the events surrounding Johnson's identification of defendant in the hospital room. The State then rested.

Armentha Dawkins, a Chicago bus driver and defendant's girlfriend, testified that on January 23, 1980, at 5:30 a.m., she left her home at 6128 N. Kenmore Avenue, where she resided with defendant, to go to work. She returned to her home at approximately 10:30 a.m. and again left for work at 3 p.m. During this time, defendant was watching television. When she returned home at 6 p.m., defendant was still watching television. He had informed her that he did not feel well due to asthma difficulties. She described defendant as "not breathing the way he usually does" and being unable to eat any food.

On cross-examination, Dawkins estimated that 71st and Yates Avenue is approximately 23 miles from her northside home. She then concluded that it would have been impossible for defendant to be in the area of 71st and Yates at 5 p.m., since she had seen him on the north side at 6 p.m.

Defendant testified in his own behalf. Defendant stated he was self-employed as a carpenter. Columbus Lewis had hired defendant to do remodeling work on Lewis' home located on the south side near the scene of the incident. Defendant was working at Lewis' home around the time of the incident. As another form of work, defendant "took phone calls" at his girlfriend's apartment, his father's home on the south side, and at the liquor store where he was arrested.

Defendant further asserted that on January 23, 1978, he did not go to work because he was not feeling well. He watched television most of the day and left his home once at 5 p.m. to go to a store located near his north side home. Defendant denied owning a gun or shooting Johnson. He also stated that he ...

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