APPEAL from the Circuit Court of Du Page County; the Hon. CARL
HENNINGER, Judge, presiding.
MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
In an indictment filed in the Circuit Court of Du Page County on November 29, 1979, the defendant, Louis Owens (along with two co-defendants) was charged with attempted murder, two counts of aggravated kidnapping, two counts of aggravated battery and three counts of armed violence in violation of the Criminal Code. (Ill. Rev. Stat. 1979, ch. 38, pars. 8-4, 10-2(a)(3), 10-2(a)(5), 12-4(c), 12-4(b)(1), 33A-2.) In pretrial orders the court ruled that the State could not proceed on the aggravated kidnapping counts since the actions charged in those counts occurred in Cook, not Du Page, County. Prior to trial, the State moved to proceed on only two of the three counts of armed violence. Following a jury trial, held on June 16-19, 1980, the defendant was convicted of aggravated battery, attempted murder, and armed violence. Subsequently, the defendant was sentenced, on the armed violence conviction, to 60 years imprisonment. He appeals.
Defendant was indicted in Du Page County for offenses which occurred on October 22, 1979. He had been indicted on November 5, 1979, in Cook County for crimes arising out of the same events. This indictment is not part of the record on appeal, but the defendant argues that the Cook County charges were for the offenses of armed violence, armed robbery, aggravated kidnapping, and aggravated battery.
Defendant made a motion to sever the prosecution of his case from that of his co-defendants. This motion was granted. Defendant also made various pretrial motions: a motion to consolidate and transfer all matters to Cook County; a motion to suppress identification; and motions to suppress statements and evidence. These last two motions were denied.
At an April 21, 1980, hearing on all motions, the trial court ruled on the motion to consolidate and transfer. A written order was entered which stated that the State could proceed on count 1 only (attempted murder). But on June 16, 1980, the trial court clarified its order and stated that it intended that prosecution of only those events which occurred in Cook County would be barred. The State was allowed to proceed on all matters except the aggravated kidnapping counts and the armed violence count predicated thereon.
The trial court denied defendant's motion to suppress identification, finding that the motion was so vague and indefinite that no hearing was required. That motion stated that the victim, Filiberto Sanchez, after being shown eight photographs of which two depicted defendant, Louis Owens, and of which another two depicted co-defendant, Bert Owens, immediately identified the co-defendant. But the victim was unsure about his identification of defendant, Louis Owens, and requested the opportunity to view him in a lineup. The motion stated that it was unknown whether a subsequent lineup was conducted, and further stated that the eight photographs "may or may not have caused [the victim] to single out Louis Owens." The motion stated that this was alleged upon information and belief because the photographs had not been examined by the defense.
Prior to trial, the court ruled that the State could not show that defendant was charged with other offenses in Cook County which arose from the same transaction. The court further ruled that, while the State could show that defendant was arrested in South Dakota, it could not show that defendant was arrested for the theft of an automobile from a South Dakota woman. It was also the order of the court that no evidence of armed robbery be introduced, save the robbery of the victim's car keys.
At the trial of the cause, the victim, Filiberto Sanchez, testified that after he left a friend's home, he was involved in an auto accident with defendant and some others late on October 21, 1979. He decided to accompany the men to Cicero, Illinois, where they drank beer in a tavern. The victim stepped outside the tavern into an alley with a young lady with whom he had been dancing. In the alley, one of the men pulled a gun on him; another man took his car keys. Mr. Sanchez was ordered into the back seat of his own auto and was partially blindfolded. The car was driven for 30 to 40 minutes. Then the auto stopped and the victim got out into a field. He testified that someone other than defendant held the gun on him. Mr. Sanchez was then ordered to disrobe and was struck twice in the head with the gun. He awoke in the field naked and bleeding from the stomach and head. Walking toward some lights, which were part of the steeple on a church, he jumped a fence with some difficulty and then spotted a police car and was rescued. On cross-examination, he stated that he may have walked one-half hour before reaching the fence.
Officer Anthony Coniglio of the Oakbrook Police Department testified that he found defendant at 5 a.m. on October 22, 1979, near 31st Street and York Road, which he stated was in Du Page County.
Testimony of various other witnesses related that a knife was recovered from a co-defendant. Mr. Sanchez's car was found parked in a corn field in Onawa, Iowa. It had been repainted black at a Chicago, Illinois, residential garage at which the defendant had been present. Two South Dakota police officers testified that they arrested defendant in that State in October 1979. An Assistant State's Attorney from Cook County, Gerald O'Keefe, testified to a statement made by defendant to him which implicated the defendant in this case.
No defense was presented. The jury returned guilty verdicts on all counts. Judgment was entered on the verdicts. Defendant moved for a new trial but this motion was denied on July 11, 1980. The trial court found that defendant's conduct was brutal and heinous and sentenced the defendant on the armed violence conviction to 60 years in the penitentiary. The convictions for attempted murder and aggravated battery were vacated as lesser included offenses. Defendant appeals.
Defendant first argues that the trial court erred in denying his pretrial motion to consolidate the Du Page County offenses with those charged in Cook County and to transfer venue to Cook County. The trial court allowed the State to proceed on counts 4, 5, 6, and 8. Counts 4 and 5 charged the offenses of aggravated battery, and counts 6 and 8 alleged armed violence based upon aggravated battery and attempted murder respectively. Defendant argues that because Cook County had previously indicted defendant for all charges for which defendant had been indicted in Du Page County, except attempted murder, Du Page County was precluded from prosecuting the counts based upon aggravated battery and armed violence. (It will be recalled that the trial court had previously ruled the State could not proceed on those counts of the indictment charging aggravated kidnapping.)
Defendant's argument is based upon People v. Dillingham (1969), 111 Ill. App.2d 161, 249 N.E.2d 294, in which this court reversed a conviction for driving while license suspended in Du Page County where the defendant had been previously convicted of the same charge in Kane County. The Dillingham court found that the crime charged was one continuing offense which was committed partly in one county and partly in another and stated: "the trial should have been only in the county first acquiring jurisdiction." (111 Ill. App.2d 161, 166, 249 N.E.2d 294, 297.) Apparently defendant would have us hold that the offenses upon which counts 4, 5, 6, and 8 were based were continuing offenses like that in Dillingham and thus should have been tried in Cook County since it had previously indicted the defendant.
This argument assumes, first, that the offenses at issue were continuing offenses and, second, that the Dillingham court contemplated that "jurisdiction" could be acquired by a county merely by the bringing of an indictment. Both assumptions are unfounded. The charges which were the subject of the motion to consolidate occurred wholly in the field in Du Page County in which the victim was beaten and stabbed. The facts of Dillingham, in which it was held that the ...