APPEAL from the Circuit Court of Grundy County; the Hon.
WILLIAM T. CAISLEY, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 28, 1981.
Defendant Charles Mitchell was indicted for attempt (murder), three counts of aggravated battery, five counts of armed violence, and attempt (escape). After his motion to discharge jury panel and for change of place of trial was granted and his motion to suppress evidence was first granted and then denied, this cause proceeded to a jury trial in the circuit court of Grundy County. Defendant was found guilty of attempt (murder), two counts of aggravated battery, four counts of armed violence, and attempt (escape); and judgments of conviction, with concurrent sentences of 45 years in the Department of Corrections, were imposed for the offenses of attempt (murder) and armed violence.
The incident from which this prosecution arose was the stabbing of Officer John E. Rich of the Pontiac Correctional Center (hereinafter the Center). On January 21, 1980, he and Officer George Smith were assigned to transport two inmates, defendant and Michael Hayden, from the Center to the Livingston County Courthouse for a court appearance. Officer Rich drove and Officer Smith rode on the front passenger seat, while the inmates sat in the rear, with defendant on the left. When they arrived and diagonally parked in front of the courthouse, both officers got out of the car. Officer Smith opened the right rear door and proceeded to unshackle Hayden's legs. Officer Rich opened the left rear door, but defendant had begun sliding over to the right door, so he closed and locked it. He then proceeded around the rear of the car. Officer Smith had instructed Hayden to step out of the car and on to the curb and proceeded to unshackle one of defendant's legs.
As Officer Rich rounded the rear of the car, Hayden jumped Officer Smith from behind and struck him in the back. When Officer Smith stood and spun to face him, Hayden lunged for his gun and the officer told his partner to grab defendant. Officer Rich ran to defendant, who struck him lightly in the chin and then repeatedly in the back. Officer Smith subdued Hayden with the help of a pedestrian, John Bohn, and asked another, Keith Meints, to call the police. Officer Rich subdued defendant with the help of a third pedestrian, Gayle Bohm. Center Officer Chester Brees arrived shortly thereafter.
Officer Rich received three stab wounds and was transported to a hospital where he remained for four days, the first 32 hours in intensive care. The officer's wounds, approximately one-half centimeter in length, were on his neck and back and caused his lung to be punctured. Officer Smith was also stabbed.
Neither officer saw any weapon in the hands of either inmate, and both had been searched before leaving the Center. Hayden had been allowed to go to the washroom afterwards, and neither inmate had removed his shoes during the search.
Each of the individuals who assisted the officers testified at trial. John Bohm saw no weapon during the incident but observed a "knife" between defendant's legs near the right rear tire of the car. He picked it up and tossed it to the side of the road. Gayle Bohm saw defendant drop a "black shiny thing" to the ground and later saw it on the ground between his feet. In an earlier written statement, she had never mentioned seeing the weapon in defendant's hand. Meints thought he had seen a "shining object" in Hayden's hand but admitted it could have been a handcuff and was impeached by his prior convictions. Brees observed and picked up a weapon that was lying near the curb.
Defendant testified that he had not tried to escape nor intended to hurt nor cause bodily harm to Officer Rich. He stated he had gotten out of the passenger's side of the car because Officer Rich had told Officer Smith that he did not have the keys for defendant's handcuffs, and that Hayden's attack on Officer Smith was a surprise to him. After Officer Smith yelled at Officer Rich, defendant recalled the latter officer coming around the car and hitting him. He went on to explain they then grabbed one another and were spinning around when Officer Smith and Hayden slammed into them, pushing them up against the car. Specifically denying that he stabbed Officer Rich, defendant's theory was that the wounds were inflicted by Hayden with the discovered weapons which he had obtained during his post-search washroom visit.
Additional facts will be set forth in our discussion of the issues to which they are germane.
• 1 As several of the issues and subissues presented by defendant relate exclusively to either his attempt (murder) or armed violence conviction, we first consider whether one of these convictions must be vacated as the result of both arising from the same physical act. The standard to be applied in making this determination was set forth in People v. King (1977), 66 Ill.2d 551, 566, 363 N.E.2d 838, 844-45, cert. denied (1977), 434 U.S. 894, 54 L.Ed.2d 181, 98 S.Ct. 273:
"Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant had committed several acts, despite the interrelationship of those acts. `Act', when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered."
Defendant was convicted of attempt (murder) and of armed violence by committing the offense of attempt (escape) while armed with a category I dangerous weapon. Defendant's attempt (murder) conviction arose from the substantial step of stabbing Officer Rich with the intent to kill him. The attempt (escape) upon which defendant's armed violence conviction was based arose from the identical substantial step of stabbing. As both convictions were therefore based on the same physical act, one must be vacated. As we do not find the administration of each wound to be a separate act (but cf. People v. Mays (1980), 81 Ill. App.3d 1090, 401 N.E.2d 1159 (multiple gunshot wounds)), we honor the State's request to vacate defendant's conviction for armed violence.
Turning to the six issues relating to defendant's attempt (murder) conviction, we first consider his contention that an aggravated battery conviction should be entered in its stead as the evidence was ...