APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Following a jury trial defendant Ronald Stokes was convicted of attempt murder (Ill. Rev. Stat. 1977, ch. 38, pars. 8-4, 9-1), aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12-4), and armed violence (Ill. Rev. Stat. 1977, ch. 38, par. 33A-2). The trial court sentenced defendant to concurrent terms of 6 years for armed violence and attempt murder. No sentence was entered on the aggravated battery verdict, as the court held that it was a lesser included offense of attempt murder.
Defendant asks this court to consider whether (1) the trial court improperly admitted the testimony of a policeman as to the path of the bullet which struck the victim; (2) the evidence failed to prove defendant guilty beyond a reasonable doubt of the crimes; (3) the trial court denied defendant a fair trial and otherwise erred in tendering certain instructions to the jury; (4) defendant was denied effective assistance of counsel; and (5) the conviction and sentence for attempt murder must be vacated.
On November 8, 1978, Robert Lustro was shot in the left arm as he was leaving his job at Oakland School, located at 740 E. 40th Street, Chicago. Lustro testified that he was employed there by the Chicago Board of Education (CBE) as an engineer custodian, a supervisory position.
Defendant was employed at that time by CBE as a custodial worker at Oakland School. Lustro was required to rate the performance of his workers, including defendant. Lustro's rating of defendant for October 1978 was low. On October 30, 1978, defendant came to see Lustro about the rating. Lustro related that defendant told him that "he would like to take [Lustro] outside." Lustro declined and told defendant to leave his office.
The witness further stated that on November 1, 1978, defendant's union representative and defendant called upon him to discuss the rating. During the discussion, defendant, with a putty knife in his hand, got close to the witness; however, the union representative intervened.
On November 8, at about 3:30 p.m., Lustro was leaving the school after work, in the company of John Czerechowicz. His car was parked across the street from the school's main entrance. After he approached his car, Lustro felt a sharp pain in his left elbow and heard a "dull crack." He looked about and saw smoke in front of the school building in the vicinity of room 108. He also smelled something like gunpowder. Lustro then realized he had been shot. Czerechowicz, meanwhile, dove into his car and soon thereafter drove away. Lustro did not see anyone in the school windows. He drove to a hospital and reported the incident to the police. To Lustro's knowledge, defendant and James Robinson were the only two people in the school building at the time of the shooting. Lustro admitted that the main door of the building was not locked or otherwise secured before 7:30 p.m. daily.
John Czerechowicz testified that he was employed by CBE as an electric repairman. On November 8, he went to Oakland School to work on the alarm system. He knocked on the main door of the school and soon thereafter was allowed in. He met with Lustro and later accompanied the latter outside of the building. The witness was going to get a tool from his car. As he was opening his door, the witness heard a "sharp crack" and then a "thud" behind him in the vicinity of Lustro's car. He smelled gunpowder. He dove into his car, and then looked around. Czerechowicz did not see anyone besides Lustro. When he saw that Lustro appeared to be all right, he drove away.
The witness related that he had been familiar with guns for 30 years and often fired them at a police range. He believed that the weapon fired on that date was a small caliber gun.
Michael Stimage testified that he was a high school student who worked for defendant at the Oakland School. On November 8, he went to the first floor of the school and began cleaning. He went to room 108 with defendant. The latter told Stimage to go to room 104. Stimage emptied the trash cans in 108, then did as directed. While in 104, Stimage heard a "pop sound" like a firecracker. He looked into the hallway, but saw nothing. Room 108 was directly across the hall from 104. Stimage was unaware of anyone else being on the first floor at that time besides himself and defendant. He did not see defendant carry a gun or use a gun on that day.
James Robinson related that he was a janitor at Oakland School. He was unsure of who was in the school building at the time in question. He was working on the second floor and did not hear anything unusual.
Joseph Murphy, a Chicago police officer, testified he was assigned to investigate a shooting at the Oakland School on November 8, 1978. He interviewed Lustro at the hospital. He noticed that the gunshot wound appeared to follow a downward course in Lustro's left arm. Murphy then drove to the school at about 6:30 p.m. Robinson let him into the building. Murphy went to room 108. There he saw a broken window with a piece of plexiglass in front of the hole. Murphy removed the plexiglass and lined up a hypothetical gunshot from the hole. It ran a direct line to where the victim told Murphy that he was standing when shot.
On November 13, Murphy returned to the school accompanied by Lustro and Czerechowicz. He asked them to re-enact the events of November 8. The officer concluded that the shooting had occurred from room 108. Murphy related that the hole in the window was not new. He also admitted that the area around the school was a high crime district.
Defendant testified he was employed by CBE. In 1978, he was assigned to Oakland School. On November 1, defendant had a meeting with his union supervisor and Lustro concerning a transfer to another school. He did not threaten Lustro at any time. He had no further discussions on ...