APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. SAMUELS, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendant Ronald K. Gibson was convicted of aggravated battery, attempt murder and armed violence. The trial court merged the charges of attempt murder and aggravated battery into the armed violence charge and entered judgment on the armed violence verdict. Defendant was sentenced to eight years imprisonment. Defendant appeals, contending that (1) the jury should not have been allowed to consider the offense of armed violence because (a) only the more specific offenses of aggravated battery and attempt murder should have been submitted to the jury, and (b) the armed violence charge involved the same factual elements as the charges of aggravated battery and attempt murder; (2) the court erred in denying defendant's motion for mistrial because (a) the trial court permitted the prosecutor to misstate evidence during summation, (b) the trial court permitted the prosecutor to state in the presence of the jury his personal belief regarding the evidence, and (c) the trial court refused to allow defendant to rebut the prosecutor's statement that defendant's testimony was a recent fabrication; (3) the trial court erred (a) in refusing defendant's tendered instructions regarding the issue of self-defense in the attempt murder charge and (b) in directing the jury to find defendant was armed with a dangerous weapon; and (4) the court erred in instructing defendant not to testify concerning statements he had made after his arrest.
Both defendant and Earl "Shorty" Greer, the victim, were employed at the Ford Motor Company Stamping Plant in Chicago Heights, Illinois. On October 21, 1978, Greer was shot by defendant while they were in the shop area of the plant. Greer was taken to St. James Hospital. He suffered a gunshot wound to the chest, but the bullet could not be removed. At the time of the trial, Greer was in Mt. Sinai Hospital and was comatose.
Greer and defendant apparently engaged in a "heated" discussion or argument prior to the shooting regarding some welding. It was defendant's position that he acted in self-defense. Defendant testified that Greer reached over to a work table for a piece of iron or tubing before defendant shot him. However, a defense witness, Edward Lippold, another employee at Ford Motor Company, testified that Greer had nothing in his hands at the time of the shooting or 15 minutes before the shooting. The State's rebuttal witness, Audrey Martin, another employee at Ford Motor Company, also testified that Greer had nothing in his hands at the moment of the shooting.
Prior to the shooting, defendant had been drinking. He could not completely recall the events leading to the shooting, those people with whom he had been drinking or with whom he associated after he arrived at Ford Motor Company but before he shot Greer. Another State's witness, Edgar Jacks, saw defendant at the plant just prior to the shooting. Defendant showed Jacks a loaded handgun. Defendant also showed the gun to another employee, Danny McCord.
Defendant's first contention is that the court erred in allowing the jury to consider the offense of armed violence because (a) only the more specific offenses of attempt murder and aggravated battery should have been before the jury and (b) the armed violence charge involved the same factual elements as the remaining charges of attempt murder and aggravated battery.
Defendant was charged with one count of armed violence based on the underlying felony of attempt murder and one count of armed violence based on the underlying felony of "aggravated battery, by shooting Earl Greer with a gun." The jury returned a verdict of guilty of armed violence without indicating which felony constituted the underlying felony. The jury also found defendant guilty of attempt murder and aggravated battery. As stated, the trial court merged the charges of attempt murder and aggravated battery into the armed violence charge and entered judgment and sentenced defendant only on the armed violence verdict.
• 1 In People v. Haron (1981), 85 Ill.2d 261, 422 N.E.2d 627, our supreme court found that the armed violence statute could not be applied to a charge of aggravated battery where the battery was enhanced because of the use of a deadly weapon. Therefore, defendant's conviction here for armed violence if based only on the underlying felony of aggravated battery could not stand. However, defendant was also charged with armed violence based upon the underlying offense of attempt murder and a general finding of guilty is presumed to be based upon any good count in the indictment to which the proof is applicable. (People v. Savage (1955), 5 Ill.2d 296, 125 N.E.2d 449; People v. Randolph (1954), 2 Ill.2d 87, 116 N.E.2d 876; People v. Mimms (1976), 40 Ill. App.3d 942, 353 N.E.2d 186.) Thus, the armed violence verdict could properly be based on the underlying felony of attempt murder.
• 2 We reject defendant's argument that only the more specific offense of attempt murder and aggravated battery should have been considered by the jury. Because there was evidence presented at trial to support a conviction for armed violence based on attempt murder, the jury was properly instructed to consider that offense. See People v. Roberts (1979), 75 Ill.2d 1, 387 N.E.2d 331.
• 3 We also reject defendant's argument that, because the armed violence charge involved the same factual elements as the remaining charges of attempt murder and aggravated battery, the jury should not have been allowed to consider the armed violence charge. We find no error was committed in allowing the jury to consider the armed violence charge, because there was evidence presented at trial to support a conviction for armed violence.
• 4 Multiple convictions and sentences based on the same physical act are improper and where more than one charge arises from the same physical act, only the conviction for the more serious offense may stand. (People v. King (1977), 66 Ill.2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L.Ed.2d 181, 98 S.Ct. 273; cf. People v. Feierabend (1981), 98 Ill. App.3d 731, 424 N.E.2d 765; People v. Lynom (1981), 97 Ill. App.3d 1113, 423 N.E.2d 1281; People v. Best (1981), 97 Ill. App.3d 1083, 424 N.E.2d 29 (all holding that convictions for both armed violence and for the underlying felony may stand where the offense upon which the armed violence is predicated is a felony by statutory definition when committed without possession or use of a dangerous weapon and defendant acts while armed with such a weapon).) However, here no problem of multiple convictions and sentences exists because the trial judge found that aggravated battery and attempt murder merged into armed violence based on attempt murder and entered judgment and sentenced defendant only for armed violence. Because defendant was armed with a handgun, which is a Category I weapon, armed violence here is a Class X felony. Attempt murder is also a Class X felony. Because both attempt murder and armed violence here are Class X felonies, we find no error in sentencing for the armed violence conviction.
Defendant argues that the trial court erred in denying defendant's motion for mistrial because (1) the trial court permitted the prosecutor to misstate the evidence during summation; (2) the trial court also permitted him to state his personal belief in the jury's presence regarding the evidence; and (3) the trial court improperly refused to allow defendant to rebut the prosecutor's statement that defendant's testimony was a recent fabrication.
Defendant first asserts that the first instance where the prosecutor misstated the evidence was his comment that "Lippold who testified on the defendant's behalf told you that they were six feet away at least" at the time of the incident. Defendant's counsel objected because Lippold did not testify as to the relative positions of Greer and Gibson at the time of the incident and the prosecutor had misstated the evidence. The State notes, however, that the prosecutor corrected the misstatement at trial.
• 5 We find that defendant was not prejudiced for the reason that the prosecutor made a timely correction of his misstatement. (See People v. Dorsey (1968), 98 Ill. App.2d 259, 240 N.E.2d 391.) Furthermore, the remark complained of was not serious enough to constitute a material factor in defendant's conviction. People v. Jackson (1981), 84 Ill.2d 350, 418 N.E.2d 739; People v. Clark (1972), 52 Ill.2d 374, 288 N.E.2d 363; ...