APPEAL from the Circuit Court of Will County; the Hon. CHARLES
P. CONNOR, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Defendant, Terry Renslow, appeals from his conviction of one count of attempt (murder) and two counts of aggravated battery following a jury trial in the circuit court of Will County.
On December 9, 1977, Donald Nickel was at home when his door bell rang. Nickel went to the door, observed through a side window that there was a man outside, and opened the door. As he opened the door, he saw a second man a few feet away. The man at the door asked if he was Don Nickel, he said he was, and the man stabbed him in the stomach. Nickel staggered back, turned, and the man stabbed him in the back. Nickel shouted "Oh, my God, Tut," and the men fled. Nickel was then taken to the hospital. While Nickel was in the hospital two police officers visited him and showed him five photographs. He looked at the photographs for about one minute and identified the picture of Terry Renslow as that of his assailant.
Prior to his first trial, defendant made a motion requesting that Nickel be hypnotized for the purpose of discovering whether Nickel's identification of the defendant was accurate. This motion was denied. The first trial ended in a mistrial. Subsequently, the State was granted leave to file an additional information charging defendant with two counts of aggravated battery.
Prior to the second trial the State and the defendant entered into a plea agreement which was submitted to the trial judge for his approval on December 26, 1979. However, since the agreement failed to provide for a sentence of imprisonment, the trial judge refused to accept the agreement. An immediate oral motion for substitution of judge was then denied.
On March 10, 1980, the day set for the commencement of the retrial, the defendant again moved to have Nickel hypnotized, which motion was denied. The defendant then filed a written motion for substitution of judge, but this motion was also denied. The trial was conducted, and the jury tendered verdicts of guilty on each count. The trial judge vacated the aggravated battery findings and sentenced the defendant on the attempt (murder) charge only.
On appeal, the defendant raises five issues: (1) whether the defendant was subjected to double jeopardy by the charging of two additional counts of aggravated battery after the first trial had ended in a mistrial; (2) whether the trial court erred in denying defendant's motion for substitution of judge; (3) whether the trial court erred in denying the defendant's motion to have Nickel hypnotized; (4) whether the trial court erred in restricting cross-examination of Nickel; and (5) whether the prosecutor's closing argument was so inflammatory and prejudicial that it denied the defendant a fair trial. We affirm.
We first address the issue of whether or not the defendant was subjected to double jeopardy by the charging of the two additional counts of aggravated battery. Defendant contends that because he was only charged with attempt (murder) at his first trial, the State cannot charge him with two additional crimes after the first trial ends in a mistrial. Defendant argues that all the possible charges must be brought against him prior to the first trial because to bring new charges after one trial has already been held would subject the defendant to double jeopardy.
• 1, 2 We believe that in the case at bar, the defendant was not subjected to double jeopardy. In addition to attempt (murder), the defendant was charged with two counts of aggravated battery. It is well established that aggravated battery is a lesser included offense of attempt (murder) when both offenses arise from a single incident. (People v. Brock (1978), 64 Ill. App.3d 64, 380 N.E.2d 1102.) At the defendant's first trial, it would have been perfectly proper for the trial judge to instruct the jury on aggravated battery as a lesser-included offense of attempt (murder) even though the defendant was not formally charged with aggravated battery. At the defendant's second trial, the trial judge could again have properly instructed the jury on aggravated battery as a lesser-included offense, and the jury could have found him guilty of aggravated battery even if the defendant had not been formally charged. Therefore, we see no prejudice resulting to the defendant from the fact that he was additionally charged with two counts of aggravated battery prior to the second trial.
Such a holding is consistent with existent case law. In People v. Miller (1966), 35 Ill.2d 62, 219 N.E.2d 475, the court dealt with a situation virtually identical to the case at bar. In Miller, the defendants were indicted for rape. Following a mistrial, the rape indictment was dropped upon the State's motion and the grand jury returned a new indictment for rape of the same person and taking indecent liberties and contributing to the sexual delinquency of the person, who was a minor. The supreme court, in addressing the issue of whether the additional counts should have been dismissed, held that there was nothing in the Illinois statutes which prevented the State from charging the defendants with the additional offenses, even though they were based on the same act and were known to the prosecution at the time the first indictment was brought. In view of the court's holding in Miller, we find no error in adding the two charges of aggravated battery prior to the second trial.
Defendant's second issue is whether the trial court erred in denying the defendant's motion for substitution of judge. After the defendant's first trial ended in a mistrial, the State and the defendant entered into a plea agreement which was submitted to the trial judge for his approval on December 26, 1979. However, because the agreement failed to provide for a sentence of imprisonment, the trial court refused to concur in the agreement. An immediate oral motion for a substitution of judge was then denied. On March 11, 1980, just prior to the beginning of the second trial, the defendant filed a written motion for substitution of judge. The judge heard arguments by counsel and denied the motion.
Section 114-5(c) of the Criminal Code reads in pertinent part:
"[A]ny defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion a hearing shall be conducted as soon as possible after its filing by a judge not named in the motion." (Ill. Rev. Stat. 1979, ch. 38, par. 114-5(c).)
Defendant claims that because the hearing on the motion in the case at bar was heard by the trial judge and not another judge, the provisions of section 114-5(c) were ...